Volume 63 — Missouri Appeal Reports

<p>1. Practice, Trial: petition in nature of writ of error coram</p> <p>NOBIS: DISPROOF OF RECITAL OF NONRESIDENCE IN ORDER OF PUBLICATION. A petition or motion in the nature of a writ of error coram nolis lies to set aside a judgment rendered against the petitioner in consequence of an error of fact not apparent on the record. Accordingly, such proceeding is proper, when a resident defendant in a tax suit is brought into court by publication on the erroneous assumption that he is a nonresident of the state.</p> <p>2. -: constructive service by publication. Constructive service, when substituted for personal service, must be obtained in strict accordance with the statute providing for it.</p> <p>3. -: —;—. Accordingly, an order of publication is unauthorized and does not confer jurisdiction to render judgment, when it is made on the theory that the defendant to whom it is directed is a nonresident of the state, but the fact of such nonresidence does not appear from the record, either by allegation in the petition, by affidavit or otherwise.</p> <p>4. -: -. And, for like reason, an order of publication is invalid, if it is based on the theory that such defendant can not be found, but the record does not contain essential recitals.</p>

<p>Appeal from the Shelby Circuit Court. — Hon. Andrew Ellison, Judge.</p>

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

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

ay Circuit Court. — Hon. John A. Hockaday, Judge. (1) • The circuit court should not have admitted any testimony, for the reason: First, the description of the land in the petition and lien paper is not sufficient; there should be “a true description of the property, or so near as to identify the same;” second, nor is the account sufficiently set out; it is not,“a just and true account” “after all credits had been given.” There are no dates stated by which it can be…

— Hon. Argus Cox, Judge. (1) The circuit court of Camden county never had ■any jurisdiction of this case, because no appeal was •ever taken from judgment of justice in favor of defendant Anderson. The transcript shows that no affidavit was filed, hence the justice was not required to grant •an appeal. The transcript does not show that any recognizance was ever filed, hence the justice was not required to grant an appeal.

— Hon, W. M. Robinson, Judge. (1) The first instruction given for the plaintiff is erroneous, as misleading the jury, no evidence of absolute ownership having been offered and no definition being 'given by the • court as to what ownership will support an action of replevin. (2) The court erred in refusing to submit the question of fraud to the jury,' as requested by the instruction asked by the defendants and refused by the court.

— Hon. W. M. Robinson, Judge. (1) Personal property is subject to execution on a judgment for the purchase price, except in the hands of an innocent purchaser for value, without notice of the claim for the purchase price. 1 R. S., sec. 4919; Rhodes v. Parker, 79 Mo. 88; State to use v. Mason, 96 Mo. 128; Boyd v. Ward, F., S. db C. Co., 38 Mo. App. 211; Woolfolk v. Kemper, 31 Mo. App. 423; Milling Co. v. Turner, 23 Mo.

— Hon. D. P. Stratton, Judge. (1). When there is any evidence at all to sustain an issue, a demurrer to the evidence should not be given, and all inferences that can reasonably be drawn from all the evidence will be in favor of the party standing on the evidence against which the demurrer is directed. Wilson v. Board of Education, 63 Mo. 137; Brink v. Bailroad, 17 Mo. App. 177; Fisher v.. Bailroad, 23 Mo. App. 201; Baum v. Fry sear, 85 Mo. 151; Sage v. ■ Beeves, 17. Mo.

— Hon. James H. Lay, Judge. (1) - A mortgage is a conveyance of land as security. — or is an estate in land defeasible by the performance of a condition subsequent. Jones on Mortgages, sees. 1662,1769; Washburn on Real Property, chap. 16, sec. 1; 15 Am. and Eng. Encyclopedia of Law, p. 727, and notes. (2) Statutes relating in terms to mortgages embrace deeds of trust. Jones on Mortgages, 1769.

— Hon. J. H. Sloveb, Judge. (1) There was nothing said in any of the correspondence between the parties, before the shipment of the cabbage, about the sale being upon credit, hence, it was a cash sale, and the purchaser was not entitled to delivery without making payment. 5 Wait’s Actions and Defenses, p. 581; Daws v. Bank, 91 U. S. 618; Btollenwerck v. Thatcher, 115 Mass. 224.

— Hon. C. L. Dobson, Judge. (1) The delivery of personal property under sale to be valid, as against creditors, must be an actual delivery and substantial change of possession, and ■ change must be continuous, and the public be advised of such change. Hannon v. Morris, 28 Mo. App. 326; State ex rel. ,v. Durant, 53 Mo.

— Hon. E. L. Scaeeitt, Judge. (1) In actions of this character, where the execution of the special contract is admitted, the defendant is no longer liable as a common carrier, and, therefore, the burden is upon the plaintiffs to establish the negligence of the defendant, in order to recover for any injury received. Clark v. Railroad, 64 Mo. 440; McBeath v. Railroad, 20 Mo. App. 445; Railroad v. Sherwood, 132 Ind. 129.

— Hon. J. H. Slovee, Judge. (1) By a clerical misprision the minute entry of December 16, reads “February 1,” instead of “March 1.” The judge in the bill, over his own signature, states that the extension expired March 1. This is also exclusively shown to have been the date by the stipulation of counsel, over their own signatures, agreeing that the. bill might be filed on or before March 15.

— Hon. J. H. Slover, Judge. (1) When the contract issued by the insurance company and countersigned and delivered by the agent specifies that the agent is restricted as to the subject-matter of the insurance or as to the manner of changing or extending the contract, or consenting to additional insurance, or other matters by which the risk may be greatly enlarged, and such restrictions or limitations are set out in the contract received and relied upon by the insured, he is…

— Hon. O. L. Dobson, Judge. (1) A prior existing consideration is as effective as subsequent one in cases of third parties holding from fraudulent credit vendee. Hess v, Clark, 11 Mo. App. 496; Grant v. Kidwell, 30 Mo. 455; Hoyt v. Oliver, 59 Mo. 188; Bratman v. Hollan, 38 Mo. 50; City v. Jones, 27 Mo. App. 534; Twokey v. Bruin, 96 Mo. 104; Clark v. JDiffendeiff, 31 Mo. App. 232; Taylor v. Smith, 47 Mo. App. 141; Oester v. Sitlington, 115 Mo. 247.

— Hon. E. L. Soarritt, Judge. (1) The petition is not good for the reason it fails to allege that the deceased was the servant of plaintiff, that by his death she would lose his services, or that she was damaged by such loss. Matthews v. Railroad, 26 Mo. App. 75; Dunn v. Railroad, 21 Mo. App. 188; Buck v. Railroad, 46 Mo. App. 555.

<p>Appeal from the St. Louis County Circuit Court. — Hon. ■ Eudolph Hibzel, Judge.</p> <p>(1) The court erred in refusing defendant’s instruction that plaintiff could not recover. Smillee v. St. Bernard Dollar Store, 47 Mo. App. 402; Porter v. Brewery Ass’n, 24 Mo. App. 1; .Matthiason v. Mayer, 90 Mo. 385; Christy v. Hughes, 24 Mo. App. 275; Clark v. Fairley, 24 Mo. App. 429; Caperton v. Caperton, 15 S. W. Eep. 149; Deutmann v. Kilpatrick, 46 Mo. App. 624. (2) The court erred upon the question of the necessity of Shanley’s knowing the contents of the release in the first instruction, given at plaintiff’s request, in refusing defendant’s third instruction, and in the first instruction given by the court of its own motion. 5 Am. and Eng. Encyclopedia of Law, p. 443; Gwinv. Waggoner, 98 Mo. 315; Snyder v. Adams Express Go., 63 Mo. 376; Brown v. Railroad, 18 Mo. App. 568; Railroad v. Cleary, 77 Mo. 634; Rothschild v. Frensdorjf, 21 Mo. App. 318; Taylor v. Fox, 16 Mo. App. 521; Mateer v. Railroad, 105 Mo. 320; 3 Washburn on Real Property, p. 271; Bishop on Contracts [Ed. 1878], sees. 160 and 168; Chapman v. Rose, 56 N. Y. 157; Bishop on Contracts'. [Ed. 1887], sec. 346; School Committee v. Kessler, 67 N. C. 443; Wallace v. Railroad, 67 Iowa, 547; Galliher v. Railroad, 59 Iowa, 416; Barker v. Railroad, 65 Fed. Rep. 460; Campbell v. Van Houten, 44 Mo. App. 231. (3) There was no proper rescission of release, even if it was fraudulent. Jarrett v. Morton, 44 Mo. 275; Hart v. Handlin, 43 Mo. 171; Estes v. Reynolds, 75 Mo. 563; Kerr on Fraud and Mistake, 366, et seg.; Henderson v. Underwriting Ass’n, 65 Law T. 732; Johnson v. Granite Co., 53 Fed. Rep. 569; Jenkins v. Coal Co., 82 Iowa, 618; 1 Wharton on Contracts [Ed. 1882], sec. 285. Hartv. Gould, 62 Mich. 262; Fistv. Fist, 32 Col. App. 719; Albert v. Besel, 88 Mo. 150; Henderson v. Railroad, 53 Mo. 525; Lee v. Dunlap, 55 Mo. 454; Cape Girardeau Co. v. Harbison, 58 Mo. 90; Mastin v. Grimes, 88 Mo. 478; Blair v. Railroad, 89 Mo. 383; Alexander v. Railroad, 54 Mo. App. 66.</p> <p>(1) It being the duty of the master to furnish a safe and secure place for his servant to work, the mere falling of the building, in which he is engaged at his work, from inherent weakness or from the action of ordinary storms raises a fair presumption of its insufficiency and unfitness for use, and makes a prima facie case of negligence on the part of the master. Bes ipsa loquitur. Turner v. Haar, 114 Mo. 346; Scott v. London, etc., Bocks Go., 3 Hurl. & Colt. 596; Kearney v. Railroad, L. R. 5 Q. B. 411; Mullen v. St. John, 57 N. Y. 567; Lyon v. Rosenthal, 11 Hun, 46; Smith v. Boston Gas Co., 129 Mass. 318; Clare v. National Bank, 1 Sweeney, 539; Bixon v. Pluns, 98 Cal. 384; Howser v. Railroad, 30 Atl. Rep. 906. (2) “Expert testimony is at most advisory, and its weight is to be determined by the experience and knowledge, however acquired, which the triers of the fact have of the subject-matter under consideration.” Telegraph Co. v. Guernsey, etc., Co., 46 Mo. App. 142; St. Louis v. Ranken, 95 Mo. 189; Thompson v. Ish, 99 Mo. 160; Hampton v. Massey, 53 Mo. 501. (3) The fact that an illiterate plaintiff is induced to sign a release of damage without the same being read or explained to' him, is a badge of fraud, and is properly submitted to the jury upon an issue that the release is fraudulent. Bennet v. Vade, 2 Atk. 326; Jackson v. Hayner, 12 Johns. 469; Suffern v. Butler, 18 N. J. Eq. 220; Schultz v. Railroad, 44 Wis. 638; Railroad v. Welch, 52 111. 187; Railroad v. Boyle, 18 Kans. 58; Sobieski v. Railroad, 41 Minn. 169; Vautrain v. Railroad, 8 Mo. App. §43; affirmed, 78 Mo. 45. (4) Where a release of damages has been obtained by fraudulent devices, it is not essential to plaintiff’s right of action that he should evidence a rescission of the release by tendering back the amount received thereunder, particularly if it is reasonably certain that such tender would be refused. Girard v. St. Louis Car Wheel Co., 27 S. W. Rep. 648; Beichman v. Beichman, 49 Mo. 107; West Lake v. St. Louis, 77 Mo. 47; Bigelow on Frauds, p. 424.</p>

<p>1. Instructions: exceeding effect of evidence. An instruction, which transcends the fair effect of the evidence on which it is based, is erroneous.</p> <p>2. Witnesses, Examination of: question involving conclusion. It is not proper to ask a witness whether facts are of such a character as to create a stated presumption. Accordingly, a question, whether a custom is so general and uniform and of such a character, as to create a presumption of the knowledge of it, is properly excluded.</p>

<p>Sales: warranty: effect of provision for return. A right of action exists for the breach of a warranty made in the sale of an animal, though the contract expressly provides that the purchaser may return the animal and receive another in its stead if it fails to satisfy the warranty after trial for a specified time; in such case, the right of return is a cumulative remedy.</p>

<p>1. Malicious Attachment; probable cause: eppeot op admission OP GROUNDS OP ATTACHMENT BY ATTACHMENT DEPENDANT. An action for malicious attachment can not be maintained on the dismissal of the action by attachment, when the attachment was sued out upon grounds the existence of which was previously admitted by the .attachment defendant to the attachment plaintiff; for such prior admissions constitute probable cause for the suing out of the attachment.</p> <p>2. -- : PROBABLE CAUSE AS TO ONE OP SEVERAL GROUNDS OP ATTACHMENT. When such attachment has been sued out on two grounds, probable cause as to either will defeat the action for malicious attachment.</p>

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

<p>Practice, Appellate: notice of writ op error: proof of service. The rule of this court, which provides that notice of a writ of error can be established only by the filing of the notice with the return, acceptance or waiver, of service indorsed thereon, will be strictly enforced; other proof of the service or waiver will not be entertained in eases of controversy.</p>

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

<p>1. Negligence: pleading. The statement of the cause of action for • damages resulting from the runaway of a horse may allege different forms of negligence on the part of the defendant as the cause of the runaway, so long as there is no inconsistency between these allegations; nor is the defendant entitled to have the plaintiff elect between consistent specifications of this character; and inconsistency in this connection means sueh repugnance, that the proof of one of the specifications necessarily disproves the other.</p> <p>2. -: runaway op horse: res ipsa loquitur. Negligence in the failure to properly fasten or hitch a horse on a public street may be inferred from the runaway of the horse, when the runaway would not ordinarily occur in the absence of sueh negligence; and this infer- • ence may be made, though there is express testimony that the horse had been hitched.</p> <p>3. Instructions: suppicienoy op evidence: submission op issue by party complaining. When there is slight evidence tending to establish an issue, a party who himself submits the issue to the jury by instruction is not entitled to eomplain on appeal of the insufficiency of the evidence to support an adverse verdict.</p>

<p>1. City .Council: liability of members for illegal measures: proof of-participation in wrong. The silence of a member of a eolleetive body, such as a eity council, when the announcement is made in his presence that a measure has been adopted by such body, does not establish his assent to the measure, or render him liable as a joint tort feasor for tortious acts performed in pursuance of it.</p> <p>2. Evidence: admissibility, when competent against one of several defendants. Evidence which is admissible for any purpose can not be excluded by the court; but a party, against whom it is not competent, is entitled to an instruction asked by him which properly limits its e^ieet. This rule is applied to evidence competent against one only of several defendants.</p>

Louis City Circuit Court. — Hon. James E. Withrow, Judge. An assignee for the benefit of creditors, under our statute, takes the assigned estate subject to all-equities existing at the time of the assignment. He is not a purchaser for value without notice. State ex rel. v. Bowse, 49 Mo. 593; Pete v. Spencer, 90 Mo. 384-388; Jacobi v. Jacobi, 101 Mo. 507; Green v. Conrad, 114 Mo. 664.

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

<p>Jurisdiction, Appellate: effect of order of transfer from supreme court to this court! 'The ‘rule, that an order of the supreme court transferring a cause to this court is equivalent to an adjudication that this court has jurisdiction of the appeal, is not applicable when it clearly appears from the opinion filed by the supreme court that the existence of an issue of which that court had exclusive appellate jurisdiction was overlooked.</p>

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

— Hon. W. W. Wood, Judge. (1) The deceased, Nelson Robeson, employed Dr. S. P. Cutler, a skilled and competent physician and surgeon of thirty years’ practice, and offered and arranged to furnish his wife, at home, all necessary medical attention, including the performance of the operation of laparotomy, necessary for her to undergo. .In order to bind the husband for necessaries furnished the wife after the party furnishing the same had notice that the husband would refuse…

— Hon. James H. Lax, Judge. (1) Replevin for property taken by an officer under execution against its owner can not be sustained by tbe owner, though the property is by law exempt from seizure under the writ. Property seized under execution is in the custody of the law. Hawk v. Lepple, 51 N. J. Law, 208; s. c., 14 Am. St. Reps. 677; Westerberger v. Wheat, 8 Kan. 169.

<p>Appeal from the Jackson Circuit Court. — Hon. Jas. Gtbson, Judge.</p>

— Hon. Ed. L. Scaebitt, Judge. (1) Change of possession in case of sale of personal property must take place within a reasonable time; what is a reasonable time is generally a question for the jury. Franklin v. Gummersell, 11 Mo. App. 306; State to use v. Bellman, 20 Mo. App. 304; Link v. Barrington, 41 Mo. App. 635; Bow v. Taylor, 52 Mo. 592.

— Hon. Henry M. Ramey, Judge. (1) The bills were issued before the contractor had completed or substantially completed the work required to be done under the terms of the contract and the bills are void. Kileyv. Canor, 51 Mo. 541; McGrath v. Clemens, 49 Mo. 552.- (2) The bills are void because the contractor has not substantially completed the work according to contract. Bank v. Payne, 31 Mo. App. 512; Brick Co. v. Hamilton, 51 Mo. App. 120.

<p>Appeal from the - Carroll Circuit Court. — Hon. W. W. Rucker, Judge.</p> <p>(1) Plaintiffs sought a recovery by distinctly charging the defendant with negligence, carelessness and want of due care. The petition did not aver merely a mistake; it charged negligence. It has been recently and decisively determined by this appellate court that the telegraph company can not excuse itself from negligence even by contract, and that it is liable for losses occasioned by its negligence. Smith v. Telegraph Co., 57 Mo. App. 264; Lumber Co. v. Telegraph Co., 58 Mo. App. 263. (2) Not only did plaintiffs’ petition charge negligence but it went further and plainly alleged gross negligence. This certainly declared a good cause of action against the telegraph company, according to all the decisions of this state. It declared a good cause of action, even when measured by that early case in which the doctrine of “protecting” telegraph companies was ■carried to its extreme limit. Wann v. Telegraph Go., 37 Mo. 472. (3) Plaintiffs were entitled tona trial on the question of the sixty-five cents paid for transmission of the message. (4) Defendant was not entitled to judgment upon the pleadings.</p> <p>(1) “Mere proof that the dispatch was not delivered to the addressee as delivered by the sender to •the sending office will not be evidence sufficient to • authorize a recovery from the company of more than was stipulated in the contract * * * the price paid for sending the message. That such evidence shows ■an error or mistake must be conceded, but in view of the nature of the business of a telegraph company and its peculiar instrumentalities for public service, instrumentalities which are so frequently as well as unaccountably beyond the control of human agencies, such ■evidence is not sufficient to make out a case of negligence, willful misconduct, or fraud upon the part of the'company.” Lumber Co. v. Telegraph Co., 58 Mo. App. 257, 262; Primrose v. Telegraph Co., 154 U. S. 1. Telegraph Co. v. Gildersleeve, -29 Md. 232, 246, 248; JBirhett v. Telegraph Co., 61 N. W. Rep. 645, 646, 648 (Mich. 1894); Riley v. Telegraph Co., 26 N. Y. Supp. 532, affirmed, 28 N. Y. Supp. 581. (2) (‘Under a general allegation of negligence the plaintiff can not recover, for this gives the defendant no notice of facts, and is only a conclusion.” Leduhe v. Railroad, 4’Mo. App. 485, 491; Gurley v. Railroad, S3 Mo. 445, 450; Waldhier v. Railroad, 71 Mo. 514, 516. (3) It is contended that plaintiffs should have had a judgment for the cost of sending the message, but this is an original action in the circuit court, and that court has no original jurisdiction of a demand less than $50. (R. S. 1889, sec. 3318.) Connell v. Telegraph Co., 116 Mo. 34, 38.</p>

— Hon. W. W. Rucker, Judge. (1) A promise to pay must be made with full knowledge of all the facts upon the part of the promisor in order to constitute ratification. Cravens v. Gillilan, 63 Mo. 28; Banhv. Gillilan, 63 Mo. 33.

— Hon. JDoesex W. Shackleeoed, Judge. (1) The court erred in admitting evidence concerning the condition of the sidewalk at places other than that at which the plaintiff claimed to have been injured and at times subsequent-to the injury. Bowles v. Kansas City, 51 Mo. 416; Buggies v. Nevada, 63 Iowa, 185; Gooclson v. DesMoines, 23 N. ~W. Rep. 655; Armstrong v. Ackley, 32 N. W. Rep. 180; Ray on Neglect of Imp. Duties, see. 192, p. 722; Elliot on Roads, 644; 2 Dillon on Mun.

— Hon. D. P. Stratton, Judge. (1) Tbe court erred in refusing interpleader’s instruction .number 5, as it enunciated a sound legal proposition, and there was evidence to sustain it. The issue should have been submitted to the jury. (2) Instruction number 1 is erroneous because it ignores interpleader’s theory of the case. Numbers 2 and 3 are subject to the same criticism, and, besides, they do not state correct legal propositions.

— Hon. John W. Woeeord, Judge. (1) The motion to quash the indictment should have been sustained for the reason that the said indictment does not contain the allegation that the defendant was a registered druggist. This allegation must be proven; hence, must be embodied in the indictment. State v. Green, 36 Mo. App. 627; State v. Boiler, 77 Mo. 120 to 128; see, also, State v. Marchand, 25 Mo. App. 657; State v. Basket, 51 Mo. App. 390 to 391.

— Hon. Jno. W. Henry, Judge. (1) Personal service had and no charge of fraud, only jurisdictional questions can be raised by this motion. Bankv. Steinburg, 44 Mo. App. 401; Rudolf v. McDonald, 6 Neb. 165. (2) Misnomer is not a jurisdictional question. Peterson v. Little, 74 Iowa, 223; Railroad v. Burriss, 82 Ind. 83; Ins.

— Hon. Andrew Ellison, Judge. 'To apply to this case, as the court did, in the first instruction given for respondent, the rigid rule laid down in the Lovelace case, was equivalent to a declaration to the jury that the intentional killing by Kennedy was accidental, even though Collins may have known Kennedy was armed and would shoot him if assaulted.

— Hon. Andrew Ellison, Judge. ■ (1) The court should have sustained the demurrer to the evidence. (2) The declarations of law of the court were erroneous, because they did not require a finding of a request or tender. (3) Plaintiffs have no cause of action against defendant, and the case should be reversed and not remanded. Speaks v. Dry Goods Co., 22 Mo. App. 122; Zurfluh v. Railroad, 46Mo. App. 636; Grant v. Reinhart, 33 Mo. App. 74-86; Quay v. Lucas, 25 Mo. App. 4.

— Hon. Paris C. Stepp, Judge. If tbe property is of any value whatever, and not entirely worthless, it must be returned by tbe buyer before he can rescind. 8 Am. Cyclopedia, p. 817, sec. 9; Benj. on Sales [Corbin’s Ed.], p. 592, sec. 674; Perly v. Balch, 23 Pick. 283; Getchell v. Chase,- 37 N. H. 316; Bowsv. Griswold, 4 Hun (N. Y.), 550; Bose v. Booty, 39 Ind. 77; Smith v. Bitterham, 98111.188; Merritt v. Bobinson, 31 Ark. 381; Fits v. Bynum, 55 Cal. 459.

— Host. Paris C. Stepp, Judge. (1) There was no evidence at all, of the execution of the note, or of its transfer for value before maturity to Fulkerson, deceased. Whatever tendency it has is to prove the contrary. The demurrer to the evidence should have been sustained. Doering v. Saum, 56 Mo. 479; Morgan v. Durfee, 69 Mo. • 469; Charles v. Patch, 87 Mo. 450; Huntv. Railroad, 89 Mo. 607.

— Hon. Cybus A. Anthony, Judge. (1) The court erred in granting defendants a new trial, for tbe reason that they did not bring themselves within the rule or show any legal causes therefor, or show any error on the part of the court rendering judgment on the pleadings. In fact, the court could do nothing else, as all the facts set out in plaintiff’s petition stood admitted by the answer. 1 B. S. .1889, page 577, sec. 2240. Fretwell v. Laffoon, 77 Mo. 26, and cases cited.

— Hon. Cyrus A. Anthony, Judge. (1) The court erred in giving instruction number 2 for defendant, excluding all evidence as to the offer to pay back assessments by Dankers and Dr. East. Section 13 does not render the policy null and void until after six months’ default. Payment or offer to pay at any time before death and within six months, without any other requirements, reinstates the policy.

— Hon. Thos. E. Turney, Special Judge. (1) At common -law, in the absence of special agreement, agister had no lien on the cattle for their keeping. McDonald v. Bennett, 45 Iowa Rep. 458; R. S. 1889, sec. 6731; McWilliams v. Allen, 45 Mo. 574; 13 Am. and Eng. Encyclopedia of Law, bottom pages 943 and 964, and the authorities cited. (2) A tender of the amount due extinguishes the lien. Berry v. Tildón, 70 Mo. 490.

— Hon. W. S. Herndon, Judge. Mayhugh was either a partner or an agent of the plaintiffs in procuring said note. There is no pretense that plaintiffs received said note bona fide before maturity and for value. They stand exactly where Mayhugh would have stood if he had brought suit on the note; he could not have recovered, neither can plaintiffs. Johnson v. McMurry, 72 Mo. 282; Banh v. Stanley, 46 Mo. App. 448; Carson v. Porter, 22 Mo. App. 184.

— Hon. W. S. Herndon, Judge. (1) An appellate court which, finds, upon a review of the case, that the plaintiff is, by his pleadings and evidence, entitled to equitable relief, will enter such, a decree as the chancellor should have entered without remanding the cause. Carroll v. Campbell, 25 Mo. App. 630; Finkelnburg’s Mo. App. Prac., p. 97.

— Hon. W. S. Herndon, Judge. (1) For the sake of the argument admitting that in divorce cases other than ex parte proceedings, that in order to recover it is only necessary to establish the fact that plaintiff is an injured party, yet appellant earnestly contends that, in contemplation of law governing divorce on the grounds of indignities, the evidence fails to establish the fact that plaintiff is an injured party, let alone being an innocent one. But such is not the law.

— Hon. W. S. Hebndon, Judge. (!) A grantee is entitled to recover only nominal damages for breach of warranty of title where he does not surrender possession to the person holding paramount title, or does not show an eviction in favor of the true owner before the suit for damages is instituted. A judgment in ejectment is not an eviction, unless it has been satisfied. An unsatisfied judgment in ejectment is not an eviction.

— Hon. E. J. Broaddus, Judge. (1) The chattel mortgage from defendant Perkins to Ray County Savings Bank to secure $600 due by Perkins to the bank, was filed for record before the account sued on was created; and at the time the account was made, Perkins having informed Hanks, the agent of plaintiff, of the execution of the mortgage .and the filing of the same for record and the credit having been given thereafter with full knowledge of the premises, the plaintiff is now…

— Hon. E. J. Broaddus, Judge. The court failed to specify the count in the petition on which he based his finding and judgment, and consequently the judgment must be arrested. 'Mooney v. Kennett, 19 Mo. 551; Clark’s Adm’r v. Railroad, 36 Mo. 215; Potts v. Fugate, 41 Mo. 405; Collins v. Bulle, 45 Mo. 269; Begelan v. Railroad, 48 Mo. 510; Owens v. Railroad, 58 Mo. 386; Brisker v. Railway, 83 Mo. 391.

— Hon. E. J. Broaddus, Judge. (1) Vindictive and punitive damages can be given, if ever-in a civil case, only where the injury is intentionally, willfully and maliciously done. McKeon v. Railroad, 42 Mo. 79; Friedenheit v. Edmonson, 36 Mo. 227; Franz v- Hilterbrand, 45 Mo. 121; Engle v. Jones, 51 Mo. 316; Welsh v. Stewart, 31 Mo. App. 376.

— Hon. E. J. Bboaddus, Judge. (1) A mortgage to secure future advances is valid. Foster v Reynolds, 38 Mo. 553; Jones on Chattel Mortgages, secs. 94, 95, 97. (2) The fact that a mortgage is to cover future additions to the property does not render it fraudulent-on void.

— Hon. E. J. Bboaddus, Judge. (1) The court erred in refusing to .give instructions numbers 4 and 5, asked by the defendants and refused by the court. The law is plain. Burns v. Bangert, 16 Mo. App. 22; McFerran v. McKinney, 22 Mo. App. 554; Hemelreich v. Carlos, 24 Mo. App; 264; Weil v. Simmons, 66 Mo. 620; McJDavit v. Vial, 11 Atl. Bep. 645; State v. Pitts, 12 S. 0. 180, 32 Am. Bep. 508 ;• Beeves v. Webster, 71 111. 307; Johnson v. Johnson, 72 111. 489.

j]¡rror to the Boone Circuit Court. — Hon. John A. Ho GRAB AY, Judge. . (1) The allowance of a claim by the probate court has the force and effect of a judgment (E. S. 1889, sec. 191, p. 157), which possesses the same force, efficacy, solemnity and validity as judgments of circuit courts. Cooper v. Duncan, 20 Mo. App. 355, and cases there cited.

— Hon. John A. Hockaday, Judge. Plaintiff is not the injured and innocent party; he has been guilty of mistreating his wife to such an extent as to cause her to leave him. He was, therefore, not entitled to a divorce. Hoffman v. Hoffman, 43 Mo. 547; Owen v. Owen, 48 Mo. App. 211; McKeehan v. McKeehan, 84 Mo. 403; Dwyer v. Dwyer, 16 Mo. App. 422; Gillinwaters v. Gillinwaters, 28 Mo. 61; Lyster v. Lyster, 111 Mass. 327; Cornish v. Cornish, 23 N. J. Eq. 208; Neffv. Neff, 20 Mo.

— Hon. John A. Hookaday, Judge. The action of the court in striking out part of defendant’s answer was manifestly an error. Plaintiff had executed the written release set out in defendant’s answer, the execution of which was' not. denied, and the court should have permitted it to be pleaded, and should have rendered judgment for defendant, dismissing plaintiff’s application. McFarland v. Base’s Adm’r, 24 Mo. 156.

— Hon. John A. Hockaday, Judge. (1) The court erred in inserting the words “fraudulently” and “fraudulent” in the instructions asked by the plaintiff. The fraudulency of the transaction was the question before the jury. If the gift was made in contemplation of death and with the view of depriving the widow of dower, then the act was fraudulent.

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

<p>1. Jurisdiction, Appellate: amount involved. A cause will not be transferred to the supreme court on account of the amount involved, when this court has no means of determining what that amount really is.</p> <p>2. -: effect of doubt as to jurisdiction. But such transfer will be made, when a doubt exists in the opinion of this court as to the jurisdiction of the issues presented by the appeal.</p>

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

<p>1. Corporations: prima facie powers of president and secretary. A contract, signed by the president and secretary of a private corporation, will be presumed to be within the powers of these officers in the absence of evidence to the contrary.</p> <p>2. -: ultra vires: executed contract. The defense of ultra vires is not open to a corporation, when the contract has been fully . executed on the part of the other contracting party, and is not expressly prohibited by law.</p> <p>3.--: preferred stook bearing interest. Preferred stock bearing interest absolutely is unauthorized, the statutory provision for such stock being for a stated rate of dividend which should be payable only out of the net yearly income of each current year.</p>

<p>1. Chattel Mortgages: effect of usury. A mortgage, which, is invalid under the act of April 21, 1891, for the reservation of usurious interest on the debt secured by it, is void ab initio as to the mortgagee.</p> <p>2. -: -: RIGHT OF ATTACHING CREDITOR OF MORTGAGOR TO invoke defense . A creditor of the mortgagor, who has attached the mortgaged property, may invoke such usury as a defense to an action by the mortgagee for the enforcement of the mortgage.</p>

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

<p>Appeal from St. Louis City Circuit Court. — Hon. Thomas A. Russell, Judge.</p>

Louis City Circuit Court. — Hon. P. R. Elitcraet, Judge. • (1) The undisputed facts show that under the pleadings and evidence plaintiff was not entitled to recover, and that the instruction to that effect offered by defendant should have been given. Flynn v. Union Bridge Co., 42 Mo. App. 530; Thompson on Negligence, p. 1053; Wood on Master and Servant, section 368; Sparks v. Railroad, 31 Mo. App.

<p>1. Agency: right to commissions nor sale on land. If an agent for the sale of real estate introduces the purchaser, or discloses his name, to the owner, and negotiations are begun and the sale is effected through such introduction or disclosure, the agent is entitled to his commissions, though the sale is made by the owner.</p> <p>2. -: employment on subagent. When such an agent is authorized to employ a subagent to assist him in effecting a sale, and does so, he is answerable, as between himself and his principal, for the misconduct of such subagent.</p> <p>3. Law and Fact: inherence nrom writing. When a writing is adduced as containing evidence of a certain fact, and different inferences may be drawn from it, it is for the jury and not the court to draw the inference.</p>

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

Louis City Circuit Cowrt. — Hon. Jacob Klein, Judge. The contract contained in the policy was not to pay to any person named in the application, but to the person or persons mentioned in condition fifth thereof. Metropolitan Life Ins. Co. v. Schaffer, 50. N. J. L. 72.

<p>St. Louis Court of Criminal Correction: jurisdiction to enter judgment on recognizance. The St. Louis court of criminal cor. reetion has no power to enter judgment on a recognizance taken hy it, when the recognizance is given to answer to a charge of felony.</p>

<p>1. Divorce: allowance op alimony during pendency op appeal by wipe. The circuit court may, in granting an appeal to a wife from a decree of divorce in favor of her husband, allow her alimony both for her support and expense of the litigation during the pendency of the appeal, unless it is manifest that the appeal is without merit.</p> <p>2. -: -: consideration op evidence received on prior application por alimony. The circuit court heard a motion for alimony shortly before the trial, and, in so doing, heard evidence of the situation of the wife and the financial condition of the husband. Reid, that the court was warranted in basing its allowance of alimony during the pendency of the appeal on this evidence, when no evidence was offered of any change of circumstances.</p>

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

<p>1. Parent and Child: right of latter to compensation for services. In order that a daughtermay recover from the estate of her deceased father for 'services rendered by her to him in his lifetime, she must establish an express or implied contract on his part to pay for the services. And held, that the evidence in this case was sufficient to establish such a contract.</p> <p>2. Instructions: refusal when embraced in instructions already given. The refusal of instructions which are embraced in instructions already given by the court is not erroneous.</p> <p>3. Practice, Appellatenon-prejudicial action in trial court : remarks of counsel to jury. At the trial in the circuit court of a claim against the estate of a decedent the claimant was permitted to swear to her claim before the jury, and her counsel was allowed, in-the course of his remarks to the jury, to refer to the fact that the claim had been verified by affidavit. Meld, that these matters did not constitute prejudicial error.</p>

— Hon. Henry M. Ramey, Judge. (1) Defendant’s counsel objected to parol evidence that the consideration to be paid by Davis for the land was not money, but certain lands, “on the ground that if there was any contract of sale or any agreement between them, by which Mr. GIann was to buy any lands, it must necessarily be in writing or some memoranda thereof, signed by Mr. Grann or someone authorized by him, and that such testimony would not be admissible upon that subject.” The…

— Hon. Chas. L. Dobson, Judge. (1) The petition in this ease fails to state any cause of action. Walters v. Walters, 73 Ind. 425; Billv. Held: 58 Mo. 213, and cases cited; Christian v. Newberry, 61 Mo. 446; 2 Jones on Mortgages [2 Ed.], secs. 924 and 926, and cases cited; 2 Washburn on Real Property [5 Ed.], p. 197, and case cited; 15 Am. and Eng. Encyclopedia of Law, pp. 869 and 871, and case cited; Sloan v. Bice, 41 Iowa, 465; cases cited to point 1, supra.

— Hon. Jno. W. Henry, Judge. (1) The well settled law of this state is, that to authorize a judgment against a garnishee the require-merits of the statute must be strictly complied with.

— Hon. Paris C. Stepp, Judge. The information charges that the defendant disturbed the peace of an individual by indecent and offensive conversation, and is in the identical same words, as used in State v. Gallego, 57 Mo. App. 515, which was held to state no offense.

— Hon. Cyrus A. Anthony, Judge. (1) The circuit court was not justified in setting aside the sale of the land on the ground of inadequacy of the price paid by appellant Robert Shelton. Knoop 'v. Kelsey, 121 Mo. 642; Briant v. JacJcson, 99 Mo. 585. (2) Was there any good cause for setting the sale aside on the ground that Allen was not properly notified of his exemption rights? The evidence on this point is brief and clear.

— Hon. Wm. S. Herndon, Judge. (1) Nothing is taken by intendment in favor of the jurisdiction of inferior tribunals. The said petition of H. W. Haynes etal., and said order of the county court, were incompetent' evidence in this case. Jefferson County v. Cowen, 54 Mo. 238; Smith v.Howarth, 53Mo. 89; Schell v. Leland,45 Mo. 289; Howard v. Heck, 88 Mo. 46-1.

— Hon. Heney M. Ramey, Judge. (1) “Creditor may compound with one of several debtors.” R. S. 1889, sec. 2392; Baker v. Hunt, 88 Mo. 405, 409, 410. (2)- That is, the statute applies to debt evidenced by judgment. This statute is again passed on and upheld in Montgomery County v. Auchley, 103 Me. 492, par. I and II. (1) Discharge of the judgment as to one was a discharge as to all defendants, whatever may have been the intention of the parties.

— Hon. Henr y M. Ramey, Judge. (1) It is well settled law in this state that a contract with two or more persons, for the payment to them of a sum of money, is a joint contract with all, and all the payees have therein a joint interest, so that no one can sue alone. And the demurrer to the evidence should have been sustained at the close of plaintiff’s case, or at least at the close of all the evidence.

— Hon. A. M. Woodson, Judge. (1) The court erred in permitting the plaintiffs to introduce in evidence the contract for the building of the butter and cheese factory in proof.

— Hon. A. M. Woodson, Judge. (1) To entitle respondent to recover, tbe evidence must show some privity existing between tbe parties in relation to tbe money sought to be recovered. 2 Eney. of Pleading and Practice, p. 1021, sec. 2, and authorities there cited; Diecey on Parties to Actions, 2 Am. Add., pp. 110, 111; Keener on Quasi Contracts,p. 167; Hall v. Carpen, 27 111. 385.

— Hon. E. J. Broaddus, Judge. (1) The notice of sale not having been published the requisite length of time, the attempted sale thereunder did not pass the title to the property in controversy. 2 Perry on Trusts [8 Ed.], sec. 602 t; 1, Hilliard on Mortgages [4 Ed.], sec. 20, pp. 142, 143; 11 Jones on'Mortgages [5 Ed.], sec. 1838, .pp. 702, 703, 704; Balridgev.

E. J. Broaddus, Judge. (1) The chattel mortgage from James B. Perkins to plaintiff on all the goods in controversy to secure $600, executed, acknowledged, and recorded long prior to the levying of the attachment upon said goods in favor of the Martin-Perrin Mercantile Company was valid as between the parties, as to all goods specified therein; and as to the fixtures, was valid against all persons, creditors, purchasers or otherwise.

— Hon. E. J. Broaddus, Judge. The indictment in this ease was drawn under sections 4370 and 4372, Revised Statutes, 1889, which read as follows: Our statute, section 8185, Revised Statutes, empowers sheriffs to execute final process issued by justices of the peace, and section 11 of the act of February 1, 1871 (Sess. Acts, 1871, p. 88), which creates the office of marshal of Jackson county, confers on said marshal all the power in criminal cases possessed by_ sheriffs.

— Hon. E. J. Broaddus, Judge. (1) The contributory negligence charged in the answer was established. Kelsay v. Railroad, 30 S. W. Rep. 339; Hayden v. Railroad, 38 S.W. Rep. 74; Baker v. Railroad, 122 Mo. —. (2) This suit should be stayed until payment of costs in the former action. Merrifield on Costs, 354; Parsons on Costs, 5; State v. Howe, 64 Ind. 18; Kitsv.

— Hon. E. J. Broaddus, Judge. (1) The landlord has, under the law, a lien on all the crops grown on all the demised premises for thb payment of the rent due for the year in which the crop's were grown. R. S. 1889, sec. 6376; Garroutte v. White, 92 Mo. 237; Haseltine v. Auserman, 87 Mo. 410; Easel-tine v. Auserman, 29 Mo. App. 151; Eeulett v. Stock-well, 27 Mo. Ápp. 328.

— Hon. Jno. A. Hookaday, Judge. (1) The judgment in this case against appellant should not be permitted to stand, as it greatly wrongs the appellant, outrages every sense of justice, and turns him away with his damages unrequited, and permits the warrantor to escape the obligations of his contract. Samuels v. Guin’s JEst., 49 Mo. App. 10; Bronson v. Turner, 77 Mo. 493; Brown v. Weldon, 27 Mo. App. 251; Thompson v. Botts, 8 Mo.

— Hon. E. J.Broaddus, Judge. (1) A dividend to a stockholder, as against a creditor, at the time of the payment of the dividend,, where it is shown that the corporation was at that time insolvent, is merely a gift as against such creditor, and is in law fraudulent and void. Williams v. Boice, 38 N. J. Eq. 364; s. c., 6 Am. and Eng. Corp. Cases, 361 y Hernán v. Brittain, 88 Mo. 549. And see Bartlett v. Brew, 57 N. T. 587; Hastings v. Brew, 76 N. T. 9.

— Hon. Vm. W. Ruoker, Judge. (1) The testimony upon “good repute” of the prosecutrix was incompetent and prejudicial. The averment of “good repute” contained in the indictment was mere surplusage. State v. Buck, 43 Mo. App. 445; State v. Matheis, 44 Mo. App. 294. “The plaintiff can not introduce evidence as to his good character until it has been attacked by defendant.” 13 Am. and Eng. Encyclopedia of Law, p. 489, and cases cited under note 2. State v. Hinson, 9 S. E. Rep.

— Hon. W. W. . Wood, Judge. (1) There was no judgment for costs at common law. Hoover v. Railroad, 115 Mo. 82; State ex rel. v. Railroad, 78 Mo. 577; Thompson v. Elevator Co., 77 Mo. 521; Steele v. Ware, 54 Mo. 532; Harrington v. Evans, 49 Mo. App. 377. (2) In this state the matter of costs is regulated by statute, which must be strictly construed. There is no remedy for costs except such as is expressly authorized by statute. In re Green, 40 Mo.

— Hon. J. H. Slower, Judge. (1) The court below erred in admitting in evidence the original returns of the constable, as they are absolutely void. They show no declaration to the garnishee that anything was attached in his hands, and no judgment is entered against garnishee nor on the attachment. Smith v. Railroad, 49 Mo. App. 54; Johnson v. Watson, 57 Mo.

— Hon. Cyrus A. Anthony, Judge. (1) The petition contained no statement or allegation showing the facts from which it might be inferred that this injury happened at a necessary farm crossing. This averment is absolutely essential under the statute. It is a jurisdictional fact. The defendant is only required to put in gates at such farm crossings as are necessary.

— Hon. W. S. Herndon, Judge. The evidence does not show that the land or strip in dispute was ever a public road, as alleged in the petition, or that Claywater or anyone else dedicated it by any act to the public; and in the absence of this proof the finding should have been for the defendant, and his motion to dissolve temporary injunction sustained. Stacey v. Miller, 14 Mo. 336; Railroad v. Woodland, 60 Mo. App. 631.

— Hon. W. S. Herndon, Judge. . The probate court had no jurisdiction to hear and determine the matter in issue and consequently. the circuit court had none. Probate courts are creatures of the statute. In re Elliott’s Estate v. Wilson, 27 Mo. App. 218; R. S. 1889, sec. 3408. Probate courts have jurisdiction to hear and determine demands only against the estates of testators or intestates and can not allow credits. R. S. 1889, sec. 191; 1 Am.

<p>Quantum Meruit: parent and grandchild: express promise. Where a grandchild of some fifteen years resides with a grandmother, who acts in loco parentis and treats her as a member of her family, the law will not imply a promise to pay for services of such grandchild unless an express promise is shown; and mere loose expressions of gratitude by the grandmother, or an expectation of the child of some devise by will, will not authorize a recovery for such services.</p>

— Hon. A. M Woodson, Judge. (1) The demurrer to the evidence should have been sustained. The plaintiff’s testimony shows conclusively that the signal whistle was sounded; The engineer had the right to presume up to the last moment that the deceased Jenner would get off the track. Malony v. Railroad, 84 Mo. 274; Reardon v. Railroad, 114 Mo. 384; Railroad v. Judd, 26 N. E. Rep. (Ind.) 775; Railroad v. Herrin, 26 S. W. Rep. (Tex.) 425; Railroad v. Meyers, 36 N. E. Rep.

— Hon. E. J. Bkoaddus, Judge. (1) The plaintiff being the purchaser of the twenty-seven acres, rented by the defendant, McDonald, and upon which he raised a crop of corn in the year 1893, and there being no reservation whatever made at the sale, the plaintiff was entitled to all the rents and profits thereafter falling due. Page v..Culver, 55 Mo. App. 606; Culverhouse, Acini’r, v. Worts, 32 Mo. App. 419; Hygenv. Burkemper, 101 Mo. 644.

— Hon. Henry M. Ramey, Judge. (1) The defendant tried every honorable way to prevent this suit. He offered thirty cents or forty-one cents by Ery before this suit was begun, and kept that tender good by depositing thirty cents with the constable after the suit was instituted, but before the trial of the cause had commenced. R. S. 1889, sec. 6210.

— Hon. Richard Field, Judge. (1) The notice to Edward H. Bouton in the mayor’s court was sufficient. It was served more than six days before the jury was impaneled. This was all that was required by the charter of the city.

— Hon. Jas. H. Lay, Judge. If federal, state, and city laws are construed strictly, one or the other must fall, hence the rule that, statutes should be construed as to give them both force. Connor v. Railroad, 59 Mo. 285.

— Hon. E. J. Broaddus, Judge. (1) It was not denied in the court below that the indictment in this case and the charge therein of obtaining money amounting to $16 by false pretenses was sufficient in form under our statute relating to false pretenses (secs. 3564, 3547, R. S. 1889), but the point made and decided was that respondent, having collected said $16 while acting as a justice of the peace, was not amenable to said statute respecting false pretenses, and was only…

— Hon. John A. Hockaday, Judge. (1) The court erred in sustaining defendant’s motion to quash the complaint on the first ground of objection because the information failed to specify the quantity and kind of intoxicating liquors alleged to have been sold by defendants. State v. Baskett, 52 Mo. App. 389; State v. Hendrix, 98 Mo. 374; State v. Nixdorf, 46 Mo. App. 494; ' State v. Pittman, 76 Mo. 56.

— Hon. Jno. A. Hockaday, Judge. (1) This cause was tried by the court without the intervention of a jury, and no declarations of law were asked or given. Such cases are reviewable by the appellate court upon the weight of the evidence. Bannels v. Isgrigg, 99 Mo. 19; McGrath v. Mitchell, 56 Mo. App. 626. (2) A surety is not bound beyond his agreement. Appellants only signed the note sued on to stand as sureties till the following Monday. Bauer v. Cabmne, 105 Mo. 118.

— Hon. Círüs A. Anthony, Judge. (1) The court erred in refusing to submit to the jury the question of fraud. (2) There is no evidence that justified the jury in finding for the plaintiff. (3) The court erred in admitting in evidence the bond of indemnity as above stated. (4) We, the defendants, claim that the verdict is against the weight of the evidence and should be set aside and the cause remanded. Marshall v. Ins. Co., 43 Mo. 586.

— Hon. Wm. S. • Hebndon, Judge. (1) In this state of the ease, in view of the evidence that defendant had a written proposition by letter of resale of goods on condition of paying to plaintiff $1,000, and that defendant immediately took the goods and converted them to his use and sold them as his own, as supposed in plaintiff’s first and second declarations of law, a presumption must arise that defendant took and used the goods, as he lawfully might do, in acceptance of the…

— Hon. William S. Herndon, Judge. (1) A surety in a bond in a judicial proceeding which keeps the owner out of possession of his property participates, by such act, in becoming surety in the trespass, and is liable the same as the principal trespasser. State v. Mitchell, 1 Mo. App. 387; Luebbering v. Oberlcoetter, 1 Mo. App. 389; Pechham v. Lin-dell, 9Mo. App. 462; Wetzellv. Waters, 18 Mo. 399; Allred v. Bray, 41 Mo. 487.

— Hon. A. M. Woodson, Judge. (1) The phrase “until the party of the first part is prepared to improve the ground with new buildings” is so indefinite as to be without effect in the sense contended for by defendant. Perhaps no other clause can be found so replete with want of precision. In the light of the testimony it has three distinct elements of uncertainty.

<p>Appeal from the Daviess Circuit Court. — Hon. E. J. Broaddus, Judge.</p>

— Hon. Paris 0. Stepp, Judge. (1) “The defendant, by merely, answering the allegations in the plaintiff’s petition can try only such questions of fact as are necessary to sustain the plaintiff’s case. Northrup v. Ins. Co., 47 Mo. 435; Kersey v. Garten, 77 Mo. 645; Hudson v. Railroad, 101 Mo. 13, loc. cit. 30; State v. Williams, 48 Mo.-210; Bliss on Code Pleading, sec. 352. The defense of payment can not be made under a general denial.

— Hon. J. H. Slover, Judge. (1) There is no forfeiture under the vacancy clause pleaded by defendant if the premises were occupied for any purpose whatever continuously from March 20, 1891, to within fifteen days of the fire. Ins. Co. v. BrocTeway, 39 111. App. 43; Ins. Co. v. Kieman, 83 Ky. 473. Other claims in order to be available to the defendant must be pleaded. Moody v. Ins. Co., 38 N. E. Rep. 1011; 1 Wood on Insurance [2 Ed.], p. 503, sec. 209; Ins.

— Hon. Andrew Ellison, Judge. Upon the undisputed facts in this case, the trial court should have directed the jury to return a verdict for the defendant.

— Hon. E. J. Broaddus, Judge. (1) The verdict is for $300 and is, on this account, against the evidence and excessive. We contend that the sum total of appellant’s liability under this policy for an accident not resulting in death is $300, regardless of the frequency of the injuries or their continuance. (2) The court erred in permitting respondent to read to the jury the contents of the statements furnished by him to the appellant. Thomas v. Insurance Go., 47 Mo.