Volume 64 — Missouri Appeal Reports

— Hon. Jas. Gibson, Acting Judge. (1) Plaintiff was entitled to have the jury properly instructed, although this court may believe that the result on a new trial would be the same. Cravens v. Gilliam, 63 Mo. 33, latter part of opinion. (2) Plaintiff’s first instruction should have been given. The Missouri courts have held that the proper measure of «damages for a wrongful forfeiture of a life policy is the amount of premiums paid with interest. McKee v. Ins.

<p>1. Negligence: instructions: degree of care exacted of child. An instruction as to the standard of care exacted of a child in order to avoid personal injury required of it such care as could reasonably be expected from one of its capacity and age. Held, that the instruction was not erroneous.</p> <p>2. -: -- : MUTUAL DUTIES OF FOOTMEN AND DRIVERS OF vehicles ON streets. An instruction as to the care required of a traveler on foot and the drivers of vehicles on a public street declared that both must use all reasonably prudent precautions to avoid accident. Held, that this language, though less desirable than that ordinarily used in the statement of the rule, did hot render the instruction erroneous.</p> <p>3. --: -: -. And held, further, that an instruction which stated that such travelers and drivers have an equal right to use the street was not misleading, when applied to a ease where the traveler on foot was injured by the vehicle on a street crossing.</p> <p>4. - : LIABILITY,OF MASTER FOR NEGLIGENCE OF SERVANT IN DRIVING. A master is liable for the negligence of a servant while driving on a street, if the latter was at the time acting within the scope of his employment.</p>

Louis City Circuit Court. — Hon. James E. Withrow, Judge. The trial court erred in refusing instructions 1 and 3, asked by plaintiff. There was abundant evidence of the alleged usage. That usage was proved to be uniform. It was certain, reasonable, and lawful. The suit was brought within five years after breach of the warranty implied by the usage.

<p>Criminal Law: sale op whisky without license: sufficiency of evidence. In a prosecution for tlie sale of whisky without a license, the character of the article sold by the defendant is established by the testimony of a witness that he knew it tpbe what is called whisky by its taste, but that he had not analyzed it and had never been in a distillery.</p>

<p>1. Amendment of Return of Service of Summons:. mandamus. A sheriff may be required to amend his return of the service of process so as to make such return conform to the facts; and this may be done before or after the final judgment in the cause, and even after the expiration of the sheriff's term of office.</p> <p>2. -: -. But an amendment can not be required, which is not shown to be in conformity with the truth. Accordingly, the sheriff can not be required by mandamus to amend his return so as to show the service of a summons on a foreign corporation, when there is no evidence that the body intended to be served had any corporate existence.</p> <p>3. Actions: unincorporated association. A suit can not, in this state, be maintained against an unincorporated benevolent association by its common name.</p>

Louis City Circuit Court. — Hon. James E. Withrow, Judge. Neither the president nor the managing officer of a corporation has, by virtue of his office merely or in the absence of authorization by charter or by the board of directors, power to borrow money in the name of the corporation and give its notes or pledge its responsibility therefor. 4 Thompson on Corporations, pp. 3485,. 3637; Hyde v. Larkin, 35 Mo.

<p>'Special Tax Bill: parties : contribution. A valid judgment may be rendered in an action on a special tax bill against the property charged without bringing in all the -parties' in interest. But, if all the co-owners are not made parties, and those who are pay the judgment, an action by them for contribution will lie against the rest.</p>

Louis City Circuit Court. — Hon. Daniel Dillon, Judge. (1) By the production of the mortgage and of the note indorsed in blank by the payee, the plaintiff made out a prima facie case as an innocent purchaser for value before maturity of the note and mortgage. Ashbrookv. Letcher, 41 Mo. App. 369; Hagerman v. Sutton, 91 Mo. 519.

<p>Building Association: compulsory foreclosure of mortgage. A member of a building association, who bas borrowed money from it and mortgaged Jiis real estate and shares to it to secure the loan, cannot compel the association to foreclose on default by him, when the terms of the mortgage, as well as the charter of the association, leave such foreclosure optional with the association; and this is so, though the member has parted with the real estate and it is, in itself, sufficient to satisfy the mortgage debt, so that foreclosure would result in freeing his shares.</p>

<p>1. Practice, Appellate: effect of report of referee. In the review of the finding of a referee in an action at law, this court is limited to the inquiries, whether the referee’s findings of fact are sustained by substantial -evidence and whether the conclusions of law applied by him to these findings are correct.</p> <p>2. Mechanics’ Liens: mingling of incorrect items in lien account. A mechanic, who has mingled in his lien account items for material which was not in fact used in the building sought to be charged, but which he with good ground believed to have been thus used, will not by reason thereof be debarred from the enforcement of his lien in other respects, if these items can readily be segregated from the remainder.</p>

Louis City Circuit Court. — Hon. James E. Withrow, Judge. While an offer by letter may become a contract if the offer be accepted, no contract is consummated unless the acceptance is unequivocal and unconditional, and unless it plainly and clearly accepts the offer tendered without any modification or condition whatsoever. JRailroadv. Columbus Mill, 119 U. 8. 149; Fox v. Turner, 1 111. App. 153; Egger v. Nesbitt, 122 Mo. 667; Cangas v. B/umsey Mfg. Co., 37 Mo.

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

<p>Chattel Mortgage: condition against attempted disposition of MORTGAGED PROPERTY: INVOLUNTARY BREACH. A Condition, in a chattel mortgage against the sale or attempted disposition of the mortgaged property is broken by the levy upon, and sale of, the entire title under a writ of attachment against the mortgagor.</p>

Louis City Circuit Court. — Hon. P. R. Elitcraet, Judge. The court erred in giving instruction number 2 for defendant. To instruct that disobedience of an order warrants the servant’s discharge without requiring the disobedience to be intentional or malicious is error.

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

<p>1. Contracts: nature op remedy por breach: election. A person, who has complied on his part with the terms of an express contract, may sue either in assumpsit or upon the contract. But his petition should not cover both forms of proceeding, and when it does he may, on proper objection, be put to an election or compelled to make his petition more definite. Such objection can not, however, be made for the first time by demurrer to the evidence.</p> <p>2. -: MEASURE OP COMPENSATION POR SERVICES IN PROCURING EXCHANGE OP REAL ESTATE, WHEN RENDERED BY ONE WHO IS NOT A REAL ESTATE AGENT: COMPETENCY OP EVIDENCE. In an action for reasonable compensation by one who has rendered services in effecting a sale of real estate, but who is not regularly engaged in that business, evidence of the customary charges of real estate agents for such services is relevant and may be considered by the jury; but such customary charges are not conclusive as to the compensation of the plaintiff.</p>

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

<p>1. Forcible Entry and Detainer: proceedings on appeal: failure op prosecution. The provisions of the statute, regulating appellate proceedings in actions of forcible entry and detainer, are special and preelusive; and when the appellant in such an action fails to appear at the trial in the circuit court, the judgment of affirmance authorized by statute in such a case is the only one which can properly be rendered.</p> <p>2. -: ORDER SETTING- ASIDE AFFIRMANCE OF JUDGMENT OE JUSTICE : right of appeal. Held, in the- course of discussion, that when the judgment of a justice of the peace in such an action is affirmed by the circuit court for failure of the appellant to appear at the trial, and subsequently the judgment of affirmance is set aside by order of that court, such order is not appealable under the statute providing for an appeal from the granting of a motion for new trial; nor-does it matter that the motion, on which such order is made, in terms prays for a new trial.</p>

Louis City Circuit Cou/rt. — Hon. Daniel Dillon, Judge. Where premises are leased for a term of years and the lessee agrees to pay rent during such term and the lessor does not contract to rebuild, the destruction • by fire of the buildings rented will not exempt the lessor from the further payment of rent; he must pay rent for the whole of the term. Gibson v. Perry, 29 Mo. 245; Burnet v. Fuchs, 28 Mo. App. 279.

<p>1. Husband and Wife: retrospective effect of recent statutes. The recent statutes in relation to the estates of married women have no retrospective effect.</p> <p>2. -: CURTESY initiate: estate and right of action of tenant. A tenant hy the curtesy initiate is seized of a freehold estate in his own right, and the interest of his wife is a mere reversionary interest depending upon his life estate. Accordingly, if, while he is in possession as such tenant, an injury is done to the freehold for life, as distinguished from the inheritance, the right of action therefor is in him.</p>

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

<p>1. Instructions: not founded upon evidence. An instruction which is not warranted hy the evidence is erroneous.</p> <p>2. Practice, Appellate: nonprejudicial error. An appellant can not avail himself of error in his own favor.</p>

Louis City Circuit Court. — Hon. Jacob Klein, Judge. The court erred ■ in overruling the defendant’s demurrer to the evidence. The burden of proof was upon the plaintiff to show negligence on the part of defendant, or that the injury to the picture complained of occurred while it was in defendant’s possession. As to this, there was a complete failure of proof. Witting v. Bailroad, 101 Mo. 631; Standard Milling Co. v. Transit Co., 122 Mo. 258.

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

<p>Instructions : assumption op pacts. An instruction which, assumes a disputed matter of fact is erroneous; and even when there is no conflict in the evidence as to an issue of fact, the safer and better practice, if there is no express concession or admission on the subject, is to submit the issue to the jury.</p>

<p>Appeal from the St. Louis City Circuit Court. — Hon. P. R. Elitoraet, Judge.</p> <p>Defendant’s promise to contribute was without consideration and not enforcible. Anson on Contracts, [2 Am. Ed.], top pp. 90, 100; Philpot v. Griminger, 14 Wall. 570, 577; Bishop on Contracts, secs. 24, 37, 38, 77, 78, 117, 316, 389; Tiedeman on Commercial Paper, sec. 154; Brookes v. Owen, 112 Mo. 251, 261; Railroad v. Morely, 45 Mo. App. 304; Easley v. Gordon, 51 Mo. App. 637, 641; Wendover v. Baker, 121 Mo. 273, 294; Ling enfelder v. Wainwright Brewing Company, 103 Mo. 578, 595; Clark on Contracts, secs. 65, 73, 86; Hanrahan v. O’Regan, 45 Iowa, 298; Orphans’ Home v. Sharpe, 6 Mo. App. 150; Storck v. Mesker, 55 Mo. App. 26, 35.</p>

<p>Appeal from the St. Louis City Circuit Court. — Hon. P. R. Elitcraet, Judge.</p>

<p>1. Criminal Law: sale oe intoxicating liquors on Sunday: indictment. An indictment under Revised Statutes, section 4590, which prohibits the sale by a licensed dramshop keeper of intoxicating liquor on a Sunday, need not specify the kind of liquor alleged to have been sold, nor need it designate the defendant’s place of business.</p> <p>2. -: -: burden of proof. To warrant a conviction for this offense, the state must establish that the defendant was a licensed dramshop keeper at the time of the commission of the offense.</p> <p>3. -: -: competency of evidence. Testimony by a deputy excise commissioner, that, in running over the list of licensed dram-shop keepers on file in the office óf the excise commissioner, he noticed a name which was the same as that of the defendant, is not competent to establish the issue of the license to the defendant, when the witness did not make the list, nor issue nor see the license, and does hot know whether the defendant is the person thus referred to.</p> <p>4. -:--: CONVICTION UNDER REVISED STATUTES, SECTION 3855. A person charged with this offense and proven to have been guilty of the sale of intoxicating liquor on a Sunday, but not shown to be a dramshop keeper, maybe convicted under section 3855 of the Revised Statutes.</p>

Lotiis Court of Criminal Correction. Hon. David Murphy, Judge. (1) The trial judge erred in refusing to appoint a special judge, the application therefor being regular in form. (2) That court also erred in directing the jury to find the defendant guilty in the face of his plea to the contrary, and of the presumption of innocence which attends and protects him.

<p>Appeal from the St. Louis Cowrt of Criminal Correction. Hon. David Murphy, Judge.</p>

Louis City Circuit Court. — Hon. Jacob Klein, Judge. (1) The instruction given by the court, of its own motion, declaring that the instrument in question does not come within the statute of voluntary assignments is erroneous, and is contrary to, the law and the evidence in the case. Douglass v. Cissna, 17 Mo. App. 44; Bascom v. Baimvater, 30 Mo. App. 483; Mills v. Williams, 31 Mo. App. 447; Bosenthalv. Frank, 37 Mo. App. 272; In re Assignment of-Zwang, 39 Mo.

Louis City Circuit Court. — Hon. James E. Witheow, Judge. The court erred in admitting the deposition of Elmore. Held: that whatever Elmore may have considered the agreement, the respondent, himself, imposed his own terms, fixed his liability himself, and, in so doing, said nothing about a winning while the horse was in his own hands. The entire antecedent oral agreement was merged in the written contract.

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

<p>1. Contracts: implied agreement for compensation for services. One who renders services to another, at the request of the latter, is entitled to reasonable compensation in the absence of any agreement as to the amount to be paid therefor; and this rule obtains when the. agreement is merely that he should receive good compensation.</p> <p>2. Evidence: testimony of experts as to value of labor. The value of services may be shown by the testimony of one who constantly contracts for such services, or of one who is constantly employed in the rendition of them.</p> <p>3. Practice, Appellate: exclusion on cumulative evidence. The exclusion of evidence, which is merely cumulative of other uneontradieted evidence, does not constitute reversible error.</p>

<p>Appeal from the St. Louis City Circuit Court. — Hon. P. R. Plitgraft, Judge.</p> <p>(1) Five of the installments of this note appearing on the face of the note to have been overdue when plaintiff acquired same, he does not occupy the position of an innocent purchaser for value before maturity,, and acquired no more title to the note and mortgage than his assignor, Ohas. S. Miller, had. 2 Parsons on Notes and Bills, p. 279; 2 Randolph on Commercial Paper, sec. 1006; 3 Randolph on Commercial Paper, sec. 1683; Andrews v. Pond, 38 U. S. 79; Chouteau v. Allen, 70 Mo. 290. (2) Respondent is bound by the result of the replevin- suit under which appellant regained possession of this note and mortgage. State ex rel. v. Barker, 26 Mo. App'. 487; Pugh v. Williamson, 1 Mo. App. 361; Tarletonv. Johnson, 25 Ala. 300.</p>

<p>Appeal from the Hannibal Court of Common Pleas.— Hon. Beuben F. Boy, Judge.</p>

<p>Practice, Appellate: objections to evidence not set north in transcript. This court will not consider objections to papers received in evidence, when these papers, though called for by the bill of exceptions, are not contained in the transcript.</p>

<p>Appeal from the St. Louis City Circuit Court. — Hon. P. R. Flit craft, Judge.</p>

<p>Appeal from the St. Louis City Circuit Court. — Hon. P. R. Flitcraft, Judge.</p>

<p>The ruling in Wilkinson v. Metropolitan Life Ins. Go., 63 Mo. App. 404, is affirmed.</p>

<p>Effect of Express Contract for Compensation of Services on Prior Implied Contract: remedy. When services are performed under an implied contract for reasonable compensation but an express contract in settlement thereof is afterwards made by the parties, the implied contract is extinguished by the express one and is not revived by a breach of the latter.</p>

<p>1. Negotiable Paper: note payable in installments. A negotiable promissory note payable in installments is not deprived, of its negotiability by the maturity of an installment, if this be paid; sed aliter, if any installment is due and unpaid, p In the'latter ease a purchaser !>f the note takes it subject to all equities, though it contains a false ndorsement of the payment of the matured installment.</p> <p>2. Chattel Mortgages: effect of transfer of debt. A chattel mortgage is but an incident of the debt secured by it; and when it is void inter partes for usury, it remains so as to any one who acquires a note secured by it with notice of equities.</p> <p>3. Practice, Trial: trial by court: statement of law and facts. Under our present statute (R. S., sec. 2135) a trial court to which an action is submitted should state, first, its findings of facts, and then the conclusions of law thereon. But its judgment will not be disturbed for failure to state such findings and conclusions separately, if all the material facts are fully found by it, and the judgment rendered follows necessarily therefrom.</p>

<p>1. Practice, Trial: order for production of papers. The making, or refusal, of an order for the production, of papers by a party under the statutory provision therefor is a matter of discretion. And held, that this discretion was not abused in this cause.</p> <p>2. Mortgage to Secure Surety: competency.of evidence of oral agreement. A mortgage which is made to secure a surety, but does not provide for his reimbursement in money, is not varied by an oral agreement between the parties that the surety should pay the indebtedness to which his obligation extended, and should be reimbursed in services to be rendered by the principal; hence, evidence of such an agreement is competent, though the agreement was made cotemporaneously with the mortgage.</p> <p>3. Replevin by Party Holding Special Interest: form of verdict. When the verdict in an action of' replevin is in favor of the plaintiff, and he has only a special interest in the property replevied, while the defendant is the general owner, it is proper that the jury should, by their verdict, find the extent of such special interest, if that be a matter of controversy.</p>

<p>Attachments: appellate review op adjudication op priority. The action of the circuit court, in determining the priority of conflicting attachments under section 570 of the Revised Statutes, is subject to appellate review upon the evidence; but the ruling of the circuit court sustaining a motion for such priority must be affirmed on appeal therefrom, when the record does not preserve the entire evidence and the motion is well taken upon its face.</p>

— Hon. Ben E„ Turner, Judge. The contract came within the statute of frauds;' the place of delivery is always a material and essential part of a contract, and the statute requires every material and essential part of a contract to be committed to writing. Revised Statutes, 1889, sec. 5187; Smith v. Shell, 82 Mo. 215, 218; Ringer v. Holtsclaw, 112 Mo. 519; Wood on Statute of Frauds, sec. 345.

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

<p>Appeal from the Hannibal Court of Common Pleas. Hon. Reuben. F. Roy, Judge.</p>

Louis City Circuit Court. — Hon. Leboy B. Valliant, Judge. (1) Plaintiffs failed to make a prima facie case. Stadler v. Roth, 59 Mo. 403; Kefferstein v. Knox, 56 Mo. 186. (2) The court erred in excluding legal and competent evidence offered by the defendants.

<p>Appeal from the St. Louis City Circuit Court; — ¡Lots. P. R. Elitcraft, Judge.</p>

Louis City Circuit Cowrt. — Hon. P. R. Elitckaet, Judge. The correspondence between defendant’s assignor and the plaintiff related only to a promise ■ to pay in goods, which is but an executory contract; whereas payment itself is where the thing is executed by a delivery, — a thing done. Rhodes v. Chesson, Busb. L. (N. C.) 836; Southwestern, etc., Co. v.'Stanard, 44 Mo. 83; see note in 18 Am. and Eng. Encyclopedia of Law, bot. p. 151.

Louis City Circuit Court. — Hon. Thos. A. Russell, Judge (1) Mandamus will not lie for the reason that relators have, under the statute (R. S., sees. 2520-2523), a remedy which is plain, speedy and adequate, furnishing, as it does, redress for the precise injury complained of herein. Byrne v. Harbison, 1 Mo. 160; Williams v. Judge, 27 Mo. 225; Mansfield v. Phillips, 50 Mo. 338; State ex rel. v. Marshall, 82 Mo. 484; State ex rel. v. Taffe, 25 Mo.

Louis City Circuit Court. — Hon. ■ P. R. Elitcraet, Judge. The rule is well settled that, as long as contracts of sale remain executory, the vendee is not bound to accept a chattel which is different from the chattel sold, whether the difference be one in kind, quantity or quality. Henry Gaus & Sons Mfg. Co. v. Magee, etc., Mfg. Co. 42 Mo. App. 307; Gaibout v. Clark, 24 Mo. App. 426; Calhoun v. Paule, 26 Mo.

Louis City Circuit Court. — Hon. Daniel Dillon, Judge. When'plaintiff, as shown by the mortgage, contracted with defendant Moran, “that the horses should remain in Moran’s possession,” he -made his contract subject to the provisions of sections 6730 and 6731 of the statutes. Smith v. Stevens, 36 Minn. 304; Gasev. Allen, 21 Kan. 217; Vette v. Leonori, 42 Mo. App. 224, 225; Johnson v. Mill, 3 Starkie, 172; Williams v. Allsup, 10 0. B. (N. S.), and 100 Eng.

Louis City Circuit Court. — Hon. Jacob Klein, Judge. (1) The motion for a nonsuit should have been sustained. There was no testimony that defendant knew that the horse was vicious and prone to do the act causing the injury. Tupper v. Clark, 43 Vermont, 200; Hanover, Law of Horses, see. 731, page 380; Wharton on Negligence, sec. 923.

Louis City Circuit Court. — Hon. P. R. Elitoraft, Judge. The taxes of 1892, for which this action is brought, were not laid, levied or charged, during the continuance of the lease, and were not included within the terms of the covenant sued upon. Valle v. Fargo, 1 Mo. App. 344. The said taxes prior to their levy did not become a lien upon the land by relation by virtue of the assessment.

— Hon. W. W. Rucker, Judge. (1) The eourt erred in the admission and exclusion of evidence to the defendant’s prejudice. (2) The court improperly declared the law in plaintiff’s fifth instruction given, and wrongfully refused to declare the law for the defendant whereby the jury was misled. Gartside v. Nixon, 43 Mo. 138; Scott v. Riley, 49 Mo. App. 252; Bayliss v. Lefaivre, 37 Mo. 119; Baker v. Campbell, 32 Mo. App. 530; Stone v. McNealy, 59 Mo.

— Hon. A. M. Woodson, Judge. (1) No cause of action is stated. The work was to be done according to ordinance 1655 and is alleged to have been done according to another ordinance, 356, passed two years before. The several lots were not charged with their proportion of the work done on the south side, but with the work done in their immediate front. R. S. 1889, sec. 1406; Eyeman v. Hardy, 8 Mo. App. 312; Galbreath v. Newton, 30 Mo. App. 391; Riley v. Stewart, 50 Mo.

— Hon. Chas. E. Booher, Special Judge. (1) The court erred in permitting the plaintiff, Griffin, to testify over the objection of the defendant as to his purpose or meaning in writing and mailing the postal card in question. It was wholly incompetent for the plaintiff to testify that he intended no reflection on, or threat to, the defendant. Nor was it competent for him to explain or interpret the meaning thereof.

— Hon. W. W. Ruckeb, Judge. (1) This is a suit to recover a debt due an estate, by a mere meddler, in his own name, without responsibility or authority on his part.

— Hon. D. W. Shackleford, Judge. (1) Plaintiff, in his petition, alleges that his easement or way of access to the public highway from his premises was destroyed by the wrongful acts of defendant in cutting and digging a ditch between said road and plaintiff’s said premises. This easement being a part of plaintiff’s premises and plaintiff’s private property, not even the legislature could deprive him of it without compensation.

— Hon. Richard Field, Judge. (1) The writ , of summons in this case was void because it was made returnable in less than ten days. R. S. 1889, sec. 6145; Sanders v. Baines, 10 Mo. 771; Williams v. Bowers, 26 Mo. 601; 12 Am. and Eng. Encyclopedia of Law, p. 435, and note; Branclenberger v. Easley, 78 Mo. 659; R. S. 1889, see. 6148; R. S. 1889, secs. 5092, 5094.

<p>1. Appellate Practice: evidence: demurrer: review. Where the entire evidence is not presented in the abstract, the appellate court can not say there was no evidence to sustain the verdict.</p> <p>2. Pleading: petition: gravamen op action. The gravamen of a complaint of plaintiff's petition is not that defendant raised the grade in the street, but that the grade so raised was left without lights by reason of which the injury occurred.</p> <p>3. Municipal Corporations: liability por condition op street. A city is liable for injuries resulting from pitfalls in its streets whether placed there by the city itself or third persons.</p> <p>4. Damages: measure op: construction. If an instruction for the plaintiff on the measure of damages is too general, the defendant should ask an instruction confining it to the proper elements of damage; an instruction in this case is not properly subject to the criticism of being too indefinite.</p> <p>5. Negligence: ordinary care : instructions. Certain instructions on ordinary care when taken together are not subject to criticism, and it is not proper to single out a detached clause of an instruction and condemn it without reference to what remains.</p>

— Hon. Richard Field, Judge. (1) Morath. held this property in trust for McDowell. Casborne v. Scarfe, 2 Leading Cases in Eq. (White & Tudor), part 2, marg. p. 1039, top p. 1948; 2'Story’s Eq. Jur. [12 Ed.], sec. 982, and cases cited. And this law of resulting trusts applies to personal property (the insurance money) as well as to real estate. 1 Perry on Trusts [2 Ed.], sec. 130; 1 Leading Cases in Eq.

— Hon. Eichard Field, Judge. We contend that she has forfeited her right, as. widow, to claim the provisions provided by statute. This question has never been passed upon by the courts of this state, but has been settled in other states in favor of appellant. Spiers’ Appeal, 26 Pa. St. 233; Estate of Coates, 12 Phil. .171; Nye’s Appeal, 126 Pa. St. 341; Ordiorne’s Appeal, 54 Pa. St. 175; Estate of Noah, 73 Cal. 583; Thompson on Homesteads and Exemptions, section 914.

— Hon. Richard Field, Judge. (1) The attempt to prevent delivery was not intended as a means of securing payment for that shipment, but to bring the consignee, Evans, to time on another matter. The law is as set forth in defendant’s third instruction and the court erred in refusing it. The evidence was such that under the law on this feature of the case, the finding should have been for the defendant, and this should cause a reversal of the judgment. 23 Am. and Eng.

— Hon. Richabd Field, Judge. STATEMENT OE THE CASE BY GILL, JUDGE.

— Hon. Richard Field, Judge. (1) The rule is positive, that in order to raise a presumption that a letter was received by mail, three things must be shown: First. That the letter was properly addressed. Second. That it was deposited in the United States postoffice, or in a mail bos, or given to a mail carrier, or other mail agent of the United States. Third. That the necessary amount of postage was prepaid thereon. Plathv. Ins.

— Hon. W. W Wood, Judge. There should have been a separate finding on each count, as the counts were different, and a failure to make separate findings is reversible error. Brisker v. Railroad, 83 Mo. 391; State v. Blisse, 111 Mo. 465; Mooney v. Bennett, 19 Mo. 551; Clark’s Administrator v. Railroad, 36 Mo. 215; Pitts v. Fugate, 41 Mo. 405; Collins v. Dalle, 45 Mo. 269; Bigelow v. Railroad, 48 Mo. 510; Owens v. Railroad, 58 Mo. 386; Chorn v. Railroad, 55 Mo. App. 163.

— Hon. Argus Oox, Judge. (1) The statute is not violated by a sale of whisky, by the gallon, at the place where made. Acts, 1891, p. 132, sec. 24. Anderson’s Law Dictionary, in defining place, says: “The extent of the locality is to be determined by the connection in which the word is used.” Premises on which a distillery is located can not be used as a place for retailing liquors or for carrying on any other business. R. S., U. S., secs. 3266, 3267, 3271, 3274.

— Hon. E. C. Cbow, Judge. (1) The omission to file the account before Justice Brock could, under the above quoted statute, be supplied. This is in the nature of an amendment. That which can be amended is not void. R. S. 1889, secs. 6138, 6139; Harclin v. Lee, 51 Mo. 245; Hartv. Louchs, 38 Cal. 372; Parmalee v. Hitchcock, 12 Wend. 96; Cooper v. Reynolds, 10 Wall. 300; Buzzard v. Hapeman, 61 Mo. App. 464.

— Hon. Jambs H. Lay, Judge. (1) The warrants not having been assigned in the manner and form required by the statutes, no right, title, or interest in and to the same was acquired by the Bank of Osceola. No action can be maintained by the assignee.

— Hon. James H. Lay, Judge. (1) We contend that if Phillips authorized the subletting for $40 and consented that Epperson should give his note to Eeely for the rent and told Eeely to collect it, that he would look to him and not to Epperson for the rent; that if Epperson did pay his rent note, as thus agreed, that Phillips should be estopped from collecting rent from the Epperson crop. Slight acts will show waiver of a lien.

— Hon. J. H. Slover, Judge, (1) The plaintiff in this action made aprima facie case by proving- the making and issue of tax bills sued on, giving the date and contents thereof, and assignment, and that defendants were the owners of the land sought to be charged. Guinotte v. Bidge, 46 Mo. App. 254. (2) This entitled plaintiff to a verdict, unless overcome by defendant. Smith v. Barnes, 106 Mo. 94.

— Hon. C. L. Dobson, Judge. (T) The defendant’s demurrer to the evidence should have been sustained, because the agreement between the Rock Island company operated in law to discharge the Union Pacific. Cooley on Torts, p. 349; Tompkins v. Railroad, 66 Cal. 164; Setcher v. Traction Co., 125 Pa. St. 403; Goss v. JEllison, 136 Mass. 503; Lkldy v. Barney, 2 N. E. Rep. 197; Ellis v. Bittier, 21 Ohio, 295; Allen v. Wheatley, 3 Blackf. (Ind.) 332.

— Hon. J. H. Slover, Judge. (1) The only question in this caséis, is the plaintiff estopped from claiming a lien by virtue of what Sublette said to Halliwell & Cunningham about the payment by Snider to Sublette; and was instruction for defendants numbered 3, justified by the evidence of Halliwell & Cunningham.

— Hon. John W. Henry, Judge. (1) The plaintiff is entitled to every reasonable inference of fact in his favor that can be drawn from the evidence. Jaclcson v. Ins. Co., 27 Mo. Held: without any modification, that this was sufficient to warrant the submission to the jury of the issue as to whether or not the defendant’s locomotives communicated the fire by which the property was injured or destroyed.

— Hon. C. L. Dobson, Judge. (1) Ball having participated in the fraud of the said Mattie Soper the law punishes that fraud by remitting the property to the attachments of other creditors, thus postponing him to the demands of others. McNichols v.Bubelman,-13 Mo. App. 515, 522; Bolancl v. Boss, 120 Mo. 208, 217; Elbe Works Co. v. Machine Co., 118 Mo. 365, 376, 377; Seger’s Sons v. Thomas Bros., 107 Mo. 635, 644; Cole v. Yancy, 62 Mo. App. 234; s. o., 1 Mo.

— Hon. D. P. Stratton, Judge. The appellants were acting as real estate agents in Cedar county, Missouri, and, as such, were employed by defendant to procure a purchaser for certain lands situated in said county, which they did; and, having brought the seller and purchaser together and a sale resulting, appellants are entitled to their commission, even though the terms of sale were varied by the principal and negotiations conducted by him.

— Hon. W. W. Rucker, Judge. (1) At the time plaintiff sustained his alleged injury he was not a traveler on the streets of the defendant city. He was merely seeking access thereto from Ash’s lumber yard, and the said city was not bound to furnish him with safe or any means of ingress to, or egress therefrom. It is only such streets and sidewalks as are public, and under the corporate control, that the city undertakes to keep in a suitable condition for use.

— Hon. W. M.. Bobinson, Judge. (1) The words “Except, reserving the right of a strip of land thirty (30) feet wide on each side, viz.: west, east, north, and south of said trq,ct of land for road purposes” contained in the deed from Herman Wild to his daughter, secured to the grantor an easement for himself of a private roadway over the thirty-foot strips mentioned in said deed.

— Hon. Richard Field, Judge. (1) No proofs of loss were made as required by tbe policy. This was a condition precedent to plaintiff’s right to recover. Hanna v. Ins. Co., 36 Mo. App. 538. (2) The evidence showed that an appraisal had been demanded, appraisers had been appointed, and no award had been made; and failed to show that defendant or its appraiser were in any mapner responsible for the failure to agree upon an umpire or upon the amount of the loss.

<p>Appeal from the St. Louis Court of Criminal Correction. Hon. David Murphy, Judge.</p>

<p>Divorce: time allowed for suing out writ of error. A writ of error for the review of a decree of divorce will be dismissed, if it was sued out more than sixty days after the rendition of the decree, the statutory limitation of the time for appeal and issue of a writ of error in such a ease (R. S., sec. 4510) being peremptory.</p>

<p>Error to the St. Louis City Circuit Court. — Hon. ' P. R. Flitcbaet, Judge.</p>

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

<p>1. Special Taxes: effect of tax bill against owners not named therein. A special tax bill, which is made out against some only of several co-owners, is not invalid on that account; but it will not constitute prima facie evidence of the validity of the tax against any co-owner who is not named in it.</p> <p>2. -: difference between reconstruction work and repairs. In the reconstruction of a sidewalk, as distinguished from repairs, new material is used, a different kind may be contemplated or required, and changes in the structure of the old sidewalk may also be involved. In repairs, on the other hand, the same kind of materiaj as that of which the sidewalk is composed must be used, and the structure of the sidewalk must not be changed in any material manner.</p> <p>3. -: EFFECT OF TAX BILL PURPORTING TO BE FOR REPAIRS, WHEN ISSUED IN FACT FOR RECONSTRUCTION WORK. A special tax bill issued under the charter of the city of St. Louis, and purporting to be for the repair of a sidewalk, will not be prima facie evidence of the validity of the charge when the work for which it was issued was the reconstruction of the sidewalk.</p>

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

<p>Insurance, Fire: application or insurance on manufactured ani> UNMANUFACTURED STOCK AND MATERIALS. A policy of insurance WUS issued insuring the several parts of a smelting plant, and manufactured and unmanufactured stock and materials. In a suit for a loss under the policy, a recovery was permitted for the loss of retorts used by the insured as a part of such stock and materials. Seld, that the retorts were appliances, and that the recovery for them under the subdivision mentioned was, therefore, unwarranted.</p>

<p>1. Injunctions: relief against lien of invalid special tax. A court of equity will interpose to prevent a cloud upon the title to real estate, and will, therefore, enjoin the issue of an invalid special tax bill which would create a lien upon the realty if it were valid.</p> <p>2. Special Taxes: judicial interference for oppressiveness of municipal ordinanoe. When the power to tax land for a local improvement is not expressly granted to a municipal corporation, but is to be implied from the authority expressly delegated, an ordinance involving the exercise of it may be declared invalid because unreasonable and oppressive. And such an ordinance, when it is general in its scope, may be adjudged reasonable in its application to one state of facts and unreasonable when applied to another.</p> <p>3. -: -: reconstruction of pavements. And held, under this rule, that an ordinance of the city of St. Louis, which required the reconstruction of sidewalks whenever they should be out of repair, was invalid when sought to be applied to an existing pavement which had not reasonably served its purpose, and which could readily be put into good condition by repairs whose cost would be but a very small fraction of the expense of its reconstruction.</p> <p>4. • — —: -: solution of matters of doubt. But held, further, in the course of discussion, that the question whether a sidewalk had reasonably served its purpose was in the first instance one for the proper municipal authority — in this case the street commissioner of the city of St. Louis — and that all doubts would be resolved by the courts in favor and support of his determination.</p>

<p>1. Tenant in Common: extent op right to recover land prom strangers. When land is owned toy two or more persons as tenants in common, the right to each to the possession is dependent upon his title, and, even in an action against a stranger for such possession, the recovery of any such tenant will be limited to his share or interest.</p> <p>2. -: -. But, held, by Rombauer, P. J., dissenting, that this rule has no application to proceedings in equity, wherein it was found that a defendant held real estate adversely to, and in fraud of, the plaintiffs and a eodefendant, and wherein a decree was entered vesting four fifths of the title in the plaintiffs and the other fifth in this eodefendant, and ordering a writ of restitution to issue in favor of the plaintiffs for four fifths of the land.</p>

<p>Jurisdiction, Appellate: practice iüt cases op doubt. When, this court is in doubt whether a constitutional question is presented by the record, it will transfer the cause to the supreme court in order that that court may determine the jurisdiction of the appeal.</p>

<p>1. Instructions: refusal when others of like purport are given. An appellant has no ground for complaint of the refusal of an instruction, when the propositions embraced therein are fully embodied in other instructions given by the court.</p> <p>2. -: not based on evidence. It is error to submit to the jury any issue which is not supported by evidence.</p> <p>3. Sales: warranty op sufficiency of machine: relevancy of evidence. A warranty made on the sale of a harvesting machine, that the machine would do as good work as any other harvester binder, means only that its work will be as good as that of any other harvester binder then in use. Accordingly, evidence of the work done by harvest binders which are made subsequently is irrelevant. And held, Bond, J., dissenting, that error in the admission of such irrelevant evidence was prejudicial under the facts of this cause.</p>

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

— Hon. W. W. Ruckle, Judge. (1) The court permitted the plaintiff and others to testify that they understood from defendant’s conversation, in which the slanderous language is alleged to have been spoken, that Humphreys charged plaintiff with the taking or stealing of some rails off a farm belonging to defendant.

— Hon. D. W. . Shackleford, Judge. (1) Tbe court erred in permitting tbe witness, Nixon, to express bis opinion in regard to Texas fever, and the manner in which it is communicated. He was not qualified-to speak as an expert. (2) The petition did not state a cause of action, because it did not show any act of the defendant to be the proximate cause of the alleged injury. (3) The demurrer to the plaintiff’s evidence should have been sustained.

— Hon. Richard Field, Judge. (1) Calling attention to the absence of the inventory and original bills or certified copies, was equivalent to an express demand therefor. Aetna Company v. Bank, 10 C. C. A. 342; Williams v. Queen, 39 Fed. Rep. 167. (2) The production of bills not certified and not originals does not satisfy the policy condition. Langan v. Boyal, 29 Atl.Rep. (Pa.)710; O'Brien v. Ins. Co., 63 N. Y. 108; Ward v. Ins. Co., 38 Pac. Rep. 1127.

— Hon. Richard Field, Judge. (1) The petition does not state facts sufficient to constitute a cause of action. It contented itself with merely alleging that they were “entitled to the possession” thereof. That such defect is fatal is held by Mfg. Co. v. Jones, 60 Mo. App. 219, and cases and authorities cited. (2) The verdict and judgment are not responsive to the pleadings and issues.

— Hon. Riohabd Field, Judge. (1) Was there or not such a dedication of the ground where the accident occurred, for a street, and acceptance thereof by the city, as to make the city liable for the condition of the sidewalk there? We say no. 2 Dillon, Municipal Corporations [2 Ed.], sec. 505, with note and cases cited. Hunter v. Weston, 111 Mo. 176; Skrainka v. Oertel, 14 Mo. App. 474, and cases; Moore v. Cape Girardeau, 103 Mo. 470, and cases; Golden v. Clinton, 54 Mo.

— Hon. P. D. Hastain, Special Judge. The information charges an offense sufficiently under the statute {State v. Appling, 25 Mo. 315; Kelly’s Criminal Law, section 942) and is good at common law. State v. Rose, 32 Mo. 561; State v. Brey, 1 Mo. 180; Blackstone’s Com., book fourth, subdivision 9, original paging, 64 and 65; 2 Cooley’s Blackstone [3 Ed.], top paging 63, book 4, and page 312.

— Hon. W. W. Wood, Judge. STATEMENT OF THE CASE BY GILL, J. A fair understanding of this controversy can be had by consulting the pleadings in the case. The petition is for the recovery of the value of thirteen head of fancy harness horses (stallions, mares and colts) which were owned by plaintiff and which, it is alleged, defendant, in February, 1892, wrongfully converted to his own use.

— Hon. E. C. Cbow, Judge. (1) Plaintiff can not in this suit maintain its action against defendant Myers on an ¿ccount and also charge the property in the hands of Myers’ vendee, defendant Center Creek Stone Company, with a lien for the purchase price, even though it might be true, which we deny, that defendant company took the machinery in question with knowledge that defendant Myers had not paid the entire purchase price therefor. Phillips v. Flynn, 71 Mo. 424.

— Hon. D. P. Stratton, Judge. (Í) How can they express consent to a renewal? Not by the tenant simply remaining in the property and saying nothing to indicate his willingness to hold for the renewal term. In that case his acts would be such that a renewal of tenancy would doubtless be implied; but this lease provides against any renewal by implication, and declares that it will only be renewed by both parties expressing consent thereto.

— Hon. D. P. Stratton, Judge. (1) The court erred in giving instruction number 3 for respondent which told the' jury that if the appellant consented to a sale of part of the crop grown on the demised premises, such sale would not warrant the attachment. 1 Herman on Estoppel, sec. 7; Bales v. Perry, 51 Mo. 449; Acton v. Dooley, 74 Mo. 63; Monies v. Belden, 80 Mo. 642, and cases cited.

— Hon. James H. Lay, Judge. Upon the trial of the case in the court below the plaintiff offered to read extracts from the deposition of Joseph P. Landes, and the defendant, Cleveland, objected at the time, unless the court would require the plaintiff to read the whole of said deposition. The court refused to require the plaintiff to read the whole thereof, and thereby committed error in so ruling, and for such error the judgment of the court below must be reversed. Hillv.

— Hon. James H. Lay, Judge. (1) In the sale of the machinery in this case for which the notes in suit were given there was an express conditional warranty as to the capacity, goodness of the material, etc., and the defendant is confined to the condition attached in the written contract. Machine. Co. v. Bobbst, 56 Mo. App. 427; Boyer v. Neel, 50 Mo.

E. L. Scarritt, Judge. (1) The law does not mulct a defaulting man into paying for the goods he failed to take, and giving them to the nondefaulting party, and letting him sell them, get the money and keep it as a gratuity. This is too elementary to cite authorities and this instruction is nowhere covered by any other instruction either for plaintiff or the defendant.

— Hon. John W. Henry, Judge. (1) The admission of the deposition of F. W. Ihne, who witnessed nothing, never was in the business of pitching barrels, was unable to designate, intelligently, a single gas generated by the ignition of pitch, and condemned himself as an ignoramus and charletan, by his own testimony, before every ordinary intelligence, was error. First. If igniting pitch produces a dangerously explosive gas, the description and proportions of that gas are facts.

— Hon. John W. Henry, Judge. (1) The court erred in refusing to give to the jury the instruction in the nature of a demurrer to plaintiff’s evidence, asked by defendant at the close of plaintiff’s evidence, for the reason that the undisputed evidence shows that the policy was issued and delivered after the fire without any knowledge of defendant’s agent of the destruction by fire of the property.

— Hon. C. L. Dobson, Judge. The price of $1 per bushel for number 2 corn, which obtained for a portion of May 31, 1892, on the Chicago board of trade, was not, under the circumstances proven, and offered to be proven, evidence of the market value of corn in Chicago at that time, and should not have been taken as the basis for estimating the damages sustained by plaintiff. Sedgwick on Damages, sec. 249; Smith v. Griffith, 3 Hill, 333; Kountue v. Kirkpatrick,. 72 Pa.

— Hon. Chas. L. Dobson, Judge. (1) Defendant, for $588, agreed to protect and defend Dreyfus Brothers and hold them harmless against certain claims. . This is not an assumption to pay, but to indemnify, is founded on good and valid consideration, and is a binding and independent contract. State v. Railway, 28 S. W. Rep. 1074; Borum v. Reid, 73 Mo. 461.

— Hon. John ,W. Woeeord, Judge. (1) Plaintiff’s contention is that under the term “merchant,” used in its charter, it is authorized to tax various kinds and classes of merchants. This must be true, else the term “merchants,” “retailers,” “agents,” “porters,” “runners,” “drummers,” etc., used in the charter are meaningless, because there are just as many kinds of “agents, retailers, porters, and drummers,” as there are kinds and classes of merchants.

— Hon. D. W. Shackleford, Judge. (1) The evidence shows, if anything, a hire and breach of the contract of hire. While no formal pleadings are required in a justice’s court, yet plaintiff is bound by the statement he files and must try the same case in the circuit court on appeal. R. S. 1889, sec. 6138; Leas v. Express Co., 45 Mo. App. 598; Devore v. StaecMer, 49 Mo. App. 547. Must try same cause of action in the circuit court.

— Hon. James H. Lax, Judge. (1) Ben Punk was neither a party to the suit nor a witness in the ease, and the court erred in overruling or refusing to rule upon plaintiff’s written request to exclude certain testimony as to his reputation for being a forger of paper, without having the questions paraded before the jury. Turner v. M. M. & F. Co., 56 N. W. Rep. 360; Jones v. Village of Portland,, 50 N. W. Rep. 734.

Apjoeal from the Barton Circuit' Court. — Hon. Daniel P. Stratton, Judge. STATEMENT OF THE CASE BY GILL, J. In 1888 and 1889 plaintiffs were engaged in tlie hay and grain business at Seymour, Missouri, and defendant was engaged in the sáme business at Lamar, Missouri.

'Appeal from the-Bates Circuit Court. — Hon. James H. Lay, Judge. (1) The petition charges that the defendant was agent for the New England Loan and Trust Company, and represented himself so to be. That the papers were executed and delivered to him for that company. In this case the principal and not the agent is liable. Mechem on Agency, sec.' 567; Milstead v. Equitable Mortgage Co.,49Mo. App. 191.

— Hon. W. W. Wood, Judge. (1) There is no evidence tending to prove a waiver of plaintiff’s landlord’s lien. To constitute a waiver an agreement was necessary. Meed v. Lambertson, 53 Mo. App. 76, loe. cit. 80. (2) There was no consideration for the alleged waiver, and it can not be upheld. A consideration is necessary. Haseltine v. Ausherman, 87 Mo. 410. (3) There is no evidence tending to prove that plaintiff directed Frank 0.

— Hon. D. W. Shackleford, Judge. (1) One of the fundamental ideas underlying this action is, that the plaintiff believed and had good cause to believe, as a reasonably prudent person, that she could safely step off of the car, while in motion. Strauss v. Railroad, 75 Mo. 185; Swigert v. Railroad, 75 Mo. 475; Waller v. Railroad, 83 Mo. 608; Strauss v. Railroad, 86 Mo. 421; Hickman v. Railroad, 86 Mo. 191..

<p>Practice, Appellate: requisites of abstract. When an appeal is taken by the filing of a certified copy of the order allowing it and of the entry of judgment in the trial court, it is essential to the review of matter of exception that the abstract of the appellant should set forth his motion for new trial, and show that it was filled in due time, that it was overruled, and that an exception was taken thereto.</p>

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

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

<p>Instructions: covering entire case. When the evidence of the opposing parties is entirely irreconcilable so that the belief in that of one side necessarily involves a disbelief in that of the other, an instruction to find for one of the parties on his theory, but otherwise for his adversary, is not in conflict with .the rule that an instruction purporting to cover the entire case must not exclude the evidence of • either of the litigants.</p>

<p>Practice, Appellate: requisites oe abstract. When an appeal is taken by the filing of a certified copy of the entry of the judgment and of the order allowing the appeal, and the abstract of the appellant fails to show that a bill of exceptions was filed, or that a motion for new trial was made, only the record proper is presented for review.</p>

<p>Appeal from the Pike Circuit Court. — Hon. Reuben F. Ron, Judge.</p>

<p>1. Corporations: implied power op secretary. The secretary of a corporation is not an officer of general power or authority. He has no power, virtute officio, to bind the corporation by contract; accordingly, a contract made by him in its behalf will not be binding on it in the absence of evidence of authority or ratification.</p> <p>2. -: implied power op credit man. Nor will' the mere fact, that he is also the credit man of the corporation, establish authority on his part to bind the corporation by a contract, whereby the corporation and a third person mutually agree to prorate all liabilities incurred through attachment proceedings instituted by them severally against a common debtor, if such proceedings should be unsuccessful.</p>

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