Volume 66 — Missouri Appeal Reports

— Hon. Andrew Ellison, Judge. (1) Instructions numbered 1, 2, and 3, given by the court for the plaintiff are erroneous and fatally defective, in this, that they are too general, and fail to confine the jury to the facts of negligence charged in the petition. Gurley v. Railroad, 93 Mo. 445; Tarnall v. Railroad, 75 Mo. 575; Brown v. Railroad, 101 Mo. 484; Mfg. Co. v. Ball, 43 Mo. App. 504; Railroad v. Railroad, 118 Mo. 599; Jacquin v. Calle Co., 57 Mo.

— Hon. A. M. Woodson, Judge. Assuming now that the knowledge of the agent is the knowledge of the principal, regardless of how or when that knowledge is acquired, it is the well settled law in this and other states that if, when the note sued on was sold by the C. D. Smith Drug Company to' plaintiff, Edward C. Smith acted as the agent of both parties to the transaction, as Mrs. Smith’s agent in purchasing the note, and as the agent of the C. D. Smith Drug Company in selling…

<p>1. Evidence: oral evidence in variance of writing. Evidence of an oral agreement made contemporaneously with a contract in writing is not competent to vary the terms of such contract.</p> <p>2. Contracts: different writings executed at same time. A contract may be contained in several instruments. These, if made at the same time, between the same parties and in relation to the same subject-matter, may be read together as one instrument, and the recitals in one may be explained or limited by reference to the other; nor is it necessary that the instruments should in terms refer to each other. And the rule obtains even when the parties are not the same, if the several contracts were known to all the parties and were delivered at the same time to accomplish an agreed purpose.</p> <p>3. -: presumption of consideration. Under our statute a direct provision in writing to pay money imports a consideration.</p> <p>4. -: nature of consideration. To uphold a contract, it is not necessary that the promisor should receive a consideration; it is sufficient, if the promisee or other beneficiary sustains the least injury or detriment, or parts with anything of the least value on the faith of the contract.</p>

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

— Hon. Eeuben F. Eoy, Judge. (1) The court erred in refusing to declare, as a matter of law, that the reasonable time for delivery of all the property had expired when the attachment was levied. Bump on Fraudulent Conveyances [3 Ed.], 135, 164, 165, 166; Claflin v. Bosenberg, 42 Mo. 439; State ex rel. v. Hall, 45 Mo. App. 298; Seymour v. O’Keefe, 44 Conn. 128; Wright v. McCormick, 67 Mo. 426; Stern v. Henley, 68 Mo. 262; Stale exrel. v. Goets, 33 ¡3. W. Rep. 161.

<p>1. Insurance, Fire: effect of present revised statutes. The Revised Statutes of 1889 went into effect on November 1, 1889, and therefore do not govern the effect of a policy of fire insurance issued before that date.</p> <p>2. -: POWERS OF LOCAL AGENT TO WAIVE CONDITIONS OF POLICY. A local agent of a foreign fire insurance company, who is not shown to have any authority beyond the soliciting of insurance, has no power on behalf of such company to waive any of the conditions of a policy issued by it.</p>

— Hon. Henry C. Riley, Judge. If the undisputed proof shows that the point where the mare was struck and killed was outside of the city limits and switch limits, yet where the company could not have fenced without endangering the lives of its employees, or materially interfering with its business, then, in the absence of a showing of negligence, the plaintiff could not recover, and the court was entirely right in peremptorily instructing the jury to find the issues for the…

Louis City Circuit Court. — Hon. Leroy B. Yalliant, Judge. The original cause of action was not one brought upon drafts. The trial court should have allowed the statement filed before the justice to be amended. Scovill v. Glaessner, 79 Mo. 449; Nutter v. Houston, 42 Mo. App. 363; Heman v. Fanning, 33 Mo. App. 50; Leev. Dunn, 29 Mo. App. 469; Newberger v. Friede, 23 Mo. App. 631; Lustig v. Cohen, 44 Mo. App. 271; Cameron v. Hart, 51 Mo. App. 142; Bradley v. Sweiger, 61 Mo.

Louis County Circuit Court. — Hon. Rudolph Hiezel, Judge. (1) The clause in the mortgage conveying after-acquired property was valid. Railroad v. Railroad, 108 Mo. 298; Burton v. Sitlington, 30 S. W. Rep. 514-516. (2) The clause in mortgage providing that, as to the merchandise on hand at the time of its execution, and thereafter acquired, the mortgagor had the power of sale and for the proceeds must account to the mortgagees was valid.

<p>Notary Public: liability for failure to send notice-of protest to indorsers. A notary’s official duty with reference to the protest of negotiable paper is fulfilled, when he duly presents the paper for acceptance or payment and protests it upon its dishonor. He is not liable for a failure to notify indorsers, when it does not appear that he was appointed the agent of the holder of the paper for that purpose, nor that there was a custom that'he should render such service to the holder.</p>

<p>Tie evidence is considered, and is held sufficient to warrant the verdict.</p>

Louis City Circuit Court. — -Hon. Jacob Klein, Judge. (1) By acquiring the absolute title to the property from Allen, as he did, Rowse is precluded from maintaining this action, as the legal and equitable estates in the property in question were, thereby, merged in him, and therefore the ' debt secured by the note was extinguished. 15 Am. and . Eng.

<p>1. Sales: breach or warranty: measure or damages. The vendee’s measure of damages on the hreaeh of a warranty made in the sale of a chattel is the difference in value, at the date of the sale, between the chattel as warranted and as it actually is. And this rule holds •good, though the vendee subsequently resells the chattel at an increased price.</p> <p>2. Instructions: warranted assumptions. The assumption of a material matter in an instruction is not error, when the nature of the proceedings warrants the court in treating such matter as uneontroverted.</p>

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

— Hon. Benj. E. Turner, Judge. The plaintiff must file with the justice a statement of his cause of action. B. S. 1889, sec. 2852. A note payable to order and not indorsed is not a sufficient statement of a cause of action. Smith v. Zimmerman, 29 Mo. App. 249. Possession of a negotiable promissory note payable to order and unindorsed raises no presumption of ownership. Cavill v. Tharp, 30 Mo. App. 131; Rice v. McFarland, 41 Mo. App. 489; Bowers v. Johnson, 49 N. Y. 435.

<p>Jurisdiction, Appellate: transfer of cause to supreme court. Either one of the courts of appeals may transfer a cause to the supreme court, if the latter court has jurisdiction of the appeal therein; and this, though the cause has by mistake been sent to it from a county lying outside of its own judicial district.</p>

— Hon. P. O. Stepp, Judge. (1) On the trial the plaintiff was permitted to introduce, against the objections of defendant, evidence to the effect that defendant was a man of violent temper, etc. Upon what principle this evidence was permitted to go to the jury we are unable to perceive. No such issue was presented in plaintiff’s statement, and its only effect was prejudicial to the defendant. Dudley v. McCluer, 65 Mo. 241; Teesev. Huntington, 23 How. 2.

— Hon. Richard Field, Judge. (1) It was error to give either the plaintiffs’ second or fourth instructions. Both are too indefinite and uncertain. Such instructions tend to mislead the jury and it is error to give them. Compton v. Baker, 34 Mo. App. 133; George v. Railroad, 40 Mo. App. 433, 447; Beltv. Goode, 31 Mo. 128; Legg v. Johnson, 23 Mo. App. 590; Clark v. Fairly, 24 Mo.

— Hon. John A. Hockaday, Judge. (1) The policy sued upon in this action makes the award of appraisers as to the amount of loss or damage a condition precedent to a recovery. The court, therefore, erred in not directing the jury to find a verdict for defendant on account of plaintiffs’ failure or refusal to arbitrate. Murphy v. Ins. Co., 61 Mo. App. 323; McNees v. Ins. Co., 61 Mo. App. 335; KaJmwjeiler v. Ins. Co., 57 Fed. Rep. 562; Mossness v. Ins.

— Hon. D. W. Shackleford, Judge. (1) The county court of Cooper county had exclusive jurisdiction to grant licenses to dramshop keepers in the county of Cooper, under the laws of 1891, pp. 128-130, sec. 4.

— Hon. P. C. Stepp, Judge'. When a contract is reduced to writing and signed by the parties, all contemporaneous or prior verbal agreements, varying or contradicting the written instrument, are incompetent and should be excluded. Tracy v. Iron Works, 104 Mo. 193; s. c., 29 Mo.

— Hon. P. C. Stepp, Judge. (1) We earnestly insist that the trial court had no jurisdiction of this cause. The so-called statement was not verified by affidavit as required by law. R. S. 1889, secs. 6169, 6170. The affidavit is not signed by the plaintiffs, and for this reason confers no jurisdiction upon the justice. • Grim v. Ellis ton, 33 Mo. App. 591; Bankv. Garton, 40 Mo.

— Hon. Cyrus A. Anthony, Judge. (1) Said note was taken as a compromise between said defendant and said Sullivan. There was no fraud practiced on said defendant at the time of the execution of said note. He fully understood why he was executing said note. It was by him signed with his eyes open and a full knowledge of all the surroundings, and of all his rights and privileges.

— Hon. Wm. S. Herndon, Judge. (1) There is no evidence that defendants were nonresidents of the state at the time this action was instituted. “The place where any person having no family shall generally lodge shall be deemed the place of residence of such person.” R. S. 1889, sec. 6570, clause 17. There is no evidence of the third allegation made in plaintiff’s amended affidavit. Elliott v. Keith, 32 Mo. App. 579.

— Hon. Henry M. Ramey, Judge. (1) Construing the married woman’s aet relating to personal property, it has been repeatedly held by the supreme court and by this court that as to such property, the wife was to be treated as a femme sole, with the power of disposing thereof at her pleasure, without being united with her husband in such disposal.

— Hon. E. J. Bp.oaddus, Judge. (1) It is the duty of the trial court in criminal cases to give instruction covering the whole law. Tha court failed to instruct the jury that it was presumed that the defendant was not guilty and from the evidence in this case the defendant was injured by the failure of the court in not giving said instruction. For this reason the case should be reversed. State v. Kolb, 48 Mo. App. 271; State v. Palmer, 88 Mo. 568; State v. Nicholson, 56 Mo.

— Hon. John A. Hockaday, Judge. (1) The paper filed as the basis of plaintiff’s suit is not such a “statement of the facts constituting the cause of action,” as is required by section 6138, Revised Statutes, 1889, governing actions brought before justices of the peace. Said paper shows no relation between the parties, contractual, or arising out of public duty. It alleges no specific act of omission or commission to which the charge of negligence applies.

— Hon. John A. Hoceaday, Judge. (1) The trial court had uo authority to enter the judgment against this defendant only. Under the verdict of the jury, the judgment should have been entered against all the defendants. They were parties defendant, and the finding was against them jointly. Nor this reason the motion in arrest should have been sustained. (2) The court erred in giving instructions numbered 1 and 2 in behalf of plaintiff.

— Hon. P. C. Stepp, Judge. The information attempts to charge the defendant with an assault on M. J. Young, by drawing a revolver and presenting it at M. J. Young, while the said Jack Williams was in shooting distance of said Young. The information charges no offense. An assault is defined to be an attempt to intentionally do unlawful violence to the person of another with an apparent ability of accomplishing it.

— Hon. P. C. Steep, Judge. The Worth circuit court had no jurisdiction of this-cause. R. S. 1889, secs. 4161, 4162, 4163, 4164. The defendant being under recognizance at the time the-order of removal was made, the order could not have the effect of transferring the cause to the Worth circuit-court until a new recognizance was entered into as-provided in section 4163. This section is negative in its terms, and is, therefore, mandatory.

— Hon. P. C. Stepp, Judge. (1) The court erred in overruling defendant’s motion to strike out parts of plaintiff’s reply. The company was authorized by law to insure against loss-by both fire and lightning. Sess. Acts, 1891, p. 165. A party must recover on the ground stated in his petition, and can not allege a ground of recovery for the first time in his reply. Louitz v. King, 93 Mo. 513; Mohney v. Peed, 40 Mo.' App. 99; Bill v. Coal Co., 119 Mo. 30.

— Hon. David Rea, Special Judge. (1) The appeal from that judgment operated as a supersedeas; simply suspended the judgment but did not destroy or impair it. The law is that, if after a judgment in ejectment the unsuccessful defendant sows a crop on the land, and after ouster under the execution, cuts and stacks it on the land, the judgment owner may maintain replevin for the crop. Oyster v. Oyster, 32 Mo. App. 270; Salmon v. Feivell, 17 Mo.

— Hon. John A. Hockaday, Judge. (1) The garnishment was served upon R. H. Norton in this case on the twenty-third day of September, A. D. 1889, and it appears from the evidence that all the services rendered by R. H. Norton, garnishee, for said Holcomb, and for which he claims said Holcomb was indebted to him, were rendered prior to said twenty-third day of September, A. D. 1889.

<p>1. Railroads: negligence in maintenance of insufficient gate. The evidence is considered and held sufficient to establish a cause of aetion against a railway company for negligence in maintaining in an improper condition a gate which formed a part of the railroad fence.</p> <p>2. -: KILLING OF STOCK: OBLIGATION OF RAILWAY COMPANY’S servants to maintain watoh for stock. If stock is killed by collision with a railway train after entering upon the right of way at' a place where a sufficient fence is maintained, the fact that the servants of the railway company in charge of the train could by the exercise of ordinary care have observed the stock in time to avoid the collision will not render that company responsible for the injury.</p> <p>3. -: special statute of limitations. The special statute of limitations in respect to aetion for damages, namely, Revised Statutes, section 4429, does not apply to an action against a railway company for the killing of stock, which is predicated upon negligence at common law warranting a recovery independent of Revised Statutes, section 4428.</p>

<p>1. Sales: effect of recitals of registry in stud books: competency of parol evidence. A bill of sale for a stallion recited that the animal was registered under certain numbers in the "National Register Erench Draft Horses” and “Percheron Stud Book of America,” and in the same connection mentioned the "Percheron Stud Book of Eranee,” but contained after such mention only a dash and no number. The bill of sale further provided that the vendor’s guaranteed nothing except as stated therein, and this provision was followed by a certain undertaking as to the breeding qualifications of the stallion. Sold, that the effect of the said recitals of registry was a question of fact for the jury, and that, in connection therewith, oral evidence of what passed between the parties at the sale, as well as of the custom of the trade, if there was any, was competent.</p> <p>2. -: DAMAGES FOR BREACH OF WARRANTY: SUFFICIENCY OF EVIDENCE. When a warranty is made that a stallion which is being sold is registered in two certain stud books, and such registry exists in one but not in the other of these books, and there is evidence of the effect of the absence of both registries, but none as to the effect of the absence of the one registry alone, an instruction warranting the assessment of substantial damages for the breach of the warranty is not supported by the evidence and is, therefore, erroneous.</p>

<p>1. Insurance, Fire: condition as to foreclosure of sale. A fire insurance policy contained a condition against the incumbrance of the insured property by mortgage, or its foreclosure or sale. The, property was rightfully advertised for sale under an existing mort- . gage; but the advertisement was withdrawn and no sale occurred. Held, Bond, J., not concurring, that the policy was invalidated by the advertisement, and this, though it was made payable to the mortgagee as his interest might appear.</p> <p>2. -: POWER OF AGENT TO WAIVE FORFEITURE. A local agent, though authorized to issue policies and thus enter into contracts of , insurance, has no power to waive conditions or forfeitures under a policy issued by him, which expressly provides against the exercise of such authority by him and limits the right to exercise the same to-a designated officer of the insuring company.</p> <p>3. -: -= — : estoppel. But held, by Boifb, J., dissenting, that,! , • this limitation of the powers of the local agent was not applicable to • the facts of this cause, since the insuring company had the power to: waive the conditions of the policy as well as to estop itself from .the-right to assert a forfeiture, and since the evidence in this cause established both such waiver and such estoppel.</p>

<p>Appeal from the Phelps drcnit Court. — Hon. C. C. Bland, Judge.</p>

<p>Wills: CONSTRUCTION AS OP TIME OP TESTATOR’S DEATH. A will Speak® as of the date of the testator’s death. If between the date of the execution of it and the date of such death conditions have changed, it must be presumed that the testator had such changes in mind when he died, and, in view of his having made no changes in the will, its terms must be interpreted in the light of the conditions existing at. the latter date.</p>

<p>Justices’ Courts: term oe opeice. The election of. justices of the peace in the city of St. Louis under the-act of April 21, 1891, did not terminate the functions of the justices in that city who held office at the time. Those functions terminated only when the justices elected under that act qualified.</p>

<p>1. Fraotice, Trial: separate findings of fact and law. A statement by the trial eourt of its findings of fact and conclusions of law in the trial of a cause before it without jury will not be reviewed upon appeal, if it is made upon request of a party after the rendition of judgment by that court. The statute (R. S., see. 2135) contemplates that the request should precede the judgment.</p> <p>2. Law and Fact: deduction of inferences from writings. When different inferences of fact are deducible from a writing introduced in evidence in a cause, the jury or trier of the facts is the judge as to the inference to be drawn.</p>

<p>1. Pleading: action on covenants in deed: new matter in answer. In an action on covenants in a deed the answer alleged the existence of good title in the defendant at the time of the conveyance. Held, that the allegation was hat an argumentative denial of the allegations of the petition, and in no sense new matter.</p> <p>2. Deeds: covenants implied by use oe terms, grant, bargain and' sell. An invalid claim does not constitute an incumbrance within the meaning of any of the covenants implied from the use of the terms, “grant, bargain, and sell,” in a deed, unless it be the covenant for further assurance, and that covenant relates only to defects which can be supplied by the vendor himself.</p>

<p>1. Malicious Prosecution: pleading. A petition states a cause of action for malicious prosecution when it states, in substance, that the defendant, acting with malice and without probable cause, procured the issue of a warrant charging the plaintiff with a felony; that the latter was arrested on the warrant; and that the prosecution has been dismissed by the defendant, and the plaintiff discharged.</p> <p>2. -; EPPECT OP VOLUNTARY DISMISSAL OP CRIMINAL PROSECUTION. The fact that a criminal proceeding was voluntarily dismissed by the prosecuting witness, and the defendant therein discharged, will constitute evidence of the want of probable cause for the proceeding in an action for malicious prosecution based thereon.</p> <p>3. -: EXEMPLARY DAMAGES: EVIDENCE OP DEPENDANT’S WEALTH. When exemplary damages are recoverable in an action for malicious prosecution, the defendant’s financial ability may be shown by the plaintiff.</p> <p>4. -• : proof of probable cause. An action of malicious prosecution was based upon the arrest of the plaintiff at the instance of the defendant on the charge of obtaining goods under false pretenses. Held, that probable cause could not be established by proof that the . plaintiff had been arrested upon another but similar charge and had settled the claim to procure his release.</p> <p>5. -: -. The defendant in this action sued the plaintiff, by attachment, for goods sold, and subsequently procured the arrest of the latter on the charge that the goods were obtained under false pretenses. On this arrest was based the present action for malicious prosecution. Held, that the record in the attachment suit was admissible in evidence in the present aetion to show that the affidavit for the attachment did not allege as grounds facts upon which the arrest was sought to be vindicated.</p>

— Hon. Reuben E. Roy, Judge. The bond dated November 24, 1890, was not conditioned in favor of the sheriff; therefore he could maintain no action on it. The second bond was taken after the issuing of the writ and the making of the levy without any authority of court, and is therefore void. 1 Am. and Eng. Encyclopedia of Law, p. 905; Stevenson v. Bobbins, 5 Mo. 18; Stambout v. Goldstein, 13 Mo. 24.

Louis City Circuit Court. — Hon. L. B. Valliant, Judge. (1) The statement or account sued upon does-, not allege facts sufficient to constitute a cause of action. It fails to allege whence the loan was to come. The plaintiff must allege and prove that he had produced a lender ready and able to loan the money. Hayden v. Grillo, 26 Mo. App. 289, 293, 294; Story v. Ins. Co., 1 Mo. App. 678. He must disclose the party loaning the money or produce his contract.

<p>1. Criminal Law: evidence oe license to dramshop keeper: records oe EXCISE commissioner. The records of the excise commissioner are but secondary evidence of the issue of a license to a dramshop keeper, the license itself being the best evidence. Accordingly, such records are not competent evidence of the issue of the license in a proceeding against the dramshop keeper, when he has not been notified to produce the license.</p> <p>2. -: burden oe proof: instructions. When a dramshop keeper is prosecuted criminally for an illegal sale of intoxicating liquor and pleads not guilty, he is entitled to an instruction that he should be acquitted unless his guilt is shown beyond a reasonable doubt.</p> <p>3. -: poll oe jury. A litigant is entitled to a poll of the jury, when he demands it.</p>

<p>Appeal from the ,Louisiana Court of Common Pleas.— ’ Hon. Reuben E. Roy, Judge.</p>

<p>Appeal from the Cape Girardeau Circuit Court. — Hon. Henry O. Riley, Judge.</p> <p>(1) The law at the date of the contract enters into the same, and the liability of the securities can not be enlarged by a change in the law. Murfree on Official Bonds, secs. 710, 711, 712, 713, and 720. The securities are not liable to answer for any new duties. Ibid., sec. 650. (2) Where a special bond is required of a guardian before he can sell real estate, and he sells without executing a new bond, his securities on the original bond are not liable. Matteson Co. v. Johnson, 51 Iowa, 152; Hook v. Evans, 68 Iowa; Warwick v. State, 5 Ind. 330; Lyman v. Gonkley, 1 Mete. 317; Williams v. Morton, 38 Me. 47; ■Henderson v. Cooper, 4 Nevada, 429; Grimes v. Commonwealth, 4 Settle (Ky.), 1; Andrews’ Heirs, 3 Humph. (Tenn.) 591; Schuster v. Weis, 114 Mo. 158.</p>

— Hon. A. M. Woodson, Judge. (1) The evidence shows that the plaintiff’s husband, John A. Wheeler, was a trespasser with notice’of the withdrawal by defendant of its license to use the road; therefore, defendant owed him no duty. (2) Because the evidence, which was not contradicted, and was conclusive upon the question of fact, showed the defendant built a sufficient barricade.

— Hon. W. W. Ruoker, Judge. (1) The action of money had and received will lie wherever money has been paid to a defendant under circumstances which would make it inequitable and unjust for such defendant to retain the same. JohnsonBrinkman Go. v. Bank, 116 Mo. 558; Tamm v. Kellogg, 49 Mo. 118; 2 G-reenleaf on Evidence, sec. 117; Railroad v. McLiney, 32 Mo. App. .166; Jacoby v. O' Hearn, 32 Mo.. App. 566; Koopman v. Cahoon, 47 Mo. App. 357.

<p>1. Criminal Law: information for maintenance of public nuisance. An information for the maintenance of a public nuisance charged that the alleged nuisance was maintained to the great damage and common nuisance, not only of parties named therein as complainants, but also of all people then and there lawfully being and residing. Held, that this was equivalent to charging that the nuisance was an annoyance to a portion of the inhabitants of the state, and that the information was, therefore, sufficient.</p> <p>2. -: general finding on several counts: effect of appeal from justice’s oourt. The judgment of a justice of the peace in a criminal proceeding is invalid, when the information contains several counts for distinct offenses and his finding is general. But this ground of objection is removed by an appeal from the judgment, since such appeal transfers the cause to the appellate court for trial de novo and upon its merits.</p>

<p>Practice, Appellate: weighing the evidence. It is the province of the jury, in an action at law, to pass upon the credibility of witnesses and to weigh the evidence, when there is a substantial conflict.</p>

<p>Insurance, Life: extent of warranty as to other insurance. An applicant for life insurance answered in the negative an inquiry whether he had any other insurance on his life, and, if so, when and where, and for what amount such other insurance was taken, and hy what kind of policies; he also warranted his answer to he true. Held, that the inquiry and warranty related only to other insurance known to him.</p>

— Hon. Reuben; E. Roy, Judge. Even if plaintiff is not bound by the application,, which was signed by Alvis (who from the testimony-appears to have been as much the agent of plaintiff as-of the defendant), still by accepting the policy, describing the property as his, he warranted that he was the-sole owner thereof. Bomarcl v. Ins. Co., 27 Mo. App. 26; Ins. Co. v. Barrett, 73 Mo. 374; Mens v. Ins. Co., 68 Mo. 127.

<p>1. Jurisdiction, Appellate: constitutional question. A cause appealed to this court must be transferred to the supreme court, if, in any contingency, the determination of a constitutional question presented by the record may become necessary.</p> <p>2. -: -. Accordingly, though the constitutional question was raised by the respondent and he was successful on a ground which did not involve it, the transfer will, nevertheless, be made if the constitutional question would remain for consideration by this court in ease there were error in favor of the respondent in other respects.</p>

<p>1. Evidence: oral evidence in variance op explanation of writing. A contract in writing, dated November 12, 1892, bound one of the parties to sell and deliver to the other all the coal required by the latter at certain establishments for one year beginning on November 1, 1892. Held, that parol evidence as to the quantity of . coal to be delivered each day was competent, but that oral evidence to the effect that the contract was in fact executed on, and only became operative from, a date later than that designated (November 1, 1892) was incompetent as varying the writing.</p> <p>2. Contract: construction op stipulation. This contract stipulated that the party contracting to deliver the coal should not be bound to make deliveries when prevented by general strikes, or other causes beyond his control, from handling the products of his mines. Held, that it was sufficient for such party to show under this provision that his mines were situated on a railroad, and that he was unable to obtain from the railway company the number of ears which he had reason to expect at the time the contract was entered into, and that this was the sole cause of his failure to execute his contract in so far as he did not do so.</p> <p>3. -: PLEADING EXCEPTION EXCUSING PERFORMANCE. In an action for the breach of a covenant in a contract which is subject to a proviso or exception, the party sued for the breach must plead the proviso or exception in order to avail himself thereof, if it is not contained in the body of the covenant itself but in a separate clause of the contract.</p> <p>4. -: DAMAGES FOR BREACH: DUTY OP INJURED PARTY TO PREVENT accumulation. An injured party is bound to reasonably exert himself to prevent the accumulation of damages. Held, accordingly, in an action for the nondelivery of coal under the above mentioned contract, that the plaintiff could not recover for any loss which he could have avoided by procuring coal elsewhere.</p>

<p>1. Practice, Appellate: RES adjudicata. The matters determined on the appeal of a cause furnish the law for its retrial, and will not be reviewed on a subsequent appeal.</p> <p>2. Criminal Law: destruction op pence: variance. An information charged the defendant with cutting a fence in violation of Revised Statutes, section 3592, and, in so doing, alleged that the land inclosed by the fence was in two designated sections. Held, that proof was admissible of the cutting of the fence in either or both of these sections.</p> <p>3. -: reading op provisions op statute to jury: nonprejudicial error. It is within the sound discretion of the trial court to permit the section of the statute under which an information is framed to be read to the jury. Nor will a judgment of conviction be reversed on appeal for the reading of another section of the statute to the jury, when it appears that the defendant was not prejudiced thereby.</p> <p>4. -: instructions. When the defendant in a criminal case testifies as a witness, the jury may be instructed that, in weighing his testimony, they .may consider the fact that he is'the person on trial.</p>

<p>1. Negligence: sufficiency of petition: objection at trial. A petition for damages for injuries resulting from alleged negligence should advise the defendant of the particular negligence complained of, so that he may know against what he is called upon to defend himself; but, when this is done, the petition is not defective although it does so in general terms. And a petition, when objected to for the first time at the trial, will be upheld if it states a ’cause of action, although it might with propriety have been adjudged insufficient on written demurrer or motion.</p> <p>2. -: MASTER AND SERVANT: KNOWLEDGE BY^ SERVANT OF INSUFFICIENCY OF appliances. The mere fact that a servant knew of the insufficiency of appliances will not debar him from recovering for injuries resulting from such insufficiency, when it might reasonably have been supposed that the appliance could with care and caution be safely used. But, when the danger is so obvious that the servant could not help understanding it fully, his continuance in the employment constitutes a voluntary assumption of the additional risk, and he can*not recover.</p> <p>3. Instructions: curing of omission in one by reading all together. Instructions must be.read together, and the giving of an incomplete instruction is not reversible error if its defieiences are supplied by another and the instructions are not inconsistent. And held, under this rule, that an apparent assumption of matters in issue by one of the instructions in this cause, resulting from the omission therein of the hypothetical beginning ordinarily used in instructions, was thus cured.</p>

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

<p>1. Mechanics’ Liens: excess in quantity of property charged. Held, in the course of discussion, that mere excess in the quantity of the property sought to he charged with a mechanics’- lien does not vitiate the lien account, and that the lien is in such a case enforeihle against the property properly charged, provided that such property can he segregated from the excess.</p> <p>2. -: party entitled to appeal. Only a party aggrieved hy a judgment has the right to appeal therefrom. Accordingly, when a mechanics’ lien is adjudged against several lots and is invalid as to one of them, a defendant is not entitled to complain of such invalidity on appeal if it does not appear that he has some interest in that lot.</p>

<p>Appeal from the Lawrence Circuit Court. — Hon. J. 0» Lamson, Judge.</p> <p>The court’s error in refusing to permit the appellant .to file an application for a continuance, on account of the absence of a material witness for whom the court had issued an attachment not yet returned, was such" an abuse of the court’s judicial discretion as to entitle the appellant to a reversal of the cause. The granting or refusing a continuance is a matter largely in the sound discretion of the court, but being a judicial discretion, is a proper subject for review. Alt v. Grosclose, 1 Mo. App. 645; Tunstallv. Hamilton, 8 Mo. 500; Barnumv. Adams, 31 Mo. 532; State v. Lewis, 74 Mo. 222; State v. Anderson, 96 Mo. 241; Barlow v. Campbell, 56 Mo. 117; Lebow v. Goode, 67 Mo. 126.</p>

<p>1. Husband and Wife : operation op act op 1875. Money derived from the sale of land, inherited by and belonging to a wife, is an acquisition of personal property by her means within the purview of the act of 1875 (R. S., sec. 3296). Accordingly, her husband can only acquire title thereto by her express assent in writing.</p> <p>2. -: -: MANIFESTATION OF ASSENT IN WRITING BY WIFE. The fact that such land has been conveyed by the joint deed of the husband and wife, and that the grantee gave his note payable to the husband for a part of the purchase money and secured it by mortgage on the land, at most establishes an implied assent on the part of the wife, and, therefore, fails to comply with the requirements of the statute for the reduetion'of her property to her husband’s possession.</p> <p>3. -:--: action in equity for proceeds of wife’s property. When a husband receives the proceeds of his wife’s property without her express assent in writing and converts the same to his own uses, and, in so doing, invests a portion thereof in the improvement of his own land, an action in equity will lie to eharge the land with a lien for the portion thus invested, and, as an incident thereto, for the recovery from the husband of the entire proceeds thus converted by him.</p>

<p>Appeal from the Bollinger Circuit Court. — Hon. James D. Fox, Judge.</p>

<p>Judgment, Action on: appeal with supersedeas bond. An action can not be maintained on a judgment while an appeal therefrom with superseaüeas bond is pending in the appellate court; nor will it matter in such casé that the appellant has failed to file his bill of exceptions in the cause within the time allowed therefor. And such appeal being shown, its pendency will be presumed in the absence of evidence to the contrary.</p>

<p>1. Release: forum for cancellation: necessity of return or tender of consideration. Resort to equity for the cancellation of a release of claims for damages is not necessary, when the execution of it was obtained by fraud or deception, or the party who executed it was legally incapable of contracting. And in such eases the party executing the release may contest its validity in an action at law without returning or tendering the consideration received by him for it.</p> <p>2. -: -: -. But when the party executing the release was induced to enter into it through fraud or undue influence, or was . temporarily insane at the time of its execution, that is, did not possess sufficient mind to comprehend the nature and effect of the transaction, and seeks on either of these grounds to avoid the release, recourse must be had to equity for its cancellation; and for such a proceeding a return or tender of the consideration is essential.</p>

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

— Hon. W. N. Evans, Judge. (1) The court committed errorin admittingthedeed from Jesse Butz to plaintiff to be readin evidence. This deed does n.ot express on its face to be sealed, and the grantor affixed thereto only a scroll. R. S., sec. 2388; Cartmill v. Hopkins, 2 Mo. 220; Grimsley v. Riley, 5 Mo. 280; Walker v. Keile, 8 Mo. 301; Glascock v. Glascock, 8 Mo. 577; State ex rel. v. Thompson, 49 Mo. 188; Dickens v. Miller, 12 Mo. App. 408.

— Hon. J. H. Slovee, Judge. (1) The confusing of several accounts together destroys the identity of a lien claim and renders it invalid. Beits v. Qhio, 47 Mo. App. 287; Kirtley v. Morris, 43 Mo. App. 144; Kelleyv. Kelly, 77 Maine, 135. (2) A judgment of the justice of the peace, who has jurisdiction of the subject-matter and parties, is not subject to collateral attack. Karnes v. Alexander, 92 Mo. 660; Seeker v. Clinginsmith, 97 Mo. 406.

— Hon. J. H. Slover, Judge. (1) The application was a part of the policy, and every statement therein was a matter of express warranty, and hence material. A warranty is an agreement in the nature of a condition precedent, and, like that, must be strictly complied with. Daniels v. Ins. Co., 12 Cush. 416; Bipley v. Ins. Co., 30 N. Y. 136; Campbell v. Ins. Co., 98 Mass. 381; Bennett v. Ins. Co., 50 Conn. 420; Thomas v. Ins. Co., 108 111. 91; Ins.

— Hon. W. W. Rucker, Judge. (1) We insist that from the facts found in this case the equities as well as the law are in favor of the defendant. '(2) On the finding of facts in this case, and the pleadings, the judgment should be for defendant. Shoe Co. v. Bank, 56 Mo. App. 662; Calm v. Beid, 18 Mo. App. 115.

— Hon. T. M. Lavelook, Special Judge. (1) This court in this cause may look to the record and give such judgment as to them shall seem agreeable to the law and facts. Keiser v. Gammon, 95 Mo. 223; Morey v. Staley, 54 Mo. 419; Holden v Vaughan, 64 Mo.'590; Rogers v. Broivn, 61 Mo. 187; Beck v. Pollard, 55 Mo. 26. This court may examine the agreed statement of facts. Shaw v. Padley, 64 Mo. 519; Stone v. Corbett, 20 Mo. 352.

— Hon. D. W. Shackleford, Judge. . . (1) The trial court erred in adding to instruction number 4 prayed by appellants, the words “unless such statements were made in the presence of plaintiff’s agent, and were not denied or called in question by such agent.” A party dealing with an agent must find out the extent of the agent’s authority. Mechem on Agency, sec. 288; Chaffee v. Stubbs, 37 La. 656; Savings Fund Society v. Bank, 36 Pa. St. 498, 78 Am. Dec. 390.

— Hon. D. W. Shackleeord, Judge. (1) A referee in a civil case is not entitled to have the clerk of the court in which the caséis tried tax any fee for or to the referee until under the statute the court has made an allowance to the referee, and then the clerk’s sole duty is to tax the amount allowed by the court. The clerk has no discretion, in the matter. R. S. 1889, sec. 2158.

— Hon. Richard Field, Judge. (1) It was error for .the court to permit the plaintiffs to introduce evidence showing a decline in the market price of such cattle at Kansas City between the tenth and twelfth days of July, for the reason that this is an action for damages for failure to ship the cattle as defendant agreed to do.

<p>Appeal from, the Lafayette Circuit Court. — Hon. Richard Field, Judge.</p> <p>(1) The court erred in dismissing the appeal because the recognizance was not signed in the presence of the justice. R. S. Mo. 1889, sec. 6328. The court was, in its decision, controlled by the cases of Cochrill v. Owen, 10 Mo. 287; Adams v. Wilson, 10 Mo. 341. These decisions construed the statutes as they existed prior to 1855. R. S. 1845, p. 678, sec. 3; R. S. Mo. 1889, sec. 6328; R. S. 1845, p. 678, sec. 4. (2) The general voluntary appearance entered by respondent in the circuit court waived objections to recognizance.</p> <p>(1) “ A recognizance is an obligation of record, which a man enters into before some court of record or magistrate duly authorized, with condition to do some particular act; as to * * * paya debt or the like.” Yol. 1, book 2, Black, Com. [ChittyEd. 1847], p. 275, s. p. 341. This point is expressly decided by the supreme court. Cochrill v. Owen, 10 Mo. 287. This decision was made under the Revised Statutes, 1845, but the language of the statute then is the same as it is now. R. S. 1845, sec. 3, p. 668; Adams v. Wilson, 10 Mo. 341. These two decisions in the 10 Mo. have never been reversed. (2) .The appellant tries to-avoid the effect of his worthless recognizance, by claiming that the entry of appearance by respondent waived these objections. A strange position, that the respondent by coming into the circuit court, and availing himself of the only way pointed out to raise objections to the recognizance, should by so doing waive the objections themselves!</p>

<p>1. Criminal Law: information : forcible entry and detainer. An information charging the defendants with unlawfully, by force and violence and without authority of law, taking and keeping possession of real property is insufficient in that it does not charge what the force and violence consisted of.</p> <p>2. -: pleading : statute. In many cases it is only necessary to charge the offense in the language of the statute; but this rule only applies where the facts which constitute the offense are set out in the statute.</p>

— Hon. Richard Field, Judge. (1) Interpleader’s instructions numbers 1, 2, 3, and 4, are erroneous in that they single out and emphasize certain specific facts to the exclusion of others, and comment on the evidence. Meyer v. McMahan, 50 Mo. App. 18, 23; Weil v. Schwarts, 21 Mo. App. 372, 382; Noyes v. Cunningham, 51 Mo.

— Hon. W. W. Wood, Judge. (1) Respondent’s motion to strike out portions of appellant’s amended answer should not have been sustained. A defendant may set-off any demand he has against plaintiff. R. S. 1889, sec. 6204; Green v. Conrad, 114 Mo. 651.

— Hon. Angus Cox, Judge. (1) Where a petition declares upon a contract without stating whether it is in writing or not, the contract will be presumed to be in writing. Sharkey v. McDermott, 91 Mo. 652; Brown on Statute of Frauds, sec. 505. (2) There was a fatal variance between the contract declared on and the evidence of plaintiffs. Wisby v. Boyce, 27 S. W. Rep. 590; Gray v. Race, 51 Mo. App. 554; Merrill v. Trust Go., 46 Mo.

— Hon. Argus Cox, Judge. The evidence shows that James H. Nunn was the agent of Brown, the plaintiff, in paying to each one of the heirs the amount due them on sale of the land. Brown was purchaser of all the interests in the land in controversy, and Nunn, as his agent, at the request of Jones, mortgagor, paid Jones’ share of the money to Daniels, agent for the St. Clair County Bank.

— Hon. E. C. Crow, Judge. (1) A pack of cards is a “gambling device.” State v. Mohr, 55 Mo. App. 329; State v. Gilmore, 98 Mo. 206. (2) The words “gambling device” in an indictment mean the same as “gaming device” in the statute. State v. Mohr, supra. (3) Where the statute prescribing the offense individuates it, the indictment is sufficient if it follows the language of the statute. State v. Fare, 39 Mo. App. 110, and cases cited; State v. McDaniel, 40 Mo.

— Hon. E. C. Crow, Judge, (1) The petition did not state a cause of action. Randle v. Railroad, 65 Mo. 325; Whitfield v. The Town of Carrollton, 50 Mo. App. 98; Berlin v. Thompson, 61 Mo. App. 235. (2) Where the nuisance is such as may be removed (or stopped) at any time and the damage does not go to the inheritance, the measure of damages is the loss actually sustained prior to the institution of the suit, and not to any supposed permanent damage to the real estate.

— Hon. E. C. Crow, Judge. (1) If the demand for an allowance by the widow is anything, it is a claim against the estate, and if so must be filed and urged as such within two years. R. S. 1889, sec. 188.

— Hon. E. C-Crow, Judge. (1) When defendant lodge passed,'on the thirteenth of January, 1893, its by-law, providing, “that if death shall be caused or superinduced by the use of intoxicating liquors, the certificate issued to such member shall be forfeited,” said by-law became from said thir teenth of January, 1893, a part of the contract between said Teets and defendant. Bacon on Benefit Societies, sec. 185; Fllerbe v. Faust, 119 Mo. 653; Stoehrv. Society, 22 Pac. Rep.

— Hon. D. P. Stratton, Judge. (1) A judgment at law will not be enjoined in equity unless there existed a good defense to the action at law or the defendant in the law action was prevented from making his defense by mistake, surprise, fraud, or unavoidable circumstances. High on Injunctions [2 Ed], p. Ill, secs. 165, 166; 1 Black on Judgments, sec. 366.

— Hon. D. P. Stratton, Judge. (1) A purchaser’s title to property bought at a constable’s sale under an execution upon a valid judgment of a justice of the peace, can not be defeated by the mere fact that the justice of the peace failed to mark the rate of intérest on the back of the execution. Endlich on the Interpretation of the Statutes (1888), sec. 433, p. 612; R. S. 1889, secs. 2100, 2113, 2116. It is the policy of the law to uphold judicial sales.

— Hon. D. P. Stratton, Judge. (1) In this case it should not be overlooked that plaintiff’s application for suit money was not made until after final judgment had been rendered dismissing her bill. Neither should it be overlooked that, at the time the court sustained her application and awarded her this alimony, she had neither applied for nor been granted an appeal.

— Hon. D. P. Stratton, Judge. (1) Stripped of verbiage, the first ground of the motion to quash is, that the amended affidavit of Coiner is to affiant’s “best knowledge, information, and belief,” and that this is not a sufficient verification, as decided by this court. State v. Davidson, 46 Mo. App. 9.

— Hon. E. L. Sgaebxtt, Judge. (1)' The proper amount which plaintiff ought to have recovered was his debt against the defendant ■which, was $451.52 and interest and costs of his suit; and not $617 which the garnishee owed the defendant. The summons and judgment show this error. (2) The plaintiff should state his case in the denial. If it does not state facts sufficient to constitute a cause of action, it will not support a judgment.

<p>Administration : allowance op offset. A probate court has jurisdiction to render a judgment of offset on the presentation of a demand against the estate of a decedent, only when an offset to such demand is presented by the legal representative of the estate.</p>

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

<p>1. Common Carriers: carriage op live freight. To warrant a recovery by a shipper against a common carrier for damages to live freight, it is not sufficient for the. shipper to show a delivery of the live freight to the carrier in good condition and its redelivery in a damaged condition, but he must further produce evidence tending to prove an injury by human agency causing or concurring to cause the loss. When this is done, the burden is cast upon the carrier to show due diligence in the transportation.</p> <p>2. -: -: sufficiency of evidence. The intervention of such cause or concurrent cause of the loss may be shown by circumstantial evidence. And held, that the evidence in that regard was sufficient in this action.</p>

<p>Appeal from the Madison Circuit Court. — Hon. James D. Fox, Judge.</p>

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

<p>1. Expert Witness: qualification to express opinion. A witness-is not qualified to express an opinion as to a matter of expert opinion, when he admits that his estimate would be a mere guess.</p> <p>2. Building Contract: quantum meruit: measure of damages. Held, in the course of discussion, that a party who contracts to do-work on a building, but fails to complete his contract after partially performing it, is entitled to the reasonable value of the work done, not exceeding the contract price, less whatever damage the other contracting party has suffered through the noneompletion of the contract.</p> <p>3. -: -recoupment: pleading. When an action of quantum meruit is brought for work so done, the defendant must plead an imperfection in the work performed in order to entitle himself to a deduction from the contract price on account thereof.</p>

— Hon. J. C. Lamson, Judge. It appears affirmatively from the record that the public had acquiesced in the location of the road by using it, and it therefore became a road de facto, irrespective of whether or not it had been improved by the public authorities. The railroad company, therefore* did right to leave it open. It is immaterial how far the railroad ran over the traveled portion of the highway.

<p>Per Bond, J.</p> <p>■When there is sueh misconduct on the part of a juror and of counsel for the successful party that prejudice to the defeated party may have arisen, a new trial will he granted unless it appears that such prejudice did not in fact result.</p>

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

<p>Contribution: essential conditions. Suit for contribution can not be maintained by one of several joint debtors, until payment of the joint obligation has been made or something done equivalent thereto And held, Bond, J., not concurring, that the evidence in this cause warranted a finding of such payment.</p>

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

<p>1. Promissory Note, Reissue of: powers of married woman. The maker of a promissory note, who is sui juris, may for a consideration reissue it after it has become his property; and under our present statute a married woman is capable of thus contracting.</p> <p>2. -: merger of mortgage. The doctrine of merger will not be applied by a court of equity to the union of two estates in the same person, when it would conflict with the intention, or be against the interest, of such person. Accordingly, when the owner of land, which he has mortgaged to secure his promissory note, reacquires the note and has it and the mortgage assigned to him and then reissues both for value, the mortgage will not be treated as merged or extinguished by a court of equity in an action against him for its foreclosure.</p>

Greene Circuit Court. — Hon. James T. Neville, Judge. It is only where the trust funds are mingled with the personal funds of the trustee, that liability attaches to him for loss on account of the bank’s failure, in the event that ordinary prudence was exercised in the selection of such depository; for such commingling amounts to a conversion of the funds. 1 Perry on Trusts, sec. 128; 2 Pomeroy’s Eq. Jur., sec. 1076, p. 654; Parsley's Adm'r v. Martin, 46 Am.

<p>1. Criminal Law: criminal slander: effect of innuendo. In cases of a criminal slander, the words alleged to have been spoken by th'e defendant must be capable of conveying the meaning assigned to them by the state; an interpretation which they will not bear is not to be given them by innuendo.</p> <p>2. -: -: ACCUSING female of fornication. Charging a female with keeping a bawdyhouse is not equivalent to, and can not convey a charge of, fornication or whoredom, and therefore can not constitute a violation of the statute making the latter charge, when false and malicious, a misdemeanor.</p>

<p>1. Criminal Law: fraudulent execution of second conveyance without mention of first. A person, who has executed a second conveyance of land or goods without description or recital of a prior conveyance thereof made hy him, is guilty of a violation of section 3569 of the Revised Statutes, if he did so with intent to defraud; it is not essential to the offense that anyone should actually have been defrauded by the second conveyance.</p> <p>2. -: : description in indictment. An indictment for this offense need not set forth the entire description of the land eon- ■ veyed by the second deed. A description which identifies the land by its lot number is sufficient.</p> <p>3. -: : effect of variance. When the second deed conveys but a part of the property charged in the indictment to have been conveyed by both it and the first deed, it should be considered, in the determination of the effect of the variance, whether the part conveyed by both deeds formed a material inducement to the second, and whether the variance had any tendency to prejudice the substantial rights of the defendant.</p> <p>4. -: : preservation OF objection to venue. An objection to the venue of a criminal proceeding can not be made by motion in arrest, when it is based on the evidence in the cause and not upon the record.</p>

Louis Court of Criminal Correction. Hon. David Murphy, Judge. (1) The oral testimony of witness Moise to establish the corporate existence of the American Credit Indemnity Company by general reputation was inadmissible; section 4215, Revised Statutes, 1889, does not apply. State v. Tucker, 84 Mo. 23, 25; State v. Jackson, 90 Mo. 156.

<p>Landlord and Tenant: termination of tenancy. A lease o£ land, which required the lessee to mine coal,thereon at a stated royalty, provided for a minimum ’production and a minimum rental on that basis. It provided that the term should end when the workable coal was exhausted, but also entitled the lessee to use a part of the demised premises in connection with the mining of coal on adjoining land. Held, that the lessee could not escape the payment of the minimum rental on the ground of the exhaustion of coal, so long as he retained possession of the demised premises for any purpose under the lease.</p>

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

<p>1. Pleading: amendment oe name. Two organizations existed which, belonged to the same fraternal order, and had similar but not the same names. One was incorporated; the other was not. Suit was brought on a contract made in fact by the corporation, but the petition and summons named the unincorporated organization as the defendant, the return of the sheriff showed service upon it, and it appeared and pleaded in abatement and to the merits, alleging that it was not incorporated. On trial of the plea in abatement the plaintiff sought to amend the name of the defendant to that of the corporation. Held, that the leave to amend was properly denied.</p> <p>2. Suit Against Unincorporated Organization as a Corporation: judgment. Held, in the course of discussion, that a judgment can not he rendered in favor of a defendant which has no legal existence.</p>

<p>Appeal from the St. Francois Circuit Court. — Hon. E. M. Carter, Special Judge.</p>

— Hon. Benjamin E. Turner, Judge. The evidence makes a clear case of holding from year to year. This being the ease, Hagerman should have given sixty days’ written notice to plaintiff to quit possession before end of year. R. S. 1889, sec. 6370; 12 Am. and Eng. Encyclopedia, pp. 675-677; Stoops v. Devlin, 16 Mo. 162; Quinette v. Carpenter, 35 Mo. 502; Finney v. City St. Louis, 39 Mo. 177; Huntv. Bailey, 39 Mo. 257; Bircher v. Parker, 40 Mo. 118; Hosli v. Yokel, 58 Mo.

<p>1. Sales: breach of warranty: tender. On the breach of a warranty in the sale of a chattel the vendee may either affirm the contract, retain the chattel and obtain damages, or he may rescind the contract, offer to return the chattel, and either defend against a suit for the purchase money, or, if it has been already paid, sue for its return; and in the latter ease a formal tender need not be pleaded or shown, if the facts pleaded and proof adduced show that-one would have been unavailing.</p> <p>2. Practice, Appellate: instructions: common error. An appellant is not in a position to complain of an error in an instruction given by the court at the instance of his adversary, if the instructions given at his own instance contain the same error.</p> <p>3. New Trial: newly discovered evidence: want of diligence. Newly discovered evidence does not entitle a party to a new trial, when it could have been easily discovered in time for the trial through the exercise of ordinary diligence and inquiry.</p>

<p>Appeal from the Greene Circuit Court. — Hon. James T. Neville, Judge.</p> <p>(1) No notice of appeal is required, in order to perfect an appeal from an order or judgment of the probate court. R. S., secs. 291, 292; Harrington v. Evans, 49 Mo. App. 372; Westpheling v. Enright, Adm’r, 60 Mo. 279; Stephens v. Bernays, 119 Mo. 143, 149. (2) Elizabeth. McCanse is shown by. the record to have had an interest in the matter of this final settlement as one of the heirs and next of kin of Priscilla A. Danforth, deceased. Swan Est. v. Omningham, 54 Mo. App. 17, 2 Black, Com., *p. 429; Sabin v. Earliness, 4 N. H. 415; In re widening Becltman Street, 4 Bradf. 502; Wyncoop v. Wyncoop, 42 Pa. St. 293; Pierce v. Swan Pt. Gem., 1 Mo. App. 136; Deurellv. Eayward, 9 Gray, 248; Bogeri v. Indianapolis, 13 Ind. 134. (3) The burden was upon the administrator to show that the amount claimed by him for the monument was reasonable, was actually paid out, and not excessive. He can not reap profit out of his trust relation. ' 2 Woerner’s Am. Admin. Law, p. 1188, sec. 540; Bent v. Priest, 86 Mo. 475, 482. (4) The finding of the lower court upon the question of interest should be sustained. In re James L. Davis, Ex’r, 62 Mo. 452; Glyce v. Anderson, 49 Mo. 37; Madden, etc., v. Madden, etc., 27 Mo. 544; Julian v. Wrightsman, 73 Mo. 569; Woerner’s Am. Admin. Law, p. 1138, sec. 511.</p>

Francois Circuit Court. — Hon. James D. Eox, Judge. The marginal figures of the note in suit, referring to the amount of the note, are merely in the nature of a memorandum, and are immaterial when they conflict with the amount of the note as expressed in the body of it. Tiedeman on Commercial Paper, p. 64, paragraph 28; Smith v. Smith, 1 R. I. 398,; Payne v. Clark, 19 Mo. 152.

<p>1. Criminal Libel: amendment of information. Amendments of an information for criminal libel, which, are based upon the publication originally set forth in'the information, and have reference solely to innuendoes and colloquia, do not eharge a new or additional offense.</p> <p>2. -: -: number of amendments. The amendments permissible with respect to such an information are not limited to any specific number.</p> <p>3. -: language constituting libel. It is libelous to eharge a person with the procurement of false affidavits for the purpose of preventing the appointment of an applicant to a position of trust and profit; and there is no difference in this respect between criminal and civil libel.</p> <p>4. -: innuendoes and colloquia. Innuendoes and colloquia in an information are sufficient, if the inference which they seek to raise is at all admissible.</p> <p>5. -: beading op statute to JUEY, The reading to the jury of the statute on which an information is based is not error; especially is this true in a case of criminal libel, since the jury are the judges of both the law and the facts therein.</p> <p>6. -: punction op juby. In eases of criminal libel the jury are, under our constitution, the judges of the law and the facts, and are, therefore, at liberty to disregard the instructions of the court. Accordingly, it is error for the court in such a ease to first instruct the-jury as to hypotheses requiring a verdict against the defendant, and to then further instruct them that it is their duty to be guided by the law as thus laid down to them.</p> <p>7. -: instructions: appeals pob oratorical effect. An instruction in a prosecution for malicious libel, which was otherwise correct, contained a peroration on the inviolable blessing of a free and independent press. Held, that it was properly refused.</p>

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

<p>1. Railroads: proof of proper venue of action for double damage to stock. When an action against a Tailroad company for double damages for the killiug of stock is not brought in the township in which the accident occurred, there must be evidence that it was instituted in an adjoining township. The recital of that fact in the transcript of the justice will not supply the absence .of such evidence.</p> <p>2. -: -: practice, appellate. When such .evidence is wanting, a judgment for the defendant railway company under a peremptory instruction to find for it will be affirmed by this court as being for the right party, though the record indicates that the instruction was given upon other and erroneous grounds.</p>

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

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

<p>Fraudulent Conveyances: pleading and proof: variance. This case is affirmed on authority of Swofford Brothers Dry Goods Company against the same defendants, ante, p. 362; and this, too, though there is a variance between the date of the fraud as alleged in the petition, and shown in the proof.</p>

— Hon. Richard Field, Judge. (1) It was error to strike out the part of the answer and also to give the sixth instruction for plaintiff and refuse the sixth for defendant, thereby holding that under the circumstances the negligence of the husband was not imputable to the plaintiff — wife.

<p>Appeal from the Polk Circuit Cowrt. — Hon. Argus Cox, Judge.</p> <p>In áctions for the conversion of either money or property it is not necessary to prove a demand. R. S. 1889, see. 2948; Enipper v. Blumenthal, 107 Mo. 665; Bank v. Morris, 114 Mo. 255; Richardson v. Ashby, 33 S. W. Rep. 806.</p> <p>Appellant, having voluntarily delivered the property in controversy to respondent to deliver to his daughter, could not recover in this action without demand made before such delivery, or some act of respondent’s in contravention of appellant’s rights thereto. Nanson v. Jacob, 93 Mo. 331. Appellant having voluntarily delivered the property to respondent to deliver to his daughter, which he did as directed, without any notice, claim, or demand by appellant to the contrary, such delivery to the daughter was not a conversion, as respondent was merely a conduit in the transfer of the property from appellant to his wife. Nanson v. Jacob, supra. Appellant, having separated from his wife, and voluntarily delivered the property in question to her, through respondent, in settlement of their property rights, with the view to make the separation final, it became hers of right. Jee v. Thur-low, 2 Barn. & C. 547; Bucknell v. Bucknell, Ir. Ch. 130; Moore v. Usher, 7 Sim. 384. The judgment upon the merits of the case was for the right party and should be affirmed. R. S., sec. 2303; Greer v.~ Bank, 128 Mo. 559; Bushey v. Glenn, 107 Mo. 331.</p>

— Hon. Argus Cox, Judge. (1) The contract sued on must have been supported by a consideration. Peck v. Harris, 57 Mo. App. 467. If there was a whole or partial failure of consideration it was a good defense to this case. R. S. 1889, sec. 2090; Wade v. Scott, 7 Mo. 509; Gamache v. Grimm, 23 Mo. 38; Paragraph 6 of Brown-low v. Wollard, 61 Mo. App.' 124.

— Hon. Argus Cos, Judge. (1) “A party who enters into a contract with the agent of an undisclosed principal, may, after the principal has been disclosed, proceed either against the principal or the agent under the contract.” Session v. Block, 40 Mo. App. 569; Higgins v. Dellinger, 22 Mo. 397. (2) Defendant’s instructions, numbered 10 and 11, should not have been given. They are against both the law and the evidence. Finley was defendant’s agent.

— Hon. E. O. Crow, Judge. (1) A determination of the appellant’s first assignment of error, that the judgment of the trial court was contrary to the evidence and the law under the evidence, necessarily requires a full perusal of the record in the case, not only of the verbal statements of the witnesses, but also the coincidences and circumstances connected with the testimony in the cause, which are as much a part of the record as the direct affirmance or negation of the…

— Hon. E. C. Crow, Judge. (1) The defendant contends that the judgment in this case must be reversed for the reason that this suit was on a negotiable instrument, to wit, a bill of exchange, alleged in the petition and shown by the evidence to be lost or destroyed and yet trial was had, verdict returned, and judgment entered against defendant eleven days before any bond of indemnity was given as required by Revised Statutes, 1889, section 2185.

— Hon. Jas.- H. Lay, Judge. If, after a chattel mortgage on horses has been duly executed and recorded, the mortgagor places the horses in a livery stable, the statutory lien of the keeper of such stable for feed for the horses will not take precedence of the mortgage, unless by agreement on the part of the mortgagee. Story v. Patton, 61 Mo. App. 12; Pickett v. McCord, 62 Mo. App. 468.

— Hon. John W.Henry, Judge. (1) Plaintiffs sued defendant for violation of its. contract of shipment of plaintiffs’ stock from Dannebrog, Nebraska, to Little Blue, Missouri. The proof showed that the stock was shipped under a. written contract, from Dannebrog, Nebraska, to Kansas City, Missouri, and the defendant complied with this contract. The overwhelming weight of the evidence shows defendant carried out the contract it made.

— Hon. E. L. Scabbitt, Judge. (1) It is held that a justice of the peace has no jurisdiction in an action for a breach of a covenant of warranty of title to real estate. Bredwell v. The Loan é Investment Co., 76 Mo. 321; Patterson v. Yancy, 81 Mo. 379.

— Hon. O. L. Dobson, Judge. 'It is well settled, we believe, that an agent with power to receive proposals for insurance, to countersign, issue and deliver policies, to receive premiums, and fix rates of premium, has no power to waive proofs of loss. McCollum v. Ins. Co., decided by St. Louis court of appeals, February 25, 1896, not yet reported; Ins. Co. v. Iiennerly, 31 S. W. Rep. 155; Bowlin v. Ins. Co., 37 N. W. Rep. 859, 36 Minn. 433; Bush v. Ins.

— Hon. E. L. Scabbitt, Judge. (1) The court erred in not instructing the jury to return a verdict for defendant. (2) The court erred in giving improper, misleading, and conflicting instructions to the jury on the prayer of the plaintiff. (3) . The newly discovered evidence was material.- (1) The new evidence they offer was from witnesses already on the stand. Shotwell v. McJSlhinney,. 101 Mo. 677; State v. Catlin, 118 Mo. 100.

<p>Appeal from the Jackson Circuit Court. — Hon. E. L. Scarritt, Judge.</p> <p>(1) In replevin the value of the property is to he estimated as of the date of the trial. Chapman v. Kerr, 80 Mo. 158; Mix v. Kepner, 81 Mo. 93; White v. Storms, 21 Mo. App. 288; Kenclall v. Bain, 46 Mo. App. 581; Hinchey v. Koch, 42 Mo. App.-230; Miller v. Bryden, 34 Mo. App. 602; Burkeholder v. B,udrow, 19 Mo. App. 60; Hosier v. Teppe, 27 Mo. App. 207. (2) When, the court undertakes to instruct upon the measure of damages, it must instruct correctly. Kick v. Doerste, 45 Mo. App. 140; Shenuitv. Breuggestraclt, 8 Mo. App. 47; Matney v. Gregg, 19 Mo. App. 107; Morrison v. Yancey, 23 Mo. App. 670; Williams v. Iron Go., 30 Mo. App. 662; Flynt v. Railroad, 38 Mo. App. 94; Wilburn v. Railroad, 36 Mo. App. 203. (3) When the defendant in a replevin suit answers by general denial and does not claim a return of the property, it is error to render judgment in his favor for its value. Fowler v. Carr, 55 Mo. App. 145; Young v. Glascoclc, 79 Mo. 574; Clinton v. Stovall, 45 Mo. App. 642-644. (4) Where fraudulent statements are made to a vendor by a vendee in reference to the latter’s financial’ability, as a basis of credit, it is for the jury to say what reliance was placed upon such statements in extending credit. If the triers of the fact believe that the vendor relied upon such statements in whole or in part the sale is voidable at his election. Hartt v. McNeil, 47 Mo. 526; Ring v. Glass Co., 44 Mo. App. 111. (5) Where a vendee purchases goods, knowing or having reason to believe that he will not be able to pay for them, the sale is a voidable one at the election of the vendor. Blaclcwell v. Fry, 49 Mo. App. 638. (6) In rescinding a sale induced by fraud, it is not necessary that the vendor should restore the other party what he has received under it where the other party is indebted to him in a larger amount. State ex rel. v. Jones, 53 Mo. App. 207, 220; Girard v. Car Wheel Co., 46 Mo. App. 79, 105, 106; 123 Mo. 538. (7) Where a tender, if made, would have been fruitless, it need not be shown. Soap Co. v. Sayers, 55 Mo. App. 15, 25; McManus v. Gregory, 16 Mo. App. 375; Harwood v. Biemer, 41 Mo. App. 48.</p> <p>(1) The value of the property at the time of its caption is prima faoie evidence of its value at the date of the trial. The presumption of law is that the value did not change. Best’s Prin. Evidence, pp. 303, 389; 1 Greenleaf on Evidence, sec. 41; 2 Wharton on Evidence, secs. 1284, 1286; Layson v. Wilson, 37 Mo. App. 636-640. (2) There is a wide distinction between the value of the property to be assessed by the jury, and damages which may be assessed for its taking and detention. Mix v. Kepner, 81 Mo. 96; Chapman v. Kerr, 80 Mo. 163; Pope v. Jenkins, 30 Mo. 528; Miller v. Bryden, 34 Mo. App. 606; Burkeholder v. Budrow, 19 Mo. App. 65. (3) The value of property at the time it was taken is the true measure of damages if the plaintiff has the possession and it is out of the state and can not be produced at the trial. Willis on v. Smith, 60 Mo. App. 469-473; Fstesv. Fry, 22 Mo. App. 80; Spurgeon v. West, 23 Mo. App. 42; Harrison v. Bartlett, 51 Mo. 170; Fordv. Cameron, 19 Mo. App. 467; Tyler v. Larimore, 19 Mo. App. 445; R. S. 1889, sees. 7489, 7490. (4) The judgment in favor of Roberson is correct except that part of it which goes against the sureties on the replevin bond. Puller v. Thomas, 36 Mo. App. 105. A motion in arrest of judgment challenges the verdict only. It can not test the regularity or propriety of the judgment. If an erroneous or irregular judgment is entered upon a substantially good verdict the sufficiency of such judgment entry must be challenged by motion to correct, modify, or set aside such judgment. Gilstrap v, Felts, 50 Mo. 432; Hunt v. King, 24 Mo. App. 597; Warner v. Morin,Id Mo. 455; Fkdbrugger v. Meier, 14 Mo. App. 264. Banks v. Lades, 39 Mo. 407; Poivellv. Bevin, 11 Mo. App. 220, 221. (5) Fraud, whether relied upon offensively or defensively, must be specially pleaded. R. S. 1889, sec. 5234; Reed v. Batt, 100 Mo. 62; Smith v. Sims, 77 Mo. 273; Williams v. Railroad, 112 Mo. 495; Hoester v. Sammelmann, 101 Mo. 623; Mateer v. Railroad, 105 Mo. 350; Clough v. Holden, 115 Mo. 352. (6) A vendor'who demands rescission on the ground that the vendee fraudulently purchased the goods, must, to maintain replevin, plead the specific fraud complained of. Wherever fraud is made the basis of recovery in an action of replevin it must be pleaded as in other actions. Foxv. Webster, 46 Mo. 181; Bidault v. Wales, 19 Mo. 36; s. c., 20 Mo. 546; Thomas v. Freligh, 9 Mo. App. 151; Cobbey on Replevin, sec. 1015; Parker v. Marquis, 64 Mo. 42; Bliss, Code Pleadings, secs. 211, 339; Bristol v Braidwood, 28 Mich. 191; Frisbie v. Langioorthy, 11 Wis. 375; Gray v. Farl, 13 Iowa, 188; Capu/rov. Builders Co., 39 Cal. 123; Tucker v. Parks, 7 Colo. 62; Lefler v. Field, 52 N. Y. 622; Dixon v. Thatcher, 14 Ark. 141; Bliss, Code Pleadings, 211, 339. (7) The fraud which entitles a vendor to a rescission is a preconceived design upon the part of the purchaser at the time of the purchase never to pay for the goods; a design and intent to get them for nothing. Foxv. Webster, 46 Mo. 181; Bidault v. Wales, 19 Mo. 36; s. c., 20 Mo. 546; Herboth v. Gool, 47 Mo. 255; Thomas v. Freligh, 7 Mo. App. 151; Manheimer v. Harrington, 20 Mo. App. 300; Blackioell v. Fry, 49 Mo. App. 638; Gahnv. Reid, 18 Mo. App. 123. And the vendor must have sold the goods in full reliance upon the false statements. If he relied upon his own information he can not rescind. Finlay v. Bryson, 84 Mo. 669; Bank v. Phillips, 22 Mo. 85; Bryan v. Hitchcock, 43 Mo. 527; Bailey v. Smock, 61 Mo. 213; St. Louis, etc., v. Union P. Co., 3 Mo. App. 142; Holland v. Anderson, 38 Mo. 55; Morse v. Rathburn, 49 Mo. 91. (8) The offer to rescind must be made promptly upon the discovery of the fraud. Calm v. Reid, 18 Mo. App. 123; Bishop on Contracts, sec. 680; Monahan v. Noyes, 52 N. H. 232; Hunt v. Hardwick, 68 Ga. 100; Gould v. Bank, 86 N. Y. 75; Samuels v.King, 50 Ind. 527; Cobbey on Replevin, sec. 279. If the vendor has received anything of value it must be promptly returned together with notice of his intention to rescind. Calm v. Reid, 18 Mo. App. 123; Parmlee v. Adolph, 28 Ohio St. 10; Cobbey on Replevin, secs. 257, 261, 279; Love v. Latimer, 41 Ga. 171; Calm v. Reid, 18 Mo. App. 116; Thompson v. Peck, 115 Ind. 512; Moriarity v. Loclmood, 89 111. 528; Beane v. Lockwood, 115 111. 490; Poxoers v. Benedict, 88 N. Y. 605; Wilber v. Flood, 16 Mich. 40; Conner v. Henderson, 15 Mass. 319; Bishop on Contracts, sec. 679; Finlay v. Bryson, 84 Mo. 669; Bidault v. Wales, 20 Mo. 546, 550, 551; Cobbey on Replevin, 415, and cases cited; Bishop on Contracts, secs. 672, 673, 679; Donaldson v. Johnson, 2 Chand. (Wis.) 160; Copeland v. Majors, 9 Kan. 104; O’Brien v. Palmer, 49 111.73; Cobbey on Replevin, sec. 1055; Schultz v. Hickman, 27 Mo. App. 21; Willisonv. Smith, 60 Mo. App. 472; Cobbey on Replevin, secs. 937,938, and note where rule is fully discussed. Nominal damages are recoverable without proof of actual injury on the principle that when one interferes with another’s right of property, damages may be awarded, even though the evidence shows that there has been no substantial injury. Cory v. Silcox, 6 Ind. 39; Smith v. Houston, 25 Ark. 184; Cobbey on Replevin, sec. 949; Mill Co. v. Murloxo, 51 Hun, 453. (9) Verdict may be sufficient to support a judgment for return, but not for value. Cobbey on Replevin, secs. 1068, 1076; Hall v. Jenness, 6 Kan. 356; Ashton v. Touhey, 131 Mass. 26; Fastonv. Worthington, 5 S. & R. 130; Thompson v. Musser, Dali. 458; Donaldson v. Johnson, 2 Chand. 160. (10) The plaintiff should always offer evidence as to the value at the time of the trial. If he fails to do so, and to ask a proper instruction upon the point, can he complain*? Cobbey on Eeplevin, secs. 998, 999; Brewster v. Silliman, 38 N. Y. 423; Denton v. Smith, 61 Mich. 431; Minton v. Lewis, 43 N. W. Eep. (Iowa) 465; 2 Whart. on Evidence, sec. 1290; Best’s Prin. Evidence, p. 303, note 1; 1 Greenleaf on Evidence, sec. 41; Gargile v. Wood, 63 Mo. 501; Willison v. Smith, supra; Schultz v. Hichnan, supra; Mullen v. Prior, 12 Mo. 307; Best’s Prin. Evidence, pp. 274, 275; Ketchem v. Fxpress Co., 52 Mo. 390; Willison v. Smith, 60 Mo. App. 472; Schultz v. Hichnan, 27 Mo. App. 21; 1 Wheat, on Evidence, sec. 357; State v. Hirsch, 45 Mo. 429; Best’s Prin. Evidence, p. 275; Wheat v. State, 6 Mo. 455; Bliss v. Brainard, 41 N. H. 256; Railroad v. Bacon, 30 111. 347; Welch v. State, 11 Tex. 368; Ford v. Simmons, 13 La. 397; Solomon v. Dreschler, 4 Minn. 278; 1 Wheat, on Evidence, sec. 367.</p>