Volume 67 — Missouri Appeal Reports

Louis City Circuit Court. — Hon. Daniel Dillon, Judge. Defendant’s instruction for nonsuit, at the close of the trial, should have been given. Prom the whole proof, on the undisputed facts, it conclusively appeared that if Earl E. Prauenthal had not taken hoLd of the wire, the injury to him would not have happened; also, that he took hold of it voluntarily and knowing that it was dangerous.

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

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

<p>Divorce: abandoned attempt at collusion. An attempt by the plaintiff in a suit for divorce to effect collusion, if made after the institution of the suit and repudiated by the defendant and abandoned long before the trial, is not fatal to the plaintiff’s cause of action.</p>

Louis City Circuit Court. — Hon. James E. Witheow, Judge. (1) Where services are rendered and expenses incurred under a misunderstanding between the parties as to the terms of compensation therefor, as to which the minds of the parties have never met, the party rendering the services and incurring the expense is entitled to recover a quamtum meruit therefor under an implied contract, or “quasi contract,” for proper compensation.

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

Louis City Circuit Court. — Hon. Leeoy B. Valliant, Judge. The instructions prayed by defendant and refused by the court should have been given.

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

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

<p>1. Insurance, Fire: waiver of proofs of loss : powers of adjuster. The adjuster of a fire insurance company has authority to waive a requirement for proofs of a loss, in the adjustment of which he is engaged.</p> <p>•2. -:-: sufficiency of evidence. In this cause it appeared that the adjuster of the insurer went to the place of the loss for the purpose of adjusting it; that he remained there three or four days, yet failed to complain of the nonserviee of proofs; that he frequently conferred with the insured and the local agents of the insurer about a settlement; and that at his suggestion an attempt was made to have the loss appraised and each party selected an appraiser for that purpose, but that the appraisers failed to agree. Held, that this evidence' warranted a finding of the waiver of proofs of loss.</p> <p>3. -: DELIVERY OF PROOFS OF LOSS : AUTHORITY OF AGENT TO waive. Held, a/rguendo, that proofs of loss may be delivered to the local agent of the insurer, when the policy does not provide for a different delivery. And semble, that a local agent thus authorized to receive proofs of loss may waive the requirement for them.</p> <p>4. -: CONDITION AGAINST OTHER INSURANCE : ESTOPPEL. A fire insurance company can not avail itself of a condition against other insurance, when its agent was also the agent for the other underwriters and as such issued the policies for the other insurance.</p>

<p>1. Fire Insurance: condition against other insurance: estoppel. A fire insurance company can not avail itself of a condition against other insurance, when it has notice of the other insurance yet fails to signify an intention to cancel its policy or to claim a forfeiture of it; and the fact, that its agent through whom it issued its policy also procured the other insurance as agent of the other underwriters, as a matter of law constitutes such notice to it.</p> <p>2. -: necessity for proof of loss on total destruction of building. When a policy of fire insurance requires proof of loss for other purposes than a mere showing of .the amount of the loss, as where there must also be a showing of the ownership of the property and the bona fides of the loss, the mere fact that the property insured was a building, that the loss was total, and that onr statute in such a ease prescribes the amount payable, does not render the proofs unnecessary.</p> <p>3. -: WAIVER OF PROOFS: SUFFICIENCY OF EVIDENCE. Ill addition to the loss being of the above character, it appeared in this cause that no question was raised as to the bona fides of it or the ownership of the property; also that the local agent of the insurance company, who issued the policy, was authorized to fix aud collect premiums, and to countersign and issue policies; and that he had expressly stated to the insured that payment would he made without proofs of loss. No limitation of the authority of this agent was shown, and the policy did not require the proofs of loss to be delivered to anyone other than himself. Meld, that these eiroumstanees warranted a finding of the waiver of the proofs of loss by the insurance company.</p> <p>4. -: -: powers op local agent. Semble, that the resident local agent of a foreign insurance company, who is authorized to fix and collect premiums and to'countersign and issue policies, is, in the absence of notice to the insured of a limitation of his powers, to be deemed to have authority to waive proofs of loss under a poliey issued by him.</p>

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

— Hon-. James Gtbson, Judge. (1) The admission of the certified copy of the trustee’s deed in evidence, without first making an affidavit or showing that the original was lost, destroyed, or not within the control of the defendant, was error for which this case must be reversed.

— Hon. E. L. Scaeeitt, Judge. (1) Where, by a course of business, a customer deposits checks, drafts, etc., in his bank, and the bank at once places the same to his credit on its books and upon Ms pass book, tbe bank becomes tbe purchaser for vaMe of the various items. It is the same as though the bank had purchased the items, paid cash for them to the customer, and the latter had returned and deposited the cash. Building and Loan Ass’n v. Bank, 28 S. W. Rep.

— Hon. J. H. Lay,, Judge. (1) There was no legal negligence shown against, defendant, and the court should have accordingly directed a verdict for defendant. Bite v. Railroad, 31 S. W. Rep. (Mo.) 263, 264; Hite v. Railroad, 32 S. W. Rep. (Mo.) 33, 34; Weaver v. Railroad, 60 Mo. Anp. 207; Saunders v. Railroad, 60 N. W. Rep. (S. D.) 148; Mitchell v. Railroad, 51 Mich. 238. (2) The undisputed evidence in the case shows that the plaintiff was-guilty of contributory negligence.

— Hon. Richard Field, Judge. (1) The petition does not state facts sufficient to constitute a cause of action. (2) The demurrer to the evidence should have been sustained. The fraud alleged in the petition did not appear in the evidence. No knowledge of respondent’s dissatisfaction was brought to appellant before suit. Five years’ silence was acquiescence.

— Hon. Richard Field, Judge. (1) The court erred in not sustaining defendant’s demurrer to plaintiff’s evidence and erred again in refusing instructions 1, 2, and 3 asked for defendant. Taylor v. Temperance Union, 94 Mo. 35; Herndon v. Triple Alliance, 45 Mo.

— Hon. Richard Field, Judge. (1) The direction given by Green to Thompson to pay over the proceeds of the $5,000 note which he had made to Marshall &• Company, to the plaintiff and take up his note was an equitable assignment of that fund to the plaintiff which took effect and was in force eo instanti when plaintiff’s note was canceled and his deed of trust released, and not till then. 3 Pom. Eq. Jur. [2 Ed.], sec. 1280; Johnson Go. v. Bryson, 27 Mo.

— Hon. D. P„ Stratton, Judge. (1) The general denial portion of the answer only put in issue plaintiff’s title to the note and the genuineness of the indorsement. Worrell v. Roberts, 58 Mo. App. 198; Cavit v. Thorp, 30 Mo. App. 131. And verification did not change its distinctive character. (2) The second defense is not non est factum.

— Hon. D. P. Stratton, Judge. (1) Of course there was no liability on the part of the appellant simply on account of the well being left open and the right of way unfenced (Hughes v. Bail-road, 66 Mo. 325), and there was no evidence that the cattle were frightened and' run into the well by the train, and hence no evidence to take the case to the jury. Perkins v. Railroad, 103 Mo. 52.

— Hon. D. P. . Steatton, Judge. (1) There was no evidence to take the cause to the jury. Because, although the evidence showed that the cattle had gotten out of the north pasture into the right of way through a defective railroad fence, yet there was no evidence that they came from the right of way into the plaintiff’s corn field. Because the plaintiff failed to offer any evidence whatever upon a single count of his petition.

Glair Circuit Court. — Hon. J. H. Lay, Judge. (1) If A steals goods, chattels, or other property from B and sells them to C, C is liable to B in replevin or for the value of the property, even though 0 bought in good faith for a valuable consideration. Each successive purchaser from the thief of stolen property is-liable to the owner. Koch v. Branch, 44 Mo. 542; Bus-key v. Bladder, 80 Mo. 400; Kramer v. Faulkner, 9 Mo.

— Hon. C. L. Dobson, Judge. (1) The court erred in refusing to give the instruction at close of case that under the pleading and evidence plaintiff could not recover: Because the petition alleged that plaintiff was the owner of the bull in controversy. Because defendant pleaded a special contract of shipment made by plaintiff as owner of said bull, which special contract was admitted by plaintiff. A party will not be allowed to contradict the allegations of his petition.

— Hon. E. L. Soaeeitt, Judge. (1) The return goes on further to recite that the constable executed the writ by declaring to Bovie-Heddens Grocer Company that he did summon it as garnishee, etc. This was no return such as was sufficient to confer jurisdiction over the res, or to authorize a procedure to judgment against the defendant. Todd v. Railroad, 33 Mo. App. 110; Norvell v. Porter, 62 Mo. 309; Hackett v. Gihl, National Bank of Commerce, 63 Mo. App. 447.

— Hon. J. H. Slovee, Judge. (1) It was not sufficient that plaintiff was one of a chain of causes bringing about the sale, but in order for him to recover he must have been the procuring cause or inducing cause. (2) Although plaintiff opened up negotiations with the purchaser, yet if the sale was actually effected by the intervention of new parties and upon different terms, plaintiff could not recover. Tyler v. Parr, 52 Mo. 249; Goffee v. Gibson, 18 Mo. App. 1; Gillettv.

— Hon. J. H. Sloyer, Judge. (1) The court erred in admitting in evidence the notice to quit. Under section 6371, Revised Statutes, 1889, the renting here constituted a tenancy from month to month, and to terminate the same requires a one month’s notice, in writing. The tenant’s term began on the first day of each month. The notice does not purport to be a month’s notice but a thirty days’ notice, requiring defendant to quit on June 30.

— Hon. C. L, Dobson, Judge. The only question in this ease is, can there be recovered damages on an attachment bond for defending the' suit on the merits, after the attachment is dissolved. There are four cases in the Missouri reports which hold that damages may be recovered on attachment bonds for defending on the merits. State v. Thomas, 19 Mo. 613; State v. Beldsmeier, 56 Mo. 226; State v. Stark, 75 Mo. 566; State v. McEale, 16 Mo. App. 478.

— Hon. J. H. Slover, Judge. (1) The universal rule is, as far as we have been able to ascertain, that the proceedings prescribed by law, for special assessment, must be strictly pursued. The observance of every one of its substantial requirements must be regarded as a condition precedent to the validity of the assessment, and if the assessment is not valid, the tax bill is void and there is no lien. This rule is fundamental and imperative.

— Hon. C. L. Dobson, Judge. (1) This case is clearly within the doctrine of McMahan v. Geiger, 73 Mo. 145, that one who signs a note after it has been delivered and after the consideration has passed between the original parties incurs no liability thereon. Approved in County of Montgomery v. Auchley, 92 Mo. 130. (2) If surety, defendant is a favorite of the law and entitled to technical defenses. Breioing Co. v. Masen, 55 Mo. App. 277.

— Hon. John W. Henry, Judge. Defendant contends that the total insurance on said property at the time of the fire was the aggregate amounts to which the companies limited their liability, to wit, the sum of $5,000. Suppose the property had been totally destroyed instead of only partially, then by the facts there would have been a loss of $10,000. What would have been the liability of each company in that case?

— Hon. E. L. Scaebitt, Judge. (1) (Garnishment is a strictly legal proceeding and does not perform the office of a bill in equity. Only legal rights can be reached by it, not equitable rights. Lackland v. Garesche,' 56 Mo. 267; Sheedy v. Bank, 62 Mo. 17, 25; Beckham v. Tootle, 19 Mo. App. 603; Mercantile Co. v. Betties, 58 Mo. App. 384; Heineman v. Solomon, 47 N. W. Rep. 107; Trausch v. Ottenburg, 54 Fed.

<p>1. Practice, Appellate: review of order for consolidation of causes in absence of bill of exceptions. An order of the trial court for the consolidation of actions can not be reviewed on appeal in the absence of a bill of exceptions.</p> <p>2. Practice, Trial: effect of referee’s report. A referee’s report in an action at law is equivalent to a special verdict, and the trial court can only approve it, or set it aside entirely. If it is approved, the judgment must conform to it.</p>

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

Louis City Circuit Court. — Hon. P. R. Flitoraet, Judge. (1) The original petition stated the facts that the defendant made the representations that induced the purchase, that they were untrue and false, that the plaintiff tendered the property back and met with a refusal to receive it and return the money, and that he was damaged thereby.

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

Louis City Circuit Court. — Hon. Daniel Dillon, Judge. ■Every fact which the plaintiff must prove to maintain his proof is constitutive in the sense of the code, and must be alleged. Pier v. Heinrichojfen, 52 Mo. 333; Stalely House Furnishing Co. v. Wallace, 21 Mo. App. 128. There is no allegation in the petition, that plaintiff is the owner of these assigned claims. Hence, defendant’s objection to the assignments should have been sustained. Turner v. Railroad, 76 Mo. 261.

— Hon Argus Cox, Judge. (1) The amendment changed the cause of action, and is prohibited by section 6345 of the Eevised Statutes of 1889, and is violative of section 6347. The leading case on this subject is that of Hans'berger v. Railroad, 43 Mo. 196. This case has been cited with approval by both the Kansas City court of appeals, the St. Louis court of appeals and the supreme court of this state, and has never been overruled or modified.

— Hon. J. D. Shewalter, Special Judge. (1) Defendant claims that the evidence in this case shows that Huber, the prosecuting witness, had no interest whatever in the Stewart account. He was neither a special nor general owner. (2) Granting that the said prosecuting witness had a general or special ownership in said account, he was then authorized, to contract'for the collection.

— Hon. E. L. Scarritt, Judge. (1) The lien paper and account filed is not 11 a just and true account” within the meaning of the statute, because it does not show the year in which the materials were sold. Coe v. Bitter, 86 Mo. 287; McWilliams v. Allen, 45 Mo. 573; Curless v. Lewis, 46 Mo. App. 278; Bude v. Mitchell, 97 Mo. 373; Hayden v. Wulfing, 19 Mo. App. 358; Bruce v. Hoos, 48 Mo. App. 163.

— Hon. R. E. Ball, Special Judge. (1) Building contractors and carpenters are not competent to testify as to suitability, etc., of telephone cross-arms. Huntv. St. Louis, 94 Mo. 255; Muff v. Wabash, 22 Mo. App. 584 ;„ 7 Am. and Eng. Encyclopedia of Law, 491, 494; Lawson’s Opinion and Expert Ev., 2, 91,101, 196, 197, 198; Potts v. Aechtnecht, 93 Pa.

— Hon. A. M. Woodson, Judge. i The respondent, as assignee, guaranteed the contract originally entered into between appellant and Thomas E. Brittain its assignor. Appellant was entitled to recover for the full six hundred and seventy-seven cords of wood measured and accepted in the timber by Thomas E. Brittain, prior to the date of the assignment of said contract.

— Hon. E. J. Broaddus, Judge. (1) This cause was not such as could be revived by serving a notice on defendant. After a voluntary nonsuit or discontinuance there can be no revival. The cause is at an end. Karnes v. Fire Ins. Co., 53 Mo. App. 438; Chotean v. Bmvse, 90 Mo. 191. (2) Plaintiff by not following its suit abandoned it, thereby becoming nonsuited. 3 Blackstone, Com. [Chitty Ed. 1842], 316 (s. p.), p. 251.

<p>Appellate Practice: new trial: trial court’s discretion: evidence. The trial court has more latitude to grant a new trial than the appellate court, and the latter will not interfere with the former’s discretion, except in plain cases, and will be slower to interfere where a new trial is granted than where it is refused; and, on the review of the evidence in this case, it is held not to be so overwhelmingly in favor of appellant as to render the trial court’s action in granting a new trial unreasonable and arbitrary.</p>

— Hon. W. W. Rucker, Judge. The court erred in rendering judgment in this case in favor of defendant and against the plaintiff for the reasons, that the answer in this case fails to state any cause of action in favor of the defendant and against the plaintiff, and also fails to state any defense to the causes of action or either of them set forth in plaintiff’s petition. Carter v. Shotwell, 42 Mo.

— Hon. E. C. Crow, Judge. The instruction given- by the court at the request of the defendant is clearly erroneous, under the facts and circumstances in evidence in the cause. Peet v. Spencer, 90 Mo. 380, and cases cited. This would not constitute him an owner of the property, but only a factor. The circumstance that a factor has a lien on goods would not authorize him to deliver the goods in payment of his own debt, neither could the same be taken by his creditors.

— Hon. D. P. Steatton, Judge. (1) In order to constitute seduction under promise of marriage the testimony must show that the plaintiff yielded up her chastity by virtue of such promise •, that it was by reason of and reliance upon such promise that she consented to sexual intercourse. Comer v. Taylor, 82 Mo. 346; State v. Patterson, 88 Mo. 94; Bailey v. O'Bannon, 28 Mo. App, 39; State v. Beeves, 97 Mo. 668; State v. Felder, 106 Mo. 585.

— Hon. A. M. Woodson, Judge. (1) No recovery can be had in this case upon the deed and defeasance contract of August 17, .1888. First. None can be had upon any supposed covenant against incumbrances in said deed about which covenant the agreed statement of facts is silent. Burén v. Hubble, 54 Mo. App. 647. Second. No recovery can be had upon the covenant of warranty in said deed, the only covenant contained in the deed so far as disclosed by the statement of facts.

— Hon. H. M. Ramey, Judge. (1) The real defense here is that by the terms of the dissolution paper plaintiff assumed the payment of the two notes… Held: and parol testimony is admissible to show the facts. Allen v. Logan, 96 Mo. 601; McKinnen v. McKinnen, 5 C. C. A. 530 (Mo. case). This is in. accordance with the well settled doctrine in Missouri that parol testimony can be introduced to show that a. deed absolute on its face is conditional. Cobb v. Day, 106 Mo. 278.

— Hon. Rudolph Hirzel, Special Judge. (1) The plaintiff having consented to the shipment and sale of the wheat by defendants, thereby waived Ms landlord’s lien, and in the absence of an express promise or agreement to that effect, had no claims on the proceeds of its sale. Consent to the sale constitutes a waiver of the lien, and such waiver need not be founded on a valuable consideration. Griffith v. Gillum, 31 Mo. App. 34.

<p>1. Instructions: evidence: assumption. An instruction is held to have sufficient evidence to support it and not to assume the fact in issue.</p> <p>2. Damages: loss of time: pleading: instruction. An instruction in relation to the recovery of damages for the loss of time is held proper in this case, though loss of time was not pleaded in terms, since evidence without objection went to the jury on that issue.</p>

— Hon. Argus Cox, Judge. (1) The information purports to be based upon the affidavit of M. G-. Hook and S. R. Hook. No such affidavit accompanies the information, and the motion to quash should have been sustained. R. S. 1889, sec. 4329; State v. White, 55 Mo. App. 359. (2) There is a fatal variance between the affidavit and the information. State v. Cornell, 45 Mo. App. 95; City of Galt v. Elder, 47 Mo. App. 169; State v. Gallego, 57 Mo. App. 515.

— Hon. P. C. Stepp, Judge. (1) There being no allegation in the. petition of any special damages, and the law implying none, from the doing of the act complained of (other than the ¡Statutory penalty of $5), the court erred in admitting evidence of the loss to plaintiffs of the use of the eighty acres of pasture lands, of the estimated value of from $75 to $480. 1 Sedgwick on Dam. 426; Bliss on Code Plead. [2 Ed.] 297b; Oleary v. Bowen, 31 Mo. 119; State v. Blockman, 51 Mo.…

— Hon. P. C. Steep, Judge. (1) The petition for the new road, and the release of the right of way therefor, signed by the witness Grimes, and the records of the township board, were competent evidence for the purpose of impeachment, and should have been admitted for the purpose, as well as to disprove the prior existence of the road. State v. Patrick, 107Mo. 147,161; 1 G-reenleaf on Evidence [Red-field’s Ed.], secs. 462, 463; Cooke v. Railroad, 57 Mo.

— Hon. P. C. Stepp, Judge. (1) Suits may be brought by the party in interest. The note showed it was given to Grand River College located at Edinburg, in Grundy county, Missouri. The petition does not allege that it had been transferred to plaintiff, and the court erred in permitting it to be read in evidence, and in excluding the evidence offered by defendant on that point. R. S. 1889, sec. 1990; Mayer v. Old, 51 Mo. App. 214; BanJcv. Pennington, 42 Mo. App. 355; BanJcv.

— Hon. P. C. Stepp, Judge. The record and abstract of record gives all the testimony introduced in the cause, and there was no proof of any kind that defendant was ever indicted prior thereto, or that any indictment against him had been quashed, set aside, or reversed, or that there ever was a prior indictment against defendant, or that there was then or at any time any indictment pending against the defendant in said court, and from the record and proof it could not be…

— Hon. P. C. Stepp, Judge. (1) The law requires an administrator to settle an estate in two years. The delay of eighteen years in this case was therefore inexcusable and came too late under the law. Qunby v. Brown, 86 Mo. 253; Macey v. Stark, 116 Mo. 483; Swan v. Thompson, 36 Mo. App. 155; Weinerth v. Trendley, 39 Mo. App. 333; Hadley v. Gregory,10 IS.W-Uep. 319; s.c.,57lowa, 157; Cresivell v. Slack, 26 N. W. Rep. 42; s. c., 68 Iowa, 110; 26 Am.

— Hon. Cyrus A. Anthony, Judge. (1) The only duty the law imposes upon the defendant city is, to provide and keep, for the use of the traveling public, streets and sidewalks that are reasonably safe for persons to pass over, while using ordinary care, caution, and prudence, having regard to the amount of travel and attending circumstances. Loeiver v. Sedalia, 77 Mo. 431; Bassett v. St. Joseph, 53 Mo. 290; Sindlinger v. Kansas City, 126 Mp. 315; Salmon v. Trenton, 21 Mo.

— Hon. A. M. Woodson, Judge. Under the statute the court will allow the administrator to credit himself with a reasonable sum expended for fees of counsel upon final settlement. He may contract for as much as he chooses. With this the court has nothing to do, and it has no jurisdiction in the matter at all, until he has actually paid out or has the fund in hand to pay out, and asked for the credit.

— Hon. John A. Hockaday, Judge. (1) The court erred in not giving plaintiff a new trial as the attention of the court was called to the principles above set out in motion for new trial. (2) The judgment should have been for plaintiff for $44.68 on the evidence, as there was no evidence contradicting plaintiff’s claim that the wood, was received by Cumberland, and used for paying for making the brick and defendant got the benefit thereof.

— Hon. Richard Field, Judge. (1) Plaintiff, Stevens, must be treated, not as a person crossing or about to cross a railroad track, at a public crossing, but as a trespasser. He fully admits that he was not on or near the track on which he was injured, for the purpose of crossing it, but for the sole purpose of walking east, through the railroad yards, toward his home. He was not, therefore, entitled to warning or signals.

A. M. Woodson, Judge. (1) It is now the established law in this state that the authorities of a city can not collect surface water into drains or sewers and discharge it in unusual quantities onto private property. Rychlicki v. City of St. Joseph, 98 Mo. 501; Carson v. City of Springfield, 53 Mo. App. 289; Paddock v. Somes, 102 Mo. 238; McCormick v. Railroad, 70 Mo. 359; Quanan v. Seip, 23 Am.

<p>Jurisdiction, Appellate: action involving title to land. An action to reform a warranty deed conveying land so as to convert it into a conveyance in trust in the nature of a mortgage, and to divest title claimed under it, involves title to land and the supreme court has therefore exclusive jurisdiction of an appeal therein.</p>

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

Louis City Circuit Court. — Hon. P. R. Elitcraft, Judge. (1) Any person who writes his name . across the back of a note, of which he is neither maker nor payee, may show that it was agreed and understood between the maker, payee, and himself, that he was to be indorser. W. 3. Barnett v. W. Nolte, 55 Mo. App. 184; John Mammon v. Johanna Hartman, 51 Mo. 168.

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

Louis City Circuit Court. — Hon. Thomas A. Russell, Judge. (1) It is error for a court to make remarks calculated to influence the verdict of the jury. State v. Hill, 91 Mo. 423. And it is error for counsel of the successful party in his argument, or otherwise, to state evidential facts prejudicial to the unsuccessful party. Holliday v. JacJcson, 21 Mo. App. 660, 670; Fathmanv. Tumilty, 34 Mo. App. 236, 241; Gibson v. Zeibig, 24 Mo. App. 65; McDonald v. Cash, 45 Mo.

<p>1. Garnishment in Justices’ Courts: right of garnishee to plead want of jurisdiction. When a judgment is void for want of jurisdiction, a garnishee under it is at liberty to, and, indeed, for ' his own protection must, set up its invalidity; and this rule applies as well to garnishment proceedings in justices’ courts as elsewhere, notwithstanding that the interrogatories permissible therein are limited to the two expressly prescribed by statute.</p> <p>2. -: -: pleading. But, in snch ease, the answer of the garnishee must set forth facts and not conclusions. And held, that the allegations of the answer of the garnishee in this cause did not comply with this requirement and were, therefore, not admitted by the failure of the plaintiff to deny them.</p> <p>3. Evidence: effect of record of judicial proceeding. When the record of another suit is offered in evidence merely for the purpose of showing the termination of that suit, the party making the ■ offer does not thereby concede that the facts are as stated in any part of it other than the entry of dismissal.</p>

<p>Appeal from the St. Louis City Circuit Court. — Hon. James E. Withrow, Judge.</p> <p>The lien in question was rendered invalid by the reservation of a power of sale by the lessee. Bullene v. Barrett, 87 Mo. 185; Reed v. Pelletier, 28 Mo. 179; State v. Tasker, 31 Mo. 445; State v. JD’Oench, 31 Mo. 453; Eubbell v. Allen, 90 Mo. 574; Barton v. Sitlington, 128 Mo. 164; Goddard v. Jones, 78 Mo. 518; State v. Bush, 38 Mo. App.. 440; Kennedy v. Dodson, 44 Mo. App. 550; Cole Mfg. Co. v. Jenkins, 47 Mo. App. 664; Saurv. Behr, 49 Mo. App. 86; Oliver Finney Grocer Co. v. Miller, 53 Mo. App. 107. And the law is well settled that where the impeaching facts appear expressly or by implication upon the face of the' deed of trust or mortgage, it is the duty of the court to declare the instrument void at the instance of the creditors. Oliver Finney Grocer Co. v. Miller, supra; Bullene v. Barrett, supra; Walter v. Winter, 24 Mo. App. 53; Smith v. Earn, 51 Mo. App. 433.</p>

<p>Real Estate Agents: right to commissions. When a real estate agent is employed to sell property for a specified price, he does not fulfill his obligation, and become entitled to his compensation, by the production of a person to whom the property is subsequently sold by another agent of the vendor at a lower price. Under such circumstances he will only be entitled to compensation, if the person so produced is accepted as a purchaser at his hands by the vendor; that' is, if the vendor has elected to avail himself of his services in securing such person, and effected a sale to the latter at the reduced price.</p>

<p>1. Mechanics’ Liens: agency op husband fob wipe. The evidence is considered, and held sufficient to establish that a husband acted as agent for his wife in contracting for the erection of a building on her land.</p> <p>2. -: instructions: submission op issue op agency. Semite, that it is erroneous in an instruction to the jury to submit merely the abstract question, whether a husband acted as agent for his wife in contracting for the erection of a building, and that an instruction on that subject1 should set forth what facts will constitute the agency and submit the question of their existence to the jury.</p> <p>3. -: -: common error. An appellant can not complain of an error in the submission of an issue by instructions given for the respondent, when his own instructions contain the same error.</p> <p>4. -: -: EMPLOYMENT OP ORDINARY TERMS WITHOUT EXPLANATION. The word “accrued” has a popular meaning which jurors will be presumed to understand, and its use in - an instruction to the jury is, therefore, proper without explanation of its meaning.</p> <p>5. -: requisites of subcontractob’s notice. It is not necessary that the notice, which a subcontractor is required to give to the owner of his claim, should state the reasonable value of the materials furnished, or that they went into the building.</p> <p>6. -: NOTICE OP PILING OP SUIT BEFORE JUSTICE: TIME OP SUIT. It is not essential, when a mechanic’s lien is sought to be enforced by suit before a justice of the peace, that summons should issue on the day specified for the commencement of the suit in the notice filed in the office of the clerk of the circuit court; the filing of the statement of the cause of action on that day with the justice designated in the notice will suffice.</p> <p>7. -: ACTION IN JUSTICE’S COURT! REQUISITE OP STATEMENT. The plaintiff’s statement in an action before a justice for the enforcement of a mechanic’s lien sufficiently alleges the purport of the notice of suit filed in such clerk’s office, when it alleges that the notice states “the date when, and the justice before .whom, this action is instituted for the enforcement of said lien.”</p> <p>8. ■■ : -: costs. When an appeal is taken by the landowner from the judgment of a justice of the peace sustaining a mechanic’s lien and the lien is thereon again sustained in the appellate court, a personal judgment for costs may be rendered in the latter court against the appellant and his sureties on the appeal bond.</p>

<p>1. Trespass: liability op lessor or licensor. Walls of a building were let by the defendant to tbe plaintiffs for advertising purposes for a definite term, during which advertisements placed by the plaintiffs upon them in accordance with the letting were effaced by some . unknown person. Held, that the defendant was not liable for the trespass.</p> <p>2. -: -: damages. Held, that, in case of the breach of such contract by the defendant, the jury, in assessing the damages, should consider, not the value of the term to the plaintiffs, but its market value. And held, further, that the damages assessed in this case were excessive.</p> <p>3. Landlord and. Tenant: eviction: evidence of damages. When sued by the lessee for an eviction, the lessor is entitled to show the rental value of the demised premises.</p>

<p>Actions, Splitting Causes of: consent of debtor. A defendant can not invoke the rule against the splitting of a eause of action after he has consented thereto.</p>

Louis City Circuit Court. — Hon. Daniel Dillon, Judge. (1) The petition wholly fails to state ownership of the insured property by assured either at the time the policy was written or'at loss. This is fatal. Story v. Ins. Co., 61 Mo. App. 534; Harness v. Ins. Go., 62 Mo. App. 245. (2) No proofs of loss were made within the sixty days. There should therefore have been no recovery. Mattox v. Ins. Co., 56 Mo. App. 343. (3) Givens, the adjuster, did nothing to waive proofs.

<p>Criminal Law: effect of recognizance for appearance in st. lotjis criminal court. A recognizance which is conditioned, in proper terms, for the appearance of the principal before the St. Louis criminal court without specification of either division of that court, obligates him to appear in" either division in which the prosecution against him may be pending. Accordingly, when he takes a change of venue from one division of that court to the other, the recognizance is broken by his failure to appear in the latter.</p>

<p>1. Justices’ Courts: counterclaims. A counterclaim is an independent cause of action, and, when filed before a justice of the peace, it should be in a shape answering the requirements of the statement of a cause of action; the mere filing of an account by the defendant with the justice will not suffice.</p> <p>2. Contracts: implied liability for funeral expenses. Primarily the estate of a decedent is liable for the expenses of his funeral, and no persona^obligation on the part of his widow to pay therefor can be implied from a request by her for the burial; if the undertaker intends to hold her personally in such a case, he must procure a promise of payment from her.</p>

— Hon. W. M. Robinson, Judge. (1) The representation made by the defendant that the land .cost $200 per acre, coupled with the agreement that he would sell it to plaintiff at the same price which it cost him, was not a mere expression of opinion,-but the assertion by the defendant of a fact which was peculiarly in his own knowledge and one on which the plaintiff had a right to rely. Teachout v. Van Hoesen, 76 Iowa, 113; Fendergrastv. Feed, 29 Md. 398; 96 Am.

<p>1. Pleading: misjoinder: demurrer. The demurrer to a petition on the ground of misjoinder is only proper when two causes of action can not be joined in one action and not where two causes of action are joined in one count.</p> <p>2. -: demurrer: answer. Answering over after the overruling of the demurrer waives all objections save the failure to state a cause of action and jurisdiction.</p> <p>3. Trial Practice: motion to elect. Where two causes of action are joined in one count, a motion to require plaintiff to elect should be filed before trial and comes too late after the close of plaintiff’s evidence.</p>

— Hon. Andrew Ellison, Judge. By the express provisions of the statute it is a sale “without any intention” of delivering the property sold that is prohibited. Connor v. Black, 119 Mo. 140, foot of page. Here the evidence shows defendant thought corn was bound to be cheap, and that he intended an actual delivery. The mental reservation that, if corn should be high, he would pay the difference according to defendant’s instruction, is equivalent to an intention not to deliver.

— Hon. Paris C. Stepp, Judge. (1) Under section 21, article 2, of the constitution of the state of Missouri, the defendant was liable for changing the grade of the street in front of plaintiff’s property, and this property, and this provision of the constitution is self-enforcing. Householder v. The City of Kansas, 83 Mo. 488; Sheehy v. Cable Co., 94 Mo. 574; Hickman v. City of Kansas, 120 Mo. 110; Markowitz v. Kansas City, 125 Mo. 485; McElroyv. City of Kansas, 21 Fed.

— Hon. Paris C. Stepp, Judge. (1) The former suit between these same parties in which the exact delinquency and default were assigned as a breach of the conditions of constable Francis’ bond and which judgment was had for the defendant,' as here, was a complete bar to the shit. E S. 1889, sec. 879; Bicltey v. Helm, 48 Mo. App. 114; Mason v. Summer, 24 Mo. App. 174; Ins. Go. v. Smith; 117 Mo. 261, 266, 267.

Worth Circuit Court. — Hon. Paris C. Stepp, Judge. The defendant’s motion to quash the indictment and his motion in arrest of judgment should have been sustained because there is a fatal variance between tbe allegations in the indictment and the evidence.

— Hon. Cyrus A. Anthony, Judge. (1) When the plaintiff and defendant by mutual agreement and consent, on the eighth day of April, 1895, canceled the said first contract it is evident that the parties themselves did not treat time as the essence of the contract. The intention of the parties must govern. Melton v. Smith, 65 Mo. 315; O’Fallon v. Kennedy, 45 Mo. 124; Glass v. Rose, 103 Mo. 513; Estelv.

— Hon. Cybus A. Anthony, Judge. (1) In replevin the plaintiff must recover upon the strength of his own title and not upon the weakness of the adversary’s title. Kennedy v. Dodson, 44 Mo. App. 550-, Rhoades v. McNulty, 52 Mo. App. 301; Bank v. Water Power Co., 58 Mo. App. 532. (2) In replevin suits the property sought to be replevied must be described, and after the levy the description of the property can not be changed. They can not substitute other property.

— Hon. W. S. Herndon, Judge. (1) Although it is settled law that a mere failure or lack of consideration is no defense to a negotiable promissory note unless the maker brings knowledge of the facts that impeached it home to the holder (1 Daniel,Neg.

<p>Appellate Practice: affirmance for the want of prosecution. Where appellant for more than two years after taking his appeal fails to perfect the same by filing a transcript or the clerk’s certificate in the appellate court, the judgment should be affirmed for the want .of prosecuting the appeal, notwithstanding respondent’s attorney may have promised to take no advantage of the delay.</p>

— Hon. W. S. Herndon, Judge. ■ (1) “A case stated is a substitute for a special verdict, adopted for convenience, to save the labor and expense of finding the same facts by a jury in the form of a special verdict.77 Whitesides v. Bussell, 8 Watts & S. (Pa.) 44, 47. “It is therefore but a reasonable construction of the agreement that it shall be attended with the same effects and liable to the same incidents as a special verdict.77 Whitesides v. Russell, supra; Mmford v.…

— Hon. W. S. Herndon, Judge. (1) Under section 7531 of the general revenue law, it was the duty of the assessor and the defendant to make a list of all the personal property (including the property in controversy) which he owned, and which was situated in Clinton county. ' (2) There is no law authorizing any other list to be made by anybody.

— Hon. W. S. Herndon, Judge. (1) The premium was an entirety and the policy was an entirety, running for five years from August 2, 1890, to August 2, 1895. The policy was in force and- . plaintiff washable thereon until default of the defendant. Such being the case, upon the doctrine of the authorities hereafter cited, when the insurance terminates by the default of the assured, there can be no apportionment of the premium. Ins. Co. v. Henley, 60 Ind. 515; Ins.

— Hon. H. M. Ramey, Judge. (1) The defendant is an assessment insurance company within the meaning of Revised Statutes, Missouri, chapter 89, article 3, and not governed by the general insurance law. Hanford v. Mass. Benefit, 122 Mo. 50; Stiepelv. Ass’n, 55 Mo. App. 224.

— Hon. E. J. Bboaddtjs, Judge. (1) Under section 6392, to sustain the action, the plaintiffs must occupy the position of landlord as to the premises in controversy, or that the tenant has attorned to him; neither of which elements are to be found'in the case at bar. Buhe v. Compton, 49 Mo. App. 308. (2) This action can not be maintained under section 6397. The justice had no jurisdiction of the subject-matter thereof; title to real estate is involved. R. S. 1889, sec. 6124.

— Hon. E. J. Broaddus, Judge. (1) Instructions 1 and 6 on behalf of defendant are erroneous, and conflict with 1 and 2 given for plaintiffs. Both can not be the law. Flsass v. Harrington, 28 Mo. App. 300; Price v. Lederer, 33 Mo. App. 426; Leedomv. Ward, 38 Mo. App. 425; Reid v. Loyd, 52 Mo. App. 278; Strauss v. Hirsch, 63 Mo. App. 110. (2) Instruction 3, on behalf of defendant, is erroneous, and conflicts with number 2 on behalf of plaintiffs. Both can not be the law.

— Hon. E. J. Bboaddus, Judge. (1) The complaint filed in this cause before the justice, and upon which the process was issued and upon which the case stood for trial in the circuit court until the court permitted the plaintiff to file an amended complaint, failed to state any cause of action.

— Hon. E. J. Bboaddus, Judge. (1) The complaint in this cause fails to state facts sufficient in law to constitute a cause of action. The complaint in direct terms alleges that both parties were in possession of-the land at the same time, on the nineteenth day of June, 1894. The complaint does not follow the forms prescribed on page 2262, Revised Statutes of Missouri, 1889, form number 145.

— Hon. J. A. Hockaday, Judge. (1) Plaintiff, in his application, warranted that he had one hundred and fifty-six and one half acres of land in southwest quarter, section 8, township 51, range 14, Howard county. That he owned it by fee simple title. The policy provides if the assured shall not be the sole and unconditional owner in fee simple of said property the policy shall become null and void.

— Hon. J. A. Hockaday, Judge. (1) The court erred in declaring that items fifth and seventh of the will were valid’ because they were inconsistent and void. (2) The court erred in declaring part of the will valid and part void. It may be admitted that the courts may declare certain parts of a will illegal and void as a matter of law and other parts valid because legally expressing the will of the testator.

— Hon. Andrew Ellison, Judge. (1) The issue was, did Leyhe warrant the horse to be sound and all right? If Leyhe told Grreen Drummond the horse was sound, it was irrelevant to the question at issue, because it did not tend to prove that Leyhe warranted the horse to plaintiff. It raised a collateral issue between Leyhe and Drummond, a similar but unconnected fact, not relevant to any issue. 1 Wharton, Ev. [1 Ed.], sec. 25, p. 17.

— Hon. Cyrus A. Anthony, Judge. (1) At the close of the evidence the court should have taken the case from the jury. As the plaintiff did not show that he had complied with the terms and conditions of the policy, and as alleged in plaintiff’s petition, that he furnished proofs of loss to defendant, at its office in Freeport, Illinois, within thirty days after the fire.

— Hon. W. S. Herndon, Judge. (1) ( The agreement ' set forth in appellant’s abstract of record is absolutely void, and should have been ignored by the trial court. Blank v. Nohl, 112 Mo. 159. (2) The court erred in sustaining the demurrer. Bliss on Code Pleading [3 Ed. ], see. 425 A; Bads v. Gains, 58 Mo. App. loc. cit. 594; Water Co. v. Aurora, 129 Mo. loc. cit. 584; 1 Bishop on Mar. Div. & Sep., sec. 1711, 1712; Silcox db Martin v. McKinney, No. 5, 2 Mo. App.

Court. — Hon. E. J. Broaddus, Judge. Argued and cited authorities on the merits of the case. This so-called bill does not contain a single exception to any ruling of the court. The appellant offered the two chattel mortgages under which it claimed title. The court sustained an objection to each of them, and no exception was taken or saved. . The court overruled the appellant’s motion for a new trial, and appellant did not except. There was no motion in -arrest filed.

— Hon. D. P. Stbatton, Judge. (1) The county of Cedar, in whose favor the circuit court entered its judgment, is not a party to the record and does not claim any interest in said judgment. (2) The petitioners can have no interest in a judgment in favor of Cedar county, Missouri, unless such interest appears on the face of the judgment. See 6 Mo. App. 498, and see Caulfield v. Farish, 24 Mo. App. 110.

Louis City Circuit Court. — Hon. James E. Withrow, Judge. Plaintiff can not state one cause of action and recover on another. Penninger v. Beilly, 44 Mo. App. 255; Brinkerhoff v. Elliott, 43 Id. 185; Madden v. Mo. Pac. Wy Co., 50 Id. 666. A director of a corporation is not entitled to salary, unless the same is fixed by by-law or resolution before the services are actually rendered. Bennett v. St. Louis Car Boofing Co., 19 Mo. App. 349; Besch v. Western Carriage Mfg.

Louis City Circuit Court. — Hon. Leroy B. Valliant, Judge. Under the facts of this case a proceeding in equity to declare the mortgages void and for an accounting was proper. Larrabee v. Bank, 114Mo. 594. See, also, St. Louis v. Lumber Co., Id. 74. The fraudulent acts of Meyer having been shown, it was incumbent upon Wolff to establish, by competent evidence, the consideration of the mortgages given him. Bump on Fraud. Conv., p. 55.

Louis City Circuit Court. — Hon. John M. Wood, Judge. When the merits of a controversy have been passed upon by a court of competent jurisdiction, they become res acljudicata, and are not open to inquiry between the same parties or their privies in any other suit, unless the judgment was procured by fraud or an appeal duly taken. Spradling v. Conway, 51 Mo. 51; Creenabaum v. Elliott, 60 Id. 25; Union B. B. & Transportation Co. v. Traub, 59 Id. 355; Mason v. Summers, 24 Mo.

Louis City Circuit Court. — Hon. . Daniel Dillon, Judge. The court erred in giving the instruction of its own motion. Where a decree is rendei’ed by a court of competent jurisdiction, the issues presented by the pleadings are settled by the decree until it is reversed, set aside, or vacated by the appellate court.

Louis City Circuit Court. — Hon. Jacob Klein, Judge. The evidence for plaintiff being entirely oral, the court erred — even if there had been no conflict in it, in giving a peremptory instruction to find for plaintiff. The instruction was equivalent to requiring the jury to believe the testimony for plaintiff. Cleveland and A Mineral Land Co. v. Boss, 36 S. W. Rep.

Louis City Circuit Court. — Hon. James E. Withrow, Judge. ■ The money placed in' respondent’s hands was not “earnest money,” but a deposit merely for probable purchase, which failed. Earnest is something given by the buyer to the seller to bind the bargain or in part payment. 1 Abb. Law Die., Earnest; Anderson’s Law Die., Earnest; 5 Am. and Eng. Encyclopedia of Law, 580; 8 Id. 736; Howe v. Smith, 27 Ch. Div. 99-105; Benj. on Sales (Bennett) [6 Ed.], 164, secs. 211-219.

<p>Appeal from the St. Louis City Circuit Court. — Hon. Daniel Dillon, Judge.</p> <p>Certified to supreme court for final determination.</p> <p>No briefs filed.</p>

<p>Appeal from the St. Louis City Circuit Court. — Hon. Daniel Dillon, Judge.</p> <p>In this state, in a suit for damages for a tort committed by the wife in the presence of her husband, she is presumed to act under his coercion, and such presumption is conclusive, and not rebuttable. Mc-Keon v. Johnson, 1 McCord, 578; Meegan v. Gunsollis, 19 Mo. 418; Alexander v. LydicJc, 80 Id. 340; Merrill v. City of St. Louis, 83 Id. 255.</p> <p>There is no error in plaintiff’s instruction number 1. State' v. Ma Foo, 110 Mo. 15; Noland v. Trober, 49 Md. 468; Clow v. Chapman, 125 Mo. 101-108; R. S. 1889, sec. '3940; Cassin v. Delany, 38 N. Y. 179; Handy v. Foley, 121 Mass. 259; Marshall v. Oakes, 51 Me. 308; Charleton v. Haywood, 49 N. H. 314, 318, 319; Bains v. Bullock, Í29 Mo. 120.</p>

Louis City Circuit Court. — Hon. Daniel Dillon, Judge. Plaintiffs’ fifth, instruction has been repeatedly-approved by this court. Reed v. Lloyd, 52 Mo. App. 278; Herboth v. Gaal, 47 Id. 255; Cole Mfg. Co. v. Jenkins, 47 Id. 664. The question -whether the representations made to the plaintiffs were fraudulent should have been submitted to the jury. As to representations of solvency, see Ring v. Vogel, 44 Mo. App.

Louis City Circuit Court. — Hon. Pemrrook R. Elitcraet, Judge. The court erred in entertaining jurisdiction of this cause, and in admitting evidence in support of the allegations of plaintiff’s petition. 1 Perry on Trusts, sec. 468; In re Final Settlement of Bichenbaugh, 42 Mo. App. 328; In re Estate of Glover é Shepley, 127 Mo. 153; Frost v. Winston, 32 Id. 489; Harrison v. Smith, 83 Id. 210.

Louis City Circuit Court. — Hon. Jacob Klein, Judge. The court erred in its charge that, under the clause in the lease requiring defendants to pay double rent for such time as they would hold over, they could terminate the relation of landlord and tenant on any day after the expiration of their lease, by paying double rent up to such day. 1 Wood on Landlord and Tenant [2 Ed.], pp. 37, 125; 1 Taylor on Landlord and Tenant [8 Ed.], 24, sec. 22; 2 R. S. 1889, 1501, sec. 6367;…

<p>Appeal from the St. Louis City Circuit Court. — Hon. Pembrook R„ Elitoraet, Judge.</p> <p>TrANSEERRED TO SUPREME COURT TO DETERMINE JURISDICTION.</p>

Louis City, Circuit Court. — Hon. Daniel Dillon, Judge. The court erred in sustaining defendant’s motion to strike out. Where goods delivered to the buyer are inferior in quality to that which w;as warranted, and the warrantor knew of the use for which the article warranted was intended, consequential or special damages may be recovered for the breach. Ford v. Illinois Refrigerator Com.

Louis City Circuit Court. — Hon. James E. Withrow, Judge. That interpretation should be given to the bill of exchange and acceptance which the usual meaning of the words employed signifies, and which coincides with the intent of all the parties thereto, as evidenced by the agreed statement of facts. 1 Danl. Neg.

Louis City Circuit Court. — Hon. James E. Withrow, Judge. The court, upon the evidence, should have found that there was no special agreement as to the measurement of the stone, and that the measurement should have been by the perch. R. S. 1889, secs. 8861, 8862.

Louis City Circuit Court. — Hon. Thomas A. Russell, Judge. The court erred in admitting in evidence the inventory of the estate. It had no tendency to prove any issue in the case, and was incompetent and irrelevant. 1 G-reenlf. Ev., sec. 52. Its introduction was also improper, because it tended to raise the passion of the jury as shown by their verdict. 1 G-reenlf.

Louis City Circuit Court. — Hon. Jacob Klein, Judge. If entitled to recover at all, plaintiff is only entitled to recover for such, expenses as it actually incurred by reason of its efforts to carry out the contract, and not for expenses which it would necessarily have had to pay irrespective of the contract. Fp'liland v. Railroad, 57 Mo. App. 147; Drinkwater v. Dinsmore, 80 N. Y. 390; Lee v. Telegraph Co., 51 Mo. App. 375.

Louis City Circuit Court. — Hon. Thomas A. Russell, Judge. The court erred in admitting incompetent evidence. Elersole case, 102 Mo. 503. Parol evidence to prove contents of papers, referred to by witnesses, was incompetent, their absence not being satisfactorily accounted for, and no notice given to produce. Id. The judgment should be affirmed, 'appellants having failed to make out and furnish the court with a clear and concise statement of the case.

Louis City Circuit Court. — Hon. Thomas A. Russell, Judge. Under the facts and circumstances of this case, brought by the original contractors, a lumping charge is permissible. Btiss v. Fette, 55 Mo. App. 453; Abbott v. Hood, 60 Id. 196; Grace v. Nesbitt, 109 Mo. 9.

Louis City Circuit Court. — Hon. Pembeook R. Elitoeaet, Judge. The variance between Banker and Edwards in the first notice, and Banker and Edwards Building Company in the lien was immaterial. Banker and Edwards was the name first entered in the books of plaintiff. They were known by that name, both by plaintiff and defendant. Slmeffer v. Phoenix Breiuing Co., 4 Mo. App. 1Í5; International Ins. Co. v. Davenport et al., 57 Mo. 289; Hashells, 14 Mo.

Louis City Circuit Court. — Hon. Leroy B. Valliant, Judge. No affidavit was filed before tbe justice denying tbe partnership alleged in tbe complaint', and it must be taken as admitted. Sees. 2186, 6272, R. S. 1889; Pedclicord v. Railroad, 85 Mo. 160. Cases appealed from justices’ courts are tried de novo in the circuit court, and the defendant can not on appeal to the1 circuit court raise the question of no partnership, which was not raised before the justice.

Louis City Circuit Court. — Hon. Leroy B. Yalliant, Judge. The ownership of pledged personal property or choses in action remains in the pledgor, the pledgee having but a special property therein. Richardson v. Ashly, 33 S. W. Rep. (Mo.) 806; 4 Kent, Com., star p. 135; 18 Am. Encyclopedia Law, p. 590; Story, Bail., see. 287. A pledgee in possession of choses in action or personal property belonging to the debtor is subject to garnishment.

Louis City Circuit Court. — Hon. Thomas A. Russell, Judge. From the facts pleaded in defendant’s answer and counterclaim, it fully appears that the bond and other alleged contract, on which it was sought to hold plaintiff liable, were and are null and void as against public policy. Messer v. Adler, 86 Mo. 445; St. Louis A. é M. v. Delano, 108 Id. 217. See, also, Robards v. Samuel, 17 Mo. 555, 556.