Volume 69 — Missouri Appeal Reports

— Hon. W. W. Rucker, Judge. (1) We call particular attention to the fact that this statute requires the notice of the election to be posted in the three.“most” public places in each township, while the proclamation of the result may be posted in three “public” places.

— Hon. D. W. Shackleford, Judge. (1) That a person may bind himself upon proper and sufficient considerations to make a will in a particular way is conceded; but such agreements, when in parol, are not enforcible by an action at law. Only by a bill in equity, showing sufficient grounds for equitable relief, have the courts in Missouri ever enforced such agreements. Wright■ v. Finsley, 30 Mo. 389, 396; Gupton v. Gupton, 47 Mo. 37, 48; ‘Woerner’s Am.

<p>1. Master and Servant: place or working: negligence: evidence. The law enjoins upon the master the duty to furnish the servant a reasonably-safe place to work; and a failure to comply with this legal duty might under circumstances authorize the legal inference of negligence, but it devolves upon the servant to prove the failure of the master A trapdoor- over which a. servant, in the performance of his duty, must necessarily pass should be suitably guarded and lighted to protect the servant.</p> <p>2. -: ASSUMPTION OF RISK: OBVIOUS DANGER: CONTRIBUTORY negligence. When a servant knows of a trapdoor situated where it was so dark that its location could not be discovered and undertakes-to pass it, he would assume the risk of the danger incident, since it is perfectly obvious; and in this case the evidence is sufficient to send to the jury the negligence of the master and the contributory negligence of the servant.</p> <p>3. -: negligence: fellow servant: defense. Where the injury of the servant results from the combined negligence of the master ánd a fellow servant, the negligence of the fellow servant constitutes no defense.</p> <p>4. -: location of door: instruction. An instruction submitting to the jury the question of whether the master was negligent in maintaining a trapdoor on a certain passageway is approved on the evidence in this case.</p> <p>5. Appellate Practice: disturbing verdict: partiality: trial court. The appellate court will not disturb a verdict except for corruption or misdirection, and the trial court is the proper tribunal to-correct an appearance of partial or prejudicial misconduct of a jury*</p>

— Hon. John W. Woeeord, Judge. (1) The law authorizes a defendant in a criminal case to take depositions conditionally. R. S. 1889, sees. 4434 and 4149. The defendant in a criminal case is authorized to subpoena witnesses by section 4406. Neither of the three sections cited mention costs. All are enacted for the purpose of assisting the defendant in preparing to meet the charges made against him in the indictment. (2) No costs are allowed by the common law.

— Hon. E. L. Scarritt, Judge. “ It is true that a thing which is within the mind and intention of the framers of the law is as much within the statute as if it were within its letter; and a thing which is within the letter of the statute is not within the statute unless it be within the intention of the makers.” Humes v. R. R., 82 Mo. 227; State v. King, 44 Mo. 283; In re Estate, 83 Mo. 441; Ex parte Marmaduke, 91 Mo. 254; Endlich on the Interpretation of Stats. [Ed. 1888],…

— Hon. C. O. Tichenor, Special Judge. (1) Respondent next seeks to stay the judgment of the justice because it was not rendered by the justice and entered on Ms docket within three days after the case was submitted to him for his final decision, in accordance with the provisions of section 6279, Bevised Statutes, 1889. The delay or neglect of the justice in rendering his decision or in entering the judgment on Ms docket is not sufficient to render it invalid.

— Hon. E. L. Scarritt, Judge. (1) On the hearing of plaintiffs’ motion to dismiss for want of sufficient bond, the court found that defendant’s bond was not sufficient. The appeal should then have been dismissed. R. S. 1889, sec. 6340. The court exceeded its authority in ordering defendant to file any bond and in continuing the cause (especially at plaintiffs’ cost) before its jurisdiction was perfected. State v. Thompson, 81 Mo. 163; Spencer v. Beasley, 48 Mo.

— Hon. E. L. Scarritt, Judge. (1) There is no evidenee warranting a verdict for the plaintiffs. The measure of damages which plaintiffs were entitled to recover was the difference in the market value of her lots immediately before the grading of the street and immediately after the grading. Dalev. St. Joseph, 59 Mo. App. 566; Davis v. R. R., 119 Mo. 180; Clinkenbearcl v. St. Joseph, 122 Mo. 641. (2) The court erred in refusing defendant’s instruction number 1.

— Hon. W. W. Wood, Judge. (1) Defendant’s peremptory instruction for the jury to return a verdict for defendant should have been given. (2) The court committed error in allowing a witness to give his opinion as to whether there was anything to prevent defendant’s gripman from seeing the hose cart when the car got to the first corner of Eleventh street. Kennedy v. JR’y, 43 Mo. App. 1; Booth on Street Railways, section 306.

— Hon. O. L. Dobson, Judge. (1) The theory of the garnishment proceeding is that it amounts to no more than a substitution of the plaintiff for the defendant debtor in the enforcement of any liability against the garnishee, and for this reason the garnishing creditor can not recover unless the principal defendant could in an action by him- against the garnishee. Schuler v. Israel, 120 U. S. 506; Firebaugh v. Stone, 36 Mo.

— Hon. Angus Cox, Judge. The indictment is under the statute regulating the sale of intoxicating liquors by dramshop keepers. Laws 1891, sec. 2, p. 128. Defendant being a regular registered druggist and pharmacist is only amenable to the statute regulating the sale of intoxicating liquors by druggists. State v. Piper, 41 Mo. App. 160; State v. Gibson, 61 Id. 368; State v. Rafter, 62 Id. 101; State v. Baslcett, 52 Id. 389.

— Hon. W. N. Evans, Judge. The indictment charges defendant with selling intoxicating liquor, to wit, beer, but that does not say whether it was lager beer, or whether it is a fermented liquor. Nor does the proof show whether it was lager beer or a fermented drink, which must be done under the session acts, 1891, section 26, page 132.

— Hon. Reuben F. Roy, Judge. There was a defect of parties. On the death of Rodgers the cause of action survived to Reynolds, and he became a necessary party. Matney v. Gregg Bros., 19 Mo. App. 107; Ryan v. Riddle, 78 Mo. 521; Clark v. Cable, 21 Id. 223; Rainey v. Smizer, 28 Id. 310; Henry v. Mt. Pleasant Township, 70 Id. .500; Ohnsorgv. Turner, 33 Mo. App. 486; McLaran v. Wilhelm, 50 Id. 658; R. S. 1889, sec. 1994.

<p>1. Attorney, Liability of Client for Acts of: collateral agreement BY ATTORNEY FOR CLIENT WITHOUT AUTHORITY. All attorney as. such can not, without further authority, bind his client by an agreement collateral to and independent of the subject-matter of a suit intrusted to his management.</p> <p>2. -: collateral Agreement: ratification. In an action on such agreement, where there was no evidence in the record that the client knew of the agreement made for him by his attorney, there could have been no ratification of such agreement by the client. Nor could there have been a ratification by his personal répresentative, who refused as such to carry out such agreement, and who received no. portion of the award for which the action was brought.</p>

Hon. Reuben E. Roy, Judge. “The question is one of intention as such intension may be disclosed by the deed of trust or mortgage. Many instances could be suggested where the nature of the transaction, as shown by the deed, would disclose an intention that the debts should share pro rata in the security without reference to the order of their maturity.” Freeman v. Elliott, 48 Mo. App. 74-78.

— Hon. Benjamin E. Teener, Judge. The court erred in refusing to give the instruction asked by defendant requiring plaintiff to show both malice and want of probable cause before he could maintain his action. Sappington v. Watson, 50 Mo. 83; Sharp v. Johnston, 59 Id. 557; Vansiclde v. Brown, 68 Id. 627. The questions to be tried are, did the appellant believe the respondent guilty, and did he have reasonable grounds for so believing.

<p>Appeal from the Knox Circuit Court. — Hon. Benjamin E. Turnee, Judge.</p> <p>Entries in books of account to be evidence must be shown to have been made ‘‘contemporaneous with the transaction entered.Martin v. Nichols, 54 Mo. App. 594-597.</p> <p>If it is necessary to allege date of execution of note, it is necessary to allege right date. If not pleaded, party has no right to give evidence of it. Halpin v. School District, 54 Mo. App. 371.</p> <p>No issue is j^nade on the pleadings of the execution of the note of December 24. The answers allege the note was made in 1886 by William and Sylvester Taylor, and signed by mistake by Joseph in 1888. Plaintiff contradicts its own pleadings by that evidence. Halpin v.' School District, 54 Mo. App. 371; Siebert v. Alien, 61 Mo. 482; Bank v. Armstrong, 62 Icl. 57; Wilson v. Albert, 89 Id. 537.</p> <p>Nor was any issue made on the pleadings of the note being executed on December 24,1888, by delivery. Wells v. Poston, 77 Mo. 284-287.</p> <p>Unless the allegations of an abandoned pleading be made by mistake of attorney, they are persuasive evidence of the facts stated. Dozelet v. Bawlmgs, 58 Mo. 75-77; Schadv. Sharp, 95 Id. 574-576; Anderson v. McPike, 86 Id. 301; Murphy v. Type Foundry, 29 Mo. App. 541-544.</p> <p>William Taylor, unimpeached, testifies to the arrangement for extension of time on note, and Joseph that he knew of it. The defense is complete. Bank v. Moorman, 38 Mo. App. 484-486; Insurance Co. v. Carson, 31 Mo. 218; Stihoell v. Aaron, 69 Id. 539-542; Barrett v. Davis, 104 Id. 549; Bank v. Wood, 56 Mo. App. 214; Wayman v. Jones, Id. 313.</p> <p>On the defense of alteration the evidence is conclusive, and there should have been a direction to the jury to find for defendants. Spolmv. B. B., 87 Mo. 74-89; Carruth v. Bicheson, 96 Id. 186-192.</p> <p>There was no evidence that respondent agreed to extend the time of payment of the note sued on, and no consideration was proven for the alleged agreement. Wayman v. Jones, 58 Mo. App. 313-320. See, also, Savings Bank v. Hughes, 62 Mo. App.- 576, as to right of cashier to make agreement for- extension without authority of directors.</p> <p>The giving of time to pay a note is not an indulgence in law, nor invalid, and no defense to the note when sued on. Hosea v. Boioley, 57 Mo. 357, 359; Wayman v. Jones, 58 Mo. App. 313-320.</p> <p>There was no agreement proven that respondent agreed to suspend the right of action against the parties to said note for a definite period. Waymcm v. Jones, 58 Mo. App. 313-320.</p> <p>Payment of interest in advance is not, alone, evidence of an extension of time. Bank v. Love, 62 Mo. App. 378-381; Rosea v. Rowley, 57 Mo. 357, 359; Bank v. Gardner, 57 Mo. App. 268-271.</p> <p>Defendants having alleged that note sued on was signed by them in spring of 1886, and changed to December 14, 1888, must stand by it. They can not allege one defense and prove another. Raynes v. Trenton, 108 Mo. 123-132.</p>

<p>1. Replevin: evidence: inference. In replevin, for the recovery of certain cattle, which had strayed into defendant's pasture, and which defendant’s daughter, aged twenty-one years, and his nephew, ahoy aged fourteen years, left in temporary charge of his farm, refused to surrender, where the court, over defendant’s objection, admitted testimony of witnesses for plaintiff to a conversation with another nephew of defendant who told them defendant had said, plaintiff could get his cattle if he paid for them, and had directed his daughter to hold them, and there was evidence that when plaintiff went for the cattle, the boy left his work, rode rapidly to get back ahead of plaintiff, and told him he could not get the cattle unless he paid for them, and so instructed defendant’s daughter, the court was warranted in inferring, before admitting the testimony objected to, that the ¡boy was acting under express orders from defendant not to permit plaintiff to take the cattle unless he paid the charges for impounding; and in admitting his statements in evidence against defendant.</p> <p>2. -: instruction. In such action, an instruction offered by defendant that he was not responsible for the trespass of his minor children and that, unless the jury should believe from the evidence that his nephew and daughter were the servants of defendant at the time the cattle were taken up, they should find for defendant, without the qualifications that his children, when they committed the trespass, were not in the performance of any service of defendant, were not acting under his directions, but wholly independent of his will, and that the trespass was not ratified by defendant after its commission, was properly refused.</p>

<p>1. Promissory Note: erasure: execution of note on Sunday: liability of indorsers: evidence: demurrer. In a suit on a promissory note, taken in part settlement of another note, on the back of which was an indorsement by defendants with the words “without recourse on us” erased, an admission by the attorney of defendants, who represented them in the settlement, made to officers of plaintiff company, “that he had a hard time to get him to do it,” meaning the president of defendant company, and referring to such erasure, was competent evidence, as a part of the res gestae; and a defense to the note in suit that it was executed on Sunday, and was given without consideration, could not be interposed by defendants to avoid liability on their contract as indorsers.</p> <p>2. --: evidence: instructions. Where there was no substantial conflict in the evidence as to the material facts in issue, instructions given in the light of the testimony, which were equivalent to telling the jury to find the issues for plaintiff, was not error.</p> <p>3. -: principal and agent: fraud: estoppel. Where the defendants, in such ease, received the benefit of the transaction in question, made by their agent for them, they were estopped from denying his authority to make such transaction. Watson v. Bigelow, 47 Mo. 413.</p>

— Hon. Benjamin E. Turner, Judge. Respondent must recover, if at all, on the cause of action stated in his petition. Whipple v. Building é Loan Ass’n, 55 Mo. App. 554; Bank v. Umrath, 42 Id. 525. An agreement on the back of a promissory note before signing is not a prior or contemporaneous agreement, but a part of the note. Bank v. Clark, 52 Mo. App. 593; Wy v. Levy, 17 Id, 501, 504, 505.

Louis City Circuit Court. — Hon. Jacob Klein, Judge. There was no evidence'of waiver. The allegations that proofs had been furnished in compliance with the condition of insurance stood denied, and respondent’s case failed in a material point, because of the entire absence of necessary evidence. Sheehan v. Ins. Co., 53 Mo. App. 351; Haggard v. Ins. Co., Id. 98; McCullough v. Ins. Co., 113 Mo. 606.

— Hon. Aegus Cox, Judge. ■ (1) Plaintiff’s instruction number-should have been given. Defendant and plaintiff had compromised judgment and defendant had received full satisfaction; and after he had ordered the sheriff to release the property and return the execution satisfied, which was done, and had received full payment, he could not then reject the terms of the compromise and plead want of consideration. Dodson v.- Clark, 49 Mo. App. 149; Bo finger v. luyes, 7 Sup. Ct.

— Hon. Argus Cox, Judge. (1) The court erred in refusing defendant’s demurrer to the evidence. There was a disagreement as to the amount of the loss. Under the terms of the policy plaintiff could not sue until the amount had been fixed by appraisers. It stands admitted that the loss had not been so fixed. Murphy v. Ins. Co., 61 Mo. App. 323; McNees v. 'Ins. Co., 61 Mo.' App. 335. (2) The'instruction given for plaintiff is erroneous.

<p>Appeal from the Macon Circuit Court. — Hon. Andrew Ellison, Judge.</p> <p>Section 2253 of the Revised Statutes of 1889 provides that “in lieu of such (whole) transcript, a certified copy of the record entry of the judgment together with the order granting the appeal” may be filed, and then printed abstracts of the entire record may be filed in such time as the rules of the appellate court may prescribe. Rule 15 of this court requires that such abstracts be filed on or before the next preceding day on which the cause is docketed for hearing. Now, said section 2253 and said rule 15 have been complied with. The record of the judgment and the order granting the appeal have been duly filed, also five copies of the printed abstracts of the entire record have been duly filed. So that section 2253 has been complied with, and the cause is properly here under such section, and the printed abstracts on file in this cause must be taken as the record in the cause. Respondent does not deny that there is such a record as that printed, in appellant’s abstract, which was duly served on respondent’s attorneys, but simply complains that it was not certified to by the clerk. Such objection is not valid under said section 2253. Said section provides that respondent may set 'up any part of the record omitted by appellant; and it further provides that in case of a dispute as to what the record contains, then an order from the clerk of the appellate court shall bring the certified record up. There is in this cause no dispute as to what the record contains. ■ Section 2253 has been complied with, and thus all the objections made by respondent to the record, covering respondent’s entire statement, are disposed of, and then in detail reviewed. No cases cited in respondent’s brief.</p> <p>The verity of the certified transcript can not be assailed, and any matter contained in appellant’s abstract and statement not found in the transcript can not be considered by this court, and this case must be affirmed unless the record is shown to contain error. State v. Blunt, 110 Mo. 322. Appellate courts “ neither will nor can take cognizance of matters not in the record.” Beck v. Dowell, 111 Mo. 506-508, 509. The bill of exceptions is not copied into the transcript.</p>

— Hon. E. L. Scarritt, Judge. (1) It is well settled law that when an amendment to a statute changes the old law in its substantial provisions, the amendment by necessary implication repeals the old law to the extent to which the new is in conflict with the old. Endlich on Int. of Statutes, sec. 195.

— Hon. O. L. Dobson, Judge. (1) Unquestionably the date of issue in this case was the eighth day of March, 1895. The tax bills were not paid within the thirty days, hence they should draw interest from said date. Sec. 18, art. 9, city charter.

— Hon. John W. Woeeobd, Judge. (1) The assistant prosecuting attorney appointed by the prosecuting attorney is authorized by law to discharge the duties of prosecuting attorney when the prosecuting attorney is engaged in the discharge of his duties so that he can not attend. R. S. 1889, sec. 664, p. 244. And he has the same authqrity to sign and file informations as the prosecuting attorney. State v. Hynes, 39 Mo. App. 569.

— Hon. R. E. Ball, Special Judge. (1) The first arrangement between Campe and plaintiff before the note was given was a sale, not a consignment to Campe as a factor to sell on commission. Commisjty v. Williams, 20 Mo. App. 606. (2) The act of plaintiff in receiving and holding the note for twenty days without objection is sufficient evidence of acceptance. Robertson v. Tapley, 48 Mo. App. 239, 242.

— Hon. J. H. Slover, Judge. (1) No jurisdiction was obtained over plaintiff, D. W. Longwell, the beneficiary of record in the deed of trust from T. A. Harris to S. E. Scott, trustee for D. W. Longwell.

— Hon. E. L. Scarritt, Judge. (1) Defendant contends that the court should have given its peremptory instruction to the jury to find for defendant. Bean v. Assurance Corp., 50 Mo. App. 459; Smith v. Acc. Ass’n, 62 N. W. Rep. 990; Ins. Go. v. Jones, 80 Ga. 541; Shaffer v. Ins. Co., 22 N. E. Rep. 589; Tuttlev. Ins. Go., 134 Mass. 176,177; Neill v. Ins. Go., 12 Canada Sup. Ct. 55, 72; Gresham v. Ins. Go., 13 S. E. Rep. 752, 753, 754; Ins.

Appeal'from the Jackson Circuit Court.- — Hon. C. L. Dobson, Judge. STATEMENT BY ELLISON, J. In March, 1889, Nathan Scarritt was the owner of two lots in Kansas City. At that time he entered into an agreement of lease with the defendant, Dickson, and one Collins, leasing to them these lots for a period of two years, beginning March 1, 1889, and ending February 28, 1891.

— Hon. O. L. Dobson, Judge. (1) No contract was concluded between the parties by the correspondence which took place on April 18, 19 and 20, 1895. Oil Co. v. Lead Co., 4Dill. 431, 434; B’yv.

— Hon. E. L. Soarritt, Judge. (1) The broker must be the procuring cause of the contract on which he depends for his recovery. It will not suffice for his act to be one of the chain of causes producing the contract. It must be the procuring or inducing cause, or as it has been said, it must be the causa catisans. Ramsey v. West, 31 Mo. App. 676, 687; Zeidler v. Walker, 41 Mo. App. 118; Wylie v. Bank, 61 N. Y. 415; Harp v. Cummings, 54 Pa.

— Hon. E. J. Bboaddus, Judge. (1) No recovery should have been permitted in this case because of the failure of assured, or her assignee, to offer to appraise the loss. The policy conditions on the subject are the same as in Murphy v. Ins. Go., 61 Mo. App. 322; McNees v. Ins. Co., 61 Mo. App. 335.

— Hon. Richard Field, Judge. • (1) The offer to appraise two years after loss was not made within a reasonable time, and because not so made there can be no recovery. As absolutely decisive of this question by analogy see Porter v. Ins. Co., 62 Mo. App. 520, and our observations thereon under the head of “argument,” post. (2) The performance of any policy condition, where no time is mentioned for performance, must be within a reasonable time. Palmer v. Ins.

— Hon. C. L. Dobson, Judge. (1) Plaintiff alleged in its amended petition that “it was the owner of the flour in controversy and entitled to the possession of same, and that the Union Pacific Railway Company has appropriated said carload of flour to its own use and now refuses to deliver up the' same or to pay this plaintiff therefor.” This is an action for conversion and in order to recover in such action plaintiff must prove that it was the owner of the property before a…

— Hon. C. L. Dobson, Judge. (1) The master is bound to use ordinary care and diligence to provide for the use of his servants sound and safe materials, instruments, and accommodations.

<p>Deed, Construction of: inadmissibility of oral testimony to show yerbal warranty. Held: That the phrase in a deed, following the description, “containing 111.70 acres," is a representation only, and not a warranty of quantity; and where such phrase is contained in a • deed, after the description, and nothing is left by the deed to locate the land, no survey is provided for, the consideration is fully and definitely stated, and neither the land nor consideration is left uncertain, and there is no averment of fraud, accident, or mistake, in the making or procuring of the deed, oral testimony is inadmissible to add to, detract from, or to vary the written terms of the deed in respect thereto, or in any respect, or for any purpose. •</p>

— Hon. Reuben F. Rot, Judge. Assured neither took an inventory nor kept books of account correctly detailing sales of the stock “hereby covered,” i. e., by the policy sued on. The keeping of such books was a promissory warranty running with the policy, and whether material or immaterial, without its fulfillment the policy was void. Laudman v. Ins. Co., 18 Ins. L. J. (La.) 813; Kelly Goodfellow Co. v. Ins. Co., 28 S. W. Rep.

— Hon. E. M. Hughes, Judge. The facts in this case are similar to those in Pomeroy v. Burton, 57 Mo. 531, and Watts v. Acller, 29 N. E. Rep. 131. Appellant makes no pretense that there was any fraud or error in the settlement, institutes no proceeding to set it aside, but contents himself with denying the settlement.

— Hon. James T. Neville, Judge. If the grantee or his assigns, nothing more appearing, demands the rent and the tenant pays it, or agrees to pay it, then we have an attornment and a novation of relation of landlord and tenant; but if he fails to do so, and goes further and absolutely declines this relation which the law proffers him, then the right of possession does not pass. Gray v. Rodgers, 30 Mo. 558; Logan v. Woolwine, 56 Id. 457.

— Hon. W. N. Evans, Judge. Defendant was indicted as a dramshop keeper, when he should have been indicted as the proprietor of a drug store, under the druggist laws of 1889. R. 8. 1889, sees. 4611, 4621, 4622. Any person not a pharmacist or druggist may own and conduct a drug store, if he keep constantly in his employ a competent pharmacist, which defendant did in this case. R. S. 1889, sec. 4614.

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

— Hon. W. N. Evans, Judge. Under the circumstances of this case the voluntary-conveyances are fraudulent in law, and constitute sufficient ground for attachment. Bank v. Price, 41 Mo. App. 291-294; Patton v. Bragg, 113 Mo. 595-601; Jordon v. Bushmeyer, 97 Id. 97; Seger Sons v. Thomas Bros., 107 Id. 641; Hoffman v. White, 127 Id. 136; Patton v. Casey, 57 Id. 118; Benne v. Schneclte, 100 Id. 251.

<p>Sale: fraudulent representation: warranty: pleading: evidence: instruction. In a suit for damages for the sale by defendant to plaintiff of a mare with weak eyes, alleged to have been represented by defendant to be sound, where there was no claim of an express warranty, and no averment in the petition of a concealment of latent defects in the animal, making her unfit for the purpose for which she was purchased, and the petition was not broad enough to embrace such separate and distinct cause of action, and there was no evidence that defendant, at the time of the sale, or at any time previously, made any representation to plaintiff as to the condition of the mare’s eyes, with a view to making the sale, an instruction to the jury upon 'the theory of fraudulent concealment was error.</p>

<p>Appeal from the Howell Circuit Court. — Hon. W. N. Evans, Judge.</p> <p>Defendant’s demurrer to plaintiff’s evidence should have been sustained. First, because there was no proof that defendant owned or operated a railroad as alleged or at all. Gilbert v. B’y, 23 Mo. App. 65; Lindsay v. B’y, 36 Id. 51; second, because the evidence shows, if it shows anything, that the mare was struck on a public crossing, if struck at all. Cecil v. B. B., 47 Mo. 246; Morris v. B. B., 79 Id. 371; Sullivan v. B. B., 72 Id. 197; McPheeters v. B. B., 45 Id. 24; Meyer v.B.B., 35 Id. 353.</p> <p>Instruction number 1 given at request of plaintiff is erroneous. Goodtvin v. B’y, 53 Mo. App. 9; Lindsay v. B’y 36 Id. 51.</p> <p>Defendant’s instructions, numbered 1 and 2, refused, were based on the evidence by plaintiff’s own witnesses, and should have been given. Luclcie v. B’y, 76 Mo. 639; Soward v. B’y, 33 Iowa, 387; Brown v. B’y, 20 Mo. App. 432; State v. Walters, 69 Mo. 463; Gilts v. B. B., 65 Mo. App. 447; Boberts v. B. B.,43 Id. 287.</p> <p>The evidence leaves it in doubt, whether the mare was ever struck by anything, but tends to show that in running across the track fell and received the injuries complained of, and defendant’s third refused instruction should have been given. Foster v'. B. B., 90 Mo. 116; Lafferty v. B. B., 44 Id. 291; Hughes v. B. B., mid. 325; Seibert v. B. B., 72 Id. 565; Halferty v. B. B., 82 Id. 90.</p>

— Hon. W. N. Evans, Judge. Defendant’s demurrer to plaintiff’s evidence should have been sustained. There was a failure of proof that defendant owned or operated any cars at the place or on the day alleged. Gilbert v. JR. JR., 23 Mo. App. 65; Lindsay v. B. B., 36 Id. 51. Moreover the evidence shows the cow was, when killed, the separate property of plaintiff’s wife, who was not a party to the suit.

<p>Appeal from the McDonald Circuit Court. — Hon. J. O. Lamson, Judge.</p> <p>The judgment should have been reversed. Jaclison v. K. G., P. & G. B. B., 66 Mo. App. 506; B. B. v. Koeher, 46 Kan. 277; Soioarcl v¡ B. B., 33 Iowa, 387; B. B. v. Griffis, 28 Kan. 539; 13 Am. and Eng. R. R. Cases, 533, and note; Boberts v. B. B., 13 Mo. App. 287; Brown v. B. B., 20 Id. 427,433; Walton v. B. B., 67 Mo. 56; 1 Rorer on Railroads, 622.</p>

— Hon. J. C. Lamson, Judge. When one renders services for -another without objection, such fact does not amount to an acceptance of the services with a promise to pay for them. Hart-nett v. Christopher, 61 Mo. App. 64; Heimens v. Gtoerger, 51 Id. 586. The instructions should be so framed as to aid the jury to understand the law of the case. Stanley v. Depot Co., 114 Mo. loe. cit.- 620.

Genevieve Circuit Court.— Hon. James D. Fox, Judge. The court erred in refusing defendant’s instruction in the nature of a demurrer to plaintiff’s evidence, which was totally irreconcilable, showed no negligence on the part of defendant or its servants, and preponderated in favor of defendant, while the burden of proof was on plaintiff. Moore v. B’y, 28 Mo. App. 622; Heivittv. Doherty, 25 Id. 326; Blaclavellv.

Appeal! from the Wayne Circuit Court.. — Hon. James P. Oreen, Judge. Where an application is made “for distinct and separate insurance, part on real estate, and part op personal property, the applicant can require two separate policies.” The fact that “they are included in one policy does not merge them into one. If the goods alone be destroyed, the terms of the policy applying to them alone can be made the basis of recovery.” Trabue v. Ins.

— Hon. O. O. Bland, Judge. The street, although on the plat, was not opened nor used as a street, and negligence can not be predicated on the injury to defendant under the facts of this ease. Sdnveihardt v. St. Louis, 2 Mo. App. 571; Craig v. Sedalia, 63 Mo. 417. Plaintiff was not bound to keep the street in repair. It was not necessary for the convenience and use of the public. It was not used by the public. Craig v. Sedalia, supra; Brown v. Glasgow, 57 Mo. 157.

<p>Appeal from the Stoddard Circuit Court. — Hon. John Gr. Weab, Judge.</p> <p>J. J. Russell for appellants, citing R. S. 1889, secs. 6384, 638,6; Toney v. Goodley, 57 Mo. App. 248.</p>

— Hon. E. M. Hughes, Judge. The evidence shows that the contract between the parties was for three years’ insurance, and that the time had elapsed before the fire; and where there is no conflict of evidence it is the duty of the court to take the cause from the jury. Whether there is any evidence or what its legal effect may be is to be declared by the court, and if there is any evidence to support an issue it is the duty of the court to so instruct the jury.

— Hon. James F. Green, Judge. The court erred in . not sustaining defendant’s demurrers at the close of the evidence. Sheehan v. Ins. Co., 53 Mo. App. 356, 357; Maddox v. Ins. Co., 56 Id. 347; Ehrlichv. Ins. Co., 103 Mo. 240, 243, 244. The receipt of proofs out of time, without objections, can not be treated as a waiver of the requirements to furnish them within time. Cohn v. Ins. Co., 62 Mo. App. 274; Leigh v. Ins. Go., 37 Id. 542; Hanna v. Ins. Co., 36 Id:542, and citation.

— Hon. W. N. Evans, Judge. Where part of consideration for deed of trust is fraudulent, the entire conveyance is void. State ex rel. v. Robertson, 102 Mo. 410; Kendall v. McConnell, 15 Mo. App. 420; McNichols v. Rubberman, 13 Id. 515; State ex'rel. v. Distillery Co., 20 Id. 26; Rannav. Finley, 33 Mo. 645. See brief in Tube Works Co. v. Medicine Co., 118 Mo., at p. 365. Nor is the fraudulent character of the mortgage changed by taking possession of the property.

— Hon John GL Wear, Judge. The agreement between the parties to transfer the-ease to Dexter for trial, upon which the court’s order of transfer was made, was “good cause” within the meaning of the act of 1895, and that order was clearly within the jurisdiction of the court at Bloomfield, and gave-the court at Dexter full jurisdiction to try it. Acts-1895, 141, 142; State v. Taylor, 33 S. W. Rep. 1145.

Francois Circuit Court. — Hon. James D. Fox, Judge. The plaintiff only owned an undivided half interest in the land on which the building stood, and only a life interest in the remaining half, and was not, therefore, the sole and unconditional owner in fee simple of the insured building or land on which it stood as required by the policy and application. Shoup v. Ins. Co., 51 Mo. App. 286; Holloway v. Ins. Co., 48Id. 1; Maddox v. Ins. Co., 56 Id. 343; Hubbard v. Ins.

— Hon. Reuben E. Roy, Judge. The relations of the parties may be looked into to ascertain what the contract was. 1 Add. Con. 86; Davis v, Hendrix, 59 Mo. App. 444. “An offer to sell a certain thing on certain terms, may be met by the answer, ‘I will take that thing on those terms,’ or by answer which means this however expressed.” Par. Con. [8 Ed.], foot page 494. The consideration stated in a deed is prima facie the true one. Hickman v. Hickman, 55 Mo.

— Hon. Reuben F„ Roy, Judge. The description in the mortgage was wholly insufficient to enable third parties to identify the property with the aid of such inquiries as the mortgage suggested, and the mortgage was void. Bozeman v. Field, 44 Mo. App. 432;. Stonebraker v. Ford, 81 Mo. 532; Jennings v. Sparkman, 39 Mo. App. 663; Randol v. Buchanan, 61 Id. 445; Mackey v. Jenkins, 62 Id. 618.

— Hon. E. M. Hughes, Judge. Neither the minutes of the judge nor the record show that defendant failed to appear “without sufficient cause or excuse.” Sec. 4134, R. S. 1889; Bond, J., in State v. Whitecotton, 63 Mo. App. 8.

Benjamin E. Tubneb, Judge. The court erred in permitting Gopher to detail the conversation with the deceased, also in admitting the testimony of Clifton, Budrow and Carroll. Wright v. Fonda, 44 Mo. App. 633, 642, 643; Rutledge v. R’y, 110 Mo. 312-318; Halpin v. School District, 54 Mo. App. 371, 375, 376. The court also erred in not restricting the instructions to the issues made by the pleadings. Wright v. Fonda, supra, and citations; State ex rel. v. Sitlington, 51 Mo.

— Hon. Reuben E. Rox, Judge. The relator had reasonable time within which to take possession of the corn, regard being had to its nature and condition, under the very terms of the statute. State to use v. King, 44 Mo. 238; and, under the evidence, this question should have been submitted to the jury. Biggs, J., in this case on former appeal, 53 Mo. App. 498.

— Before Hon. Edward J. White, Special Judge. As to what constitutes a nuisance, see Winfield v. Carrollton, 50 Mo. App. 103, 104; Wood on Nuisances, sec. 599. A swine yard or pig pen in close proximity to a residence is per se a nuisance. 2 Whar. Crim. Law [5 Ed.], p. 362; Kirchgraber v. Lloyd, 59 Mo. App., at 62. The rule that plaintiff must first establish his right at law does not apply to nuisance per se. Bridge Co. v. B. B., 6 Paige, at 563.

<p>1. Judgments, Assignment of: payment op debt by surety: sub- • rogation: equity. In a suit in equity to subrogate plaintiff to the rights and liens of the plaintiffs in several judgments assigned to plaintiff, as they existed at the dates the judgments were paid by plaintiff, and to subject the lands of defendant, described in the petition, to execution on said judgments, also asking that certain notes transferred to plaintiff by his son, who was insolvent, be placed in the hands of a receiver for collection for plaintiff’s benefit, where it appeared that said lands were acquired by defendant after the execution of the notes upon which the judgments were obtained, and the liens were in full force at the date of payment and assignment to plaintiff of said judgments,' — Held: That plaintiff, by payment of the judgments as surety for defendant, was entitled, in equity, to have all the securities, available to the creditors against defendant’s property, transferred to him, and to be subrogated to the rights and liens of the judgment creditors.</p> <p>2. ---: AUTHORITY OP ASSIGNOR TO ASSIGN: EQUITABLE ASSIGNEE: subrogation. On objection that the record did not show that the assignor had authority to assign to plaintiff certain judgments paid by plaintiff, it was not necessary to examine the evidence on that point, as by the payment of thq judgments plaintiff became the equitable assignee of them by operation of his right of subrogation.</p> <p>3. Judgment Entry: misrecital of undisputed facts: power of court to correct. The correction of the misrecital of an undisputed fact in an original judgment entry by order of court at a subsequent term, and after appeal granted, reciting that such misrecital therein was a mistake, was not error. Courts of record have inherent power, at any time, to correct clerical errors and misreeitals of undisx>uted facts by their clerks in the formal entry of judgments.</p> <p>4. Judgments by Default, Suit on: defense of infancy: signing notes under duress. Where defendant was of full age when served with process in former suits, and suffered judgments to go against him by default, in a proceeding on such judgments a defense of infancy was not available. Nor was the plea that notes, on which the judgments were obtained, were signed by plaintiff under duress.</p> <p>5.--: plea op defect of parties. Nor was there any foroe in an objection on the ground of a defect of parties, where the party omitted was insolvent, and his property was brought into court, and the omission to join him as a party defendant in no way affected any rights defendant may have had against him.</p> <p>G. -: plea of homestead exemption. Where defendant, in such proceeding, pleaded the homestead exemption act, and the court found that the judgments in suit, at the time they were assigned to and paid by plaintiff, were valid and subsisting liens against defendant’s lands, described in the petition, and that deféndant could not claim the lands as exempt under said act, though such finding would not be proper in ordinary cases of that hind, defendant was in no position to complain that the finding was against him on that issue.</p> <p>7. -: judgment in exoess of amount asked. A judgment for a greater amount than was asked for in the petition, though sustained by the evidence, was error.</p>

<p>Appeal from the Oregon Circuit Court. — Hon, W. N. Evans, Judge.</p> <p>This is one of those policies where they agreed that the agent had no power to complete the contract. The agent was only a solicitor. Jenkins v. Ins. Co., 58 Mo. App. 210; Shoup v. Ins. Go., 51 Id. 285; Mahoney v. Ins- Go., 52 Id. 94; 1 May on Ins. [3 Ed.],p. 246, sec. 138.</p> <p>What was said to the agent is not admissible, as the application does not undertake to set out the contract, and his authority was limited. Laehner v. Ins. Co., 17 Mo., at 256; Deily v. Ins. Co., 38 Id., at 92; Squire v. Evans, 127 Id., at 518, 519. See, also, Walton v. Ins. Co., 5 L. R. A. (N. Y. 1889) p. 677.</p> <p>The evidence shows the wife alone was the owner of the property, hence there was a breach of warranty, and they could'not recover. Walton v. Ins. Co., supra; Schroedel v. Ins. Co., 27 Atl. Rep. (Pa.) 1077; Ins. Co. v. Rush, 40 Mich. 241; Ins. Co. v. Hunter et at., 32 S. W. Rep. (Tex.) 344.</p> <p>' The question is not whether they both had an insurable interest, but whether they were the sole and unconditional owners by fee simple title, and did all stove pipes go into brick flues or Peck’s patent flues. Lima v. Ins. Go., 15 Mo. App. 447; Holloway v. Ins. Go., 48 Id. and cit.; Milling Go. v. Ins. Go., 25 Icl. 259, and cit.; Grisley v. Ins. Go., 40 Id., at 283.</p> <p>By receiving the policy with a copy of the application on the back of it, and keeping it without returning it to the company -for correction, plaintiff ratified it. Mahoney v. Ins. Go., 52 Mo. App., at 99, and cit.; Shoup v. Ins. Go., 51 Id., at 291; Steinberg v. Ins. Go., 49 Id. 255, and cit.; Mensing v. Ins. Co., at 607; 1 Beach Jr. on Ins., p. 331, sec. 356, and cit. in note 2.</p> <p>Plaintiffs forfeited all claims under the policy by false representations in their attempted proofs of loss as to the ownership of the property and condition of the flues. Ost. on F. Ins., p. 349, sec. 353, and cit.; Dolloff v. Ins. Go., 19 Atl. Rep. (Me.) 396; Claflin v. Ins. Go., 110 U. S. 81; Fleiseh v. Ins. Go., 58 Mo. App., at 604.</p> <p>There was no proof of the personal property, if any, lost by the fire. Sees. 5897, 5898, R. S. 1889, applies only to real estate.</p> <p>The court erred in giving on behalf of plaintiffs instruction number 1, which left to the jury the construction of the written contract as to what articles wei’e covered by the policy. Brannock v. Elmore, 114 Mo. 55; Breioing Go. v. Linck, 51 Mo. App. 478.</p> <p>Instruction number 3' asked by defendant should have been given. Strange v. Crotvley, 91 Mo., at 295; Cangas v. Rumsey Mfg. Co., 37 Mo. App. 297; Bish. on Con. [Enl. Ed.], p. 34. sec. 30.</p>

— Hon.- J. C. Lamson, Judge. The evidence of bo-th J. T. S. Brown and E. L. Burbank shows that the bill of lading and the telegram were of easy access, and yet the court permitted the contents of both to be proven by copy. This was error. 7 Am. & Eng. Ency. Law, pp. 87, 88. The delivery of goods by a vendor to a common carrier for transportation to the purchaser, passes the title to the purchaser, and the carrier is obliged to deliver the goods to the owner.

— Hon. Reuben E.- Roy, Judge. The circumstances under which the contract was-made may be looted into, and the acts of the parties-to the instrument are entitled to great weight. Dobbins v. Edmonds, 18 Mo. App. 307. The terms of every written instrument are to be understood in their plain, ordinary and popular sense. Greenlf. Ev., sec. 278.

— Hon. James T. Neville, Judge. The petition in this case is insufficient for failure to state the value of the goods destroyed, or that the same was of any value. Story v. Ins. Co., 61 Mo. App. 534. The property insured not being real estate, the valued policy law of the state has no application. R. 8. 1889, sec. 5898.

— Hon. J. C. Lams on, Judge. The common law doctrine with reference to surface water has been repeatedly declared and adopted in the decisions of the highest courts of this state. Abbott v. B. B., 83 Mo. 271; Field v. B. B., 21 Mo. App. 600; Gray v. Schribner, 58 Id. 173; Benson v. B. B., 75 Mo. 504. See, also, Moss v. B. B., 85 Mo. 86; JR. B. v. Keyes, 55 Kan. 205; Gollins v. B. B., 48 Mo. App. 398; Schneider v. B. B., 29 Id. 68.

— Hon. C. C. Bland, Judge. The words of the statute must be construed so as to give them effect if possible. Neemcm v. Smith, 50 Mo. 525; State v. Dieeling, 66 Id. 375;'Cooley’s Const. Lim. [4 Ed.] 223; Bish. Stat. Crimes [2 Ed.], 80, 82.

<p>1. Damages: evidence, competency op. In an action for damages for the death of one of a span of horses hired to defendant, alleged to have been caused by overdriving and beating, the testimony of plaintiff as to the condition of the other horse was not improper, where defendant admitted that the horses were driven a considerable distance on a hot day carrying a buggy occupied by himself and another.</p> <p>2. -: instruction: verdict. An instruction to the jury omitting to limit the amount of plaintiff’s recovery to the sum claimed in his statement was without prejudice to defendant, where the verdict was for less than the amount of the claim,</p> <p>3. Instruction. An instruction asked by defendant, singling out and commenting on an isolated fact, was properly refused.</p>

— Hon. J. C. Lamson, Judge. The particular kind of beer sold in this ease was attempted to be described, and was described, as one bottle of “larger beer.” No evidence was given as to this kind of beer being intoxicating; and where a beverage is not known to be an intoxicant, it must be shown to.be such. State v. Wilson, 80 Mo. 303; Whar. Crim. Law [8 Ed.], sec. 1505, p, 326.

— How Reuben E. Roy, Judge. To constitute a valid sale as against creditors of the vendor “there must remain nothing to be done between the seller and purchaser before the goods are to be delivered, as separating a specific quantity from the larger mass, or identifying them when they are mixed with others, and present right of property does not attach in the purchaser.” Cunningham v. Ashbrooh, 20 Mo. 559, 560; Ober v. Carson’s Ex’r, 62 Id. 209-213; Shoe Co. v. Bain, 46 Mo.

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

— Hon. J. T.' Neville, Judge. The court erred in giving a peremptory instruction for plaintiff. Cooh v. JR,, B., 63 Mo. 397-402; Wolff v. Campbell, 110 Id. 114-120. Every fact which might be reasonably inferred from the testimony in defendant’s favor is presumed to be true. Patton v. Bragg, 113 Mo. 595-600; Field v.JR.B., 46 Mo. App. 449; Helboth v. Gaal, 47 Id. 255.

— Hon. James F. GIreen, Judge. Before the evidence is left to the jury, there is, or may be, in every case, a preliminary question for the judge, not whether there is literally no evidence, but whether there is any upon which a jury can properly proceed to find for the party producing it, upon whom the burden of proof is imposed. Commissioners v. Clark, 94 U. S. 278; Hathaway v. B. B., 29 Fed. Rep. 489; Farkv. Boss, 11 How. 362.

— Hon. Reuben E. Roy, Judge. The interpretation of Seger v. Thomas, 107 Mo. 635, as given by the court, that a sale by one in debt, and insolvent, is fraudulent in law, regardless of the intent of the seller or the good faith of the buyer, if the sale be partly for cash and partly on credit, evidenced by negotiable paper, is at variance with an unbroken line of decisions to the contrary. Gens & Tiede v. Hargadine, 56 Mo.

<p> Petition for Writ of Certiorari. </p>

Louis City Circuit Court. — Hon. Daniel Dillon, Judge. The seller of goods on credit can only rescind the sale and maintain replevin for the goods upon proof that the vendee intended at the time of purchase never to pay for them. Manheimer v. Harrington, 20 Mo. App. 297; Bidault v. Wales, 19 Mo. 36; Fox v. Webster, 46 Id. 181. Where, after the discovery of fraud, complainant treats the transaction as existing, he will waive the right to rescind.

— Hon. J. O. Lamson, Judge. Every substantive fact which plaintiff must prove to maintain his action, should be alleged. Harrison v. B. B., 50 Mo. App. 332; Mfg. Co.v. School District, 54 Id. 371. If plaintiff had waived the tort, and based his cause of action on an implied contract, then he should have set forth the facts from which the promise is inferred bylaw. Pom. on Rem. [2 Ed.], sec. 568; Bird v. Meyer, 6 Wis. 362.

Louis City Circuit Court. — Hon. John M. Wood, Judge. A fraternal beneficial order is not a life insurance company, the insurance feature being only incidental to the fraternal and protective work. Theobald v. Knights of Pythias, 59 Mo. App. 87; Whitmore v. Supreme Lodge, 100 Mo. 46; Keener v. Grand Lodge, 38 Mo. App. 547; Commonwealth v. Benefit Ass’n, 137 Pa. St. 412.

— Hon. E. M. Hughes, Judge. The petition does not state a cause of • action. It does not state facts sufficient to bar a second action. Leas v. Express Co., 45 Mo. App. 598. Plaintiff’s permission to clear the land and remove the wood off defendant’s land was a license by parol, and subject to revocation without notice, at the will of defendant. PiUmanv. Boyce, 111 Mo. 387; B. B. v. Stock Yards, 41 Mo. App. 130; 129 Mo. 5.

— Hon. Henry C. Riley, Judge. The weight of the evidence preponderates so strongly against the verdict that it was plainly the result of partiality, prejudice, passion, mistake, or ignorance, and the court should have granted a new trial, jEmpey v. Cable Co., 45 Mo.

<p>1. Instructions: harmless error. An instruction for defendants requiring the jury to find that an alleged conveyance must have been made by defendants “for the purpose of defrauding, hindering, and delaying their creditors,” was erroneous in using the words “for the purpose” of defrauding, etc., and the conjunctive “and” instead of the disjunctive or used in the statute (sec. 521); and such errors were not rendered harmless by reason that, in the latter respect, plaintiff’s instructions correctly presented the law.</p> <p>2. Abatement: conducting business in name of another: fraud: jury question. ' An arrangement that a business be conducted in the name of another, with the understanding that the parties conducting it shall become the owners of the business, when they have paid back money invested in it by such other person, is not a fraudulent arrangement in law; and whether or not it is fraudulent in fact, is a question for the jury. •</p>

<p>Appeal from the Greene Circuit Court. — Hon. J. T. Neville, Judge.</p> <p>The title to the streets is not vested in cities of the third class, but in the public, and such cities have no further control over them than that which is expressly conferred by statute. Kovelman v. R. R., 79 Mo. 632. 640.</p> <p>Under the statute, the authority over streets is not conferred upon cities, but upon their councils. R. S. 1889, secs. 1498, 1574, 1576.</p> <p>The power of a municipal corporation over its streets, so far as it has any, is governmental and public. O’Rourke v. Sioux Falls, 46 Am. Rep. 760; Goddard v. Inhabitants of Harpswell, 30 Id. 377; Elliott on Roads and Highways, 563; Moffet v. Ashville, 103 N. C. 810. See, also, 2 Dill. Mun. Oorp. [4 Ed.], sec. 1217.</p> <p>Implied powers in this state are such as are necessarily incident to the powers expressly granted, or essential to the declared objects and purposes of the corporation. Union Depot R’y Go. v. R’y, 105 Mo. 562; Knapp v. Kansas City, 48 Mo. App. 485; Gaslight Co. v. Mercer, Id. 644.</p> <p>Such powers as are conferred upon cities of the third class can only be exercised in the manner provided by law. Trenton v. Coyle, 107 Mo. 193.'</p> <p>A city can not enforce its ordinances by suits in equity, nor can franchises be declared forfeited or lapsed by such a procedure. Booth on St. R’ys, sec. 49; Lejee v. B’y, 10 Phila. 362; Wanfren v. Moore, 34 Wis. 450. See, also, Booth on St. R’ys, secs. 46, 47.</p> <p>Quo warranto is the remedy, and the suit should be in the name of the state. State ex rel. v. B’y, 72 Wis. 612; Booth on St. R’ys, supra. See, also, People v. B’y, 27 Pac. Rep. 673; People v. Avenue B’y, 125 N. Y. 573; People v. Stanford, 77 Cal. 360; Draining Go. v. State, 43 Ind. 236.</p> <p>The respondent is entitled to maintain this action for revocation of the right to occupy the street with the track of appellant for breach of the conditions on which the consent of the city was obtained. Plymouth v. B’y, 32 Atl. Rep. 19; Allegheny v. St. B’y, 159 Pa. St. 411, 28 Atl. Rep. 202; Belleville v. Horse B’y, 38 N. E. Rep. 584; State ex rel. v. City Cape May, 34 Atl. Rep. 397; Mayor, etc., v. B’y, 19 S.' W. Rep. 786; Detroit v. B’y, 37 Mich. 558; B’y v. B’y, 62 Ill. App. 502; Waterworks v. State, 18 S. Rep. 62; Borough v. Traction Go., 3 Pa. Dist. Rep. 751; Cincinnati v. B’y, 2 W. L. B. 17; St. B’y v. Nave, 38 Kan. 744.</p> <p>It is a matter with which the state has nothing to do. People ex rel. v. Gaslight Go., 38 Mich. 154; Hovelmanv. Horse B’y, 79 Mo. 632; People v. Jackson, 7 Mich. 432; St. B’y v. Electric Transit Go., 5 Ohio, C. C. 319. See, also, B’y v. Gape May City, 34 Atl. Rep. supra; Belleville v. Horse B’y, 152 Ill.; State ex rel. v. B’y, 85 Mo. 263; Knight v. B’y, 71 Id. 231; Bridge v. Bridge,7 Pick. 344; Allegheny v. B’y, 159 Pa. St. 411; B. B. v. B. B., 32 Barb. 364; Bank v. Dandriclge, 12 Wheat. 70.</p> <p>The petition states facts clearly charging defendant with the maintenance of a public nuisance, which it is the duty as well as the right of respondent to pro-' ceed against. Dry Goods Co. v. B’y, 41 Mo. App. 63; Belton v. Hotel Co., 33 S. W. Rep. 680; Huron v. Bank, 66-N. W. Rep. 815; Furniture Co. v. Batesville, 139 Ind. 77; Beach on Injunc., sees. 1284, 1285.</p> <p>The power to lay a railway track in a street, can, in this state, in cities of the third class, only be granted by a municipality, and subject to the conditions it prescribes, and when laid or maintained without the authority of the city, or in disregard of the conditions imposed by it, it is a nuisance, and as such may be enjoined by the public authorities, or lot owners injured thereby. R. S. 1889, sec. 1576; Dill. Mun. Corp. [3 Ed.], see. 708; Commonwealth v. B. B., 14 Gray, 93; Trenton v. B’y, 17 Atl. Rep. 483; Dry Goods Co. v. B’y, 41 Mo. App.,supra; B. B. v. Shields, 33 Ga. 601; Boberts v. Easton, 19 Ohio St. 78; Davis v. Mayor, 14 N. T. 506; Oshkosh, etc., B’y, 43 N. W. Rep. (Wis.) 489; Milhan v. Sharp, 27 N. T. 601; Jamestown v. B. B., 34 N. W. Rep. (Wis.) 728; Eau Claire v. Matske, 56 N. W. Rep. 874; Elliott on Rds. & Sts., 496, and citations.</p>

Louis City Circuit Court. — Hon. Thomas A. Russell, Judge. Where the language of a contract is ambiguous, indefinite, and uncertain, the court in order to aseertain the meaning of the parties may look to proof aliunde. Bentmann v. Kilpatrick, 46 Mo. App. 624; Crawford v. Elliott, 78 Mo. 487. To constitute a binding contract the minds of the parties must meet. Bish. on Con., sec. 186; Mete, on Con., p. 30; Robinson v. Estes, 53 Mo. App. 582.

— Hon. J. C. Lamson, Judge. The court erred in excluding the evidence offered by appellants tending to show that interpleader had exacted usurious interest on the notes secured by the chattel mortgage. Fidelity Loan & G. Co. v. Baker, 54 Mo. App. 79; Tied, on Com. Paper, sec. 196, p. 323. Plaintiffs being attachment creditors of defendant had the right to defend against the chattel mortgage given by defendant on the ground that it contained usury. Sess.

<p>Receivers, Compensation of: judicial discretion, abuse op. While receivers are officers of the court, and their compensation largely within its discretion, its judgment will be reversed for an .abuse of that discretion.</p>

<p>1. Married Woman, Bight of, to Maintain Action in Own Name for Loss of Husband: damages: pleading. Under the present statutes, a married woman may maintain an action in her own name for the loss of her husband’s support, comfort, and society (Clow v. Chapman, 125 Mo. 101); and, in such action, she may waive her right to punitive damages, and ask for actual or compensatory damages only.</p> <p>2. Evidence: verdict. Held-. That the verdict in this case was supported by the proof.</p> <p>3. Evidence, Erroneous Admission of: instruction withdrawing. An erroneous admission of evidence is cured by an instruction of the court withdrawing it, where it does not appear it had any harmful effect upon the mind of the jury.</p> <p>4. Evidence: competency op declarations of husband after insanity: pleading. Where the fact of the husband's insanity is alleged in the petition, his declarations made after he became insane, are admissible as tending to show the nature, extent, and permanence of his insanity.</p> <p>5. Instruction: evidence. An instruction authorizing a recovery for the probable earnings of the husband was proper, where it was clearly shown by the evidence that .his insanity was permanent and incurable.</p>

— Hon. J. T.. Neville, Judge. The abutting property holder has the same right after the tracks are laid and the cars are running that he had before. But it is a right that, must be exercised in reason, whether there are cars on the street or not. Under no circumstances does it confer the privilege of obstruction by unreasonable exercise. Rafferty ■ v. Traction Go., 30 Am. St. Rep. (Pa.)' 763, 773; Booth’s St. R’y Law, 138; Bldg. Ass’n v. Bell Tel. Co., 88 Mo. 270, 277.

— Hon. W. N. Evans, Judge. The instruction for plaintiff imposes upon defendant the onus of proving that these conveyances were in good faith. This might be true as applied to voluntary conveyances, but is not the law as applied to conveyances based upon valuable considerations. Thompson v. Chohen, 24 S. W. Rep. (Mo.) 1023; Dallam v. Renshaw, 26 Mo. 533; Deering v. Collins, 38 Mo. App. 73.

— Hon. J. C. Lamson, Judge. Under section 2608, Revised Statutes, 1889, it is sufficient if either the whistle be blown, as there required, or the bell rung; it is not necessary that both should be done. Turner v. B. B., 78 Mo. 578; Rafferty v. B. B., 82 Id. 90; Kenney v. B. B., 105 Id. 270; McCormick v. B. B., 50 Mo. App. 109.

J. C. Lamsqn, Judge. Instructions 1, 2, and 3, correctly stated the law, were based upon the evidence, and should have been given. Perry’s Adm’r v. Roberts, 17 Mo. 36; Stephens v. Spiers, 25 Id. 386; Kronenburg v. Bins, 56 Id. 121; Pichel v. St, Louis Chamber of Commerce, 10 Mo. App. 191; Tumiliiy v. Tumility, 13 Id. 444. Settlements made between parties will only be set aside for mistake, fraud, or duress. Mateer v. R’y, 105 Mo. 320; Maack v. Schneider, 51 Mo.

— Hon. J. C. Lamson, Judge. It is not disputed that all the water was surface water,the flow of which across its right of way the railroad company had the right to prevent. Moss v. B. B., 85 Mo. 86; Byrne v. B. B., 47 Mo. App. 383; Field v. B. B., 21 Id. 600; Collier v. B. B., 48 Id. 398.

— Hon. J. C. Lamson, Judge. The objection to the introduction of any evidence, for the reason that the petition does not state facts, sufficient to constitute a cause of action, should have been sustained. Collier v. JR. JR., 48 Mo. App. 398; Field v. 11. B., 21 Id. 600; Byrne v. B. B., 47 Id. 383; Benson v. B. It, 78 Mo. 504.

<p>Appeal from the Tfewton Circuit Court. — Hon. J. C. Lamson, Judge.</p> <p>The only ditches and drains defendant is bound to construct are such as may be necessary “to connect with ditches, drains, or water courses.” There is no averment in the petition that the construction of such ditches was necessary for the purpose of connecting with ditches or water courses. Byrne v. B. B., 47 Mo. App. 383; Field v. B. B., 76 Mo. 615.</p> <p>Plaintiff can not allege one cause of action in his petition and recover on another not stated. ILarty v. B. B., 95 Mo. 368; Waldhier v. B. B., 71 Id. 514; Hite v. B’y, 130 Id. 132; Field v. B. B., supra; Black on Judg. 183.</p> <p>The court erred in permitting evidence to go to the jury tending to prove the value of fences, sheds, clover and soil as separate items, and in permitting plaintiff to state how much the lot was damaged by reason of the washing away of the improvements. Shannon v. B. B., 54Mo. App. 223; . Sedg. on Dam. [8Ed.], sec.942.</p> <p>Plaintiff can not recover in this action, because all the water from which he claims to have been injured was surface water. Collier v. B. B., 48 Mo. App. 398; Jones v. B. B., 84 Mo. 151; Field v. B. B., 21 Mo. App. 600; Abbott v.B. B., 83 Mo. 271.</p> <p>Defendant was in possession only for the purpose of operating the road, and is not liable for any of the alleged acts of negligence growing out of its construction. Bychlicki v. St. Louis, 115 Mo. 662; Wood on Nuisance [2Ed.],.sec. 838.</p> <p>If plaintiff was injured, it was caused by an unusual and extraordinary rainfall, against which defendant was not bound to provide. Filet v. B. B., 76 Mo. 718; Sedg. on Dam., secs. 32, 33; Gould on Waters, sec. 297. Coleman v. B.B., 36 Mo. App. 476; Trust Co. v. B. B., 57 Eed. Rep. 441; B. B. v. School Dist., 42 Am. Rep. (Pa.) 529.</p>

<p>Criminal Law: killing of dog of another. The killing of a dog is not a criminal offense, either under the statute,,or at common law, which, in this respect, is still in force in this state.</p>

— Hon. E. M. Hughes, Judge. An easement can only be acquired by deed or grant, or some servitude imposed, by grant, on the land of defendant, which can be done only by the production of an existing deed. . Dunham v. Joyce, 129 Mo. 5; Fuhrv. Dean, 26 Id. 116; Desloge v. Pearce, 38 Id. 588; Allen v. Mansfield, 82 Id. 688; Pitasmanv. Boyce,, 111 Id. 387.

— Hon. J. T, Neville, Judge. Equity cases in this state are to be heard and determined in the appellate court as for the first time. Lins v. Lenhart, 127 Mo. 271, at 281.

<p>Appeal from the Gape Girardeau Circuit Court. — Hon. Henry O. Riley, Judge.</p> <p>“A party claiming a lien, as by mortgage, on property taken in replevin, will be allowed to intervene and set up his claim. Cobb, on Replev., sec. 444, p. 2.35; Albright v. Brown, 23 Neb. 136, 33 N. W. Rep. 297.</p> <p>In replevin all parties having an interest in the subject-matter in controversy may be made parties plaintiff or defendant on the order of the court. Burle v. Burch, 21 Neb. 702, 33 N. W. Rep. 297. See, also, Bosenberg v. Solomon, 114 N. Y. 92, 38 N. E. Rep. 982.</p> <p>This question does not seem to have been directly passed upon by the courts of Missouri, yet upon principle it is clearly laid down in the case of Talbot v. McGhee, 59 Mo. App. 347.</p> <p>Under sections 1990, 1993, Revised Statutes, 1889, all parties having an interest in the subject-matter in controversy are required to be made parties plaintiff or defendant in a suit touching the title to such property.</p>

— Hon. J. T. Neville, Judge. The undisputed amount due Littleton was $101.10 on the three notes with interest to be added, with $61.50 paid thereon; and such agreement as defendant relies on, if made by plaintiff to accept less than the amount due in full satisfaction, is void. Riley v. Kershaw, 52 Mo. 224; Klausman Bravery Co. v. Shoenlau, 32 Mo. App. 357; Mullin v. Martin, 23 Id. 537; Helling v. United Order, 29 Id. 309, 320; 18 Am. and Eng. Encyclopedia of Law, 230.

Francois Circuit Court. — Hon. James D. Eox, Judge. There were two separate causes of action stated or attempted to be stated in the two counts of the petition, and improperly. R. S. 1889, chap. 115, art. 2, sec. 7074 (as amended, Sess. Acts 1891, p. 182); R. S. 1889, sec. 4426; Bliss on Code Plead. [2 Ed.], sec. 122, p. 204; Sippery v. B’y, 9 How. Pr. 83; Meyer v. B’y, 36 S. W. Rep. 367, at 368; Bronell v. B. B., 47 Mo. 239, 243.

<p>' Appeal from the Christian Circuit Court. — Hon. J. T. Neville, Judge.</p> <p>However imperfectly a cause of action may be stated iu a justice’s court, it may be amended in that court, or on appeal in the circuit court. Lustig v. Cohen, 44 Mo. App. 271; Land Co. v. Jeffries, 40 Id. 360.</p> <p>The amended statement filed in the justice’s court is only an amplification of the original statement, and not a change of the cause of action. Simms v. Field, 24 Mo. App. 557; Eubank v. Pope, 27 Id. 463.</p> <p>The allegation of other grounds of recovery, and matters of damage, might have been stricken out, and still the original cause be left. R. S. 1889, sec. 2057.</p> <p>A party may file a second or third amended petition if necessary. R. S. 1889, secs. 2066, 2067, 2068.</p> <p>But if, as claimed, plaintiff’s amended petition did state a different cause of action, defendant, by appearing and going to trial before the justice on the amendment, waived his right to object to it, and the circuit court should have tried the same action tried before the justice. Hurley v. B’y, 57 Mo. App. 675; Spurlock v. B’y, 93 Mo. 530; Simms v. Field, supra.</p> <p>The same cause of action is required to be tried on appeal that was tried in the justice’s court, and as the amended statement on which the case was tried there had been stricken out, the original statement eou-ld not be amended. R. S. 1889, sec. 6345.</p> <p>When plaintiffs filed an amended statement in the justice’s court changing the cause of action, they abandoned their original statement. Benfro v. Prior, 22 Mo. App. 403; Alexander v. Lupe, 11 Id. 597; GocJcrill v. Stafford, 102 Mo. 57, 70.</p> <p>When plaintiffs filed their amended statement in the justice’s court, they changed their cause of action, adding new items requiring different proof, which could not be done, and the court did not err in stinking it out, and after stricken out it could not be amended again. Lumpkin v. Collier, 69 Mo. 170; ParJcer v. Bodes, 79 Id. 88; Sturgis v. Botts, 24 Mo. App. 282; O’Biley v. Diss,. 48 Id. 62; Hernán v. Glann, 129 Mo. 325.</p> <p>A judgment can not be upheld on an amended petition, stating a new cause of action. Barnes v. Prewitt, 28 Mo. App. 163.</p>

<p>Appeal from the St. Louis City Circuit Cowrt. — Hon. Pembkook R. Flitcbaet, Judge.</p> <p>The testimony of plaintiff that he had made the shipments prior to the one in controversy on the faith and credit of Mr. Steele’s connection with the firm, if there was evidence to justify a belief that such was the case, was a question for the jury, and the court erred in permitting plaintiff to testify. Dulaney v. Rogers, 64 Mo. 201, 205; Roth v. Calvin, 32 Vt. 125, 133; Bankv. Isham, 48 Id. 590, 593; Thompson v. Bank, 111 U. S. 529, 540; 1 Thomp. on Trials, sees. 377, 378, 1239.</p> <p>The court also erred in permitting plaintiff to state from what he got his impression as to who constituted the firm. That was a mere opinion as to the very fact in controversy. Rimel v. Hayes, 83 Mo. 200, 204, 205; 2 Tayl. on Ev. [8 Ed,], p. 1206.</p> <p>Also in permitting plaintiff to say what he “thought” the connection of the defendants was as to being a firm. 2 Tayl. onEv. [8 Ed.], 1206; 1 Thomp. on Trials, sec. 378; Phares v. Barber, 61 III. 271, 275.</p> <p>The court erred in excluding offers to prove the usage of live stock commission merchants at the stock yards to print the names of their salesmen on their stock sales and memorandum books. 2 Greenl. Ev., p. 245, note pp. 245, 246; Brad, on Ev., 166, 167.</p> <p>The court erred in admitting in evidence the printed circular issued after Hulks assignment. 1 Tayl. on Ev. [8 Ed.], p. 531, sec. 588; Flanagan v. Champion, 2 N. J. Eq. 51, 54.</p> <p>The third instruction for plaintiff was erroneous in permitting a recovery against any or all of the defendants as partners of Hull, upon the acts, conduct, or declarations of any one of them. Rimel v. Hayes, supra; Lindsay v. Guy, 57 Wis. 200, 210; Flanagan v. Champion, supra; Fdwards v. Tracy, 62 Pa. 374, 378; Bishop v. Georgeson, 60 111. 484,486; ILind. on Part. [2 Am. Ed.], star p. 85. It assumed the existence.of the main fact in controversy — the existence of the firm, which is fatal to the instruction. R’y p. Stock lards, 120 Mo. 541, 557.</p> <p>The court erred in refusing the last instruction asked by defendants. Marshall v. Schricker, 63 Mo. 308, 311; Woolner v. Levy, 48 Mo. App. 469, 475; Welard v. Gas Co., 47 Id.. 1, 7; Norton v. Higbee, 38 Id. 467, 470; Powell v. Powell, 23 Id. 365, 373.</p> <p>The allegation of partnership could be proved in either of two ways — by showing actual partnership, or by showing an estoppel by holding out as to any or all defendants; and proof of holding out only would have been no variance. Bippey v. Evans, 22 Mo. 157, 158; Lowe ■v. Electric Spring Co., 47 Mo. App. 426, 429.</p> <p>The use by defendants, Zeb and Charles Steele, of the words “us,” “our,” etc., concerning the business of Hull, Steele & Co., in dealing with plaintiff, constituted a holding out of themselves as having some interest in that firm. Bippey v. Evans, supra; Meyers v. Boyd, 44 Mo. App. 378, 380; Cottril v. Yanduzen, 22 Vt. 511.</p> <p>One who knowingly permits his name to be advertised as a partner, or to be used in the sign or printed matter of a business in such a way that others are misled thereby to believe him a partner, and to deal with the house upon that assumption, is liable to such persons as a partner, even though he actually has no interest in it. Pars, on Part. [4 Ed.], p. 106, sec. 94; Waugh v. Carver, 2 H. Blacks. 235; Bowzelot v. Bawlings, 58 Mo. 75, 76; Poillon v. Secor, 61 N. Y. 456. See, also, Campbell v. Hood, 6 Mo. 211; Pars, on Part. [4 Ed.], p. 106, sec. 96; Peacock v. Peacock, 2 Camp. 45, 46; Meyers v. Boyd, 44 Mo. App. 378, 380; Henshaw v. Boot, 60 Ind. 220, 225; Bimel v. Hayes, 83 Mo. 200, 205, 206.</p> <p>When there is sufficient evidence to make a prima facie case upon a point at issue, the question should go to the jury. Wolff v. Campbell, 110 Mo. 114, 120; Goddard-Peck Co. v. Berry, 58 Mo. App. 665; Benedict v. Davis, 2 McLean (Ind.), 347, 351, 352.</p> <p>Plaintiff’s testimony was relevant to show whom he trusted, and that he was induced to give the credit by their acts of holding out. Bimel v. Hayes, supra; Gates v. Watson, 54 Mo. 585, 589.</p> <p>The usage being local and of a particular class •could not affect plaintiff, unless he had knowledge of it, and no proof of such knowledge was made or offered. Brotvn v. Strimple, 21 Mo. App. 338; Hyde v. Booh & News Co., 32 Id. 298, 301; Brad, on Ev. 168. See, also, Wolff v. Campbell, 110 Mo. 114,119; Southwestern F. Co. v. Stanard, 44 Id.</p> <p>Appellants can not complain of instructions in harmony with those asked by themselves. Fenwick v. Bowling, 50 Mo. App. 516; Haniford v. City of Kansas, 103 Mo. 172, 182.</p> <p>The instructions must be construed together, and if when so construed there could in reason be no misconception of the law, there can be no reversal. Spill-man v. Bhj, 111 Mo. 555, 564; McGrew v. B’y, 109 Id. 582, 591; Minter v. Hardware Co., 5 Mo. App. 177.</p>

— Hon. O. C. Bland* Judge. Stricken from docket; Judge Bond-concurring, Judge Bland not sitting. Whether one, or both, or neither, of sections 562 and 6330 apply to this suit, the whole case was before the circuit court, and a trial on the merits should have been had there. R. S. 1889, sec. 6339; Phillips v. Bliss, 32 Mo. 427; Compton v. Parsons, 76 Id. 455; HuMard v. Quisenberry, 28 Mo. App. 20; Meyersv. Boyd,, 37 Id. 532; Bice v. B’y, 30 Id. 110.

— Hon. C. C. Bland, Judge. Evidence of payment by defendant to the Grossard Investment Company was not admissible, until their authority to bind plaintiff was shown. 18 Am. and Eng. Encyclopedia Law [1 Ed.], p. 191, sec. 5; 2 Greenlf. on Ev. [13 Ed.], sec. 578; Abb. Trial Ev. 276. The uncontradicted evidence shows that the Cossard Investment Company had no authority to collect the note; nor do the facts in evidence warrant the presumption of any such authority.

<p>Promissory Note: plea non est pactum: instructions: verdict. Where the only issue was as to the execution' of the note in suit, and there was no complaint as to the instructions on that issue, the verdict of the jury was conclusive.</p>

Original Proceeding by Habeas Corpus. (1) The house of representatives of the general assembly of Missouri has no jurisdiction or power to punish a witness for refusal to testify before one of its committees. To arrest and punish for contempt is the highest exercise of judicial power. In re Mason, 43 Eed. Rep. 510. And all the authorities are to the same effect. In re Sims, 54 Kan. 1.

Certiorari. Removal “for cause,” in legal intendment, means upon sufficient charges, notice thereof, and hearing. State ex rel. v. Walbridge, 62 Mo. App. 164. See, also, People ex rel. v. Commissioners, 72 N. Y. 449; State v. Jersey City, 1 Dutch. (N. J.) 536; Coke in Baggs case, 6 Coke Rep., part 2, 93 (quoted 11 Coke 93); Regina v. Lane, Eortescue, 273; Clark’s case, 2 Orooke, 506; Regina v. Treasury, 10 Ad. & E. 374.

■Appeal from the Jackson Circuit Court. — Hon. E. L. Scarritt, Judge. (1) Proofs were received by the company on October 5. On October 28, or five days before the sixty days for making proofs expired, the insurer objected to same, “for failure to attach detailed statement of loss, as required by the policy.” This was an essential requirement of the policy. No attention was paid to the demand. For this reason the judgment should be reversed. Hanna v. Ins.' Co., 36 Mo.

<p>1. Attorney and Client: privileged communication: witnesses. To establish the relation of attorney and client the attorney must agree to be the attorney of the party and the party must agree to have the other for an attorney, otherwise there is no contract, and the attorney and his client alike are competent to testify.</p> <p>2. Contracts: instructions: accepting service. Where a party-through the services of another was enabled to secure a claim in the, Cherokee Strip at the “grand run,” he ought to pay the value of the services, though the contract was not in every way complied with, and instructions on this point are discussed in the opinion.</p>