Volume 71 — Missouri Appeal Reports

— Hon. J. H. Sloven, J udge. (1) The objection to the introduction of testimony under the petition should have been sustained, because its only allegation is that defendant had agreed with Dennis’ friends to drop the prosecution against him. Who these friends were does not appear.

Original Proceeding by Prohibition. (1) The question of jurisdiction must be presented to the lower tribunal, and a holding made by it assuming jurisdiction before a writ of prohibition will be granted. The, plaintiff was therefore right when he presented his motion to the jurisdiction; and when it was overruled, he could apply for a writ of prohibition. All of the authorities are to this effect. High’s Ex. Leg. Rem. [3 Ed.], secs. 773-780; Cox v. St. Album, 1 Mod.

Original Proceeding by Quo Wttrranto. (1) This is not a contest between two private persons, as respondent claims. The judgment, if for the relator, can only be one ousting the respondent. ■ State ex rel. v. Vaile, 53 Mo. 97. A “contested election” is defined in State ex rel. v. Francis, 88 Mo. 557. The primary question in a quo warranto proceeding is whether the respondent is legally entitled to hold the office and not as to the right of any other person who may claim it.

Original Proceeding by Quo Warranto. (1) At the outset we must take issue with counsel. Held: when only one of them was used in a statute. See construction of similar provisions. The State ex rel. v. Kilroy, 86 Ind. 118-120; Durant v. Garter, 9 L. R. Com. PL 261; The King v. Adlard, 4 B. & C. 772; Holmes v. JR’y, 5 Fed. Rep. 523; Spragins v. Houghton, 2 Seam. (111.) 377; School District v. Pollard, 55 N. H. 503; Ins.

— Hon. E. J. Beoaddus, Judge. (1) The circuit court had no jurisdiction of the subject-matter, and the cause should have been dismissed. It should be dismissed by this court. Ins. Co. v. Foster, 56 Mo. App. 197; Olin v. Zeigler, 46 Mo. App. 193; Gillihan v. Wren, 44 Mo. 377; Gideon v. Hughes, 21 Mo. App. 528.

— Hon. J. A. Hockaday, Judge. (1) The information is invalid for the reason that it is not accompanied by an affidavit filed with the justice or lodged with the prosecuting attorney, nor does it show upon its face that it is based upon the knowledge, information, and belief of the prosecuting attorney, as required by law. State v. White, 55 Mo. App. 356; State v. Shaw, 26 Mo. App. 383.

— Hon! W. S. Stockwell, Special Judge. (1) Having found for plaintiff the circuit court erred in the assessment of damages. The plaintiff bought and paid for the entire title but obtained from defendants only an undivided one half thereof. Tiedeman on Real Property, sec. 851, and see authorities there cited. And the covenant of seizin is broken as soon as made when the paramount title is held by a tenant in common with the covenantor. Downer v. Smith, 38 Yt. 466; Mottv.

— -Hon. W. W. Rucker, Judge. (1) The receipt and release of Betsy Morris set up in defendant’s answer was a complete bar to this action. Said receipt and release were given on the twenty-seventh day of February, 1894, in full of all demands that she had against the defendant.

D. P. Stratton, Judge. (1) The petition in this case fails to state facts sufficient to constitute a cause of action, for the same reason that the one of Harness v. Ins. Co., 62 Mo. App. 245, was declared to be faulty. It alleges that the company insured “his” stock, etc. There is no allegation whatever that he (plaintiff) owned the insured property at the time of the fire. Both allegations are essential. Scott v. Ins. Co., 65 Mo. App. 75.

<p>1. Conversion by Tenant in Common. A tenant in common can only be held liable for conversion where he so appropriates the common property as to render its future use to his cotenant impossible.</p> <p>2. -: removal of property: proof. To constitute such appropriation it must be shown that the.common property was removed by the tenant to a place unknown to his eotenant, or where he could not find the property upon some inquiry.</p> <p>3. -: liability of agent. Where one acts as the agent of a tenant in the detention or removal of the common property, he can only be held by proof of such acts on his part as to deprive the cotenant of the means of locating the property.</p>

<p>Appeal from the Pulaski Circuit Court. — Hon. 0. 0. Bland, Judge.</p> <p>Judge Biggs concurring, Judge Bland not sitting.</p> <p>The court erred in permitting the amendment to be made after judgment. R. S. 1889, secs. 2097, 2098.</p> <p>The amendment was erroneously permitted, because it changed the cause of action. Whipple v. Peter Cooper Ass’n, 55 Mo. App. 554; Price v. B. B., 40 Id. 189; Sisney v. Arnold, 28 Id. 568; Parker v. Bodes, 79 Mo. 88; Scovillev. Glasner, Id. 449; O’Biley v. Diss, 48 Mo. App. 62; Haynes v. Trenton, 108 Mo. 123; Beedv. Bott, 100 Id. 62; Sumner v. Bogers, 90 Id. 324.</p> <p>If defendant was really surprised by the alleged variance, it devolved upon him to so satisfy the trial court. R. ¡3. 1889, sec. 2096.</p>

Louis City Circuit Court. — Hon. Pembrook R. Flitoraet, Judge. The contractor, Ellis, knew that plaintiff required a bond, and it is immaterial when it was given; it was part of his contract. Ring v. Kelly, 10 Mo. App. 411; Oberbeck v. Meyer, 59 Id. 294. A substantial compliance with the contract is all that is required of the parties. Perry v. Quackenbush, 105 Oal. 300; Crouch v. Gutman, 134 N. T. 45; Risse v. Hopkins Co., 40 Pac.

— Hon. E. M. Hughes, Judge. Judge Bland concurring, Judge Bigg» dissenting. Issues are made by the pleadings, and not by declarations of counsel in the opening statement to the jury. R. S. 1889, secs. 2118, 2120, 2121. Opening statements of counsel as to facts he expects to prove on the trial have not the force of a binding admission. Russ v. R. R., 112 Mo. 45.

— Hon. J. C. Lamson, Judge, In an action by plaintiff to foreclose the contract, and to recover the purchase price of real estate, it must allege and prove that it has tendered a deed in pursu'ance of the terms of the contract. Cole v. Wright, 50 Ind. 296; McCaslin v. State, 44 Id. 151; Turner v. Lassiter, 27 Ark. 662; Walcefield v. Johnson, 26 Ark. 506; Klycev.

<p>1. Sale of Personal Property: acceptance: jury question. In a suit for the priee of wood sold and delivered to a corporation, the question of the acceptance of the wood was a question of faet for the jury under instructions from the court.</p> <p>2. -: AUTHORITY OP AGENT TO BUY: EMPLOYMENT OP, BY VENDOR, TO deliver. An agent and manager of defendant company, who had superintendence of its business, in which wood was neeessary, had authority from the company to buy wood, by virtue of his agency and employment, in the absence of any evidence to the contrary; and the' faet that his team hauled part of the wood, for which plaintiff paid him, had no tendency to prove that such agent was the agent of plaintiff in the transaction.</p>

<p>1. Mechanic’s Lien: general contract: construction of statutes. The words “one general contract” in section 6729, Revised Statutes 1889, are not restricted, to the contractor for the erection of buildings or making of improvements, but include a material-man who makes a general contract to purchase all the material, or all of a specified kind, for the buildings or improvements.</p> <p>2. -; LIEN FILED ON CONTIGUOUS LOTS: DEFECTIVE DESCRIPTION: INACCURATE STATEMENT: fatal error. The failure of a lien filed for material furnished for and used in one and the same building on contiguous lots, to correctly describe the property, and to give a true and accurate statement of plaintiff’s account against one of the defendants sought to be charged, was fatal as to such defendant; and such defect could not be cured by evidence on the trial.</p>

Louis City Circuit Court. — Hon. Thomas A. Russell, Judge. The sheriff is not an innocent purchaser, and his rights are no greater than those of the original vendee. Googher v. Finn, 10 Mo. App. 226. The vendee’s representation of solvency, when he was insolvent, was a legal fraud upon appellants, regardless of knowledge of insolvency, and regardless of any actual intention to defraud. McBeth v. Craddock, 28 Mo. App. 380; Caldwell v. Henry, 76 Mo. 260.

— Hon. C. C. Bland, Judge. Judge Biggs, concurring, Judge Bland not sitting. The act of the plaintiff in changing the date of the note sued on, and its subsequent correction before suit on the same, did not change the meaning or language of the note, nor mislead any one; it was not, therefore, an alteration. Moore v. Bank, 22 Mo. App. 684. Bee, also, Williams v. Jensen, 75 Mo. 681.

— Hon. J. T. Neville, Judge. all the judges concurring, Judge Biggs in the result. When a bank pays a check on a forged indorsement of the payee or indorsee, the rightful owner may recover from it the amount thus paid. Nor will it be a sufficient excuse for the bank to allege payment to one who was not rightfully entitled to the money. Van Schaak on Bank Checks, p. 114; Tied, on Com. Pap., sec. 451, p. 737; 2 Rand, on Com.

<p>1. Venue: prooe: judicial notice. In. an action against a railroad for negligently killing a horse and demolishing a wagon at a public crossing, it was necessary to prove that the accident occurred in the township where the suit was brought. The courts can not take judicial notice of township lines. Blachenstoe v. R. R., 86 Mo. 492.</p> <p>2. Contributory Negligence: jury question. In approaching a railroad crossing upon the highway, one must look and listen, before he attempts to cross, as a matter of law. But whether, in a given ease, he should do more, is a question of fact for the jury.</p>

Louis City Circuit Court. — Hon. John M. Wood-, Judge. In cases like this, courts of equity will issue an injunction against such suits. Wyeth v. Lang, 54 Mo. App. 147, 150, 151; Cole v. Cunningham, 133 U. S. 107, 118-121; 1 High on In june. [3 Ed.], 85, 106.

Louis City Circuit. Court. — Hon. Daniel Dillon, Judge. The draft in question was a foreign bill of exchange, being drawn in the state of Connecticut upon the bank in New York. Dickens v. Beal, 10 Pet. 572; Bank v. Daniel, 12 Id. 32; Phoenix v. Hussey, 12 Pick. 483; Buclmey v. Finey, 2 Pet. 586; Bank v. Varnum, 59 N. Y. 269. Was appellant an indorser? If so, the law of the place of payment determines the requirement as to protest.

<p>1. Instruction. An instruction which directed the attention of the jury to a cause of action not stated in the petition, nor supported by the evidence, was a diversion from the issues made by the pleadings, and the evidence, and reversible error.</p> <p>2. Master and Servant: construction on statutes, it was not the purpose of the legislature, by section 3, page 160, of the session acts of 1891, 'to make the master an insurer of the safety of the servant, but to increase the degree of care required by the common law.</p> <p>3. Contributory Negligence: instruction. It was error to instruct the jury on contributory negligence, when there was no evidence in the ease showing contributory negligence on the part of plaintiff.</p>

<p>Appeal from the Stoddard Circuit Court. — Hon. J. G. Wear, Judge.</p> <p>The sureties in an official bond are liable for damages done by their principal under “color of office.” State v. Moore, 19 Mo. 370; State v. Powell, 44 Id., 436; Bombeck v. Bombeck, 18 Mo. App. 26; State v. Davis, 88 Mo. 585; 588; State v. Claudius, 1 Mo. App. 551; Brandt on Sur. and Guardians, sec. 566. See, also, Couch v. Davidson, 19 S. Rep. (Ala.) 510; Broughton v. Haywood, 61 N. 0. 380; Thomas v. Connelly, 104 Id. 345.</p> <p>The written memorandum under which defendant Edmundson seized and sold relator’s property was “color of process” — it had the appearance of, and was construed by him to be, an execution. Last authorities cited supra. See, also, Bouv. Law Die., title “Process;” People v. Nevens, 1 Hill (N! Y.), 169; State v. Kinsella, 3 Mo. App. 579, 580; Turner v. Sis-son, 137 Mass. 191; Egarton v. Bird, 6 Wis. 527; Cooper v. Ord, 60 Mo. 420; Hughes v. Israel, 73 Id. 538, 547; Reynolds v. Reynolds, 52 Id. 108; Sedg. & Wait on Tr. Tit. to Land, sec. 762, and citations.</p> <p>The sureties on an official bond are liable for the acts of their principal done “under color of office,”- and the law, as thus declared by our courts of last resort, is a part and parcel of every official bond, State v. Berning, 74 Mo. 87, 96. See, also, State v. Hadlock, 52 Mo. App. 297; State v. Moore, 19 Mo. 370; State v. Powell, 44 Id. 436; State v. Fitzpatrick, 64 Id. 185; State v. Hope, 88 Id. 430; State v. Claudius, 1 Mo. App. 551, 558; State v. Jones, 26 Id. 190; State v. Taylor, 6 Id. 277; Stale v. Jennings, 4 Ohio St. 423; People v. Schuyler, 4 N. Y. 173; Lowell v. Parker, 10 Mete. (Mass.) 309; Turner v. Sisson, 137 Mass. 191; Lammon v. Fensier, 111 U. S. 17.</p> <p>The sufficiency of the petition must be determined from the facts stated, and not from the pleader’s conclusions therefrom. R. S. 1889, sec. 2076; Boone v. Baker, 66 Mo. 430. See, also, as to issue of fee bill by justice of peace, R.’ S. 1889, secs. 5007, 2949, 6303.</p> <p>The test of the sufficiency of a petition on a general demurrer is, whether the facts therein stated, if true, show a cause of action against the demurrant. State v. Carroll, 63 Mo. 156; Darby v. Cabanne, 1 Mo. App. 126; Ferguson v. Davidson, 65 Id. 196. See, also, R. S. 1889, see. 2039; Bank v. Leyser, 116 Mo. 51; Coal Co. v. Quad, 28 Mo. App. 421; Fads v. Gaines, 58 Id. 587.</p> <p>In order to make defendants liable as sureties in this case, the court must hold that the memorandum in question, which relator says is neither an execution nor a fee bill, was such a process as required the constable to act, and that his misfeasance would be a breach of his official duty, for which his sureties are liable as well as for his nonfeasance. State to use v. McDonough, 9 Mo. App. 63, and citations.</p> <p>appellant’s beply.</p> <p>The respondents rely on State v. McDonough, and cases cited. The principal case cited to sustain that case is Fx parte Reed, 4 Hill, 72. It is sufficient to say the latter case has been expressly overruled by People v. Schuyler, 4 N. Y. 173.</p>

Petition for Writ of Certiorari. It must appear upon the face of the record that the requisite signatures have been procured to a petition for a dramshop license to give the excise commissioner jurisdiction to grant the license. State v. Heege, 37 Mo, App. 338; State v. Cauthorn, 40 Id. 94; State v. Beider, 45 Id. 387; State v. Mayor, 57 Id. 192.

Louis City Circuit Court. —Hon. Jacob Klein, Judge. The facts in this case fail to show that appellants were guilty of conversion of the cattle in question. As to what constitutes conversion, see 24 Am. St. Rep. 795, and citations; Big. Lead. Cas. on Torts, p. 428, and citations. The evidence fails to show that appellants ever asserted title to the cattle, or ever did any act equivalent to an assertion of title.

— Hon. J. C. Lamson, Judge. Judge Bond concurring, Judge Bland not sitting. A justice of the peace has no jurisdiction to hear and determine a suit to foreclose a mechanic’s lien until all the prerequisites of the statute conferring such jurisdiction have been complied with. The filing of the notice, and of the account which constitutes the lien should appear upon the face of the proceedings. Johns on-Frader L. Go. v. Schuler, 49 Mo. App. 90; Fwing v. Donnelly, 20 Id. 6.

— Hon. Henry C. Riley, Judge. Judge Bond concurring, Judge Bland not sitting. When a tenant holds over after the expiration of his lease, he will be presumed to hold under, and subject to, the terms of the previous lease. Stoops v. Devlin, 16 Mo. 162; Ishv. Chilton, 26 Id. 256; Quinette v. Carpenter, 35 Id. 502. See, also, Tay. Land, and Ten., sec. 60; Finney’s Trustee v. St. Louis, 39 Mo. 177; Grant v. White, 42 Id. 285.

— Hon. Angus ‘ Cox, Judge. Judge Bond concurring, Judge Bland not sitting. The improvements for which compensation can be recovered under section 4645, Revised Statutes 1889, must be permanent and lasting. 2 J ones on Liens, secs. 1131, et seq. This section of the statute does not apply to a case like this, defendant’s title not being an adverse 'title within the meaning of the statute. 1 Jones on Mort., sec. 672.

— Hon. 0. 0. Bland, Judge. Judge Biggs concurring, Judge Bland not sitting. Under the statute, there are but two ways in which prosecutions may be commenced before a justice of the peace: When the prosecuting attorney has knowledge, information or belief that an offense has been committed; and when he is informed thereof by complaint made and delivered to him or the justice. R. S. 1889, sec. 4329.

<p>Appeal from the Webster Circuit Court. — Hon. Argus Cox, Judge.</p> <p>Judge Bond concurring, Judge Bland not sitting.</p> <p>Taking the view of the court below that as the land was in the wife’s name, the notes were hers, she is not a necessary party to enforce a vendor’s lien on the land, where sale was made by the husband and the purchase money was to be paid to him. Meugger v. Lindenberger, 53 Mo. 364.</p> <p>Conceding that plaintiff was the agent of his wife, the agent who sells goods, of which he is in possession, as his own property, may recover the price in his own name. Goggburn v. Simpson, 22 Mo. 357; Keown dc Co. v. Vogel, 25 Mo. App. 35.</p> <p>The husband by his common law right is entitled to the possession of his wife’s land. Merriwether v. Howe, 48 Mo. App. 148.</p> <p>The blank assignment of a nonnegotiable note is prima facie for value, and the burden of proof is on defendant. Odell v. Presbury, 13 Mo. 331; Muldrow v. Agnew, 11 Id. 616; Labadie v. Chouteau, 37 Id. 414.</p> <p>A blank assignment is authority to the holder to fill up the blank assignment at or before the trial. Wiggins v. Rectal, 1 Mo. 478; Taylor v. Larkin, 12 Id. 103; Muldrow v. Agnew, supra. See, also, Bennett v. Pound, 28 Mo. 598.</p> <p>When the makers are insolvent, no suit is required before suing .assign or of nonnegotiable note. Clemens v. Collins, 14 Mo. 605; Baker v. Blades, 23 Id. 4Ó5.</p> <p>Proof of maker’s insolvency is a question of fact for the jury. Pococke v. Blount, 6 Mo. 338.</p> <p>The assignor of nonnegotiable note can not be sued jointly with the makers. Sanstag v. Conley, 64 Mo. 476.</p> <p>The notes sued on in this case are nonnegotiable. Bank v. Jacobs, 71 M<o. 619; Same v. Same, 73 Id. 35; McCoy v. Green, 83 Id. 626.</p> <p>The statute making a married woman’s real estate her separate property, was first enacted in 1889, and the act is not retractive. Leete v. Bank, 115 Mo. 184.</p> <p>But the change in 1889 of section 6869, Revised Statutes 1889, was made by the revision committee, and does not appear in the.session acts of 1889, or of any year prior thereto, which does not make it law or binding. Dart v. Bagley, 110 Mo. 53. Sess. Acts, 1889, p. 147, secs. 8, 9.</p> <p>Action against an assignor of a nonnegotiable note, is not a suit on the note, and the note is not required to be filed by statute. Stone v. Corbett, 20 Mo. 353.</p> <p>The married woman’s act of 1875, and as amended in 1883, enabling her to sue alone, does not affect the husband’s right to the proceeds of the realty of the wife. Dillenberger v. Wrisberger, 10 Mo. App. 465; Ciarle v. Bank, 47 Mo. 17.</p> <p>Nor can he be held as trustee, unless the evidence of the intention to create such a trust is clear. Tillman v. Tillman, 50Mo. 40; Tennisonv. Tennison,4& Id. 83. See, also, Haux v. Shaiv, 25 Mo. App. 233.</p> <p>A blank indorsement is not -an assignment of a nonnegotiable note, and plaintiff had no cause of action at the time this suit was commenced. Muldrow v. Agnetv, 11 Mo. 616, 622.</p> <p>All the notes were in the same form and assigned in one general transaction. The judgment of the justice on two of these notes, the others being due at the time, is res judicata as to all of them, and estops plaintiff from again litigating the same question. Edgellv. Sigerson, 26 Mo. 583; Skeen v. Thresher Co., 42 Mo. App. at 165; Her. on Estop., secs. 209, 210, 213, 238.</p> <p>Plaintiff is disqualified as a witness to prove that his wife’s real estate belonged to him, she being dead. R. S. 1889, sec. 8918; Melcher v. Derkum, 44 Mo. App. 657; Luis v. Lenhardt, 127 Mo. 271, 290; Meir v. Thieman, 90 Id. 433, 443; Chapman v. Dougherty, 87 Id. 617, 626.</p> <p>Plaintiff’s wife gave the consideration for these notes, never assigned the notes in writing, and plaintiff never reduced them to his possession as required by law. R. S. 1889, see. 6869; Alkire Grocer Co. v. Ballenger, 38 S. W. Rep. (Mo.) 911.</p> <p>No vendor’s lien exists in this case. The grantee assigned to his vendor the notes of third parties. The lien is waived. JDelassus v. Poston, 19 Mo. 425; Sullivan v. Ferguson, 40 Id. 79; Burette v. Briggs, 47 Id. 356; Christy v. McKee, 94 Mo. 241; Boutte v. Murray, 48 Mo. App. 1.</p> <p>Under the evidence, prima facie, the land belonged to plaintiff’s wife, and whether it was purchased with his funds or not, the. sale of the land would give him no right to the proceeds, nor any interest therein. Gilliland v. Gilliland, 96 Mo. 522; Bodgers v. Bank, 69 Mo. 560; Pitkin v. Mott, 56 Mo. App. 401.</p>

— Hon. Reuben P. Roy, Judge. Judge Bigg-s concurring, Judge Bland not sitting. In a case wherein the present litigants were parties, this court has finally adjudged the acts of A. W. Lee herein as wrongful and fraudulent. Dodd v. Lee, 57 Mo. App. 167. The adjudication of the vital issues of the former ease is a former adjudication binding in this proceeding the interests of A. W. Lee herein.

— Hon. . E. M. Hughes, Judge. Judge Bond concurring, Judge Bland not sitting. A judgment' rendered in a proceeding by scire facias, is a new judgment. Walsh v. Bosse, 16 Mo. App. 231. This new judgment can not be rendered against the defendants, unless their liability appears on the face of the pleadings. Plaintiff attempts to make defendants liable in this action under section 6016, Revised Statutes 1889.

— Hon. Benjamin E. Tubneb, Judge. Judge Biggs concurring, Judge Bland not sitting. It has been long since settled that “crack loo” is a gambling device, adapted, devised and designed for the purpose of playing games of chance. State v. Flack, 24 Mo. 378; Bish. Stat. Grim. [1873 Ed.], sec. 926; State v. Charles, 24 Mo. 379. The first count alleges the name of the gambling device set up, and that games of chance were played thereon. This is sufficient.

Louis City Circuit Court. — Hon. Jacob Klein, Judge. • The statutory requirement that an amendment shall not change substantially the claim or defense, does not refer to the form of the remedy, but to the “general identity of the transaction forming the cause of the complaint.” Culp v. Steer, 47 Kan. 746; Spice v. Steimveeh, 14 Ohio St. 213; Williamson v. B. R., 51 N. W. Rep. 60; Daley v. Gates, 65 Vt. 592; Coby v. Ibert, 25 N. Y. Supp. 998.

— Hon. E. J. Broaddus, Judge. STATEMENT. The following is the lien paper, which was excluded by the trial court: “ B. E. Brown, for Allison’s building at Biehmond, Mo., bought of Mitchell Planing Mill Company: 3 cellar sash 12x24 and screens for same, 2 lights, 2 cellar sash 12x24 and screens for same, 3 lights, 3 cellar sash 12x16 and screens for same, 2 lights, 1 window sash 28x40 and screens for same, 2 lights, 1 window sash 24x30 and screens for same, 2 lights, 2 window…

— Hon. D. W. Shackleford, Judge. (1) The contract or note sued on is not void by reason of the failure of the Davis & Rankin Building & Manufacturing Company, prior to November 13, 1893,. to comply with the act of the legislature of 1891, relative to foreign corporations. The payee of the note was not a resident foreign corporation doing business in this state in violation of said act.

— Hon. D. W. Shackleford, Judge. (1) The plaintiff violated the law in permitting his cow to run at large, and but for that the cow would not have been killed. Therefore the cow was a trespasser and the court should have given the peremptory instruction to find for defendant. Campbell v. B. B., 59 Mo. App. 156. (2) The evidence did not warrant a finding that the signals had not been given for the crossing where the cow was struck. JBJemev.

— Hon. W. W. Wood, Judge. The indictment is fatally defective. It does not charge that “Crab Orchard” sehoolhouse, the alleged place where the congregation charged to have been disturbed had met, was set apart for religious worship. State v. Fugitt, 66 Mo. App. 625; State v. Stegall, 65 Mo.-App. 243; . State v. Kindrieh, 21 Mo. App. 507; State v. Schieneman, 64 Mo. 386.

<p>1. Appellate and Trial Practice: bill op exceptions: amendment. A bill of exceptions duly signed and filed becomes a part of the record and is subject to amendment as other parts of the record, but such amendment must be made by order of the trial court and the appellate court can only gain jurisdiction thereof on appeal.</p> <p>2. Appellate Practice: motions por new trial and in arrest: exceptions. Where no exceptions are saved to the overruling of motions for a new trial and in arrest, the appellate court is confined in its review to the record proper and will affirm the judgment unless error is found in such record.</p>

— Hon. E. C. Crow, Judge. (1) The execution of the lease and mortgage was one and the same transaction. They were made at the same time, between the same parties and in relation to the same subject and constitute but one contract. The defense of waiver of the lien had no standing in court and should not have been submitted to the jury. 1 Beach on the Mod. Law of Con., par. 713, p. 866 (1896); 1 Beach on Mod.

— Hon. J. H. Lay, Judge. (1) The circuit court did not have jurisdiction of the subject-matter of this action. Act April 1, 1891, Sess. Acts 1891, p. 107; R. S. 1889, sec. 3318; Mason v. Hannah, 30 Mo. App. 190. (2) After forfeiture under conditions in chattel mortgage, the mortgagee is the owner of the title to the property mortgaged and11 entitled to possession. Barnett v. Timberlalte, 57 Mo. 501; White v. Quinlan, 30 Mo. App. 54; Turner v. Langdon, 85 Mo. 438.

— Hon. 0. L. Dobson, Judge. The evidence as against the defendant in this case, Belle M. Perkins, is wholly insufficient to support a verdict against her. The only evidence at all against her is that she was in the house while the work was being done, once and probably twice, and the workman doing the work says that someone told him to be sure and get a certain part of it to work right. Another workman says this someone was Mrs. Perkins.

— Hon. J. H. Slover, Judge. The petition itself ” nowhere states that the note was ‘‘expressed for value received.” We suppose that the appellees would not for a moment claim that the copy of the note is any part of the petition, and that it is any more than if attached a.nd made an exhibit to the petition, hence, it is not what it claims to be, a negotiable promissory note. It declares on a negotiable promissory note, so it is unnecessary to discuss a nonnegotiable note.

— Hon. E. L. Scarritt, Judge. (1) The instruction given by the court of his own motion is erroneous. First. In holding that Hueben’s $1,200 judgment against the company became a proper offset, if it grew out of the refrigerator contract; whereas it must “have grown out of the note transaction itself” before it attaches to the assigned note under any circumstances. It is then an equity, which a set-off is not. Tiedeman on Com. Paper, sec. 295; Story on Prom.

<p>1. Account Stated: retention nor reasonable time. An account rendered by a creditor to his debtor and not objected to within a reasonable time is regarded as evidence of an account stated.</p> <p>2. -: corporation: auditing agent. An account rendered to bind a corporation as an account stated must be delivered to an agent authorized to receive and adjust it.</p> <p>3. -: what sufficient : controversy. An account stated should show debits and credits and a balance; and an account with the accompanying letter, as shown in the petition, is held not to constitute an account stated since it shows an unsettled controversy between the parties.</p> <p>4. Limitation: representation as to settlement: eeeect op. Where the plaintiff gives defendant assurance that a matter in controversy between them would be accepted in payment when their mutual accounts should therein be settled, and the defendant relies thereon and desists from suit, the plaintiff when suing on the mutual account can not invoke the statute of limitations against the disputed items.</p>

— Hon. C. L. Dobson, Judge. (1) Doremus, being a stockholder and one of the chief officers of the defendant corporation, was not a competent witness, and his testimony should not have been admitted. He did not testify to independent phys-' ioal facts, but to matters consisting of correspondence between himself and the agent and manager of the defendant company at Kansas City, which were wholly irrelevant and incompetent.

— Hon. E. L. Scaeeitt, Judge. (1) The bills of lading executed at the time-the loading of the cars was in progress, were the contracts under which the shipments were made, and are binding upon both parties. O’Brien v. Kinney, 71 Mo. 125; Patterson v. B. B., 56 Mo. App. 657; B. B. v. Cleary, 77 Mo. 631; Leonard v. B. B., 51 Mo. App.. 293; Snyder v. Express Co., 63 Mo. 376; B. B. v. Harwell, 18 Am. and Eng. R. R. Cases (Ala.), 358; 2 Am. and Eng. Ency. of Law, 228 and 229.

— Hon. J. H. Slover, Judge. (1) The petition does not allege that the ordinance specified the material out of which the sewer or any part of the same should be constructed. Such an ordinance as was disclosed by the petition was void, as it is the legislative power to prescribe the material out of which the sewer should be constructed. Such power is vested solely in the city council.

— Hon. C. L. Dobson, Judge. (1) The court erred in giving instruction number 1 for plaintiff. This instruction makes the delivery of the policy and the- acceptance of the premium after loss evidence (in part) of a contract. Clearly there was no valid delivery! The agent testifies that the policy was delivered because of the threats of Woodson. The delivery was wholly without authority of the principal, and was known to be so by Woodson.

— Hon. C. L. Dobson, Judge. (1) The affidavit to the complaint is fatally defective and confers no jurisdiction. This is to the very letter the form of affidavit which this court has declared to be no affidavit at all. Reilly v. Poivell, 34 Mo. App. 431; Tegler v. Mitchell, 46 Mo. App. 350. The affidavit is jurisdictional. Edmonson v. Phillips, 73 Mo. 57; Pry v. R’y, 73 Mo. 123; Fletcher v. Keyte, 66 Mo. 285.

— Hon. Jas. G-ibson, Special Judge. (1) Since the only contention of appellant regarding the evidence is that the finding of the court, sitting as a jury, was against the weight of evidence, the judgment, being confessedly for the right party, will not be disturbed for that reason.

— Hon. E. L„ Scareitt, Judge. (1) The instructions for plaintiff, and defendants’ instruction 2, as modified and given by the court, permitted and required… Held: because the purpose and scope of the floorwalker’s employment did not involve doing police duty, did not vest any discretion in him to commit trespass, by assault or unlawful arrest against any person in the interest of the firm, and his instructions, in accordance with the law, forbade him to do any such thing.

— Hon. J. H. Slover, Judge. (1) The court erred in refusing to instruct the jury peremptorily to find for appellant, for the reason that the opening of the fire hydrant to keep it from freezing was an act done in the performance of a public governmental duty to extinguish fires for which the city is not liable. McKenna v. St. Louis, 6 Mo. App. 320; Heller v. Sedalia, 53 Mo. 159; Tiedeman, Mun. Corp., sec. 333; Dillon, Mun.

— Hon. J. H. Slover, Judge. STATEMENT BY ELLISON, J. The following facts were found by the trial court: “Now on this day come the parties herein, by their respective attorneys, and this cause being taken up and submitted to the court upon the plaintiff’s petition and defendant’s cross petition and bill and pleadings, the court being fully advised in the premises, finds that, for several years prior to 1887, the plaintiff owned in fee the north half of lot 897, block 64,…

— Hon. E. M. Hughes, Judge. The court’s instruction number 1 is erroneous in failing to explain or define what constituted a ‘ ‘donation.” Boogher v, Neece, 75 Mo. 383; Scott v. Alien-laugh, 50 Mo. App. 134, 135. The court properly excluded the testimony offered by defendant, including that of witness Herr, to the effect that the organ was not included in the sale to Vardeman. Welsh v. Edmisson, 46 Mo. App. 282; Tracey v. Iron Works, 104 Mo. 193; Wood v. Murphy, 47 Mo.

— Hon. W. N. Evans, Judge. There is no allegation in the petition as to the value of the goods destroyed, or of the amount of damage sustained by plaintiffs. Nor is there any allegation that the adjuster had no authority to bind defendant. These allegations were necessary. Story v. Ins. Go., 61 Mo. App. 534, 537; House Furnishing Co. v. Wallace, 21 Id. 128; Williams v. Edwards, 94 Mo. 447, 451.

Louis City Circuit Court. — Hon. Thomas A. Russell, Judge. Mandamus will not lie in this case, because it does not appear that respondent has any legal right to the performance of the duty he seeks to impose upon appellant, or that the law affords him no other adequate remedy for the enforcement of the right, and the performance; of the duty, which it is sought to compel. High’s Extra.

<p>1. Creditor’s Bill: sufficiency of. To entitle a judgment creditor to maintain his bill, it must appear that he has exhausted his legal remedies for the collection of the judgment, or that such remedies are inadequate. Humphrey v. Milling Co., 98 Mo. 542.</p> <p>2. -: fraud. The mere allegation of plaintiffs belief as to the existence of fraud is not sufficient; the fraud must be charged directly.</p> <p>3. -: parties. A third party who had no connection with the alleged fraudulent transactions between defendants, nor any interest in the mortgaged property in controversy, could not be interjected into the litigation.</p> <p>4. -: amendments. The refusal of the court, after sustaining a a demurrer to an amended petition filed, to permit further amendments, which were formal and in no way relieved the petition of its objectionable features, was not prejudicial, though technically the amendments should have been permitted.</p>

<p>Appeal from the Montgomery Circuit Court. — Hon. E. M. Hughes, Judge.</p> <p>Judge Bland concurring, Judge Bond dissenting.</p> <p>The court erred in refusing instruction number 5 offered by plaintiff. Miss Borgmann being dead, the defendant’s mouth was closed by the statute from testifying to any verbal contract made with deceased. Aside from the statutory provisions in this class of cases, the court erred in permitting defendant to be examined by her attorney upon other matters than such as she was examined on in chief. Caughlin v. Haeussler, 50 Mo. 126; Allen v. Chotiteau, 102 Id. 309.</p> <p>The defendant was also incompetent to prove a verbal contract of gift to her from deceased, and the plaintiff’s objection to her so testifying should have been sustained. Scott v. Riley, 49 Mo. App. 251.</p> <p>The evidence of defendant’s own witnesses proves, beyond doubt, that deceased, at most, only showed an effort to will the property to defendant, which, not being in writing, was void, and the verdict was based entirely on her testimony as to what deceased said to her, which, being utterly incompetent, was totally insufficient to support the verdict. Tygard v. McComb, 54 Mo. App. 85; 109 Mo. 90.</p> <p>The court erred in giving instructions number 3 and 7 for defendant. They are both erroneous and inconsistent with number 5 given for plaintiff. Eans v. Eans, 79 Mo. 53; Dameron v. Dameron, 19 Id. 317. See, also, Erhart v. Dietrich, 118 Mo. 419, 429; Swisler v. Storts, 30 Mo. App. 163.</p> <p>The instructions herein pointed out are so erroneous and inconsistent that no number of correct instructions could by any possibility cure their error. Jones v. Talbott, 4 Mo. 279; State v. Herrell, 97 Id. 105; State v. McNally, 87 Id. 644; Frederick v. Algain, 88 Id. 598; Thomas v. Babb, 45 Id. 384; Buddenberg "V. Trans. Goi, 108 Id. 394; Bluedorn v. R’y, Id. 439.</p> <p>The court also erred in giving instruction number 9 for defendant over plaintiff’s objection. Keyl v. Wesierhaus, 42 Mo. App. 57.</p> <p>It is immaterial whether decedent’s gift was a gift inter vivos, or a gift causa mortis. Keyl v. Westerhaus, 42 Mo. App. 49; Tomlinson v. Ellison, 104 Mo. 105; Tygard v. McComb, 53 Mo. App. 85. See, also, Dwn v. Bank, 109 Mo. at 101; Brandon v. Dawson, 51 Mo. App. 337; Gartside v. Pohlman, 45 Id. 160; Nasse v. Thomas, 39 Id. 178. . '</p> <p>Plaintiff having called defendant to testify on his part, waived any alleged incompeteney on her part to testify. Tomlinson v. Ellison, supra.</p> <p>Instructions numbers 3 and 7 given for defendant are not inconsistent with number 5 given for plaintiff. Gordon v. Eans, 97 Mo. 587.</p>

— Hon. Beniamin E. Turner, Judge. By section 3975, Revised Statutes 1889, a misdemeanor is defined to include every offense punishable only by fine or imprisonment in the county jail or both. At common law a misdemeanor was a crime. Black., book 4, chap. 1, p. 5. This appeal was not taken in time. Sec. 4362, R. S. 1889; Be Soto v. Merceil, 53 Mo. App. 57; St. Louis v. Machel, 99 Mo. 475.

— Hon. J. C. Lamson, Judge. The petition was fatally defective in failing to state any knowledge on the part of defendant of the defect which caused the injury, or that such defect had continued for such'length of time that defendant could have known it. Scott v. Robarás, 67 Mo. at 293; Story v. Ins. Co., 61 Mo. App. at 538; Pier v. Heinrichoffen, 52 Mo. at 336. Plaintiff’s evidence did not aid the defective petition.

<p>Appeal from the McDonald Circuit Court. — Hon. J. C. Lamson, Judge.</p> <p>Judge Bland concurring, Judge Biggs dissenting.</p> <p>The cause of action stated in the first count of respondent’s petition, being in equity, this court will review the entire evidence thereunder, make its own findings of fact, and practically try the case under this count de novo. Blount v. Spratt, 118 Mo. 48; Finley v. Schlueter, 54 Mo. App. 455.</p> <p>The case of fraud should be clearly and strongly proven, by respondent, before the court should interfere to grant the relief sought. Bisp. Prac. Eq. [4 Ed.], sec. 189, p. 243, and citations; Vashagev. Vashage, 45 Mo. App. 172.</p> <p>It is elementary that the pretended representation of appellant that the note in question “was not paid and would not be paid,” to afford a basis for the cancellation of the compromise agreement, must have been relied on by respondent. Bisp. Prac. Eq. [4 Ed.], sec. 215, p. 272. See, also, Kerr on Fraud and Mis. 75; Winter’s App., 11 P. F. Sm. 387; Hough v. Richardson, 3 Story, 659; Parker v. Hays; 39 N. J. Eq. 469; Veasey v. Baton, 3 Allen, 380; Brown v. Leach, 107 Mass. 364; Clark v. Everhart, 13 P.’ F. Sm. 347; Wright v. Gully, 28 Ind. 475.</p> <p>The court erred in overruling appellant’s demurrer to the first count of the petition. 1 Beach, Mod. Law Con., sec. 794, p. 973; Bisp. Prac. Eq. [4 Ed.], sec. 43, p. 62, and citations. See, also, Billings v. Aspen, etc., 52 Fed. Rep. 250; Robinson v. Siple, Í29 Mo. 208; Och v. R’y Co., 130 Id. 27; Carson v. Smith, 133 Id. at 614; Bwyer v. R’y, 66 Mo. App. 335; ReUer v. Packing Co., 58 Id. 264.</p> <p>The statements and representations concerning appellant’s financial condition were representations of facts peculiarly within the knowledge of appellant, and respondent, not knowing them to be false at the time, had a right to rely on them, and having acted on such representations, the same being false, his right to relief is clear. Pom. Eq. Juris., secs. 891, 892; Cottrillv. Krurn, 100 Mo. 397, 404, 405; Kerr on Fraud, pp. 80-82.</p> <p>“It is no excuse, nor does it lie in the mouth of appellant to aver, that respondent might have discovered the wrong, and prevented its accomplishment by watchfulness or inquiry, for this would be equivalent to saying: ‘You trusted me,-therefore I had a right to betray you.’” Pomeroy v. Benton, 57 Mo. 531; Cottrill v. Krum, supra; Wannell v. Kem, 57 Mo. 478; GottschaTk v. Kircher, 109 Id. 170; 7 Am. and Eng. Ency. Law, 732, 756, and notes.</p> <p>If a party intentionally misrepresents a material fact, or produces a false impression by words or acts, in order to mislead or to obtain an undue advantage, it is a case of manifest fraud. Story, Eq. Juris., sec. 192; Big. on Fraud, pp. 527, 528; Pom. Eq. Juris., secs. 891, 892; Kent’s Comm. 482; McAdams v. Gates, 24 Mo. 223; Wannell v. Kem, supra; Gottschalk v. Kir diner, supra.</p> <p>■ The burden is on appellant of removing the presumption that respondent relied and acted on his statements. Pom. Eq. Juris., sec. 891, and citations. See, also, Baivlins v. Baiolins, 109 Mo. 563; Barlow v. Elliott, 56 Mo. App. 374.</p> <p>The attitude of appellant from the time the receipt was obtained from respondent, and his subsequent conduct, show conclusively that a tender by respondent would have been useless in this ease, and in such case tender is not required. Girard v. Gar Wheel Go., 123 Mo. 371; Westlake v. St. Louis, 77 Id. 47; Big. on Fraud (1888), p. 424; Deidiman v. Deidiman, 49 Mo. 107. See, also, Girard v. Gar Wheel Go., 46 Mo. App. 79; 109 111. 120.</p> <p>If this court should decide tender necessary in this case under the ruling in Och v. B?y, 130 Mo. 37, and Dwyer v. B’y, 66 Mo. App. 335, it should reverse and remand for new trial, as these cases expressly hold that the plaintiff could amend on. proper terms. Och v. M’y, supra, pp. 48, 49; Dwyer v. M’y, supra, 341.</p> <p>appellant’s eeply.</p> <p>The record clearly shows that the judgment was recovered on a theory on which no action at all was maintainable, and where this is true the appellate court will reverse the judgment, without remanding the cause. Finkelnburg’s Mo. App. Prac.,pp. 95, 96; Quay v. Lucas, 25 Mo. App. 4; Jenláns v. McCoy, 50 Mo. 348; McGee v. Larimore, Id. 425.</p>

<p>Divorce: alimony pendente lite : allowance for support of child.. The right of the wife to alimony, pendente lite, is no longer absolute, where she has sufficient property in her own right to conduct or defend. the action, and to maintain herself during its pendency: but she is entitled to a suitable allowance for the maintenance of her child or children, permitted to remain with her, from the commencement of' the suit to its final determination.</p>

<p>1. Attorneys: double employment: evidence: instruction. In an action against an administrator for attorney’s fees, for services rendered by plaintiffs for the deceased in a condemnation proceeding, wherein plaintiffs acted in a double capacity, testimony that the deceased knew of plaintiff’s employment by the other parties to such proceeding, and had stated that he did not intend to pay them anything on that account, but it did not appear when he learned of such employment, it was sufficient evidence to submit the question by instruction to the jury.</p> <p>2. -: -: public policy. The double agency of plaintiffs in such proceeding was not void as against public policy, where it appeared from the evidence that the interests of the other parties to the proceeding were not antagonistic to those of the deceased.</p>

'Appeal from the St. Louis City Circuit Court, — Hon. Thomas A. Russell, Judge. Judge Bond concurring, Judge Bland not sitting. The instruction refused should have been given. If the court found from the evidence that respondents made no contract with Palter, appellant was entitled, under Falter’s undisputed statement, to the benefit of that contract as the undisclosed principal of Falter in the transaction. Briggs v. Munchon, 56 Mo. 467; Bank v. Jennings, 18 Mo. App. 651.

— Hon. J. W. Henry, Judge. (1) The law is well settled that, where a bank in this state receives for collection a check or draft, payable in another state, and uses due diligence in forwarding it to a proper correspondent at the place where the paper is made payable, with proper instructions for collection, its responsibility is at an end, and, in case of default by its correspondent, it can not be held liable-to the owner, unless by some after act it makes itself…

— Hon. E. L. - Scarritt, Judge. (1) At plaintiff’s request the court instructed the jury as follows, to wit: “If you find for plaintiff, your verdict will not exceed the sum of $43.50 with interest at the rate of six per cent per annum from May 6,1893, which interest you will add to the amount found, and return same as one sum in your verdict.” This instruction is clearly erroneous in allowing plaintiff to recover interest as a matter of right from date of defendant’s…

— Hon. W. M. * Robinson, Judge. (1) The Carterville Building and Loan Association was properly made a party to this action. R. S. 1889, p. 1575, sec. 6713. Mortgagees and others having an interest in the property are made parties for the purpose of giving them an opportunity to show cause why the lien should not be established. Clay Works v.. Ellison, 30 Mo. App. 67. A mortgagee is not bound if not made-a party. R. S. 1889, p. 1575, sec. 6713; Coe v. Ritter, 86 Mo. 278.

— Hon. E. L. Scarritt, Judge. (1) If Wollman and the bank .were equally free from fault, the fact that the new certificate was obtained from the bank without consideration, through mistake, would entitle the bank to recover from Wollman its damages resulting from the issuance of the new certificate. Brown, Lancaster & Go. v. Ins. Co., 42 Md. 384.

— Hon. E. L. Scarritt, Judge. (1) The court erred in refusing to ¿ive instruction number 8 for the defendants.

— Hon. E. J.. Broaddus, Judge. (1) The law imperatively demands that plaintiff should sue both the principal debtor and all parties liable, within thirty days from the receipt of the notice by surety, if it can be done. R. S. 1889, sec. 8344; Peters v. Linenschmidt, 58Mo. 464; SisJcv. Bosenberger, 82 Mo. 46. (2) No such action was brought, only the surety was sued. Such being the case it devolves on the plaintiff to excuse himself for such failure.

-Appeal from the Hoioard Circuit Court. — Hon. J. A. Hockaday, Judge. (1) The trial court erred in giving the instruction in the nature of a demurrer to plaintiff’s evidence. The contract itself is plain and explicit. It is silent as to the kind or quality of the water. .There is no pretense that it does not contain the entire agreement of the parties. It stipulates merely a certain quantity, or no pay.

<p>Appeal from the Gass Circuit Court. — Hon. W. W. Wood, Judge.</p> <p>(1) The court erred in sustaining the demurrer to plaintiff’s amended petition. Carter v. Chicago, 57 111. 283; Heinrich v. St, Louis, 125 Mo. 424; St. Louis v. Hill, 116 Mo. 527; Lockwood v. B. B., 122 Mo. 86 (at pages 98 and 101); Martin v. B. B., 47 Mo. App. 452; City v. Linnard, 97 Pa. St. 242; In re Chestnut Street, 118 Pa. St. 593; Flynn v. Taylor, 127 N. Y. 596; Callanan v. Gilman, 107 N. Y. 360; Stack v. East St. Louis, 85 111. 377; Schulte v. Transp. Co., 50 Cal. 592; Banville Co., etc., v. Campbell, 87 Ind. 57; Branham v. Hotel Co., 39 O. S. 333; B. B. v. Bourne, 11 Colo. 59; Southbend v. .Faxon, 67 Ind. 228; Brahe v. B’y, 63 Iowa, 302; B. B. v. Andrews, 41 Kan. 370; Chicago v. Taylor, 125 U. S. 161; Montgomery v. Townsend, 80 Ala. 489; Bogers v. Bandall, 29 Mich. 41. (2) The defendant was attempting in a high handed way to condemn enough of plaintiff’s property to widen the street, and by widening the driveway and leaving him without any sidewalk, sought thereby to compel, him to move back his improvements and make a sidewalk upon his own property, and that without any compensation to him whatever for his damages. This it could not do. City v. Linnard, 97 Pa. St. 242; In re Chestnut St., 118 Pa. St. 593. These cases are cited and quoted from with approval by our supreme court on this very point in St. Louis v. Hill, 116 Mo. 527 at 535. (3) The fact that plaintiff has a small place left for a sidewalk on his own private property is no defense. Heinrich v. St. Louis, 125 Mo. 424. (4) By the acts of the defendant as pleaded, the public generally is invited to drive over what was formerly plaintiff’s sidewalk, and to throw the dust and mud from the different vehicles into plaintiff’s shop, and pedestrians, including plaintiff’s customers, have been compelled to use the 'opposite side of the street, almost totally destroying the value of plaintiff’s property as business property.</p> <p>(1) General authority "to construct or not to construct sidewalks not only authorizes their construction on streets where they do not exist, but also permits their removal when they already exist. Elliott on R. & S., p. 328; Att’y Gen. v. Boston, 142 Mass. 200; Winter v. Montgomery, 83 Ala. 589. (2) The action of the city of Westport in improving .the street by removing the walk, put down by the plaintiff without regard to the city’s right to regulate such matters, is a control and exercise of power on the part of the city which was contemplated by parties interested when the street was opened and established. Bldg. Ass’n v. Telephone Co., 88 Mo. 258; Ferrenbach v. Turner, 86 Mo. 416; Funkv. City of St. Louis, 122 Mo. 132; Elliott on R. & S., p. 529. (3) It was an improvement of the street in an ordinary, appropriate and reasonable mode deemed beneficial to the public good for which there is no liability. Bldg. Ass’n v. Telephone Co., supra; City of Morrison v. Hinkson, 87 111. 587; Ferrenbach v. Turner, supra. (4) Mere inconvenience of access occasioned by a lawful use of the street is not the subject of' an action. Kellenger v. B’y, 50 N. Y. 206; Kane v. B. B., 125 N. Y. 164; Gay v. Telephone Co., 12 Mo. App. 485; Van DeVere v. Kansas City, 107 Mo. 83. (5) The control exercised over the street affected the plaintiff only in the same manner it affected the public. Bigney v. Chicago, 102 111. 81; Bude v. City of St. Louis, 93 Mo. 408; Fairchild v. St. Louis, 97 Mo. 85. (6) It has been frequently held by the appellate courts of this state that a steam railroad lawfully built and operated upon a street in a city or town is not a nuisance for which a property owner can recover, yet such an interference would cause a much greater injury to abutting property owners than that complained of in this action. Elliott on R. & S., p. 535; Porter v. B. B., 33 Mo. 128; Bandle v. B. B., 65 Mo. 325; Cross v. B. B., 77 Mo. 318; B. B. v. B. B., 97 Mo. 469; Bude v. St. Louis, 93 Mo. 408; Mfg. Co. v. B. B., 113 Mo. 308; Fairchild v. St. Louis, 97 Mo. 385; Canman v. St. Louis, 97 Mo. 92; Van Bevere v. Kansas City, 107 Mo. 83. (7) Damages, to be recoverable, must be real and substantial and must flow from a sudden and extraordinary impairment of right of ingress. • Bldg. Ass’n v. Telephone Go., 88 Mo. 258. (8) The presumption is that public officers, having no private interests to subserve, have not done a wrongful act to the injury of a citizen. Elliott on R. & S., p. 354.</p>

— Hon. E, C. Crow, Judge. (1) There was no evidence to warrant the submission of the case to the jury, and the court should have given the peremptory instructions asked by defendant, to find for defendant. The evidence must be of a character to remove the question from the domain of mere conjecture. Glide v. R. R.,. 57 Mo. App. 97; Broivn v. St. Louis Cop. Co., 50 Mo. App. 202; Ryder. R’y, 110 Mo. 272; Peder. Rhj, 31 Mo.

— Hon. J. A. Hockaday, Judge. (1) The plaintiff’s evidence clearly shows that sire was not using ordinary care when she received her-injury complained of, but on the contrary was guilty of contributory negligence and can not recover in this cause. Gerdes v. Iron and Foundry Co-., 124 Mo. 347-355; Butterfield v. Forrester, 11 East. 60.

— Hon. E. J. Broaddus, Judge. (1) Defendant testifies that he did authorize Page & Austin to procure the exchange of lands. That they introduced him to Mr. Davis and this was the beginning of the trade, and hence, was the procuring cause. See cross-examination of defendant. Blake v. Slump, 10 L. R. A., p. 103, and authorities there cited, also editors’ note to same. Williams v. Porter, 31 Mo. App. 563; Stinde v. Belsch, 42 Mo. App. 578; Bass v. Jacobs, 63 Mo. App. 393.

— Hon. J. W. Heney, Judge. (1) The court erred in refusing to instruct the jury peremptorily to find for the defendant, for the reason that there was no evidence that Twenty-third street has been accepted by the city as a public street. R. S. 1889, sec. 6570; State ex ret. v. Chase, 42 Mo. App. 343.

<p>1. Practice, Trial: pleading. Where part of defendant’s answer was stricken out on motion, and he refused to stand on his answer, he had no right, without filing another, to proceed to trial on the part of the answer not stricken out. In such case, the court is required, hy the express terms of the statute, to try the cause as if no pleading was on file. R. S. 1889, sec. 2066.</p> <p>2. -: DEFAULT: ASSESSMENT OF DAMAGES: FAILURE TO CALL JURY. Where there was nothing in the record to show that defendant, after his default, asked for the aid of a jury, the court did not err in failing to call one on the issue as to damages.</p> <p>3. -: -: TRIAL OF ISSUE AS TO DAMAGES: RIGHT OF DEFENDANT to participate: presumption. On a default, unless the record affirmatively shows error on the part of the trial-judge in refusing a speeifió offer hy defendant to participate in the trial of the issue as to damages, -this court will not presume that he has committed such error.</p>

<p>1. Railroads: damage prom negligent construction op canal: bar by prescription. Where an action for damages against a railroad for negligence in constructing, under grant of authority, by deed, a canal too small to carry off the waters accumulated "in time of heavy rains and freshets in the river,” thereby causing the river to "back up” and wash away plaintiffs’ land, was not brought within ten years after the injury accrued, it was barred by prescription.</p> <p>2. -: -: pleading: negligence: proop. Moreover plaintiffs were not entitled to recover in such action under the allegation of the petition that the canal was too small to carry off the waters accumulated "in time of heavy rains and freshets in the river,” where it was not shown that the former bed of the river was adequate for that purpose. To show negligence on the part of defendant it was necessary for plaintiffs to prove the inequality of the canal as an aqueduct compared with the river.</p>

<p>Mortgage: sale upon insufficient 'notioe: redemption: right of MINORS TO ELECT TO TAKE SURPLUS proceeds. In a suit by minor heirs, by their next friend, for a surplus alleged to be due from defendant by reason of his sale and foreclosure of a mortgage, executed to him by the father of plaintiffs, where defendant admitted the execution of the mortgage, and pleaded a sale by him upon an insufficient notice and a conveyance to the purchaser, who paid therefor only the amount of the secured debt, wherefore the title so conveyed was subject to redemption by plaintiffs, and that they had no recourse against him; and the deed recited a consideration in excess of the mortgage debt to be paid in cash, no part of which excess was collected or paid to plaintiffs, — Bold: That plaintiffs had the right to elect to take such excess, and surrender their right of redemption in the land.</p>

<p>Appeal from the Wright Cirmit Court. — Hon. Angus Cox, Judge.</p> <p>Judge Bond concurring, Judge Biggs dissenting.</p>

<p>Jurisdiction, Appellate: constitutional question. A prosecution against defendant for maintaining a milldam without providing the ehute required by section 7023, Revised Statutes 1889, where defendant contended he had acquired a prescriptive right to maintain the dam in its present condition before the enactment of the law under which he was indicted, and- denied the power of the legislature to deprive him of that right, or to attach conditions to its free enjoyment, raised a constitutional question, not within the jurisdiction of this court to determine.</p>

<p>Appeal from the Pike Circuit Court. — Hon. Beuben F* Boy, Judge.</p>

<p>Jurisdiction, Appellate: action involving title to 'real estate. An action for the cancellation of a promissory note and satisfaction of a deed of trust upon real estate securing the same, and for the recovei’y of money paid on the note before the discovery of the facts, involves the title to real estate, hence not within the jurisdiction of this couit.</p>

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

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

<p>Jurisdiction, Appellate: action involving title to real estate. A suit in equity to set aside a deed of trust on land, is such an action as involves the title to real estate within the meaning'Of the state constitution, therefore not within the Jurisdiction of this court.</p>

— Hon. D. W. Shaokleeord, Judge. (1) The court erred in refusing to sustain the demurrer to the plaintiff’s evidence, and likewise in refusing to give the peremptory instruction number 1 prayed by the defendant because the evidence did not ■show any negligence.on the part of the defendant, and because the plaintiff’s injury was due to his own negligence. Hayden v. It.

<p>1. Principal and Agent: construction op answer: general and special agency. In a suit upon a contract, where the answer admits the making of the contract but avers it was upon a different compensation from that alleged in the petition, there can arise no question as to the authority of the agent who made the contract; and since the agent had authority to make such contracts, he was the general agent of the defendant and his acts bound his principal though the contracted compensation exceeded the amount he was instructed to allow. , The distinction between general and special agency discussed. Booglier v. Ins. Co., 6 Mo. App. 592, distinguished. Gill,</p> <p>J., dissents in a separate opinion.</p> <p>2. -: -: -. Under the pleadings and facts in this case the court properly confined the issue as to whether the contract alleged in the petition was made or not.</p> <p>3. --: pleadings: employment contract: instruction. Various instructions relating to agency and the employment of the plaintiff are considered and criticised.</p>

<p>Appeal from the Henry Circuit Court. — Hon. J. H. Lay, Judge.</p>

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

Louis City Circuit Court. — Hon. Leroy B, Valliant, Judge. all the judges concurring; Judge Biggs in the result. If the contract was ambiguous in its terms, and the ambiguity was resolved, by the uncontradicted evidence and surrounding circumstances, it was the duty of the court to declare its meaning.

Louis City Circuit Court. — Hon. Hoeatio D. Wood, Judge. Upon the undisputed testimony in this record, the plaintiff should have been nonsuited. Story on Ag’cy [9 Ed.], secs. 11, 309, 318, 456, and citations; Brown v. B’y, 67 Mo. 122; Sewing Machine Co. v. B’y, 70 Id. 672; Express Co. v. Bank, 66 Mo. App. 275; Farber v. B’y, 32 Id. 378; Same v. Same, 116 Mo. 81; Walker v. B’y, 121 Id. 575; Leonard v. B’y, 68 Mo. App. 48.

Louis City Circuit Court. — Hon. Pembrook R. Elitcraft, Judge. Judge Bond concurring; Judge Biggs dissenting. The fact that the alleged “agent” had authority to bind defendant by an assurance of the character claimed was a necessary ingredient of defendant’s liability for its consequences. Wells v. B. B., 35 Mo. 164; Diet v. B’y, 37 Mo. App. 457; Maupin v. Mining Co., 78 Mo. 24. Defendant’s demurrer to the evidence should have been sustained. B’y v. Behrens, 37 N. E. Rep.

Louis City Circuit Court. — Hon. Jacob Klein, Judge. Plaintiff not being the procuring cause of the sale, the court should have given the defendant’s instruction of nonsuit. Ramsay v. West, 31 Mo. App. 677; Stindev. Blesch, 42 lb. 578; Hackman v. Gutweiler, 66 Id. 249; Wolff v. Rosenberg, 67 Id. 403; Pollard v. Banks, Id. 187; Charlton v. Wood, 11 Heisk. (Tenn. ) 19; Sievers v. Griffin, 14 111.

Louis City Circuit Court. — Hon. Leroy B. Valliant, Judge. A legatee having a vested interest in a fund, the payment of which is deferred to a period beyond his majority, may, nevertheless, obtain an order for its payment on attaining twenty-one years. 2 Woerner on Adm. 995; Roche v. Roche, 9 Beav. 66; Williams on Exr’s [7 Eng. Ed.], 1398; Curtis v. Luhin, 5 Beav. 147; Young’s Settlement, 18 Id. 199; 14 Allen (Mass.), 239; Randolph v. Randolph, 40 N. J. Eq'. 73, 78.

Louis City Circuit Court. — Hon. , Leroy JB. Valliant, Judge. A foreman or superintendent who exercises the power of hiring and discharging men is an alter ego or vice-principal, and is not a fellow of the servants under him. Miller v. B’y, 109 Mo. 350; Foster v. B’y, 115 Id. 180; Jones v. Packet Co., 43 Mo. App., at 406,407. .

Louis City Circuit Court. — Hon* Hobatio D. Wood, Judge. The bank cheek drawn only for part of a drawer’s deposit is not an assignment of the fund pro tanto. Dickinson v. Coates, 79 Mo. 250; Coates v. Doran, 83 Id. 337; Boyer v. Hamilton, 21 Mo. App. 523, 524; 2 Daniel on Neg. Inst., secs. 1635-1645; Bank v. Yardly, 17 S. 0. Bep. 439.

Louis City Circuit Court. — Hon. Jacob Klein, Judge. Under the terms of the policy, the loss is payable, absolutely, • to the Union Trust Company, which is the real party in interest, and the only party entitled to maintain an action on the policy.- Griswold v. Ins. Go., 1 Mo. App. 97-100; Berthold v. Ins. Co., 2 Id. 311-316; Burris v. Ins. Co., 65Id. 157; Bartlett v. Ins. Co., 41 N. W. Rep. 579.

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

JError to the Moniteau Circuit Court. — Hon. D. W. Shackleford, Judge. (1) Abraham Rimel having executed the agreement reciting that the consideration for the lands was the support, maintenance and furnishing of a home to his mother, Kesiah Rimel, it operated as an equitable mortgage of the premises, and any subsequent purchaser with notice of the agreement could occupy no* more favorable position than Abraham Rimel, and they took the land subject to such equitable mortgage.

— Hon. E. C. Ceow, Judge. (1) The mortgage gave power to the mortgagee, its successors or assigns, agent or attorney, to purchase at auction sale. The sale and purchase by plaintiff under that power were in all respects valid and good at law. Clarkson v. Mullin, 62 Mo. App. 622, and cases cited in the opinion; Parkerv. Roberts, 116 Mo. 657. (2), The notice complied with the terms of the chattel mortgage and was sufficient. Olmsorg, Adm’r, v. Timier, 87 Mo. 127.

— Hon. J. H. Slover, Judge. (1) It was error to include in the instructions 5 and 6 asked by plaintiff and given by the court, as to damages, any language that would permit the jury to allow for loss of time or for medical attendance, hospital bills, etc., when there was no proof thereof. Mammerburg v. B’y, 62 Mo. App. 568; Madden v. B’y, 50 Mo. App. 666.

— Hon. Andrew Ellison, Judge. (1) There was no evidence authorizing a recovery upon a quantum meruit. All the witnesses who testified upon this point agreed that it was a special contract. There was no testimony to the contrary. But the court hy the second instruction, given on its own motion, directed a verdict for the plaintiff for the reasonable value of the threshing, if they found there was no such special contract. This was misleading and tended to confuse the jury.