Volume 75 — Missouri Appeal Reports

— Hon, J. F. Geeen, Judge. The court erred in admitting any testimony under plaintiff’s petition. The court erred in permitting plaintiff to prove and recover upon a different cause of action from the one stated in his petition.

Louis County Circuit Court. — Hon. Rudolph Hirzel, Judge. Each party to a suit is primarily liable for the services rendered by witnesses and officers of court at his instance and request. At common law each party paid the fees, step by step, as the cause progressed, paying for each service when it was rendered.

<p>Appeal from the Howard Circuit Court. — Hon. W. N. Evans, Judge.</p> <p>The defendant’s motion to affirm the judgment of the justice should have been sustained. Section 6344, Revised Statutes 1889, provides: “If the appellant shall fail to give such notice at least ten days before the second term of the appellate court after the appeal is taken, the judgment shall be affirmed, or the appeal dismissed, at the option of the appellee.” The notice referred to is prescribed by section 6342, as follows: “If the appeal be not allowed on the same day on which the- judgment is rendered, the appellant shall serve the appellee, at least ten days before the first day of the term at which the cause is to be determined, with a notice in writing stating the fact that an appeal has been taken from the judgment therein specified.” Then follows a clause prescribing the manner of service of this notice. JThere is no point made as to the mode of service, but it is contended by appellant that there was no notice of appeal. In other words, that a notice directed to appellee’s attorney is not a notice to appellee. In short, the fact that the,, notice may be served on the attorney should not be confounded with the requirement that the notice must be to the party. It is an elementary rule of law that all notices which are required to be in writing must be directed to the party to be notified. And the fact that such notice may be served on an agent or attorney, does not dispense with this requisite of a valid notice: that it be directed to the party to be notified. The statute requiring notice to be given on appeals from justices of the peace has been often construed by the appellate courts of this state, and it has been uniformly held that the. statute must be strictly followed. That actual knowledge on the part of the appellee that the appeal has been taken will not be sufficient. Walker v. Carrew, 56 Mo. App. 320. That notice to the attorney who-appeared and represented appellee in the circuit court is not sufficient. Ellis v. Kyes, 47 Mo. App. 155; Byrd v. Steel, 49 Mo. App. 419. That this notice is jurisdictional, without which the circuit court acquires no jurisdiction. Crosby v. Clary, 43 Mo. App. 226; Cooksey v. R. R., 17 Mo. App. 138, and cases cited. And prior to amendment in 1889, notice could not be served on an attorney. Jordan v, Bowman, 28 Mo. App. 608; Puller v. McClure, 25 Mo. App. 418. The following instruction on the part of the plaintiff is erroneous: “No. 1. The court instructs the jury that it is admitted that the cow was struck by defendant’s train at a point on its road where it was not fenced, and that the cow belonged to plaintiff; the only question, therefore, for you to determine is the difference, if any, between the value of the cow before and after she was struck by defendant’s train, and if she was of less actual value at any time after she was struck, by reason ,of such striking, then you should find such amount of difference in value for the plaintiff.”</p>

— Hon. Rudolph Hirzel, Judge. The payment of the note by Gerber on the fifteenth ■day of May, 1889, extinguished the debt to Wood, and Gerber’s course of action as surety accrued on the day he paid the debt, and the five years limitation bar commenced to run against him at that time. Singleton v. Townsend, Adm’r, 45 Mo. 379; Burton v. Rutherford, Adm’r, 49 Mo. 255; McKenzie, Adm’r, v. Hill, 51 Mo. 303; Blake v. Downey, 51 Mo. 437.

— Hon. J. N. Evans, Judge. There is a total failure of proof, and on this point, as to the law, it is needless to cite authorities. The petition alleges a contract, the performance thereof, and payment for the services stated; but further -avers that one of the parties, the appellant, rescinded the contract after performance, and took back the property that had been paid.

— Hon. Henry C. Riley, Judge. The court erred in overruling defendant’s objection to the introduction of any testimony under the pleadings. Orescent Furniture & Lumber Co. v. Raddatz, 28 Mo. App. 210; Clements v. Goodspeed Pub. Co., 40 Mo. App. 589. The pleadings showed that Byrne was the agent of Wilson; that the debt was due Wilson; that the power of attorney constituted such agent, gave him special powers to sue in the name and for the use of Wilson.

<p>Appeal from tlie Hannibal Court of Common Pleas. Hon. Reuben F. Roy, Judge.</p> <p>It is the province and the duty of the court to tell the jury whether or not a given state of facts constitutes negligence. Ravenscraft v. R’y, 27 Mo. App. 617-623; Goodwin v. R’y, 75 Mo. 73; Buswell Law Per. Inj., No. 93; Seehorn v. Hall, 130 Mo. 257-262; Glass v. Glevin, 80 Mo. 297; Belhenland v. Tensón, 114 U. S. 355; 1 Thompson on Trials, No. 1162; Tarnall v. R’y, 75 Mo. 575. If it was prudent to furnish lines, driver’s seat, foot board and brakes, how can it be otherwise than negligence to refuse to use them. The peculiar •construction of that' modem style of vehicle necessitates the use, for ordinary safety, of the appliances built therein. That was the judgment of the manufacturer and of the trade, and the court erred m refusing testimony to explain the proper use of the driver’s seat. Where the evidence is all one way, uncontroverted, and tends to ' prove the issue, and there is no question as to the credibility of the witness, the court should determine the whole case as a question of law. Boland v. R’y, 36 Mo. 484; Fields v. R’y, 80 Mo. 203; Barton v. R’y, 52 Mo. 253; Berry v. R’y,. 124 Mo. 223.</p> <p>In many cases where the facts are undisputed, the question is one of law to be passed upon by the court, but where they are disputed, or admit of different constructions or inferences, the question should be left to the jury. Norton v. Ittner, 56 Mo. 351. In suit for damages against a street railway company, where it appeared that a lad of seventeen years, and of sound mind, jumped or stepped from the car while in rapid motion, it was held improper to instruct the jury, that such action per se constituted negligence in law on the part of the boy. The question of negligence in such case should be left to the jury. Wyatt v. R’y, 55 Mo. 485. Where, from the facts found or agreed upon, the question of negligence is one about which reasonable minds may differ, it should be left to the jury to make the deduction from all the circumstances, and to determine the ultimate fact of negligence. Table * v. R. R., 93 Mo. 79. That whether, in a certain act or action, the defendant exercised ordinary care under the circumstances is always one for the jury where there is any evidence produced. This principle is sustained by an innumerable number of decisions.” ‘‘Even though, the facts are undisputed, it is for the jury, and not for the judge, to determine whether proper care was given, or whether they establish negligence.” 16 Am. and Eng. Ency. of Law, p. 465, n. 4, and case cited therein. The respondents, in conclusion, say that the question of negligence was properly submitted to the jury, under the instruction given by the court, and the jury having found the issue for the defendants — respondents herein — the verdict should not be disturbed.</p>

<p>Appeal from the Marion Circuit Court. — Hon. Reuben E. Roy, Judge.</p> <p>The words charged to have been spoken constitute no slander. They are not slanderous and could not be so construed, except by a morbid imagination, one that concluded no young woman could be chaste who would read a work , that treated on sexual subjects. If giving the book referred to to a young lady was slanderous, then it is slanderous to handle half of the current literature of the day. There was no charge of immorality or unchastity in the words spoken or the act done, but only in the imagination of the hearer, honi soil qui mal y pense. The verdict of the jury should have been set aside because it was against the instructions of the court. The verdict is for $500 compensatory damage and none was proven. The plaintiff did not lose her school but was employed to teach the same school the next session, and there is an utter and. complete absence of a scintilla of testimony of any actual damage suffered. Damages must be proven and not left to the imagination or conjecture of the jury. The words charged to have been spoken are not actionable per se, by any test you may apply to them. The test is, does the law infer damages as being necessarily occasioned by the publication (utterance). Spurlock v. Lombard Co., 59 Mo. App. 225. Only when the words spoken are slanderous per se are damages inferable. ' In the case at bar compensatory damages were charged, but none were proven. The jury found $500 compensatory damages, there being no evidence to support the verdict the court ought to have set it aside. The plaintiff put on the stand all the persons before whom the alleged words were alleged to have been spoken and having failed to make a case, the defendant prays the case may be reversed without remanding.</p>

— Hon. John Q-. Wear, Judge. • The same cause of action, and no other, that was tried before the justice, shall be tried before the appellate court on appeal. R. S. 1889, sec. 6345; Hausberger'v. R. R., 43 Mo. 196. The transcript of the justice’s docket, regularly certified, was the only proper evidence to prove what was done before the justice. R. S. 1889, sec. 4883; Raum v. Eyermann, 2 Mo. App. 478; State ex rel. Stuart v. Maloney, 113 Mo. 370.

— Hon. James T. Neville, Judge. The court erred in giving peremptory instruction. The provisions of the deed of trust create the relation of landlord and tenant between plaintiff and defendants. This relation existed from the time the deed was executed and was a part of the consideration for making the loan. These parties had the right to make such a contract, and defendants can not repudiate a part of their written agreement and take advantage of the remainder.

<p>Appeal from the Scotland Circuit Court. — Hon. Ed. R. McKee, Judge.</p>

— Hon. Rudolph Hirzel, Judge. The petition is fatally defective for failure to allege due performance by assured during his lifetime of all the conditions and provisions of the policy. Basye v. Ambrose, 32 Mo. 448; Pier v. Heinrichoffen, 52 Mo. 333; Beckmann v. Ins. Co., 49 Mo. App. 604; Story v. Ins. Co., 61 Mo. App. 534; Hart v. Harrison W. Co., 91 Mo. 414; Rohrer v. Oder, 124 Mo. 24; Paddock v. Somes, 102 Mo. 226; Campbell v. Carroll, 35 Mo. App. 640; Weber v. Ins.

— Hon. Edwin R. McKee, Judge. The court may in its discretion take the opinion of the jury, but he may disregard the findings. Bronson v. Wanzer, 86 Mo. 408. In such case, however, the court m its discretion may take the opinion of the jury upon any specific question of fact, still it is not bound theieby and it may adopt or reject the same according to its best judgment. Same as above.

Louis City Circuit Court. — Hon. Jacob Klein, Judge. A “strike” by workmen is lawful. Held: that he was entitled to recover. Carew v. Rutherford, 106 Mass. 1. It is well settled by authority that acts lawful in themselves may be so done as to injure others, and when so done, such acts become actionable.

<p>Appeal from the Knox Circuit Court. — Hon. Edwin R. McKee, Judge.</p> <p>The petition failed to allege that the crossing in controversy was a necessary farm crossing. This was a fatal defect and the court erred in not sustaining defendant’s objection to the introduction of any evidence under it. Miller v. R. R.., 56 Mo. App. 72, 78; Ereet v. R. R., 63 Mo. App. 548, 554-. The court erred in giving instruction number 1 in behalf of the plaintiffs, whepein the question as to whether the farm crossing was a necessary one, was left to the jury without any rules to guide them in determining that fact. Miller v. R R., 56 Mo. App. 72, 78; Freet v. R. R., 63 Mo. App. 548, 555. The court erred in refusing to give a peremptory instruction in favor of the defendant, and in failing to give the other instructions and each of them requested by the defendant.</p> <p>There is no point in defendant’s counsel’s claim that defendant had no knowledge of the draw-bar or gate being in such a condition that it couldn’t be opened and shut by persons going through the same without great' difficulty and that such persons were liable on that account to leave the bars or gate open, for it had been in that condition for years prior to the killing of plaintiffs’ cows, and had never been constructed in the first instance as a statutory gate, and had often been found open, and defendant’s agents and servants frequently passed through the same whilst it was in that condition. Miller v. R. R., 56 Mo. App. 72; Duncan v. R. R., 91 Mo. 67. The court did not err in refusing to sustain defendant’s objections to the introduction of evidence on account of the petition not alleging that the farm crossing was necessary, nor in submitting the questions to the jury of the necessity of the crossing, because the evidence fully discloses the- necessity of the crossing, and that the crossing had been constructed many years before the killing of the stock. Ereet v. R. R., 63 Mo. App. 555; Keyes v. Bank, 52 Mo. App. 321. The court did not err in refusing plaintiffs’ instruction at the close of the evidence directing the jury to find for the defendant, bécause the evidence had fully developed facts suffiéient for the jury to find a verdict thereon for the plaintiffs. And the court did not err in refusing the instructions offered"by the defendant, numbers 1, 2, 3, 4, 6, 7, 8, 9, 10 and 11 because none of these instructions are predicated or based upon the facts in the case as disclosed by the evidence. That it was not as convenient for Miller as if hung on hinges and fastened with a latch, as required by the statute, was a matter of which no one but he (Miller) could complain. That Miller, without the consent of the company, left the gate open, and in consequence thereof the mare got upon the track does not render the defendant liable. In the case of Vingard v. E. B., 80 Mo. 92, cited by appellant’s counsel, the questions involved were the liability of the defendant for the killing of a cow that went upon defendant’s- right of way through a gap in defendant’s fence. The fence in the first instance had been properly erected, and some one had, just prior to the killing of -the cow, sawed this gap in the fence; and the question was whether defendant had been negligent in repairing the fence. The difference in that ease from the one at bar is that in that case the defendant in the first place constructed a statutory fence, and it could not, on that account, be charged with negligence for the acts of others unless it had an opportunity to discover the gap in the fence. The court in rendering its decision in that case, at page 93, says: The defendant, however, is not liable for injuries to stock occasioned by defects in fence erected by it originally sufficient, unless it had notice of defects or might have known them if it had used due care in maintaining the fence, clearly indicating that if the fence had not been originally a sufficient fence the holding of the court-would have been different in that case. Eitterling v. E. B., 79 Mo. 504.</p>

— Hon. Reuben F. Roy, Judge. - A verdict should be the result of deliberate judgment, not a chance or a hazard. Broke v. McGree, 27 Neb. 156. An arbitrary award is not the fulfillment of their duty as jurors. Ford v. Taggort, 4 Tex. 492; 28 Am. and Eng. Eney. of Law, p. 281. It is based upon mere conjecture. Ascher v. Schaeper, 25 Mo. App. 1; Schnaider Brewing Co. v. Niederweiser, 28 Mo. App. 233; Gerrans v. Wenger Mfg. Co., 51 App. 615; McCarty v. Fagin, 42 Mo. App. 619.

— Hon. J. N. Evans, Judge. In order to constitute open and notorious adultery within the meaning of the Revised Statutes of 1889, section 3798, the man and woman must live together openly and in the face of condemnation, as if the conjugal relations existed between them and their illicit intercourse must be habitual, and not occasional. In other words they must hold themselves out as man and wife.

Louis City Circuit Court. — Hon. James E. Withrow, Judge. The petition sufficiently sets out the facts. The demurrer raises thp question as to whether defendant is legally liable as assignor of an invalid judgment— one that was afterward reversed, because no right of action existed.

<p>1. Homestead: one homestead between husband and wife. Between husband and wife there can be but one homestead right, and in the absence of a statute, this right must be asserted in the name of the husband.</p> <p>2. -: - — : head of family. Because so long as the marriage relation exists dejwe, he must be regarded as the head of the family within the meaning of the statute.</p> <p>3. -: -: RIGHTS OF WIFE TO ASSERT CLAIM TO HOMESTEAD when abandoned by her husband. There is no statute expressly authorizing the wife to assert claim to homestead when abandoned by her husband, but the law does provide that the husband shall be debarred from selling, mortgaging or alienating in any manner the homestead, unless the wife joins in the conveyance. (Session Acts 1895, p. 185).</p> <p>4. -: -: statutory construction. The effect of the statute (Session Acts 1895, p. 185) is to endow the wife with a present fixed and substantial interest in the homestead, and by necessary implication she must have the power or right to protect her interest from the creditors of her husband, in case he should abandon her or should refuse to assert the homestead right.</p>

— Hon. ' James IYG-reen, Judge. The continuity of the running account was broken by the dissolution of the original firm of Long & Bust in April, 1888, and the statute of limitations began to run against all of the account against defendant which had accrued at said time. Allen & Co. v. Erumet Mining & Smelting Co., 73 Mo. 693; Henry v. Mahone, 23 Mo. App. 83.

— Hon. James T. Neville, Judge. The trial court committed no error in. giving the instructions. They cover the whole case, and correctly declare the law, as laid down by this court when the case was here the first time. Stewart v. Sparkman, 69 Mo. App. 456. An instruction which singles out a portion of the evidence and directs a verdict upon it, ignoring pertinent facts, is, of course, erroneous; and that is the vice at which the cases cited by appellant are directed.

Louis City Circuit Court. — Hon. . Jacob Klein, Judge. There was an acceptance by the respondent of the surrender of the premises by the appellant, and, in law, this concludes the respondent from all right of action against the appellant. This proposition is supported by the following authorities: Whitehead v. Clifford, 5 Taunt. 518; Dodd v. AcMom, 6 M. & Gr. 672; Talbot v. Whipple, 14 Allen, 177; Elliott v. Aiken, 45 N. H. 30; Duffy v. Day, 42 Mo.

<p>Mechanic’s Lien: lease of land for mining purposes: effect of. The plaintiff under a contract made with the superintendent and vice-president of a mining company furnished the material and erected in this plant an elevator at the contract price of $177.50. This elevator was connected, with the main shaft in the building, was nailed fast to the frame work of the building, and was a necessary improvement to the plant. The mining company held the premises under an assigned lease for twenty years “for the purpose of mining the same for lead and zinc and all other valuable minerals with the right to use the surface thereof in any and all ways necessary or proper in carrying on the operations of mining and reducing and preparing for market any and all ores obtained therefrom, and the right of way thereto over any and all other lands owned or controlled by the parties of the first part. ■ Held, that a mechanic’s lien could be established upon said ground, and that the above lease was as effectual to demise the surface as it was to demise the minerals under the surface.</p>

<p>Appeal from the Webster Circuit Court. — Hon. Argus Cox, Judge.</p> <p>The judgment rendered by the justice was void and consequently the judgment of affirmance attempted to be rendered by the Webster circuit court was void: First. The account was for services as a common laborer — $173. Revised Statutes 1889, section 4910 provides only for the recovery of $90 for services as common laborer. While here he sues for and obtains a judgment for $173 as common laborer. Second. We may be told that this is an exempt statute — a fact which we grant, yet section 4913, same page, specifies what facts shall be set forth in the verdict and judgment in order to make it valid. “The court, justice or jury trying such action shall, if they find for the plaintiff also find how much he or she is entitled to recover for services such as are specified in section' 4910, for which suit was commenced within the time limited in section 4912, which facts shall be set forth in the judgment rendered and recited in the execution issued thereon.” Third. The judgment rendered by 'the justice recites none of these facts. Fourth. Justices’ courts are courts of inferior jurisdiction and nothing can be presumed in favor of the enlargement of their jurisdiction. They are creatures purely of the statutes and their acts must have “so saith the law” to make them valid. Justices of the peace have only such powers as are given them by statute. Enlow v. Newland, 22 Mo. App. 581. Fifth. While the cause might have been tried de novo, and a valid judgment rendered by the circuit court, the court without a trial could only affirm such a judgment as the appellee had in justices’ court. Sixth. In this case the verdict of the jury does not recite any portion of the requirements of section 4913, Revised Statutes 1889.</p> <p>Notice of the appeal being required, and it being conceded that it was not given, the judgment is at all events for the right party and should therefore be affirmed, since if, for any reason, the case should be reversed and remanded, respondent would be entitled to an affirmance on motion. R. S. 1889, sec. 2303, and a uniform line of decisions. Respondent does not overlook the fact that in appellant’s assignment of error it is claimed the record shows that plaintiff had entered his appearance in the cause in the Greene circuit court. There is not a line in the record showing such appearance by respondent, but on the contrary the recitals show clearly that he did not appear, and that such proceedings as were had there were by appellant alone, and appellant in his brief practically concedes such non-appearance by basing his argument upon the theory of presumptive appearance, which is a new doctrine growing out of a logical (?) deduction from the false premises laid by him. Respondent’s only appearance in the ease was limited to the purpose of his motion for affirmance, which was filed in the Webster circuit court, and such appearance will not be construed to be general. Wolf v. Harrington, 38 Mo. App. 276; Ellis y. Kyes, 47 Mo. App. 155. Respondent had a right to a general judgment in this cause. He was not compelled to ask such judgment as would deprive the defendant of his exemption on account of the services being for common labor. Appellant can not be prejudiced by the failure of respondent to ask for and obtain all the advantages to which he may be entitled. No effort was, in fact, made by respondent to procure what is denominated a “common labor judgment,” as the statement and proceedings show. But suppose, for the sake of argument, that such effort had been made, the judgment obtained would still be good as a general judgment, subject, however, to appellant’s general exemption rights. Buis v. Cooper, ;63 Mo. App. 196. The circuit court of Webster county had jurisdiction to render the judgment given in this cause. The perfecting of the appeal in accordance with section 6328, Revised Statutes 1889, gave to the circuit court of Greene county jurisdiction of the subject-matter, and having such jurisdiction its order granting the change of venue to Webster county conferred such jurisdiction upon said Webster circuit court. Appellant can not here, for the first time, question the regularity of the change Of venue. He should have objected, to the order in the Greene circuit-court and taken his bill of exceptions there. It is purely matter of exception, and even though exception had been taken in the Webster circuit court it could not avail appellant, since that court had no authority to allow exceptions to matters accruing in the Greene circuit court. The appeal is without merit, frivolous, vexatious and merely for delay.</p>

— Hon. P. C. Stepp, Judge. (1) The court erred in admitting the acts, declarations and confessions of the alleged thief, John Wendall, done and made out of the presence of the defendants, and without their privity. Whart. Crim. Law [8 Ed.], sec. 982; Whart. Crim. Ev., sec. 698, and cases cited; State v. Duncan, 64 Mo. 263; Laytham v. Agnew, 70 Mo. 48; State v. Reed, 85 Mo. 194; Whart. Crim. Ev., secs. 601, 602; Kelly’s Crim. Law [New Ed.], sec. 53.

— Hon. W. S. Herndon, Judge. (1) It seems to us that, considering the original purposes of this statute, the declared intention of the legislature in the amendment and additions made in 1891, and, more than all, the plain and unequivocal language of the statute itself, the trial court, in the restrictions it placed thereupon, erred; and sueh a construction, if sustained in' this tribunal, simply renders nugatory one of the most direct and explicit-provisions thereof.

— Hon. E. J. Broaddus, Judge. The appeal in this case should be dismissed for the reason that appellants have not complied with section 2253, Revised Statutes 1889, and rule 15 of this court, in that he has failed to file a printed abstract of the entire record, and serve upon respondent a copy of the same as required by said section 2253, and said rule.

— Hon. E. J. Broaddus, Judge. (1) This case was decided by the trial court upon the theory that it makes no difference whether or not the $1,100, note was part of the price paid by Stover Simeox for the stock of goods.

— Hon. W. W. Ruoker, Judge. (1) The original suit was founded on a note alleged to have been executed by defendants, the execution of which is denied under oath, and the court found that issue for defendant Shirley. This alleged transaction about the sale of the shingles, so far as the amended petition shows, has no connection with the note or its consideration.

— Hon. W. W. Wood, Judge. (1) The agent must find a purchaser, able, ready and willing to buy the land on the terms agreed upon. He is then entitled to his commission, even though the vendor does not go on and perfect the sale. Barley v. Chapman, 41 Mo. 536; Nesbitt v. Helser, 49 Mo. 383; Love v. Owens, 31 Mo. App. 508; Harwood v. Diemer, 41 Mo. App. 51; G-arhart v. Peck, 42 Mo. App. 650; Hayden v. Grills’ Adm’r, 42 Mo.

— Hon. V: W. Wood, Judge. (1) Before plaintiff purchased the bond from which the coupons sued on were detached, the defendant had exercised its option to pay and had paid said bond to the then owner and holder and the same was surrendered to J. O. Thompson as the agent of defendant.

— Hon. D. P. Stratton, Judge. Before a conviction can be sustained on circumstantial evidence, the circumstances mnst point with reasonable certainty to the guilt of defendant and exclude to moral certainty every reasonable hypothesis of innocence. State v. Moxley, 102 Mo. 374, 388, 389, and authorities cited. If the circumstances relied on to show guilt are as consistent with innocence as guilt, that construction will be placed on them and they will not support a conviction.

— Hon. Andrew Ellison, Judge. (1) The court should have given the instruction asked by defendant at the close of plaintiff’s evidence, which was in the nature of a demurrer to plaintiff’s evidence, as all of the evidence in the case shows that deceased was an experienced miner, forty-three years of age, and that he had worked in the mine and in the roadway where the injury occurred, for seventeen months continuously, just prior to the injury.

— Hon. P. O. Stepp, Judge. The complaint or affidavit does not set forth the slanderous words alleged to have been spoken, nor in whose presence and hearing they were spoken. It was therefore fatally defective. State v. Derry, 20 Mo. App. 552; State v. Buck, 43 Mo. App. 443; State v. Matheis, 44 Mo. App. 294; R. S. 1889, sec. 4329. (2) The information does not purport to be on the personal knowledge, information or belief of the prosecuting attorney.

— Hon. P. C. Stepp, Judge. (1) The notice called for by the law was absolutely essential to the validity of the election. This construction has never been doubted or overruled. State ex rel. v. Tucker, 32Mo. App. 620; Leonard v. Co. Ct., 32 Mo. App. 633; Bean v. Co. Ct., 33 Mo. App. 635; State v. Kaufman, 45 Mo. App. 656.

— Hon. C. A. Anthony, Judge. (1) In this case the interest is in the nature of a penalty for noncompliance with the terms of the contract by defendants, but before the plaintiffs can take advantage of tbe provisions of the contract and claim a penalty, they must show that they are absolutely without fault.

— Hon. C. A. Anthony, Judge. (1) These statements of Carothers were made in the absence of the defendant, and were not binding upon him. They were purely hearsay. Their admission was clearly grievous error. State v. Jaeger, 66-Mo. loe. cit. 180; 1 Greenl. Ev., secs. 202, 467. (2) The court erred in permitting the prosecuting attorney to ask the defendant if he had not been convicted of larceny in the state of Iowa thirty years before the trial.

— Hon. C. A. Anthony, Judge. (1) The court erred in admitting evidence of witnesses Miller and McPherson, over defendant’s objection, as to conversations and statements made by plaintiff to Hamsher in the absence of defendant, as to partnership relation between plaintiff and defendant concerning note in issue. 1 Greenl. on Ev., sec. 177. (2) The court erred in giving instruction number 4 on behalf of plaintiff, and in refusing instruction number 4 asked by defendant.

— Hon. W. S. Herndon, Judge. The transaction in question, as disclosed by the evidence, never amounted to a sale. It was a proposed sale and that only. If it did not amount to a sale then it did not come within the provision of either section 5178 or 5180 of the statutes, as the trial court supposed and held.

— Hon. W. ¡3. Herndon, Judge. (1) The receipt of the check by respondent, by mail on the morning of the fourth of March was equivalent to an actual presentment and demand for payment at that time, the same as if handed over the counter by the holder. Yiet v. Bank, 101 N. Y. 563; Bank v. Latimer, 64 Mo. App. 321, and authorities cited.

— Hon. A. M. Woodson, Judge. (1) The contract in this case prescribes a different material for the pavement from that prescribed by the ordinance, and is therefore void and there can be no recovery for the work doné under it. Verdin v. St. .Louis, 131 Mo. 26; MeGuiddy v. Brannock, 70 Mo. App. 535; Keating v. Kansas City, 84 Mo. 416; King Hill Co. v. Hamilton, 51 Mo. App. 120; St. Joseph v. Wilshire, 47 Mo. App. 125; Galbreath v. Newton, 30 ,Mo.

— Hon. A. M. Woodson, Judge. (1) It does not appear in the evidence that the defendant corporation had any promoter, or that any one was interested in its formation except Mr. Steele, and it nowhere appears in the evidence that he knew any arrangement had been made for the proposed corporation to pay for this claim. And the fact that Weakley was afterward a director in the new corporation can not have the effect to charge that corporation with malice of his previous act.

— Hon. A. M. Woodson, Judge. (1) Having been permitted to prove his damages according to the proper measure, as laid down in the .court’s instructions, the difference in their market value before and after the injury, the admission of this testimony simply enhanced the damages beyond the amount plaintiff was legitimately entitled to recover— .doubled the damages — and further as to the damages to the brown mare and bay mare plaintiff should have been limited to the amount…

— Hon. A. M. Woodson, Judge. (1) At common law, the owner of land has the right to lateral support of the soil only. He has no natural easement for the support of his building upon the land of his neighbor. Charless v. Rankin, 22 Mo/ 566; Mining Co. v. Mining Co., 50 Mo. App. 525; Larson v. R’y, 110 Mo. 234; Obert v. Dunn, 41 8. W. Rep. 901; Eads v. Gaines, 58 Mo. App. 586; Handlan v. McManus, 42 Mo. App. 551; Ward v. Andrews, 3 Mo. App. 275.

— Hon. E. J. Broaddus, Judge. (1) Plaintiff’s evidence, at its conclusion, showed that the negligence of her agent — Frank Frazier— contributed to the injury in such degree as precludes recovery — was, in fact, the direct cause of the injury. Mr. Frazier acted carelessly — nay, recklessly. Banks v. R. R., 40 Mo. App. 458; Frauenthal v. Gaslight Co., 67 Mo. App. 1; Boyd v. Springfield, 62 Mo. App. 456; Drake'v. R. R., 51 Mo. App. 562; McFarland v. R. R., 125 Mo. 253.

— Hon. John A. Hockaday, Judge. (1) It was error to permit the order of publication to be amended mmc pro tunc. The evidence was insufficient to authorize such amendment, and further process after service can not be changed so as to cure errors. Atkinson v. R. R., 81 Mo. 50; Belkin v. Rhodes, 76 Mo. 643.

— Hon. John A. Hockadav, Judge. (1) The information filed by the prosecuting attorney was insufficient. It did not state that it was “under his oath of office,” but on the contrary stated that it was on the sworn complaint in writing of E. L. Moehle filed herewith, and no sworn statement of E. L. Moehle was filed. State v. Lewis, 70 Mo. App. 40.

— Hon. J. A. Hockaday, Judge. (1) Sufficient facts were not stated to entitle plain-■ tiff to any equitable relief; and even if all the facts as stated were true, they did not constitute a cause of action. No reasons were given why plaintiff had slept on his rights for so many years; nor why he had failed to have the trustee (who was his son, Joseph Little) to advertise under the deed of trust, and sell the land before the note was barred by the statute of limitations.

— Hon. John A. Hockaday, Judge. (1) There is no substantial evidence in this entire record to support the finding and judgment, and in such cases this court will reverse and remand a cause alone upon that ground. (2) The degree of drunkenness that will enable a person to avoid his express contracts is absolute and excessive drunkenness that suspends the'reason and creates impotence of mind at the time of executing the contract, or assenting thereto.

— Hon. W. W. Rucker, Judge. (1) An instruction should not comment on the evidence or single out particular facts to the exclusion of others and call the attention of the jury to them. The giving of instruction number 5 for plaintiff was error. R’y v. Stock Yards Co., 120 Mo. 541, 566; McFaden v. Catron, 120 Mo. 252, 274; Judd v. R’y, 23 Mo. App. 56, 62; I)oud v. Reid, 53 Mo. App. 553, 562; Noyes v. Cunningham, 51 Mo. App. 194-198; Drug Co. v. McMahan, 50 Mo.

— Hon. W. W. Ruoker, Judge. One who signs a note after it has been delivered is not liable, unless some new consideration passed and the note redelivered. Williams v. Williams, 67 Mo. 661; Montgomery Go. v. Archley, 92 Mo. 126; Mc-Mahan v. Grieger, 73 Mo. 145; McFarland v. Heim, 127 Mo. 327; Ring v. Kelly, 10 Mo. App. 411; Hartman v. Redman, 21 Mo. App. 124; Messenger v. Vaughn, 45 Mo. App. 15.

— Hon. .JD. W. Shackleeobd, Judge. (1) This court has jurisdiction of the appeal as the question before it does not involve the title to real estate. Appellant simply seeks to charge the sum advanced by her to Caroline G-rieshammer on the latter’s share in the estate adjudged to be partitioned. McG-regor v. Pollard, 130 Mo. 332 (partition case); Helton v. St. Louis, 129 Mo. 389; May v. Trust Co., 138 Mo. 447, 451.

— Hon. D. W. Shackleford, Judge. (1) Our contention is, that the indorsement of the $80 payment is insufficient to go to the jury, and that the court erred in withdrawing the first instruction offered by plaintiff and given before the argument to the jury, and in refusing instruction number 5 offered by the plaintiff. Haver, Adm’r, v. Schwyhart, 48 Mo. App. 50; s. o., 39 Mo. App. 303; 1 Grreenl. on Ev., sec. 122; Loewer v. Haug, 20 Mo. App. 163; Smith v. Zimmerman, 57 Mo.

— Hon. Richard Field, Judge. (1) A judgment of a court of record can only be amended nunc pro' tunc in .those cases where a mistake or clerical misprision appears from the record of the proceedings in which the entry of judgment is made. Black, Judgments, sec. 132 and cases cited; Jones v. Hart, 60 Mo. 351, at p. 355; Wooldridge v. Quinn, 70 Mo. 370..

<p>Corporations: by-law: creating lien on stock: contract: transferee. Where in pursuance of a by-law not prohibited by the charter, certificates of stock on their face create a lien in favor of the corporation for the indebtedness of the holder, such stipulation amounts to a contract and is binding on the holder and his transferee though the by-law be in restraint of trade and violative of publie policy.</p>

<p>Appeal from the Jasper Circuit Court. — Hon. J. D. Perkins, Judge.</p> <p>(1) The newly discovered evidence was not cumulative. Howland v. Reeves, 25 Mo. App. 458. The court erred in overruling the motion of appellant for a new trial. ■ By the newly discovered evidence it is sought to prove such knowledge by the' admission of Craycroft, which would be an entirely new kind of evidence, for no evidence of the admissions by Craycroft was offered at the trial, hence it would not be cumulative. Howland v. Reeves, 25 Mo. App. 458; State.v. Baily, 94 Mo. 311; State v. Murray, 91 Mo. 103; Gra. & Wat. New Trials, 1053, 1054, 1055, 1056, 1057; State v. Moberly, 121 Mo. 604; Graham & Waterman on New Trials, 172. It does not fall within the rule of merely impeaching testimony. State v. Murray, 91 Mo. 103.</p> <p>(1) Before the court could determine the correctness or the error of the ruling of the trial court, it must first learn what was testified to by the witnesses on the trial. The appellant’s abstract of the record does not contain a line of the evidence, either in substance or in Tiaec verba, nor does it disclose even the names of the witnesses who were examined on the trial. In re Redding Bros., 31 Mo. App. 428; Bank v. Davidson, 40 Mo. App. 421; Goodson v. R’y, 23 Mo. App. 82; Nolan v. Johns, 126 Mo. 167; Jayne v. Wine, 98 Mo. 404; Brand v. Cannon, 118 Mo. 595.</p>

— Hon. John W. Henry, Judge. (1) The petition fails to state fafets sufficient to constitute a cause of action. Ownership is nowhere alleged. Olevinger v. Ins. Co., 71 Mo. App. 73, and authorities cited. (2) If the plaintiff, “Frank Wolf, administrator,” derived his powers from a foreign jurisdiction he could not maintain this action. Naylor’s Adm’r v. Moffat, 29 Mo. 126; In re Estate Ames & Co., 52 Mo. 290; Morton v. Hatch, 54 Mo. 408; McPike v. McPike, 111 Mo. 216.

— Hon. J. W. Henry, Judge. (1) In order to cancel an insurance policy, the insurer is required to do two things: First, to give a reasonable… Held: that a promise unexecuted to bring a policy to the office of an insurance agent and surrender it for cancellation “neither amounts to a valid agreemeqt that the policy should be held and deemed cancelled nor to a waiver of the performance of the conditions on which the right to terminate the risk depends.” Hathorn v. Ins.

— Hon, H. M. Ramey, Judge. (1) A single common school district, having a village within its boundaries, may organize into a village school district. There is no law, however, for two adjoining common school districts to jointly organize into a single village school district at the annual school meeting. R. S. 1889, sec. 8083.

— Hon. J. A. Hockaday, Judge. (1) The justice of the peace who heard and rendered judgment in this cause, had no jurisdiction to try the same, and the circuit court acquired none on the appeal. R. S. 1889, sec. 6127. (2) It is essential and indispensible in order to give jurisdiction in this case, that the officer who executed the writ should state, affirmatively in his return, the existence of the facts required by the statute to confer such jurisdiction.

— Hon. J. W. Henry, Judge. The fact that the agent of defendant had been told that there was other insurance on the property did not avoid this result, for the reason that the contract sued on provides that “the company shall not be bound by any act or statement made to or by any agent, unless inserted in this contract.” This condition of the policy means just what it says, and it has always been so declared by all of the courts of this state. Loehner v. Ins.

<p>Pleading: emoluments of offioe. In a suit for the fees and emoluments of the offiee of eity marshal a petition fails to state a cause of action, which fails to state either that the plaintiff was in possession of the office and had been wrongfully ousted, or that his claim to the office had been legally determined.</p>

<p>Appeal from the St. Louis City Circuit Court, — Hon. John A. Talty; Judge.</p> <p>The contract for the mantels being the joint contract of Miltenberger and Whittier, plaintiffs lost their right to a mechanics’ lien by joining. in one lien account the items furnished under said joint contract, with the other items furnished under,, contracts with W. H. Miltenberger alone. Plaintiffs should have filed separate lien accounts and separate suits to establish and enforce them, because they were different parties with separate and' distinct rights. Allen v. Smelting Co., 73 Mo. 688; Dugan v. Higgs, 43 Mo. App. 161; Henry v. . Mahone, 23 Mo. App. 83; O’Connor v. Lumber Co., Ill Mo. 190; Gauss v. Hussman, 22 Mo. App. 115. The contract of July 16, 1895, is clear, precise and unambiguous in its terms, and contains the entire agreement of the parties. Therefore, no parol testimony as to what the parties intended or did under it should have been admitted, to explain or vary its terms. And the court should have found that it is the joint and several contract of Olin D. Whittier and W. H. Miltenberger. State v. Hoshaw, 98 Mo. 361; Thompson v. Irwin, 42 Mo. App. 421; Tracey v. Union Iron Works, 104 Mo. 198. Losing their lien on houses 4125 and 4133, plaintiffs must also lose their lien on house and lot 4129, because it is not contiguous to the lots on which are houses 4103 to 4121. And since the lien can not be established against these three houses, plaintiffs can not get their lien against the remaining six: First. Either for the whole amount against the six houses because such a judgment would allow' a lien against six houses for labor and material which never entered into them, i. e., for the labor and material which went into the three houses. Second. Nor for six ninths of the whole bill against the six houses: First. Because no such issue is presented by the pleadings. When a lien claimant files his lien claim under the statute, seeking to establish a blanket lien on buildings erected on contiguous lots under one contract, he is not required to allege or prove what proportion of the labor or material went into each of the houses, nor is the defendant expected to be prepared to go into such an inquiry; nor into an inquiry as to the material and labor which went into any number of houses less than- the whole. Second. While the account filed may be a just and true account of material and labor which went into nine of the houses (under the blanket lien statute) for houses erected on contiguous lots under one general contract, it is not a just and true account against six of them for the material and labor which went into six; not only is it not a just and true account in itself, but no attempt was made, and none could be made under the lien account filed and the pleadings, to show what proportion of' the material and lábor, and the value thereof, went into six of the nine houses; whether it was six ninths of the whole bill, or more or less. Lumber Co. v. Nelson & Haydel, 71 Mo. App. 110; Barnett’s Ex’x v. Murray, 52 Mo. App. 500; Poppert v. Wright, 52 Mo. App. 576.</p> <p>In the establishment of a mechanics’ lien the only necessary parties are the contractor and the owner of the property. Respondents seek herein only the establishment of their lien, not its foreclosure. Lumber Co. v. Ballentine, Etc., Co., 54 Mo. App. 172; Lumber Co. v. Oliver, 65 Mo. App. 435 ; R. S. 1889, sec. 6713. Miltenberger was the admitted owner and contractor; and while Whittier occupies the position of having signed the contract, if he is a joint contractor with Miltenberger, under the statute the contract was joint and several, and it was sufficient to make one of the parties contracting a party to the suit. Putnam v. Ross, 55 Mo. 116; Posterv. Wulfring, 20 Mo. App. 85; Hasset v. Rust, 64 Mo. 327. Where two persons are named in a lien as original contractors, if one of them is shown not to be a contractor, and has no interest, it does not invalidate the lien. Bldg. P. M. Co- v. Huber, 42 Mo. App. 438;' Putnam v. Ross, 55 Mo. 116. It was permissible to embrace in the lien account the goods furnished under the contract with Miltenberger for the mantels, the goods furnished under the contract with Miltenberger for the two extra mantels, and the goods furnished under the contract with Miltenberger for the tiling, so long as the lien was filed within six months from the date of the last item. Kern v. Pfaif, 44 Mo. App. 34; Bruns v. Braun, 35 Mo. App. 337; Kearney v. Wurdeman, 33 Mo. App. 456.</p>

<p>1. Corporation : officer of corporation: agency. The power of an agent or officer of a corporation to bind his principal is governed by the law of agency, and where an officer has been permitted to manage all the business of a corporation, his authority to bind it will be implied from the apparent power thus conferred upon him.</p> <p>2. -:--: agent: evidence. Where the record or minutes and the stock book of a corporation show that at the time the contract was entered into between plaintiff and defendant Prosser, president of the corporation, that defendant was the president of the corporation, that the capital stock of the company was $10,000; that Prosser owned all the stock, except $200; that he 'continued to own it until after the contract was made; that he so continued to act as president; and the oral testimony tended to prove that during the time he acted as president he assumed the chief management of the business of the company, it is held that this was sufficient to authorize the finding that Prosser, in 'making the contract with plaintiff, acted as the duly authorized agent of the corporation.</p> <p>3. -: -: new trial: diligence. Where no diligence is shown by party asking it, a new trial will not be granted on the ground of newly discovered evidence.</p>

— Hon. E. M. Hughes, Judge. The court erred in rejecting evidence offered by-plaintiff of defendant’s knowledge of the right of way when he bought the land, of his making deed of trust to plaintiff, of his paying interest on original note without complaint, of his payment of all the debts except $200, and his inducing plaintiff to satisfy her deed of trust and take his individual note for balance, of his selling portions of the land, etc. These facts would tend to prove a…

<p>2. -: ---The purpose of the ordinance is to afford property owners the opportunity and privilege of doing their own work, and this right should not be capriciously denied them.</p> <p>Appeal from the St. Louis City Circuit Court. — Hon. D. D. Eisher, Judge.</p> <p>The answer fails to state facts sufficient to constitute a cause of action. There was no evidence tending to prove that defendants had the right to repair the sidewalk. The city has the sole and exclusive control of its streets and is bound to keep the same in proper repair; and said city through its proper officials is the sole judge of the necessity of repairing a sidewalk, and has the exclusive right to determine the kind and amount of repairs necessary to put sidewalk in a proper condition. The finding of the city that it was necessary to repair the sidewalk to the extent and in the manner in which it was repaired, is final and conclusive upon the property owner. McCormack v. Patchin, 53 Mo. 36; Parrar v. St. Louis, 80 Mo. 379; St. Louis City Charter, art. 6, secs. 15 and 18; City v. Weber, 44 Mo. 547; Skinker v. Heman, 64 Mo. App. 450.</p> <p>The defendant by the terms of the notice, and by provision of section 551, article 1, chapter 15, Revised Ordinances of 1887, had five days after service of the notice within which to repair the sidewalk. As to notice see pages 12 and 13 of record. As to ordinance see page 13 of record. The defendant had complied with the notice to repair the sidewalk within five days after the date of the notice. This is proved by the uncontradicted testimony of defendant’s witnesses, the plaintiff introducing no testimony on this question, and it is admitted by plaintiff’s counsel in his brief. It was a manifest wrong for plaintiff to tear up defendant’s sidewalk which the court will correct. Skinker v. Heman, 64 Mo. App. 441. This is an attempted confiscation of defendant’s property which the courts will not permit.</p>

— Hon. L. B. Wood side, Judge. The notice of filing motion for security for costs under rule 4, page 2, is to be notice in writing (E. S. 1889, sec. 2033), served on plaintiff or his attorney, and in the absence of said notice and proof of its service the court had not the power to make the entry. Eules of practice not unreasonable in themselves and not subversive of the right of litigants may be prescribed by the trial court.

— Hon. James F. Breen, Judge. A justice of the peace has special and limited jurisdiction, depending entirely upon statutory law, and the justice must proceed in all cases in the mode prescribed by the statute, and nothing will be presumed in favor of the jurisdiction of such a court, but, on the contrary, its jurisdiction must always appear affirm aatively upon the face of its proceedings.

— Hon. Henry O. Riley, Judge. The plaintiffs claim this lumber under their contract with and bills of sale from King. The undisputed testimony shows that this lumber was a part of the lumber marked “Russe & Burgess,”, paid for by them, and included in their contract and bills of sale. So that the plaintiffs must recover unless the defendant was entitled to the possession.

— Hon. James E. G-reen, Judge. The appellant acted as the agent of the mortgagee in procuring the issuance of the policy in suit.

— Hon. Reuben F. Roy, Judge. Perhaps no stronger case can he found pleading for equity than the above cause.

— Hon. Jambs T. Neville, Judge. The agreement or note signed by E. T. Robberson, here sued on, is plain in its terms, its intent and meaning clear and free from all ambiguity, and it was error to admit oral testimony to show a different meaning or intention than the letter of the contract itself clearly imports. Bishop on Contracts [Enl.

— Hon. James T. Neville, Judge. The refusal of the declaration of law requested by plaintiff was error. The fact that Repass and Earp did not sign the renewal does not, under the facts shown by the evidence and hypothecated in the declaration, relieve defendants from liability. Gay v. Murphy, 134 Mo. 98; Cockrill v. Davis, 35 Pac. Rep. 958.

— Hon. John C. Lamson, Judge. This being a proceeding for the violation of a city ordinance, there is no law of the state and no ordinance of the city requiring the prosecuting witness to have actual knowledge of the offense, hence section 4329, Revised Statutes 1889, is not applicable to this case. State v. Feagan, 70 Mo.

Louis Circuit Court. — Hon. L. B. Valliant, Judge. There was no occasion to construe the contract sued upon in this proceeding. Its terms were unambiguous and clear, and to support the conclusion of the trial court it would be necessary to interpolate words not in the instrument itself, thus giving it a new and restricted meaning opposed to the general and comprehensive one justified by its language.

<p>Appeal from the New Madrid Circuit Court. — Hon. H. C. Riley, Judge.</p> <p>The recording of the patent from Dunklin county to David Cagle in a record kept by the county clerk, and known as “Book of Patents,” was not constructive notice to subsequent purchasers from Dunklin county. Martindale on Conveyancing, sec. 271, n. 4; Wendell v. Matthews, 20 Johns. (N. Y.) 658; Barney v. Little, 15 Iowa, 532; Washburn v. Bernham, 63 N. Y. 134, 135; Boyd v. Schlesinger, 59 N. Y. 309; Wade on Notice, secs. 6 and 103; Webb on Record Title, see. 125. The title to real estate may be tried in an action of replevin. R. S. 1889, sec. 6219; Cobbey on Replevin, secs. 388 and 1023; Caldwell v. Postard, 7 Kan. 303; Parker v. Storts, 15 Ohio St. 351; U. S. v. Steenerson, 1 U. S. C. C. A. 552. There are two kinds of public records whose contents are constructive notice to the public: First. Those records which are declared to have that effect. Second. Those records which constitute a lien upon land. A purchaser of real estate, who takes the possession thereof by virtue of his purchase, is not bound to record his deed as against a subsequent purchaser of the same land from the same grantor. This is elementary learning. Burton was in the possession of this land at the time the respondents purchased the same from the Cagle heirs, and Kelley, one of the respondents, had actual notice of Burton’s possession. This was notice to 'all of the respondents. Webb on Record Title, sec. 239. This is especially true where the one affected with notice was acting in the negotiation as the agent of the other. Rippetoe v. Dwier, 65 Tex. 703; Potter v. King, 21 Wis. 27.</p>

<p>Appeal from the Texas Circuit Court. — Hon. L. B. Woodside, Judge.</p> <p>The property in issue being exempt under the law, the interpleader could claim and show this fact, and instructions number 7, 8 and 9 should have been given by the court. Stein v. Burnett, 43 Mo. App. 477; Kulagev. Schueler, 6 Mo. App. 250; Hombs v. Corbin, 20 Mo. App. 497. The burden of proof was upon plaintiff to show that the bill of sale — the written contract between L. O. and J. E. Southworth — was fraudulent, it being regular on its face, and on this theory instruction number 9 should have been given. Albert v. Besel, 88 Mo. 150; Hombs v. Corbin, 34 Mo; App. 393. That' possession of personal property is prima facie evidence of ownership. Bear, Seasongood & Co. v. Graves, 46 Mo. App. 245. There being no substantial evidence that the property in issue was not the property of interpleader, nor any fact or circumstances from which a reasonable'inference could be drawn that it was not his property, the court should have granted a new trial. Klausman Brew. Co. v. Sehoenlauer, 32 Mo. App. 357; Jones v. Roberts, 37 Mo., App. 163; Hahn v. Cotton, 136 Mo. 216. In the last case the supreme court says it will not set aside a judgment where “there is substantial evidence to support the judgment.” Freeman v. Moffitt, 119 Mo. 280.</p>

— Hon. E. M. Hughes, Judge. The ticket bought by plaintiff formed the contract between him and the defendant railroad company. It was not a mere voucher showing him entitled to a ride from point to point, but on account of a reduced fare he made a special contract with the defendant, and the terms expressed on the ticket constitute the terms of that contract.

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

<p>Appeal from, the St. Louis City Circuit Court. — Hon. Jacob Klein, Judge.</p> <p>The judgment against defendant on the first count of the petition was clearly right. South Joplin Land Co. v. Case, 104 Mo. 572-579; Bent v. Priest, 86 Mo. 475; Landis v. Saxton, 89 Mo. 375. This being an equity case, this court will review all the evidence, for the purpose of determining whether the finding or judgment of the trial court was right. Blount v. Spratt, 113 Mo. 48; Felton v. Grregory, 104 Mo. 488; In re Estate of Danforth, 66 Mo. App. 589. The defendant was. not entitled to commissions for sales made by him. Pfeiffer v. Lansberg Brake Co., 44 Mo. App. 59; Besch v. Western Carriage Mfg. Co., 36 Mo. App. 333; Bennett v. St. Louis Car Roofing Co., 19 Mo. App. 349. But no valid agreement was ever made between the company and defendant for the payment to him of commissions for his services in selling the lots; and for that reason, he was not entitled to have compensation therefor. Pfeiffer v. Lansberg Brake Co., 44 Mo. App. 59; Besch v. Western Carriage Mfg. Co., 36 Mo. App. 333; Bennett v. St. Louis Oar Roofing Co., 19 Mo. App. 349.</p> <p>When a promoter sells to the corporation property which he purchased before becoming a promoter, the corporation can not claim the profits of his purchase. This is true, even though he fails to disclose his interest, and whether his purchase is absolute or conditional. Much more is it true when he makes no secret of the fact that the property is his own. Farrar v. Farrars Limited, 40 Ch. Div. 395, 409. A corporation can not keep the thing purchased, and at thesametime recover of a promoter his profits. The contract must either be confirmed or rescinded, and if the corporation has, by its own act, made rescission impossible, it has no remedy. Cape Breton Co., 26 Ch. Div. 224; R’y v. Magnay, 25 Beav. 598; Higgins v. Lansingh, 154 111. 301; Cape Breton Co., 29 Ch. Div. 803. If a person sells to a corporation, of which he was a.promoter, property which he bought before he was a promoter, and makes no secret of the fact that the property is his own, he is neither liable to account to the corporation for his profits in the transaction, nor is he responsible in damages for any breach of fiduciary duty. Densmore Oil Co. v. Densmore, 64 Pa, St. 43; Lungren v. Pennell, 10 W. N. C. (Sup. Ct. Pa.) 297; M. Elhenney’s Appeal, 61 Pa. St. 194.</p>

<p>1. Practice> Appellate: bill of exceptions. Where a ease comes to the appellate court upon a certificate of judgment by the clerk and an original and "amended and enlarged abstract filed by appellant” and where upon examination of these it is shown that the bill of exceptions neither incorporates the motion for new trial, nor directs the clerk to copy the same, it is held that these omissions are fatal to the review of any matters of mere exception taken on the trial in the court below.</p> <p>2. -: -. In this state of the record this court can only consider the objections arising under the record proper.</p>

— Hon. John C. Lamson, Judge. The circuit court modestly assumed that the St..

Louis Coimty Circuit Court. — Hon. Rudolph Hirzel, Judge. The surety was not responsible for debts incurred by the partnership composed of her son and another. Boston Hat Manufactory v. Messinger, 2 Pick. 223; Parham Sewing Machine Co. v. Brock, 113 Mass. 194. Respondents have so commingled the indebtedness for which appellant was surety that it can no longer be traced, and appellant is discharged. Strong v. Lyon, 63 N. Y. 172.

Louis City Circuit Court. — Hon» L. B. Valliant, Judge. The judgment of the justice was void. First. Because no finding was made upon which to base said judgment, as required by the statute. R. S. 1889, sec. 6185; Fulkerson v. Dinkins, 28 Mo. App. 160; Grulath v. Waldstein, 7 Mo. App. 66; Beemis v. Wylie, 19 Wis. 318; Patterson v. U. S., 2 Wheat. 221; Heeron v. Beckwith, 1 Wis. 17; Bates v. Wilbur, 10 Wis. 415; Mercer v. James, 6 Neb. 406; Marchette v. Wauless, 1 Col. 225.

— Hon. W. W. Rucker, Judge. (1) The referee’s finding and report were and are conclusive as to the facts. They are treated on an appeal as a special verdict and will not be disturbed if there is any evidence to establish the facts found.

<p>Appeal from the Cooper Circuit Court. — Hon. I). W. Shackleeobd, Judge.</p> <p>(1) An unrecorded chattel mortgage is void as to all but the parties thereto. R. S. 1889, sec. 5176; Rawlings v. Bean, 80 Mo. 614; Bryson v. Phenix, 18 Mo. 13; Bevans v. Bolton, 31 Mo. 437; State ex rel. v. Sitlington, 51 Mo. App. 252'; Hughes v. Menefee, 29 Mo. App. 192. (2) Evidence as to the statement made by defendant to plaintiff, with reference to the recording of plaintiff’s mortgage, was incompetent, for the reason that it tended to, prove a statement relating .to the future, and not to a matter of fact — a present or past state of things — and would not, therefore, estop defendant from claiming under his mortgage as against the plaintiff’s. 2 Herman on Estoppel, p. 902, sec. 778. (3) Even could such statement, under any circumstances, estop defendant, it would operate as an equitable estoppel. 2 Herman on Estoppel, p. 883, sec. 759; Bank v. Frame, 112 Mo. 502. And this action having originated in a justice’s court, the evidence was incompetent on the trial in the circuit court. The justice had no jurisdiction to entertain evidence in the nature of an equitable estoppel and the circuit court acquired none on appeal. Hicks v. Martin, 25 Mo. App. 359; Orr v. McCurdy, 34 Mo. App. 418. (4) For the same reasons, the court erred in giving instructions on behalf of plaintiff, and in refusing the instruction asked by defendant. Paddock v. Somes, 102 Mo. 226; Gorham v. R’y, 113 Mo. 408; Gross v. B’y, 56 Mo. App. 664; Hess v. Clark, 11 Mo. App. 492.</p> <p>(1) The defendant did not act in good faith in inducing the plaintiff to withhold his mortgage from record and in obtaining a second mortgage on the same pi’operty, knowing that the debt secured by the first mortgage was still unpaid. A wrongdoer can not invoke the provisions of Revised Statutes 1889, section 5176. State ex rel. v. Sitlington, 51 Mo. App. loe. cit. 259; Bank v. Crandall, 87 Mo. 208; Johnson v. Jeffries, 30 Mo. 423. (2) The case is one of fraud, and not of equitable estoppel. Where one produces a false impression in order to mislead another, or to entrap or cheat him, or to obtain an undue advantage over him, this constitutes positive or actual fraud. Bank v. Crandall, 87 Mo. 208; 1 Story, Eq. Jur., sec. 192. (3) The defendant took his mortgage knowing and believing that he was obtaining a second mortgage. He took subject to the plaintiff’s mortgage and in recognition thereof, and not in antagonism thereto. He should not be permitted now to disavow the validity of plaintiff’s mortgage. Mead v. Maberry, 62 Mo. App. 557. (4) The judgment in this case is manifestly for the right party. R. S. 1889, sec. 2303; McGuire v. Nugent, 103 Mo. loo. cit. 172; Cartwright v. Culver, 74 Mo. loe. cit. 183. (5) Instructions should be read and construed together, and, when so considered, if they are sufficiently favorable to appellant, he can not complain. Distilling Co. v. Creath, 45 Mo. App. 169; Dickson v. R. R., 104 Mo. 491; Deweese v. Mining Co., 54 Mo. App. 476.</p>

D. W. Shackleford, Judge. (1) Although no motions for review were filed in the trial court, the cause will be reviewed in the appellate court for error apparent on the face of the record. Mclntire v. Mclntire, 80 Mo. 470; Childs v. R’y, 117 Mo. 414; Lilly v. Menke, 126 Mo. 190; Harrington v. Evans, 49 Mo. App. 372„. The petition states no cause of action against the wife, Susan A. Shores. The note was not executed by her.

&emdash;Hon. D. W. Shackleford, Judge. (1) The judgment rendered against George H. Pountain for the fine and costs assessed against defendant Andy Harlan, if not absolutely void, was certainly erroneous. “A surety is the favorite of the law, and has the right to stand on the strict terms of his obligation.” Brandt on Suretyship, sec. 57, and cases cited. “It is a well settled rule, both at law and in equity, that a surety is not to be held beyond the precise terms of this…

— Hon. W. W. Wood, Judge. The note and mortgage from Swaney Lemley were competent evidence in this case, and should not have been stricken out and excluded by the court. At the time said mortgage was given the defendant Swaney Lemley had the farm on which the corn in controversy was grown in his possession, and there was such, a potential existence as to render the mortgage valid in law.

— Hon. Joseph D. Perkins, Judge. “A just and true account” means an itemized account with dates, so it may be seen from the face thereof that it is one for which a lien may be had; and where dates are omitted, the recital in the lien statement “that said demand accrued within four months prior to the filing of this lien” will not make the statement sufficient. Curless v. Lewis, 46 Mo.

— Hon. Joseph D, Perkins, Judge. (1) The court erred in admitting any evidence in behalf of interpleader.

— Hon. J. D. Perkins, Judge. STATEMENT, BY ELLISON, J. The following are the rules referred to in the opinion: “mining rules and regulations of the eagle land OF THE EMPIRE ZINC COMPANY. “In accordance with the provisions of the Revised Statutes of the state of Missouri, the Empire Zinc Company does hereby make and publish the terms and requirements upon which mining will be permitted on the following lands owned and controlled by it, to wit: The west half of the southwest…

— Hon. J. D. Perkins, Judge. (1) Plaintiff is not entitled to recover under this complaint, because there is an attempt to state two causes of action in the complaint. And the complaint charges an unlawful disseizin, without force; while the proof (if anything) is a tenant holding over after notice to quit. R. S. 1889, sec. 5089; Russell v. McCartney, 21 Mo. App. 544; Grreenleaf v. Weakley, 39 Mo. App.'191.

— Hon. J. D. Perkins, Judge. (1) The evidence is undisputed that the trees in question were in the street. Where such is the case the rights of the owner of the adjoining or abutting land must give way to the superior right of the public. The city has the superior right and may remove all obstructions from its streets and sidewalks that may interfere with the free use thereof by the city and the public. R. S. 1889, sec. 1515.

— Hon. J. D. Pejrkins, Judge. There is no evidence to support a verdict for plaintiff, and the court erred in refusing to give instruction to find for the defendant. Brown v. R’y, 20 Mo. App. 222; Christy v. Hughes, 24 Mo. App. 275; Clark v. Fairley, 24 Mo. App. 429; Hicks v. R’y, 46 Mo. App. 304; Gilliland v. R. R., 19 Mo. App. 411-417; Francis v. Co., 5 Mo.

— Hon. J. D. Perkins, Judge. (1) The burden of proving that the association violated the law of its existence, in making the loan to plaintiff, rested… Held: and that the money on hand should be offered and bid for by the members. R. S.. 1889, sec. 2812; Brown v. Archer, 62 Mo. App. 289; Endlich on Bld’g Ass’ns, secs. 378, 394. (4) Appellant claims under point two that because the amount legally due was not paid into court by plaintiff, the injunction should not have issued.

— Hon. J. D. Perkins, Judge. (1) Plaintiffs were the prevailing parties in the original action, obtained affirmative relief, and were entitled to recover all their costs as a matter of right and law. R. S. 1889, sec. 2920; Hawkins v. Nowland, 53 Mo. 328; Crawford v. Spencer, 36 Mo. App. 78. (2) The court below had jurisdiction; it is an inherent power of every court of record to correct any judgment by order nunc pro tunc. Tanner v. Christy, 50 Mo. 145.

D. P. Stratton, Judge. (1) The statutory right of appeal is an absolute right. 2 Ency. of PI. and Pr., sec. 4, p. 21, note 5. All that appellant is required to do is to file his affidavit and bond. Townsend v. Timmonds, 44 Ark. 482; Moore v. Randolph, 52 Ala. 530. (2) Where the statutory right of appeal is denied mandamus will lie to compel its allowance. McCreary v. Rogers, 35 Ark. 289; Ware v. McDonnell, 62 Ala. 81; Wilks v. Hunt, 4 Wash. 100; Dillon on Mun.

— Hon. J. H. Lay, Judge. (1) Plaintiff’s action being a civil action, he was entitled upon the affidavit tendered to a writ of attachment against all the property of defendant, whether real or personal. R. S. 1889, sec. 521, p, 217; Crocker v. Mann, 3 Mo. 472.

— Hon. J. H. Lay, Judge. (1) A. P. Frowein & Brother could not buy up an allowed claim against the insolvent bank and set it off against their own indebtedness. Stifel v. Hospes, 8 Mo. App. 566; R. S. 1889, secs. 7301, 8162.

— Hon. Geo. E. Long-an, Judge. (1) The court should have sustained defendant’s motion to dismiss, on account of the collusive contract previously entered into between plain tiff and defendant. Gentry v. Gentry, 67 Mo. App. 550; Blank v. Nohl, Adm’r, 112 Mo. 159; Salorgen v. Salorgen, 6 Mo.

— Hon. E. L. Scabbitt, Judge. (1) The court erred in excluding the chattel mortgage offeredin evidence by defendants. Where one is in possession of personal property and exercising acts of ownership over it by mortgaging it, it may, nothing else appearing, be legitimately inferred that he is the owner. Banking House v. Brooks, 52 Mo. App. 364; Estes v. Springer, 47 Mo. App. loe. cit. 104; Bradner on Evidence, p. 459.

— Hon. James Hibson, Special Judge. (1) “The court erred in holding that the defendant was estopped from settingup his defense in this case, this case having originated in the justice court.” Ridgley v. Stillwell, 28 Mo. 403; Willis v. Stevens, 24 Mo. App. 503'; Hicks v. Martin, 25 Mo. App. 367. (2) There could be no ratification of the note sued upon in this case. Eerry v. Taylor, 33 Mo. 334; Shisler v. Van-Hike, 92 Pa. St. 447; McHugh v. Schuylkill, 67 Pa.

— Hon. J. H. Sloven, Judge. (1) The doctor’s implied contract with his patient is that he possesses that degree of judgment and skill that is reasonably necessary to do what he pfofesses to be able to do in his profession and that he will do his best to discover and remove the trouble he undertakes to remedy.

<p>Passenger Carriers: ejectment of passengers: action ex delicto. A petition by a passenger for the wrongful ejectment which is set out in the opinion .is held to allege the cause of action ox delicto and not ex contractu.</p>

— Hon. J. D. Perkins, Judge. (1) The firm of Diveley & Company, in which respondent'was a partner, was a mining partnership, and it was not dissolved by the sale of Diveley of Ms and Jarvis’ interest to appellants, who immediately .became partners with respondent. Consent is not necessary to form a mining copartnership, the purchaser of an interest in the firm business and property, becomes immediately a partner. There is no delectus personarum in a mining partnership.

— Hon. J. D. Perkins, Judge. STATEMENT BY ELLISON, J. The following is the finding of facts made by the court: “That on the 23d day of February, 1892, the plaintiff herein was the owner and in possession of the engine, boiler and jig-tank mentioned in plaintiff’s petition, to the value of $425; that the engine and boiler were of the value of $400, and the jig-tank of the value of $25; that said property was then upon lots Nos. 28 and 29 on the Empire Zinc Co.’s land; that on…

— Hon. L.1 B. Woodside, Judge. A lien is good if it shows from the account and affidavit that it was filed within the statutory period. Hayden v. Waiting, 19 Mo. App. 353; Planing Mill Co. v. Allison, 138 Mo. 50. A lien will lie for wires distributed along the streets of a city and connected with the power-house or station, and used for distributing electricity for lighting purposes. Implement Co. v. Electric Light Co., 74 Tex. 605; Fechet v. Drake, 12 Pac. Rep.

— Hon. Edwin M. MoKee, Judge. The defendant states correctly the elements of estoppel in pais and inferentially that the case does not contain these elements. What element of estoppel is lacking in this case? Let ns analyze. First.

— Hon. John C. Lamson, Judge. The court erred in admitting the oral evidence of A. Hamer as to his relations with the defendant company.

Appeal-from the Audrain Circuit Court. — Hon. E. M. Hughes, Judge. Prima facie plaintiffs were entitled to recover upon their note.

— Hon. Reuben F. Roy, Judge. The petition does not state facts sufficient to constitute a cause of action against the defendant. Cummings v. Maston, 43 Mo. App. 558; Arnot v. Branconier, 14 Mo. App. 431; Milling Co. v. Transit Co., 122 Mo. 258; Goodfellow’s Ex’rs v. Meegan, 32 Mo. 280; Wiser v. Chesley, 53 Mo. 547; McCarty v. Wolfe, 40 Mo. 520.

— Hon. D. W. Shackleford, Judge. (1) The statute (R. S. 1889, sec. 1496) provides that the work mentioned in the contract shall be paid for by special tax bills in tbe manner provided by ordinance. Section 9 of ordinance 38, approved February 7, 1890. The statute, tbe ordinance and tbe contract itself are so broad and comprehensive in their terms, that any recovery against tbe city is denied respondents in any form of action whatever.