Volume 76 — Missouri Appeal Reports

<p>1. Bills and Notes: alterations: presumptions: evidence. Erasures in a written instrument are presumed to have been made at the time or anterior to their execution, but where they are suspicious on their face the law leaves the question as to the time when and the person by whom and the intention with which they were made to the trier of facts who may decide the question from the face of the instrument without further evidence.</p> <p>2. -: -: -: -. Where the court finds the erasures are suspicious it may refuse to admit the instrument in evidence without explanatory testimony, but where the court sitting as a trier of facts hears the evidence and decides as to the suspicious character of the erasures, its finding will be conclusive where no instructions are asked.</p> <p>3. Appellate Practice: finding of facts: weighing evidence. The appellate court in an action at law will not weigh the evidence.</p>

— Hon. J. D. Perkins, Judge. (1) In making this contract and approving plaintiff’s bond, the county judges acted in a ministerial capacity. Their discretion was confined to an examination'of the sufficiency of the security offered, and that must be a sound legal discretion, not capricious, arbitrary or oppressive. It was their duty either to approve the bond offered by Williams or disapprove it; in other words, it was their duty to act one way or the other on the bond.

— Hon. J. D. Pebkins, Judge. (1) The appellants, holding this policy for the benefit of themselves and others, can maintain suit in their own name as trustees of an express trust without joining other beneficiaries. Kuhn v. Meyer, 35 Mo. App. 206; Stillwell v. Glascock, 47 Mo. App. 554; Cheltenham F. B. Co. v. Cook, 44 Mo. 30; Rogers v. Goswell, 51 Mo. 466; Dean v. -Chandler, 44 Mo.

— Hon. J. D. Perkins, Judge. (1) There was serious and reversible error in instructing the jury for respondent that she could recover damages for medical services where there was no evidence of their value. Rhodes v. Nevada, 47 Mo. App. 499; Smith v. R. R., 108 Mo. 243; Madden v. R. R., 50 Mo. App. 666; Kick v. Doerste, 45 Mo. App. 134; Bogges v. R’y, 118 Mo. 308; Minister v. R’y, 53 Mo. App. 276.

Glair Circuit Court. — Hon. James H. Lay, Judge. (1) The $358 paid John L. Woolfolk on April 17, 1895, by this receiver was to satisfy a judgment obtained after the appointment of said receiver, and therefore possessing no priority. ’ Att’y-Gren. v. Ins. Co., 28 Han (N. Y.) 360; Elliott v. Ins. Co., 7 Grill. (M. D.) 307; Jackson v. Lahee, 114 111. 287; 20 Am. and Eng. Ency. of Law, pp. 186, 187.

— Hon. John W. Henry, Judge. (1) The requirements of a policy of insurance that proofs of loss shall contain certain information must be strictly complied with in order to make out a case. 2 Wood on Ins., sec. 486.

— Hon. J. H. Sloveb, Judge. Defendant’s demurrer to the evidence should have been sustained, and its instruction numbered 1, directing a verdict in its favor, should have been given. 1 Shearman & Redfield on Negligence [4 Ed.], sees. 189, 222; Wood’s Master and Servant [2 Ed.], secs. 326, 344, 345, 366, 372, 382, 676, 677; Fugler v. Bothe, 117 Mo. 475; Wray v. Electric Light Co., 68 Mo. App. 380; Musick v. Packing Co., 58Mo. App. 330; Watson v. Coal Co., 52 Mo.

— Hon. J. H. Slover, Judge. (1) Can a receiver appointed under an order of a court in another state, and having no other claim or right to invoke the aid of the courts of this state, sue in the courts of Missouri to recover property claimed as belonging to the state of which he is receiver where such suit involves the rights of parties other than those to the suit in which the receiver was appointed? Appellant contends that he can not. Ins.

— Hon. John W. Heney, Judge. n.) The petition is fatally defective in that it nowhere alleges upon what contingency the indemnity sued for became due or that same was due at the commencement of suit. Wright v. Ins. Co., 73 Mo. App. 365. Demand was made upon three different occasions by letter for a compliance with the stipulation in relation to invoices and preservation of the damaged goods, but no attention was paid thereto.

— Hon. E. L. Scarritt, Judge. (1) The court erred in giving instruction number 1 for plaintiff. Young v. Kansas City, 45 Mo. App. 600; Salmon v. Trenton, 21 Mo. App. 182; Staples v. Canton, 69 Mo. 592; Craig v. Sedaba,' 63 Mo. 417. The testimony adduced by the city tended to show that the tree was not a dangerous obstruction. This instruction deprived the city of the benefit of this evidence. Salmon v. Trenton, 21 Mo. App. 182.

— Hon. A. M. Woodson, Judge. These bills matured February 1, 1893, at latest July 1, 1893, the interest paying day, and as the suit was not brought till December 5, 1896, and more than two years had elapsed after maturity of the bills, no action can be maintained on them. R. S. 1889, secs. 1405 and 1407; Eorrey v. Holmes, 65 Mo. App. 114; Smith v. Barrett, 41 Mo. App. 460; Jaicks v. Sullivan, 128 Mo. 177; Noellv.

— Hon. E. J. Broaddus, Judge. (1) It is the duty of an attorney to tell his client the whole truth about any given litigation. Am. and Eng. Ency. of Law [2 Ed.], 332, 334. (2) When an attorney takes a note for collection, his employment, unless terminated by agreement with his client, lasts until that note is collected. 3 Am. and Eng. Ency. of Law [2 Ed.], 316, 317, 390, 318, 347, 471, 330, 328, 336.

— Hon. W. W. Rucker, Judge. (1) We insist that after the orders were accepted by plaintiff, not separately but jointly, that each partjT became and was liable to carry out the arrangement as agreed on; that is, plaintiff was bound to sell and ship both the twine and the rope — and defendant was bound to receive and pay for the same, and that a refusal of either party to carry out the arrangement thus agreed on was a violation of the contract or contracts and released the…

— Hon. W. W. Rucker, Judge. (1) The exclusion of the evidence of Munson that he had taken a mortgage in the fall of 1895 to secure him for the payment of the note in suit was error. This evidence was of vital importance and it was a strong circumstance tending to show that notice to sue had not been given. The objection to the notice and service thereof should have been sustained. If any paper was ever handed plaintiff it was the original and not the copy.

— Hon. Richard Field, Judge. (1) The written order of guarantee therein referred to and made a part thereof is essentially “a conditional warranty,” and the return of the same by defendant to said buggy company was and is a “condition precedent,” to be performed by defendant before any liability whatever attaches to said buggy company, or plaintiffs, as its assignees. Nichols, Shepard & Co. v. Larkin, 79 Mo. 264, 265; and see cases cited on page 271, Jbicl.

— Hon. W. W. Wood, Judge. (1) The cashier had no authority by virtue of his office to contract for buildings and improvements the construction of which created a lien on the bank’s property without the express assent of the board of directors. Morse on Banks, 152; 6 Thompson on Corp., secs. 4739-4761; D. S. v. Bank, 21 How. 360; H. S. v. Dunn, 6 Pet. 51; Leggett v. Banking Co., 23 Am.

— Hon. Argus Cox, Judge. (1) If defendant relies on a set-off or counterclaim it must appear that the statement of such set-off or counterclaim was filed before trial in the justice’s court. R. S. 1889, secs. 6138 and 6205; Stephens v. Supply Co., 67 Mo. App. 589; Grant v. Duffy, 71 Mo. App. 93; Frisby v. Rittman, 66 Mo. App. 421. No counterclaim shall be pleaded in the appellate court that was notpleaded befo re the justice.

— Hon. E. L. Soabbitt, Judge. Upon the whole record, it is apparent that the case was fairly tried, the issues fairly submitted to the jury, and by the jury impartially considered. The verdict is amply supported by the evidence, and judgment of the court below should be affirmed.

— Hon. E. P. Gates, Judge. (1) Defendant’s motion to strike out and demurrers to plaintiff’s amended petition should have been sustained for the reason that both of said amended petitions were departures from his original petition and set up entire new causes of action. Boone on Code Pleading, secs. 105-109; R. S. 1889, sec. 2098; Sears v. Loan Co., 56 Mo. App. 122; Griswold v. Walker, 66 Mo. App. 35; R’y v. Wyler, 158 U. S. 285.

<p> Petition for Mandamus. </p>

— Hon. C. L. Dobson, Judge. (1) The fifth instruction should have been given on behalf of defendant. (2) The seventh instruction should have been given. (3) The eighth instruction should have been given. (4) The plaintiffs had no right to question the application of any money by defendant until they got the property.

— Hon. E. J. Broaddus, Judge. (1) Separate defenses under our system oí pleading are not inconsistent, except when the proof of one necessarily disproves the other, that is, unless they are inconsistent in fact. Nelson v. Brodhack, 44 Mo. loc. cit. 598-599; Oen. Stat. 1865, chap. 165, sec. 14; R. S. 1889, sec. 2051; Deering & Co. v. Collins, 38 Mo.

— Hon. Richard Field, Judge. (1) David A. Hancock was a competent witness as to all transactions had between him and Charles S. Bulkley as the agent of Thomas H. Bagnell, deceased, and to contradict the testimony of the said Charles S. Bulkley as to such transactions, and. as to the manner in which he held possession of the property in controversy, and therefore his testimony should have been admitted.

— Hon. Q-. E. Longan, Judge. (1) The mortgagee secured open and notorious possession before the writ of attachment was levied. This alone would imply acceptance of the mortgage. Having taken such possession 'and thus accepted the mortgage, the-plaintiff was entitled to hold the property against attaching creditors, regardless of whether the instrument was recorded or not. R. S. 1889, sec. 5176; State ex rel. v. Cooper, 79 Mo. 464; Jones on Chattel Mortgage [3 Ed.], sec. 178.

<p>Jurisdiction: supreme court. When the supreme court .declines to take jurisdiction of .a case certified to the supreme court by this court naught remains for this court to do but follow the opinion cited and approved by the supreme court.</p>

Louis City Circuit Court. — Hon. L. B. Yalliant, Judge. The attention of the court is particularly directed to Gibson v. Owens, 115 Mo. 258, and to Lamar Water Co. v. Lamar, 128 Mo. 188.

<p>1. Constitutional Question: jurisdiction: transfer of cause to supreme court. When this court undertook to vest jurisdiction ofi this case in the supreme court, it necessarily set aside its own-opinion previously rendered therein, for the supreme court having no appellate jurisdiction over this court could not acquire jurisdiction of a case properly appealed to this court, except upon a divestiture of jurisdiction on the part of this court in the method.pointed out in the constitution.</p> <p>2. -: -: -. It follows that the opinion of this court in this cause was vacated by its attempt to vest jurisdiction thereof in the supreme court.</p> <p>3. -: ———■: practice, appellate. It is the duty of this court to dispose of a case in conformity with the last controlling decision of the supreme court “upon the question presented.”</p>

Louis City Circuit Court. — Hon. Jacob Klein, Judge. The first assignment of error is that the court erred in giving to the jury the following form of verdict, to be filled up by them in case they should find for the plaintiff: “We, the jury in the above entitled cause, find the issues therein joined in favor of the plaintiff and assess his compensatory damages at the. sum of $ — -; and further assess his exemplary damages at the sum of $--; making a total of $-.” The next…

Louis City Circuit Court. — Hon. L. B. Valliant, Judge. Certified to supreme court. The purchaser of goods under a contract of sale waives his rights to damages resulting from a breach of the contract if he accepts the goods without objection or protest after he has full knowledge of all the facts constituting the breach.

<p>1. Sale: transfer op title. There can be no present sale of goods without a transfer of title from the seller to the buyer. Unless therefore, in the ease at bar, the title to all the goods shipped by plaintiffs vested in the Headley Grocer Company when the goods were delivered to it, there was no present or executed contract of sale of the entire subject-matter between the parties.</p> <p>2. -: -: construction op written contract. Where according to the terms of a written contract of sale “all goods not sold to be rebilled after expiration of thirty days,” the existence of this clause in the agreement necessarily presupposes that the title to all the goods therein referred to did not pass out of plaintiffs when the memorandum of the agreement was made.</p>

<p>Appeal from the Linn Circuit Court. — Hon. W. W. Rucker, Judge.</p>

— Hon. E. P. Gates, Special Judge. (1) The motion in arrest should have been sustained, for the reason that the petition wholly fails to state a cause of action. Beach v. Erankenburger, 4 W. Va. 712; Jansen v. Atchison, 16 Kan. 358; St. Louis v. Ins. Co., 107 Mo. 92; Independence v. Slack, 134 Mo. 66, 76. (2) The admission of the druggist’s bills in evidence, by the court, was error.

— Hon. Saneoed B. Ladd, Special Judge. STATEMENT. The following is the finding of facts with conclusions of law thereon: ACTS “In January, 1891, the Glidden and Joy Varnish Company was a corporation of the state of Ohio, doing-business at Cleveland. At the same time there was a corporation of the same name organized under the laws of Missouri, doing business in Kansas City.

— Hon. Harry Lander, Special Judge. (1) The note in question in this case is a negotiable instrument under our -statute. R. S. 1889, sec. 733. (2) A building and loan association organized under the laws of this state relating to such associations, may take negotiable paper, and may purchase, hold and force negotiable paper. Maloney v. B. & L. Ass’n, 57 Mo. App. 384-388; Skouten v. Wood, 57 Mo. 380; Skrainka v. Allen, 76 Mo. 384; 4 Am. and Eng.

— Hon. John W. Henry, Judge. (1) Where performance of a contract is rendered temporarily unlawful, by reason of an injunction, it is merely suspended, and after the removal of the restraint, is still binding and valid, and this without any provision in the contract expressly covering such a contingency. Hadley v. Clarke, 8 D. & E. T. R. 259; Odlin v. Ins. Co., 2 Wash. O. C. 312; Semmes v. Ins. Co., 30 Wall. 158; 2 Parsons on Contracts, p. 127; Ins.

<p>1. Conversion: agent op thiep: measure op damages: expense op recovery. The innocent agent of a thief selling stolen cattle is liable to the true owner for the value of the cattle less the value of any the owner may have recovered reduced by the expenses of such recovery.</p> <p>2. -:-: measure op damages: recovery in replevin. The fact that the true owner may have recovered the cattle from the vendee of the thief’s agent by an action in replevin will not relieve such agent from liability for the proper expenses of such recovery.</p> <p>3. -: -: -. On its declaration of law the trial court must have found the expenses incurred in recovering the cattle were reasonable and necessary and the question of unreasonable expense in attempted recovery does not arise here.</p> <p>4. -:-: -: liability op vendee. Innocent purchasers of stolen cattle from the thief’s agent are not liable in replevin for the true owner’s attorneys’ fees, nor his traveling expenses in attending the trial and hunting his property, but these are recoverable against the agent.</p>

— Hon. Reuben F. Roy, Judge. Plaintiff's instruction number 1 ought to have been given. McNichols v. Wise, 62 Mo. App. 443. ‘ Plaintiff’s second instruction ought to have been given. Burgert v. Borchert, 59 Mo. 80; Crow v. Beardsley, 68 Mo. 435; Rupe v. Atkins, 77 Mo. 841.

— Hon. James D. Fox, Judge. The record does not show that motion for a new trial was filed within four days after judgment, that it was overruled and the action of the court excepted to by appellant. R. S. 1889, see. 2243; Hohstadt v. Daggs, 49 Mo. App. 158; Welch v. R’y Co., 62 Mo. App. 57.

Louis City Circuit Court. — Hon. Selden P. Spencer, Judge. An account is a detailed statement in the nature of debt and credit between parties arising out of contract or some fiduciary relation; the primary idea conveyed by it is some matter of debt. Am. and Eng. Ency. of Law [2 Ed.], p. 434; Watson v. Penn, 108 Ind. 21, at p. 25; Nelson v. Commissioners, 105 Ind. 287, at p. 288, fourth par.; Whitwell v. Willard, 1 Met.

<p>Appeal from the St. Louis City Circuit Court. — Hon. Selden P. Spencer, Judge.</p> <p>The statute should be liberally construed to uphold the lien, and all unfriendly strictness and technicality avoided. Putnam v. Ross, 46 Mo. 338; Oster v. Rabaneau, 46 Mo. 595; Dewitt v. Smith, 63 Mo. 263; Morgan v. R. R., 76 Mo. 172; Ransom v. Sheehan, 78 Mo. 673. No sub-contractor can enforce a mechanics lien without filing an itemized account of his demand. It is insufficient to describe the work as a certain class of work as described in the contract; the items must be stated. McWilliams v. Allen, 45 Mo. 573; Graves v. Pierce, 53 Mo. 428; Coe v. Ritter, 86 Mo. 286; Rudev. Mitchell, 97 Mo. 272; Dooley v. Barker, 2 Mo. App. 327; Lowis v. Cutter, 6 Mo. App. 656; Rothlisberger & Gerber v. Caspari, 12 Mo. App. 515. Any material or labor, though of little value, included in the lien account of a sub-contractor, and used in the construction of the building, within four months of the filing of the lien, carries the account forward and rescues it from the statute of limitations, where, as in the case at bar, it was furnished with the approval of the original contractor, and on demand of the owner, and with the understanding that the sub-contractor should furnish it to complete its contract. Bruce v. Berg, 8 Mo. App. 204; Cole v. Barren, 8 Mo. App. 514; Miller v. White-law, 28 Mo. App. 639; Schulenberg & Boeclder Lumber Co. v. Strimple, 33 Mo. App. 160; Corlee v. Clark, 14 Ind. App. 505; Parish v. Hazard, 83 Pa. St. 112; Warthen v. Cleveland, 129 Mass. 570. The case at bar is not to be confounded with that class of cases where the building was entirely completed and accepted by the owner as completed, and where, without-the owner’s knowledge or consent, small items were thereafter furnished by the sub-contractor. Scott v. Cook, 8 Mo. App. 196; Bruce v. Berg, 8 Mo. App. 206. Nor is it to be confounded with that class of cases where the building was entirely completed by the contractor and accepted by the owner as complete and where, by the caprice of the contractor, without the knowledge or consent of the owner, replaced certain destroyed items for which he made no charge and which were not included in his lien account. Drey v. Ridpath, 60 Mo. App. 138.</p> <p>The sub-contractor must file his lien within four months after his account accrues; that is to say, within four months after he has completely performed the contract between himself and the principal contractor. Drey & Kahn v. Ridpath, 60 Mo. App. 134.</p>

Louis City Circuit Court. — Hon. Daniel D. Fisher, Judge. Instructions should not be broader than the issues raised by the pleadings and evidence. Waddingham v. Hulett, 92 Mo. 528; Waldhier v. R. R. Co., 71 Mo. 514; George v. R. R. Co., 40 Mo. App. 433.

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

— Hon. Henry C. Riley, Judge. . The only question presented by this appeal is whether, under the statute relating to the removal of county seats, two designated places may be voted for at the same election.

Louis Court of Criminal Correction. Hon. David Murphy, Judge. It was error for the court to refuse the instruction in the nature of a demurrer to the evidence, as the state entirely failed to substantiate the offense charged. Witt v. State, 9 Mo. 671; State v. Conway, 18 Mo. 321; State v. Shermer, 55 Mo. 86; State v. Stone, 68 Mo. 101; R. S. Mo. 1889, secs. 3535 and 3557.

Louis Court of Criminal Correction. Hon. David Murphy, Judge. The federal statutes denouncing the mailing of postal cards of indecent, scurrilous or defamatory character has been frequently construed, and language and pictures which would not be considered “obscene, lewed or lascivious,” are held to be indecent. U. S. v. Davis, 38 Fed. Rep. 326; U. S. v. Hugget, 40 Fed. Rep. 636. IT. S. v. Mathias, 36 Fed. Rep. ‘892; IT. S. v. Chase, 135 IT. S. 255; U. S. v. Loftis, 6 Fed.

<p>Transferred to supreme court.</p>

Louis City Circuit Court. — Hon. Thomas A. Russell, Judge. On the face of the pleadings, the motion to quash being treated as it should be, as in effect a demurrer, all matters well pleaded by relators must be taken as confessed for the purposes of this appeal. 14 Am. and Eng. Eney. Law, 233, note 8; State ex rel. v. Smith, 104 Mo. 661; State ex rel. v. Neville, 110 Mo. 345.

Louis City Circuit Court. — Hon. John A. Talty, Judge. The relation that existed under the contract was that of trustee and cestui que trust and not debtor and creditor. Until the actual delivery of the note mentioned in the contract, the trust continued, and the Deming Company was entitled to follow the proceeds of the sales into the hands of the assignee. Berry v. Allen, 59 111. App. 149; Habler v. Luttgin, 37 N. Y. Sup. 794, 2 App. Div. 390; Moore v. Hildebrand, 37 Hun.

<p>Appeal from the St. Louis City Circuit Court. — Hon. Jacob Klein, Judge.</p> <p>It is.too late to object to a misjoinder of parties ■defendant for the first time in this court, or in a motion for a ne.w trial. R. S. 1889, sec. 2047. An objection to the joinder of a defendant appearing on the face of the petition must be taken by demurrer. Boland v. Ross, 120 Mo. 208, 214,215. “An objection that there is both a misjoinder of parties plaintiff and of causes of action must be made either by demurrer or answer; otherwise it is waived. Anderson v. McPike, 41 Mo) App. 328, 330; Donahue v. Bragg, 49 Mo. App. 273. A fortiori when the alleged misjoinder is of parties defendant. Failure of appellant to answer to. the merits waived all objections except want of jurisdiction and failure to state a cause of action. R. S. 1889, see. 2047. The uncontested judgment on the merits should not be disturbed. Paddock-Hawleylron Co. v. Graham, 48 Mo. App. 638, 644. The original debtor and the guarantor were not improperly joined especially where the liability of the latter had become fixed. R. S. 1889, sec. 1995; State ex rel. v. Tate, 109 Mo. 265, 268; Walker v. Deaver, 79 Mo. 664, 679; Maddox v. Duncan, 45 S. W. Rep. (Mo.) 688, (April 20, 1898.) The guaranty was filed before the trial on the merits. Failure to file it with the petition does not constitute ground for reversal, the objection being made for the first time in this court. A defect of this sort can be reached only by motion to dismiss, or by motion to require partysto file it. Christy v. Railroad, 94 Mo. 453, 456; Railroad v. Knudson, 62 Mo. 569, 571; Fenwick v. Bowling, 50 Mo. App. 516, 520; Burdsal v. Davies, 58 Mo. 138. Where a petition declares upon a contract, without stating whether it is in writing or not, it will, be presumed to be in writing. Sharkey v. McDermott, 91 Mo. 647. Even if the rule were otherwise, and defendants had objected (at the trial on the merits) to the introduction of the guaranty, it was admissible in evidence. Browning v. Walbrun, 45 Mo. 477. The merits of the case are not the proper subjects of inquiry on the trial of the plea in abatement. Chouteau v. Boughton, 100 Mo. 406, 412; Sauerwein y. Renard Champagne Co., 68 Mo. App. 29, 34.</p> <p>The instruction offered by defendant at the end of' the evidence presented by plaintiffs to sustain the-grounds of his attachment should have been given.. Leering v. Collins, 38 Mo. App. 85, 86, 87. The property alleged to have been fraudulently sold was, if the same belonged to Lynch as plaintiff claims, exempt from attachment, unless he was charged with leaving the state with intent to change his domicile. Such sale could not be fraudulent, either actually or constructively as to creditors. Boyd & Co. v. Pottle, 65 Mo. App. 374; Bill of Exceptions, page 45, 6th question. Until some substantial evidence of fraud is offered, defendant is supposed to be as honest as any other member of the human race. Actual fraud must be proved, not conjectured. Not answering the questions of an impertinent collector to his (the collector’s) satisfaction, is certainly no evidence of fraud. Staed v. Mahon, 70 Mo. App. 406; Priest v. Way, 87 Mo. 16; Rumboldt v. Parr, 51 Mo. 592; Henderson v. Henderson, 55 Mo.App.. 534; Ames v. Gilmore, 59 Mo. 537. A false promise as to something to be done in the future does not constitute fraud. Terry v. Insurance Co., 3 Mo. App. 595. The instruction offered by plaintiffs should not have been given, and especially that portion of the same which reads: "The court instructs the jury that (for) the purpose of this trial it must be taken as admitted that the defendant, P. R. Lynch, is indebted to the plaintiffs.” Bill of Exceptions, page 37; Bank v. Nickols, 43 Mo. App. 398; Wilburn v. Railroad, 36 Mo. App. 203; Shaffner v. Leahy, 21 Mo. App. 110; Dearing v. Fletcher, 37 Mo. App. 122; Newcomb v. Jones, 37 Mo. App. 175; Sturgess v. Crum, 29 Mo. App. 644. A guarantor of the indebtedness of another person is not necessarily, nor legally, in debt to the principal of the obligor, and until after it is ascertained by agreement of parties, or by legal procedure, how much the obligation (if any obligation exists) amounts to, or, whether the independent contract of guaranty is .a subsisting obligation or not is determined, there can be no indebtedness. The mere guaranty does not rise to the dignity of a debt. In a guaranty a condition precedent is to be performed or not performed, and at best it is only a conditional contract. Attachment is purely statutory; it is legal, not equitable. The debt named in the attachment proceedings must possess an actual character and not be merely possible, and must not depend upon a contingency. If there is no existing debt the attachment must fail. Hearne v. Keith, 63 Mo. 84; Lackland v. Garesche, 56 Mo. 267; Bishop v. Young, 17 Wis. 51; Finlay v. Bryson, 84 Mo. 864. A debtor in Missouri has the right to prefer one creditor to another so long as he acts in good faith. But in this case the pei’son was not a debtor, but at best only a prospective one. He was a guarantor, if anything. McDonald & Co. v. Hoover, 124 Mo. 484; Schufeldt v. Smith, 131 Mo. 288; Riley v. Vaughn, 116 Mo. 176. Allowing plaintiff to offer as evidence the unsigned deposition of defendant, P. R. Lynch, takep by a stenographer in Mr. Frank’s office on April 30, 1897, was error. It was not offered to show any admissions by defendant, though allowed by the trial judge on that theory. Priest v. Way, 87 Mo. 16, also dissenting opinion; Bogie v. Nolan, 96 Mo. 85, — contrary. A separate finding should have been made as to what particular ground of attachment was sustained by the verdict. Eisenhardt v. Cabanne, 16 Mo. App. 531; the Paddock-Hawley Iron Co. v. Graham,48 Mo. App. ,643.</p>

Louis City Circuit Court. — Hon. Selden P. Spencer, Judge. With regard to .the first point relied on in appellant’s brief, appellant ought not to be heard now in regard to the matters complained of therein, as it has been repeatedly decided by this court and the supreme court, that errors not complained of in the motion for a new trial and not called to the trial court’s attention; will not be reviewed on appeal.

Writ of Error to the St. Louis City Circuit Court. Hon. John M. Wood, Judge. It is not thought necessary to go into any extended argument to show that the court below committed error in sustaining the demurrer to the petition of plaintiff for the reason that in an exactly similar ease this court has heretofore decided that the petition of plaintiff did state facts sufficient to constitute a cause of action, and reversed and remanded the cause.

Louis City Circuit Court. — Hon, John A, Hockaday, Judge. The direction to the jury to find a verdict for plaintiff was right. Where the allegations of the petition are admitted, and the evidence offered by defendants does not constitute a defense, it is the duty of the court to direct a verdict for plaintiff. Gregory v. McCormick, 120 Mo. 657. The court did not err in excluding the evidence tendered by defendants.

Louis City Circuit Court. — Hon, John A. Talty, Judge. Under the title of. Held: “The other instruction tendered by the defendant and refused, proceeds upon the hypothesis •of a custom, existing among real estate agents in St. Louis, to give their principals notice of having procured a purchaser, after the lapse of considerable time between the employment and the time of thus procuring the purchaser.

Louis City Circuit Court. — Hon.. John A. Talk, Judge. Before noticing the points made by the appellant,, we would call the attention of the court to the fact that this appeal is premature, as there is no final judgment in the case.

Louis City Circuit Court. — Hon. Selden P. Spencer, Judge. Under and by the terms of the sale the delivery was to be made to the M. & O. Railroad at East St. Louis, and when that delivery was made the title passed to the defendant, notwithstanding the goods were to be weighed by the defendant.

<p>Appeal from the Shelby Circuit Court. — Hon. Andrew Ellison, Judge.</p> <p>Transferred to supreme court.</p>

Louis City Circuit Court. — Hon. Leroy B. Valliant, Judge. Held: none other can be proven. * * * Where no consideration is expressed it may, nevertheless, be proven.” 1 Pars, on Cont. [6 Ed.]., p. 450, sees. 429-430; Bartlett v. Matson, 1 Mo.

Louis City Circuit Court. — Hon. John A. Talty, Judge. The circuit court has jurisdiction when the action of the lodge is irregular and void. Mulroy v. Knights of Honor, 28 Mo. App. 463; Hoeffnerv. Grand Lodge, 41 Mo. App. 357; Glardon v. Supreme Lodge, 50 Mo. App. 45; Labouchere v. Earl of Wharnscliffe, 13 Oh. Div. 346. The lodge must have jurisdiction or the obligation to appeal is not enforced. Hall v. Supreme Lodge Knights of Honor, 24 Fed.

Louis City Circuit Court. — Hon. John A. Talty, Judge. A demurrer to the evidence admits every fact which a jury might find, and every inference of fact which a jury might legitimately make, if the evidence were before them. Franke v. St. Louis, 110 Mo. 516. The transaction in question was not a bailment, for in order to constitute a bailment the parties must have intended that there should have been a return or delivery of the identical thing bailed.

<p>1. Habeas Corpus: custody op children: parents living separate. Where the mother has a good home, in her own right, and is a prudent, wise and affectionate mother and where the father is absent from home a greater part of his time the children will be left in custody of their mother.</p> <p>2. Equitable Nature. The court will qualify its award by such limitations and restrictions as may seem expedient, to preserve the natural rights of the unsuccessful parent, if this can be done without jeopardizing the welfare of the children.</p>

Louis City Circuit Court. — ■ Hon.. Jambs E. Withrow, Judge. Held: is liable to be seized and sold upon execution.

<p>1. People’s Party Ticket: grouping or candidates on the ticket. But one grouping o£ the relators can be made and that grouping should be made on the ticket which is the desire and request 9f the controlling committee of the People’s party in such county.</p> <p>2. Same: choice or grouping. The choice of the grouping is not with the county clerk, but it is with the representatives of the voters.</p>

— Hon. Richard Field, Judge. The statements made by local agent Chinn as tending to show a waiver of proofs within the sixty days were inadmissible. A local agent has no implied ■authority to bind the company with reference to loss matters and can not waive the rendition of proofs in the absence of a showing conferring actual authority upon him for such purpose. Niekell v. Ins. Co., Kansas City Court of Appeals, February 3, 1896; not yet reported; McCollum v. Ins. Co.,.65 Mo.

— Hon. D. P. Stratton, Judge. (1) The court erred in giving instruction numbered one for plaintiff; this instruction is faulty, misleading and unjustifiable in any view of the case. Otto v. Bent, 48 Mo. 23; Donohoe v. Railway, 83 Mo. 560; Legg v. Johnson, 23 Mo. App. 590.

— Hon. J. W. Henry, Judge. (1) Defendants, in making the sale of the cattle, acted as agents for a disclosed principal, to the knowledge of the plaintiffs. They did not assert title in themselves and consequently did not impliedly warrant that they had title to the property in controversy.

— Hon. J. W.. Wofford, Judge. If the rule of a civil case obtains, the court erred, for the corporation and driver, not the manager, would be liable for the act of the driver. Brown v. Lent, 20 Yt. 529; Story on Agency, sec. 313; Am. and Eng. Ency. of Law [2d Ed.], p. 981; Hilton v. Newman, 6 Mo. App. 304; Baile v. Oatrn, 37 Mich. 199. (2) The court erred in refusing instruction number 3 asked by defendant. Kansas City v. Neal, 122 Mo. 332.

Original Proceeeding by Quo Warranto. By whom and how shall a person be authorized to treat diseases of the human body according to the system commonly known as osteopathy, and as practiced by the American School of Osteopathy of Kirksville, Missouri? Sections 1, 2 and 3, page 206, Acts of 1897, Missouri. Defendant shall be proceeded against by information in the nature of quo warranto instituted against defendant or its officers. R. S. 1889, sec. 2835.

<p>Landlord and Tenant: action for rent: failure of evidence. Where in an action for rent the evidence fails to show the relation of landlord and tenant between the parties, there can be no recovery.</p>

— Hon. Cyrus A. Anthony, Judge. (1) The verdict and judgment in this case should have been for the plaintiff in error. The action for money had and received is a kind of quasi equitable action. Green’s Missouri Practice [1 Ed.], p. 256, secs. 658, 659, also p. 479, sec. 1248; 2 Greení. Ev. [13 Ed.], p. 98, secs. 117 to 124 inclusive; Benoist v. Siter, 9 Mo. 657; Railway v. McLiney, 32 Mo. App. 166; Jacoby v. O’Hearn, 32 Mo. App. 566; Gwin v. Smur, 49 Mo.

— Hon. D. W. Shackleford, Judge. (1) Plaintiff made no tender. ' Tender to be effectual must be unconditional. Kitchen v. Clark, 1 Mo. App. 430; Holton v. Brown, 46 Am. Dec. 148. Plaintiff could not, without his own fault, have been ignorant of the amount he actually owed; hence no “accounting,’’ as prayed for in the petition, was necessary. In such case he must tender before he has the right of action.

— Hon. D. P„ Stratton, Judge. (1) “The rule is that where a contract to deliver goods at a certain price is broken, the measure of damages is the difference between the market price and the contract price at or about the time the goods should have been delivered, or the time the contract is broken.” Northrup v. Cook, 39 Mo. 208; Milling Co. v. Walsh,. 97 Mo. 287; 21 Am. and Eng. Ency. of Law, note on p. 616, and authorities cited in support thereof.

— Hon. Gr. F. Longan, Judge. (1) The chattel mortgage in this case is not one merely of indemnity, but a mortgage to provide a fund or means of paying the debts. It was not a mortgage merely to save harmless the plaintiffs, but was an absolute covenant to pay the debts mentioned therein, on which plaintiffs were sureties.

<p>1. Bills of Exception: time of filing: statutory rule: Sunday. Our statute for the computation of time excludes the first day and also the last day, when the last day is Sunday; when the leave is ter file a bill of exceptions within sixty days and the last day falls on Sunday, the bill is well filed on the following Monday. Cases reviewed and distinguished.</p> <p>2. ---: -: Sunday: practice. The filing of a bill of exceptions being a matter of practice, is well done on Monday without reference to the statute for computing time when the last day of the time limited falls on Sunday.</p>

— Hon. E. L. Scaeeitt, Judge. The law is well settled that a common carrier is entitled to an implied lien on the goods carried for his own freight and for all advances made to previous carriers on a line of shipment, for freight earned by them extending back to the initial point of shipment. Armstrong v. Railroad, 62 Mo. App. 643; Wells v. Thomas, 27 Mo. 17; s. c., 72 Am.

— Hon. J. W. Wofford, Judge. (1) The charter gives the right “to the council to license, tax and regulate * * * milk dealers,” page 15, of charter; General Welfare Clause, p. 19; section 15, p. 16, of charter. It seems a municipality may “define” a wholesaler and a “retailer.” 29 Am. and Eng. Ency. of Law, pp. 107 and 108; St. Louis v. Weitzel, 130 Mo. 600; 18 Am. and Eng. Ency. of Law, 753; Van Baalm v. People, 40 Mich. 258; 25 Am. and Eng.

— Hon. Andrew Ellison, Judge. (1) The judgment of the justice was vacated by the appeal to the circuit court of Adair county, Missouri. Earl v. Collins, 89 Mo. 263; Williams v. Lewis, 47 Mo. App. 657; 2 R. S. 1889, sec. 6339, p. 1495.. (2) It was never revived, as provided by the statute. 2 R. S. 1889, sees. 6288, 6290, 6292, pp. 1484-1485; Pears v. Groff, 76 Mo. 92.

— Hon. Andrew Ellison, Judge. The charge of “openly, lewdly and lasciviously abiding and cohabiting,” is stating an offense, and is a good charge. It will sustain an indictment. State v. Coffee, 39 Mo. App. 56; State v. Osborne, 69 Mo. 143. This last case is directly in point and should be decisive of the question. Also see R. S. 1889, sec. 3798; State v. Bess, 20 Mo. 419; R. S. 1889, sec. 3798; State v. Walker, 24 Mo. App. 679.

— Hon. P. C. Stepp, Judge. (1) The testimony of the witness, James Drinkard, that plaintiff told him the’ nest morning after the injury “that he got his knee hurt, or leg hurt; by a rope breaking at one of those doors,” was not admissible. It was but a self-serving declaration in his own interest, and held by all the authorities to, be inadmissible. Leahey v. Railway, 97 Mo. 165; Adams v. Railroad, 71 Mo. 553; Devlin v. Railroad, 87 Mo. 515; 1 Greenl.

— Hon. P. C. Stepp, Judge. (1) The court erred in not permitting defendants to show the adoption of township organization by Grundy county and that the road in question had been legally laid out by the township board. The record, offered was substantially “on all fours,” with the record in Rousey v. Wood, 63 Mo. App. 460.

— Hon. Cyrus A. Anthony, Judge. (1) Chas. Eyan had a right to pay the note when due without suit, and the fact of such payment established in his favor a claim against John N. Krusor for contribution which could be enforced. Boss v. Memefee, 125 Ind. 432; White v. Miller, 47 Ind. 385.

— Hon. R. E. Culver, Judge. ' The court erred in excluding evidence of plaintiff’s financial condition and of his conversation with defendant respecting his ability to pay his bills. Riddle v. Dixon, 2 Pa. St. 372; Buswell, etc., v. Case, 144 Mass. 350; Sears v. Railroad, 152 Mass. 151; Seligman v. Rogers, 113 Mo. 642; Wentworth v. Railroad, 143 Mass. 248; Ireland v. Railroad, 79 Mich. 163; Bathrick v. Post & Tribune, 50 Mich. 633; Whart.

— Hon. A. M. Woodson, Judge. The method adopted that appellant has the right to set off the judgment against respondent’s judgment although respondent is insolvent, is well settled in this state. Fulkerson v. Davenport, 70 Mo. 541; Simpson v. Hart, 14 John. 64; Field v. Oliver, 43 Mo. 200; Johnson v. Hall, 84 Mo. 210; Barnes v. McMullens, 78 Mo. 260; Watterman on Set-off [2 Ed.], p. 450, sec. 431; Gemmell v. Hueben, 71 Mo.

Appeal jrom the Buchanan Circuit Court. — Hon. A. M. Woodson, Judge. (1) A notice by a tenant dated and served on June 1, that he will vacate on July 1, is insufficient to terminate a tenancy from month to month. Gfunn v. Sinclair, 52 Mo. 327; Combs v. Trans; Co., 58 Mo. App. 114. (2) Until a sufficient notice is given the tenant is liable, notwithstanding he ceases to occupy the premises. Smith v. Smith' Bros., 62 Mo. App. 596.

— Hon. A. M. Woodson, Judge. It is as much, the duty of a tenant to deliver possession at the end of his term as it is to perform any other covenant, and failing to do so he is primarily liable. Bless v. Jenkins, 129 Mo. 661. The fact that defendant Smith was not personally on the premises at the institution of the suit is immaterial. Even a trespasser, placing other parties in possession, is properly a defendant. Tuttle v. Davis, 48 Mo. App. 14.

— Hon. E. J. Beoaddus, Judge. (1) The description in the chattel mortgage is good as between the original parties. Dodson v. Dedman, 61 Mo. App. 209. (2) Where the rights of strangers without notice are not involved a specific description is not necessary. 5 Am. and Eng. Ency. of Law [2 Ed.], p. 963; Dodson v. Dedman, supra; Mfg. Go. v. Griffith, 75 Iowa, 102; 39 N. W. Rep. 214; Olapp v. Trowbridge, 74 Iowa, 550; s. c., 38 N. W.. Rep. 411.

— Hon. E. J. Broaddus, Judge. (1) The court is not bound to accept plaintiff’s theory of the cause of accident but will take judicial notice of the scientific facts involved to determine whether the theory advanced can be sustained. King v. G-alleen, 109 U. S. 99; Gras Light Co. v. Ins. Co., 33 Mo. App. 348; Marshall on Ev., secs. 366, 371; 1 Greenl. on Ev. [15 Ed.], see. 5.

— Hon. E. J. Broaddus, Judge. (1) The petition states no cause of action. It fails to state that the services were of any value to defendant, or that he ever accepted or used the well. Yeats v. Ballentine, 56 Mo. 538; Globe v. Doud, 47 Mo. App. 448; Anson Contracts, chap. 3, pp. 365, 366, 367 and 405. (2) The evidence of the stenographer to contradict plaintiff was admissible.

— Hon. E. J. Broadlus, Judge. (1) The receivers are the only persons who can sue. State ex rel. v. Union Stock Yards, 6 Am. and Eng. Corp. Cases, New Series, 721, and eases cited; Tuttle v. Bank, 34 L. R. A. 750 and 757, and cases cited. (2) The district court in Kansas had no jurisdiction to render judgment against the bank, because there was no proper service. Ford v. K. C. Short Line, 52 Mo. App. 439; Could v. Inhabitants, 86 Mo. 357.

— Hon. J. W. Alexandee, Special Judge. STATEMENT BY ELLISON, 3. The following is that portion of the contract involved in the case: “Ninth.

— Hon, E. J. Broaddus, Judge. • (1) This cause was submitted on the issues of payment and waiver of landlord’s lien. It had once before been submitted on the same issues, both in the circuit court and in the appellate court, in which latter court the finding was for the plaintiff on precisely the same evidence [now offered here (see Sandige v. Hill, 70 Mo. App. 71), and hence the ease becomes res adjuclicata. Bealy v. Blake’s Adm’r, Mo. App.

— Hon. E. J. Bboaddus, Judge. (1) The court erred in finding for the plaintiff under the facts in this case and under its own given instructions in behalf of defendant. Bell v. Cowan, 34 Mo. 253, 254. (2) The court erred in finding for the plaintiff under the law and in overruling appellant’s motion for a new trial, in which it was insisted that the judgment is against the law under the facts of the case. This is an action of forcible entry and detainer.

— Hon. John A. Hock ad ay, Judge. Hoffmann being a mere vendee under an executory contract of sale, was not the owner of the property, and could not maintain an action for injuries done to it prior to the time at which he acquired title by the delivery of the deed from Mrs. Riggins. Des Jardins v. Boom Co., 54 N. W. Rep. 718; Moyer v. Scott, 30 Mich. 345; Bick v. Hill, 27 Mo. App. 504, 558; Deland v. Yanstone, 26 Mo. App 297.

— Hon. John A. Hockaday, Judge. The value of the piano, $150, was within the jurisdiction of the circuit court, according to the opinion of this court in Lang v. Calloway, 68 Mo. App. 393, and Holt v. Collyer, 71 Mo. App. 280.

— Hon. John A. Hockaday, Judge. (1) Fannie Byers, as one of the heirs of Sarah Taylor, was in possession of the property in her own right as one of the tenants in common, at the time Jacobs bought at the partition sale.

— Hon. J. A. Hockaday, Judge. (1) The defendant company then being an insurance company authorized by law to do an insurance business on the assessment plan, the only other question arising in the case is, was the contract between Coda M. Elliott and the defendant “a contract of insurance on the assessment plan.” R. S. 1889, sec. 6860. (2) The “Certificate of Membership,” “Application,” and the by-laws of the defendant corporation constitute the contract of insurance.

— Hon. W. W. Rucker, Judge. (1) The complaint when made by the marshal need not be in writing, if the defendant be present in court and in custody. R. S. 1889, sec. 1685. (2) The charge is drunk on the streets, ex vi termini public places in the village. It is the character of the place, not the particular locality, that constitutes the essence of the offense, and hence it is unnecessary to state that any particular person was disturbed by his person.

— Hon. E. J. Bboaddus, Judge. (1) Bills of exceptions are amendable, the same as any other records, when there is anything contained in them, or other records in the cause, to amend by, and this is a case of that character. Groner v. Smith, 49 Mo. 323; Mitchell v. Overman, 103 U. S. 64; Darrier v. Darrier, 58 Mo. 222, 223; State v. Howell, 117 Mo. 307; State ex rel. v. Harber, Knight & Mullins, 129 Mo. 231, 271.

— Hon. W. S. Herndon, Judge. (1) There is no question of waiver in this case. There are no existing facts upon which the doctrine of waiver can rest. “If the contract provides that the policy shall not be in force until it is delivered to the applicant, the contract of insurance will not become binding upon the company until delivered.” Bacon Benefit Societies and Life Insurance, sec, 272; Kohen v. Mutual Beserve Fund Life Ass’n, 28 Fed.

— Hon. R. E. Culver, Judge. (1) It being admitted that plaintiff has no title, she can not maintain this action, A mere possessoryright, or a right founded upon a bare prior possession, conceding the wife in this case could have such, is not sufficient to maintain replevin, especially where defendant’s possession is admitted to be lawful. Wright v. Richmond, 21 Mo. App. 76; McMahill v. Walker, '22 Mo. App. 170.

— Hon. John A. Hockaday, Judge. (1) The trial court erred in overruling defendant’s application for a continuance. (2) Section 4611, Revised Statutes 1889, restricts the right to compound and dispense prescriptions to the registered pharmacist or his aid. Section 4621 enlarges this right in reference to prescriptions for liquor so they may be dispensed by the druggist, proprietor of the drug store or pharmacist.

Louis City Circuit Court. — Hon. Hoeatio D. Wood, Judge. As against plaintiff an existing creditor, Joseph. Levy had no legal right to pay assessments for the purpose of keeping a beneficiary certificate in force for the benefit of his adult sister. The payments made by him for that purpose after he became insolvent were presumably fraudulent as against plaintiff, an existing creditor. Snyder v. Free, 114 Mo. 360; Ins. Co. v. Sandfelder, 9 Mo.

— Hon. Daniel D. Fisher, Judge. The first instruction given by the court on motion of plaintiff was clear and proper and not subject to the hair-splitting criticism attempted by the defendant. First.

Louis City Circuit Court. — Hon. Daniel D. Eisher, Judge. Plaintiff elected to sue the defendant for use and occupation. Where the relation of landlord and tenant exists, and is not created by deed, the landlord may elect to sue either on the contract or for use and occupation, but before an action for use and occupation can lie, the relation of landlord and tenant must be found to exist.

Louis City Circuit Court. — Hon. L. B. Valliant, Judge. “The bill of lading presents the property therein described, and a delivery of the bill is treated as a symbolical delivery of the property.” Bank v. Homeyer, 45 Mo. 149; Railway v. Johnston, 63 N. W. Rep. 145; 45 Neb. 57; Furman v. Railroad, 106 N. Y. 579; Railroad v. Stern, 119 Pa. St. 24; Forbes v. Railroad, 133 Mass. 154; The Thames, 14 Wall. 98; Bank v. Jones, 4 Oomst. 497; Ober v. Railway, 13 Mo. App. 86.

<p>Appeal from the St. Louis City Circuit Court. — Hon. L. B. Valliant, Judge.</p> <p>The justice, respondent herein, should be taxed with the costs of the mandamus proceedings. Pox v. •Whitney, 32 N. H. 408; People v. Musical M. P. Union, 118 N. Y. 101; U. S. v. Schurz, 102 U. S. 378-407; Kendall v. U. S., 12 Pet. 524; U. S. v. Boutwell, 17 Wall. 604; Queen v. Mayor, etc., 2 G-ale and Davidson, 1 Q. B. 751; Ballon v. Smith, 31 N. H. 413; Merrell on Mandamus, sec. 310. In Missouri, costs are creatures of statute, and are taxable only as the statutes provide. St. Louis v. Meintz, 107 Mo. 611; Hoover v. Railroad, 115 Mo. 77; Thompson v. Union Elevator Co., 77 Mo. 520. In all civil actions, unless otherwise provided, the prevailing party shall recover the costs. R. S. 1889, sec. 2920; Hawkins v. Now-land, 53 Mo. 328. Where judgment is given for the person suing out the writ of mandamus, or a judgment Is given for him on demurrer or by nil elicit or for want of a replication or other pleading, “he shall recover his damages and costs.” R. S. 1889, sec. 6816.</p> <p>In Addison on Torts, page 263 (a little school book which the able opposing counsel ought to have read), it is said: “When the executive power of a sovereign has been delegated to others, to be by them put in force in the form prescribed by law, the power thus conferred is termed an authority in law, and affords a justification for all acts and trespasses committed in the exercise of it, so long as the authority has not been abused or exceeded. Neither the judges in the king’s courts nor any judicial officer, are liable to answer personally for their judicial acts. An action therefore will not lie against a judge for wrongful commitment or erroneous judgment, nor for any act done by him in his judicial capacity’’ (citing Hammond v. Howell, 1 Mod. 184; Kelley v. Dresser, 11 Allen, 31). Again at page 265 he may read the law as follows: “The general rule as regards judges and judicial officers is that if they do any act beyond the limit of their authority, causing injury to another, they thereby subject themselves to an action of damages, but if the act done be within the limit of their authority, through an erroneous mistaken judgment, they are not liable to an action.” In the case of Edwards v. Ferguson, 73 Mo. 686, Shekwood, O. J., said: “No principle of law is better settled by the authorities than this, that persons holding official positions, giving them enlarged discretionary powers, can not incur individual liability, except on the ground just instanced” (acts maliciously done). In the case of City v. McCabe, 58 Mo. App. loe. cit. 549, it is said: “A ministeral officer acting in a matter before him, with discretionary power, or acting in a matter before him judicially, or as a quasi judge, is not responsible to any one receiving an injury from such act, unless the officer act maliciously and willfully wrong.”</p>

<p>Appeal from the St. Louis City Circuit Court. — Hon. L. B. Valliant, Judge.</p> <p>The justice, respondent herein, should be taxed with the costs of the mandamus proceedings. Eox v. Whitney, 32 N. H. 408; People v. Musical M. P. Union, 118 N. Y. 101; U. S. v. Sehurz, 102 U. S. 378, 407; Kendall v. U. S., 12 Pet. 524; U. S. v. Boutwell, 17 Wall. 604; Oreen v. Mayor, etc., 2 Oale & Davidson, 1 Q. B. 751; Ballon v. Smith, 31 N. H. 413; Merrell on Mandamus, see. 310. In Missouri, costs are creatures of statute and are taxable only as the statutes provide. St. Louis v. Meintz, 107 Mo. 611; Hoover v. Railroad, 115 Mo. 77; Thompson v. Union Elevator Co., 77 Mo. 520. In all civil actions, unless otherwise provided, the prevailing party shall recover his costs. R. S. 1889, sec. 2920; Hawkins v. Nowland, 53 Mo. 328. Where judgment is given for the person suing out the writ of mandamus, or a judgment is given for him on demurrer or by nil dicit, or for want of a replication or other pleading, “he shall recover his damages and costs.” R. S. 1889, sec. 6816.</p> <p>The court below held that the justice be ordered to try the cause sent up by him and that the costs should be paid by the relator. To this judgment, as a whole, there was no exception taken by the relator and from such judgment no appeal has been taken. There is no case here within the provisions of our statute governing appeals. Laws 1895, p. 91. A motion to re-tax costs had no application here; there being no question within the provisions of section 2941, Revised Statutes 1889. The general provisions of our statutes as to costs (section 2920) are not applicable to mandamus proceedings, because there (chapter 105) “special provisions are made by law.” It is not required that costs be given the relator save where he could recover “in an action for a false return” which was not the case here. State ex rel. v. Ryan, 2 Mo. App. 308. Appellate courts will only review action in awarding costs where there was a palpable abuse of power. Shields v. Bogliolo, 7 Mo. 134; Wallire v. Walton, 19 Mo. 667; Turner v. Johnson, 95 Mo. 431; Redman v. Thomas, 39 Mo. App. 143; Bobb v. Wolff, 54 Mo. App. 515. The relator accepted the judgment of the court below except as to costs and is in the position of having accepted the whole. The judgment is an entirety. Waddingham v. Waddingham, 27 Mo. App. 596; Chase v. Williams, 74 Mo. 429; RoBards v. Lamb, 76 Mo. 192. A judgment for costs will not support an appeal. The appeal must be from an entire and final judgment. Boyle v. Clark, 59 Mo. App. 187.. Our courts will not punish its judiciary by assessing them with costs for mistakes in judicial acts — such is not our practice. Not one of the cases cited by appellant maintains or hints at such view; all the cases cited by appellant being where performance of ministerial duties were in question. If the ease in 32 N. EL 302, be claimed as an exception we reply that there the justice was in contempt.</p>

Louis City Circuit Court. — Hon. Daniel D. Fisher, Judge. If the trial judge abused his discretionary powers, and it is apparent in the record, an equitable judgment will beset aside on appeal. Mathias v. O’Neil, 94 Mo. 520; Bennev. Schnecko, 100 Mo. 250; Estes v. Fry, 94 Mo. 266. First.

Louis City Circuit Court. — Hon. James E. Withrow, Judge. Held: that if no action is brought until more than one is due, all that are due must be included in one action; and if an action is brought when more than one is due, a recovery in that suit will be a bar to a second action brought to recover the other claims that were due when the first was brought. Ref.

<p>Appeal fropi the St. Louis City Circuit Court. — Hon. Selden P. Spencer, Judge.</p> <p>Under the pleadings the issue to be decided by the jury was whether defendant bought the stock absolutely or conditionally. There was a great deal of evidence bearing on this question; yet the instruction singles out the one feature only, and tells the jury if they believe the $100 was loaned Weare, individually, they must find for defendant. With equal force we might ask why did not the court tell the jury that if they believed that defendant wrote the letter to plaintiff in which he admitted he had bought the stock, then they must find for plaintiff? Such instructions have uniformly been condemned. Hohstadt v. Daggs, 50 Mo. App. 240; Griffith v. Conway, 45 Mo. App. 574; Maack v. Schneider, 57 Mo. App. 431. An instruction which singles out and gives prominence to a particular fact in evidence, should be refused. Noyer v. Cunningham, 51 Mo. App. 194; Railroad v. St. Louis Stock Yds., 120 Mo. 541; State v. Jackson, 105 Mo. 196. It is error to single out a particular fact and make the whole case turn upon it. Steinwender v. Creath, 44 App. 356; Barr v. Kansas City, 105 Mo. 550. It is error to submit to the jury an issue of fact not raised by the pleadings. Wright v. Fonda, 44 Mo. App. 634; Woods v. Campbell, .110 Mo. 572; Houghland v. Dent, 52 Mo. App. 237. Instructions must be restricted within the limits of the issues made by the pleadings and can not change the issues so made. State v. Sitlington, 51 Mo. App. 252; Scott v. Allenbaugh, 50 Mo. App. 130. An instruction which exceeds the limits of the defense pleaded in the answer is fatally vicious. Aultman v. Smith, 52 Mo. App. 351. Instructions must be based upon the theory adopted in the pleadings. Ehoades v. McNulty, 52 Mo. App. 301.</p> <p>The instructions given by the court, and taken together, fairly present the law .of the ease upon the issues raised by the petition and denial, or plea of non est factum. Bank v. Hatch, 98 Mo. 376; McBeath v. Craddock, 28 Mo. App. 380; Muehlhausen v. Eailroad, 91 Mo. 332; Fletcher v. Milburn M. Co., 35 Mo. App. 321. Under defendant’s denial the question was simply: did the parties make a contract; was there part performance on both sides; could and did plaintiff offer to complete the contract, and defendant refuse to comply with his part of it? Or did defendant merely negotiate with a view of, under certain condition, making a contract at some future time and pending negotiations, loan one G-. Gr. Wear $100. It was essential for the jury to determine whether the $100 was part payment or a loan. Instructions which group together disputed facts, supported by evidence, are preferable to those that deal in generalities. Zimmerman v. Eailroad, 71 Mo. 476. If a party is entitled to have the existence of a fact in evidence submitted to the jury by instruction, it is proper to instruct as to such fact through the name of the witness be singled out in the instruction. Hartman v. Eailway, 39 Mo. App. 88. The gist of the question was: could plaintiff deliver the stock under its contract, and did it offer to do so. St. Louis Eawhide Co. v. Hill, 72 Mo. App. 142. If there ■ was any error in phraseology it was harmless because it left plainly to the determination of the jury the question of tender and ability to tender the stock. Keene v. Schnedler, 92 Mo. 516. It was the duty of plaintiff to ask for proper instructions presenting his view of the case. The record does not show that any instructions other than those given by the court were asked. Drey v. Doyle, 99 Mo. 459. If it was error to single out this payment of $100 in defendant’s instruction, it was likewise error to emphasize it in plaintiff’s instruction. 11 Communis error facit jus.” Harrington v.' Sedalia, 98 Mo. 583; Whitmore v. Sup. Lodge, 100 Mo. 46; Elint-Walling Mfg. Co. v. Ball, 43 Mo. App. 504. The giving of an objectionable instruction will not constitute reversible error, when in view of all the other instructions and the evidence in the case, it is not likely to have misled the jury. Fúgate v. Milar, 109 Mo. 281. If the verdict of the jury is the only one that could have been found consistent with the evidence, the judgment will be affirmed, though an objectionable instruction is given. Fitzgerald v. Barker, 96 Mo. 661; Henry v. Railroad, 113 Mo. 525. The instruction did not prejudice the rights of the appellant. Coleman v. Drain, 116 Mo. 387; Sinclair v. Bradley, 52 Mo. 180. The plaintiff can not recover under his own pleadings and evidence, hence the appellate court should not review the action of the trial court. Oathcart v. Railroad, 47 Mr. App. 79. It was competent to show that this corporation was insolvent from its inception and insolvent at the time of the alleged contract. If the evidence showed that it was a fraud as well as a pauper so much the worse. A condition shown to exist is presumed to continue until the contrary is shown. The judgment ought to stand because it was based on competent evidence, and upon a valid defense to plaintiff’s cause of action. Grruen v. Bamberger, 25 Mo. App. 69; Martin-Perrin Co. v. Perkins, 63 Mo. App. 310; Marks v. Turner, 54-Mo. App. 650.</p>

Louis City Circuit Court. — Hon. James E. Withrow, Judge. Appellant’s failure to pay the filing fee in time prescribed by law, entitled respondent to an affirmance of the judgment. Martin v. White, 11 Mo. 214; Hardison v. Steamboat, 13 Mo. 226; Starr v. Stewart, 18 Mo. 410; Milligan v. Dunn, 19 Mo. 643; Westphaling v. Enright, 60 Mo. 279; Hollomad v. Railroad, 92 Mo. 284; Donzelot v. Tillottson, 8 Mo. App. 565; Wilson v. Ryan, 15 Mo, App. 597; Dalton v. McCaffery, 20 Mo.

Louis City Circuit Court. — Hon. Jacob Klein, Judge. Nothing can be considered on appeal from an order granting a new trial save the grounds stated by the court in-such order, and the .grounds set forth in the motion itself. Standard Milling Co. v. Transit Co., 122 Mo. 269-270.

Louis ■ City Circuit Court. — Hon. Daniel D. Fisher, Judge. The master is bound to exercise reasonable care to furnish his servant safe appliances with which to do his work, and to use reasonable care to keep them in good order and condition. Bender v. Railroad, 137 Mo. 245; Grutridge v. Railroad, 105 Mo. 520; Friel v. Railroad, 115 Mo. 503; Coontz v. Railroad, 121 Mo. 652.

Louis City Circuit Court. — Hon. John A. Talty, Judge. The court erred in giving the instruction in the .nature of a demurrer to the evidence, compelling plaintiff ,to take a nonsuit, and in refusing to set same aside. Gammon v. Laclede Gas Light Co., 46 S. W. Rep. 968; Schroeder v. Railway, 108 Mo. 322; Franke v. St. Louis, 110 Mo. 516; Cherry v. Railroad, 52 Mo.

Louis City Circuit Court. — Hon. 'Jacob Klein, Judge. The constitution and by-laws of a voluntary society or association is a contract between its members, and as such is binding upon all of them. Kuehl v. Meyer, 42 Mo. App. 474.