Volume 77 — Missouri Appeal Reports

<p>1. Statutory Construction of Section 8172, Revised Statutes 1889. A statute designed to abolish a harsh and defective rule and to increase the scope and efficiency of the practice aet, possesses the essential elements of a remedial enactment, and must be liberally construed.</p> <p>2. --. To subject such a statute to the rigid, strict and literal construction applicable to penal statutes, or statutes against common right, would involve a violation of elementary principles of law, as well as the necessary conclusions of reason.</p> <p>3. -. The phrase “as provided in this chapter” was put in the aet for descriptive purposes only and not for the exclusion of one of the express objects of the aet.</p> <p>4. -: set-offs ob counterolaims. The act must be construed to mean the survival either of set-offs or counterclaims in the eases provided for.</p> <p>5. --: -. In the case at bar the trial court err6d in denying defendant Dunaway the right to proceed to try the counterclaim presented in his answer.</p> <p>6. Tax Bill; necessary party: cross action. In the ease at bar if defendant Dunaway was the sole owner of the land sought to be charged with the tax bill, then he was a necessary party defendant to this suit in order to charge his interest or to give the court jurisdiction.</p> <p>7. -: -: cancellation of tax bill. Under the practice act and the amendment comprised in section 8172 of the Revised Statutes, defendant, in the ease at bar, was entitled to maintain his cross action for the cancellation of the tax bill, despite the dismissal of plaintiff’s suit.</p> <p>OPINION BY JUDGE BIGGS.</p> <p>8. Statutory Construction of Section 8172, Revised Statutes 1889. Since section 8172, Revised Statutes 1889, provides for a practice unknown to the common law a strict construction must be adopted — that is the statute must not be extended beyond its very letter.</p> <p>9. -: set-off: counterclaim. The legislature used the words set-off and counterclaim interchangeably; or it referred to a counterclaim in the nature of a set-off.</p> <p>10. -: answer: equitable matter. In the case at bar the equitable matter in the answer (if sufficient for any purpose) not only tends to show a complete defense to the action, but it is sufficient to form the basis of an independent equitable action which makes it an equitable counterclaim or cross-action.</p>

Louis City Circuit Court. — Hon. Daniel D. Fisher, Judge. That the acceptance sued upon is an absolute acceptance. That the petition is a good statement of a cause of action against the defendant. That the judgment was a proper judgment. Whether the acceptance sued upon is an absolute or a conditional undertaking must be determined: First. From the language employed in tbe instrument itself. Second.

<p>Appeal from the St. Louis City Circuit Court. — Hon. Daniel D. Fishee, Judge.</p> <p>Teansfeeeed to supbeme couet.</p> <p>The only error assigned by appellant is the action of the circuit court in sustaining the demurrer to part of the amended answer. All other errors, if any, must be deemed waived. Dowling v. Allen, 102 Mo. 213; Rule 18, Court of Appeals, Revised October, 1888. The •demurrer was properly sustained. All corporate laws must be reasonable, and must conform to and be consistent with the constitution and laws of the- state. First. That an unreasonable by-law is void is an elementary proposition. The by-law in question here is unreasonable. Niblack on Mut. Ben. Societies [Ed. 1888], p. 30, sec. 26; Bacon on Benefit Societies [new Ed. 1894], p. 136, sec. 85; State ex rel. Kennedy v. Union Merch. Ex., 2 Mo. App. 96, 102; Cartan v. Father Mathew United Ben. Soc., 3 Daly (N. Y.), 20; Commonwealth v. St. Patrick’s Soc., 2 Binny (Pa.), 441; People ex rel. Schmitt v. St. Franciseus Ben. Soc., 24 How. Pr. 216; Mulroy v. Knights of Honor, 28 Mo. App. 463, 473; Angelí & Ames on Corp. [11 Ed.], p. 387, see. 347. Second. The constitution of the state of Missouri provides “that no human authority can control or interfere with the right of conscience; that no person -ought by any law to be molested in his person or estate on account of religious persuasion or profession.” Const, of Mo., art. 2, sec. 5. .The by-law in question exacts the observance of and performance of certain religious duties upon the pain of forfeiture of property interests. This is clearly in violation of the constitutional provision above quoted. It follows that the by-law is void because in derogation of the constitution of the state. Niblack on Mut. Ben. Soc. [Ed. 1888], p. 23, sec. 20; Bacon on Ben. Soc. [new Ed. 1894], p. 135, sec. 84; People ex rel. v. Medical Soc., 24 Barb. (N. Y.) 571, 574; People ex rel. Schmitt v. St. Franciseus Ben. Soc., 24 How. Pr. 216; R. S. 1880, see. 2831. Third. The defendant is a corporation organized, existing and operating under the laws of the state of Missouri relating to fraternal beneficial associations. As such it has only the power to make by-laws for the purposes enumerated in the statutes. The laws of this state applicable to this class of corporations do not authorize the making of by-laws suchas the one in question. R. S. 1889, sec. 2831; People ex rel. v. The Medical Soc., 24 Barb. (N. Y.) 571, 574, 575; People ex rel. Schmitt v. St. FranciseusBen. Soc., 24 How. Pr. 216; Niblack on Mut. Ben. Soc. [Ed. 1888], p. 53, sec. 44. Defendant is a fraternal beneficial society as distinguished from a mere religious society. Members to whom certificates are issued acquire property rights. Any by-law not necessary to preserve and protect such rights is unreasonable and void. Const, of Mo., art. 2, sec 8; Niblaek onMut. Ben. Soc. [Ed. 1888], p. 30, sec. 26; Bacon on Ben. Soc. [new Ed. 1894], p. 137, sec. 85; Mulroy v. The Knights of Honor, 28 Mo. 463, 471-473; People ex. rel. v. St. Eranciscus Ben. Soc., supra; Commonwealth v.'St. Patrick’s Ben. Soc., 2 Binn. (Pa.) 441. The amended answer does not allege that Franta had committed any act which necessitated a “confession.” There being no occasion for a “confession” the by-law even though valid, does not constitute defense; hence the demurrer was properly sustained. The law does not ask of any one to do that which is unnecessary; nor will the law presume that Franta had sinned. Matt v. The Roman Cath. Mut. Ben. Soc., 70 Iowa, 455, 458. "Where the suspension of a member of a mutual benefit society by his lodge, is without jurisdiction — as where it takes place upon a charge of which the lodge has no jurisdiction to try him — his expulsion is null and void, and, being so, it is not incumbent upon him to take steps to have it reversed in a higher judicatory of the order. Glardon v. Supreme Lodge K. of. P., 50 Mo. App. 50, 55; Hoeffnerv. Grand Lodge of Harugari, 41 Mo. App. 359, 367; Mulroy v. The Knights of Honor, 28 Mo. App. 463, 474.</p> <p>That the constitution and laws of organizations such as defendant are binding on its members, is not an open question in this state. Coleman v. Knights of Honor, 18 Mo. App. 194,195; Smith, v. Knights of Father Mathew, 36 Mo. App. 184; Grand Lodge, etc., v. Sater, 44 Mo. App. 452; Theobald v. Supreme Lodge, 59 Mo. App. 87; State ex rel. v. Grand Lodge, 70 Mo. App. 466 and 467; Ellerbe v. Faust, 119 Mo. 653; Spilman v. Home Circle, 157 Mass. 128. It was claimed that the provisions of the constitution and laws of defendant set up in its answer were void. First. Because unreasonable. Second. Because in conflict with the constitution of this state, and, third, because unauthorized by the statutes of this state. These laws were not unreasonable. The constitution of the society provided that none but Catholics could belong to it. It is then alleged by the laws of the Catholic church all members thereof are required to do certain things. And these laws of the society required its members to do these same things which, as Catholics, they were required to do, and provided for suspension for failure to do as the laws required. The claim that the constitution and laws set up in the answer are unauthorized by the statutes of this state, is not well founded. * * •* gee secs. 2821, 2822, 2823, and 2831, R. S. 1889. That part of the answer covered by the demurrer contains an allegation .that Franta, though having the right to do so, did not appeal from the order suspending him but acquiesced in the same. Even though the suspension of Franta was void, still if he acquiesced in it, he must be regarded as holding the position of a suspended member. Glardon v. Supreme Lodge, etc., 50 Mo. App. 45, 55-58; Miller v. Grand Lodge, 72 Mo. App. 499, 505 and 506. In some cases it is a matter of discussion as to whether or not what the member did or omitted to do showed an acquiescence. But in the answer in this case it is alleged that the suspended member did acquiesce. This allegation if denied would raise a question of fact to be determined by the proof, but a demurrer to it should not have been sustained.</p>

<p>Appeal from,' the St. Louis City Circuit Court. — Hon. Daniel D. Fisher, Judge.</p> <p>The judgment of a justice of the peace of another ■state, while not within the act of congress as to the authentication of records, is, when proved, within the provisions of the constitution as to the full faith and •credit to be given to it. 12 Am. and Eng. Ency. Law, 148m. Any competent legal evidence is sufficient to prove the judgment of a justice of the peace of another •state, the same as any other matter of fact. The authorities are conclusive on that point. There is a variety of competent ways of proof. “A judgment of a justice of the peace of a sister state may be established by common law proof by proving the statute under which the court was held, and that there was jurisdiction of the subject-matter and of the person.” 12 Am. and Eng. Ency. of Law, 503. “The judgment •of a justice of the peace of another state may be proved by the oath of witnesses who have compared the copy produced in evidence with the original.” Freeman, ■Judgments, sec. 577. “The justice’s record maybe •established by a copy proved to be true by a witness who has compared it with the original, or by testimony •as other facts are proved.” 12 Am. and Eng. Ency. of Law, 148u; McElfatrick v. Taft, 10 Bush (Ky.), 160. “The record of a justice of the peace may be proved by one witness, accompanied by evidence that the signature of the justice is of his handwriting, and that the justice’s court had no seal.” Ibid. Kean v. Rice, 12 S. & R. (Pa.) 203. The proof of the judgment sued on meets every requirement of evidence. 1. The transcript of the judgment docket is certified by the justice to be full, true and perfect, and the official character of the justice and the genuineness of his signature are certified by the clerk of the county court. 2. Any one of the above considerations is conclusive of the validity of the plea in this case as a defense. We may briefly consider these propositions seriatim. Onus probandi. -It may be remarked at the-outset, that res adjudicata is an issue of fact, and the burden of proof lies with the pleader. Respondent in his brief has never once defined the issue, and the most casual notice of his brief and argument shows that he has not conceived what res adjudicata is, as a proposition of law. “The burden of proof is upon the defendant who pleads res adjudicata because of a former judgment, to set up that judgment and to show what was determined by it, and what is common to the subsequent action; and the proof must be clear, certain and convincing. In other words it must be proven with such care and exactness as any other material facts would require. ” 21 Am. and Eng. Ency. Law, 202. Respondent does not define res adjudicata, but seems to think that because there was a former suit between these parties, the plea must needs apply, willy nilly. He is in happy unconcern as to the legal constituents of res adjudicata ás a bar. “To make a matter res adjudicata there must be a concurrence of the four conditions following, namely: 1st, identity of the subject-matter; 2nd, identity of the cause of action; 3rd, identity of the persons and parties; 4th, identity in the quality of the persons for or against whom the claim is made.” 21 Am. and Eng. Eney. Law, 227. “In order to an estoppel by res adjudicada, there must have been a judgment. In the next place, the judgment must have been valid. Further, a judgment in ■order to work an estoppel against another litigation upon the same cause of action, must have been rendered upon the merits of the cause,” Bigelow on Estoppel, chap. 2, p. 52; McElmony v. Cohen, 13 Peters (U. S.), 312; Morrell v. Morgan, 65 Cala. 575. “A judgment in order to be a bar to further litigation, must not have been rendered upon some mere preliminary grounds, as upon a plea in abatement or the like; the case must have gone to a full and complete termination, so that nothing is left unsettled as to the rights of the parties litigant, or the extent of those rights. In a word, the judgment must have been final and rendered upon the merits of the case.” Grarrett v. Grreenwell, 92 Mo. 120; Short v. Taylor, 137 Mo. ■519; Baker v. Lane, 137 Mo. 682; 21 Am. and Eng. Ency. Law, 265. First. The general denial is insufficient to raise any issue on the record of a judgment. “In an action on a judgment of a sister state, if it appears on the face of the record that the court did have jurisdiction, extrinsic evidence to contradict it is not admissible under the general plea. If it is desired to contradict it, it must be done by a formal or special plea.” 2 Black, Judg. 901; Hill v. Mendenhall, 21 Wall. (U. S.) 453; Bennett v. Morley, 10 Ohio, 100. Second. And the only issue of “merits” that can be raised against a record of foreign judgment, by special plea, is payment, or fraud in obtaining, or want of jurisdiction. (Christmas v. Russell, 72 U. S. 290.) There is nothing of the kind pleaded here. Third. The former judgment being on the plea of the statute of limitations, adjudicated nothing except that the then eaus.e of action was barred by that statute. Such plea is only to the remedy in the forum, and has never any application to the merits of any cause of action. Fourth. Grouting that any demand sued on is barred by the statute, there is no estoppel from bringing another action subsequently when a new promise or some other circumstance has revived the obligation, or it has been renewed, or the bar in any way removed. * * * “A decree fixing the fact that plaintiff had no title at the time of a former suit is no bar to a suit after having acquired the proper title.” Bigelow, Estoppel, chap. 2, p. 56.</p> <p>Respondent can not sue in a dual capacity. She institutes suit as: (1) “Executrix of Travis Winham, deceased, and (2) in her own right.” It appears that the alleged judgment upon which the suit is founded was rendered in favor of respondent as “executrix and sole legal representative of Travis Winham, deceased.” Respondent’s evidence was not sufficient to warrant a judgment in her favor, either in an individual or a representative capacity. The judgment was not legally-proved. First. The act of congress for the authentication of records and judicial proceedings does not apply to judgments of justices of the peace. 1 Greenl. onEv.,. secs. 505, 515; Freeman on Judg., see. 577; Mills v. Durgee, 2 Am. Lead. Cas. [5 Ed.], 660; Mills v. Martin, 19 John. 33; Thomas v. Robinson, 3 Wend. 267; Commonwealth v. Green, 17 Mass. 537; Mahurin v. Bickford, 6 N. H. 657; Silver Lake Bank v. Harding, 5 Ohio St. 545; Collins v. Mathew, 5 East, 475. Second. The signature of the justice to the so-called transcript of his docket entries, certified by the clerk of the county court, is insufficient to prove-the judgment. Blackwell v. Glass, 43 Ark. 209. Third. article IV, section 1, of the United States Constitution, which requires that full faith and credit shall be given in each state to the judicial proceedings of every other state, is not violated by this position, since the issue is solely a matter of proof. Menkin v. Brinkley, 94 Tenn. 737. The former judgment is a complete legal bar to respondent’s right of recovery, because it was, (1) between the same parties, (2) involved the same cause of action, (3) determined finally by courts of competent jurisdiction, and (4) was a decision involving, and determined upon, the merits of the controversy. Railway v. Levy, 17 Mo. App. 501, 507, 508, 509; Coleman v. Dalton, 71 Mo. App. 14; Goodrich v. Chicago, 5 Wall. (U. S.) 566; Packet Co. v. Sickles, 5 Wall. (U. S.) 592. The estoppel is not confined to the judgment, but extends to all facts involved in it as necessary steps, in the groundwork upon which it must have been founded. It is allowable to reason back from a judgment to the basis upon which it stands. Burlen v. Shannon, 99 Mass. 202; Dickinson v. Hayes, 31 Conn. 423. The plea applies not only to the point upon which the court was required by the parties to form an opinion and pronounce a judgment, but to every point which belonged properly to the subject of litigation, and which the parties exercising reasonable diligence might have brought forward at the time. Railway v. Levy, 17 Mo. App. 501, 508; Henderson v. Henderson, 3 Hare. 115; Bailey v. Bailey, 115 111. 551; Donoher v. Prentiss, 22 Wis. 316; Vail v. Reinhardt, 105 111. 6. In no case can one be heard to complain that a judgment was rendered against him in consequence of his own neglect or unskilfullness in developing the proper issues for the decision of the court. Pray v. Hegeman, 98 N. Y. 351; Davis v. Mayor, etc., 93 N. Y. 250; Wells on Res Adjudicata, sec. 249; Smith v. Smith, 79 N. Y. 634. Where a party fails to plead a fact he might have pleaded or makes a mistake in the progress of an action, or fails to prove a fact he might have proved which is essential to his recovery or to sustain his defense, the rule is imperative, that it shall be submitted or lost and the law can afford him no relief. Burwell v. Knight, 51 Barb. (N. Y.) 269; Bridge Co. v. Sargent, 27 Ohio St. 237; Wells on Res Adjudicata, secs. 250, 251. By refusing to relieve parties from the consequences of their own neglect, the law seeks to make them vigilant and careful. On no other principle would there be any end to an action, and there would be an end to all vigilance and care in its preparation and trial. Ewing v. McNairy, 20 Ohio St. 322; Well on Res Adjudicata, sec. 251. If there is a failure to prove or to attempt to prove any of the allegations of the pleadings, a judgment is a bar to an action upon any issue declared upon but in no way proven, or upon which no evidence was offered. Pugh v. Williamson, 61 Mo. App. 165; Bassett v. Conn. River Ren. Co., 150 Mass. 178; Sutton v. Dameron, 100 Mo. 141; Crowley v. Mellon, 52 Ark. 1; Lyman v. Harvester Co., 68 Mo. App. 637; Railroad v. Levy, 17 Mo. App. 501. The doctrine of res adjudicata applies as well to judgments of courts of last resort as to those of nisi prius courts. If the same subject-matter comes in question in a second action before a court of last resort, it is bound by its own former decision. Kerr v. Cusenbary, 69 Mo. App. 221; Masterson v. Railroad, 58 Mo. App. 572; Rousey v. Wood, 63 Mo. App. 460.</p>

Louis City Circuit Court. — Hon. Horatio D. Wood, Judge. The ease at bar is not within the rule of Weyrich v. Grand Lodge, 47 Mo. App. 391. Here there is an express undertaking of the grand lodge to pay to the beneficiary. Secs. 5 and 6, Statutes of the Mortuary Fund. All members of the lodge in good standing are members of, and are entitled to participate in, the Mortuary Fund. Sec. 2, Statutes of the Mortuary Fund. Puhr was never suspended or expelled during his lifetime.

<p>1. Pleading: contract: quantum meruit. It is the established law in this state that when a contract has been fully performed and nothing remains to be done except to pay the stipulated price, the party performing may ignore the contract in his pleading and sue on contract, as for quantmn meruit.</p> <p>2. -:--: -: practice, trial. If upon a trial in such an action the contract is admitted or is proved, the right to recover will be governed by it.</p> <p>3. Contract, Construction of. When in a contract services are to be performed by plaintiff “entirely to the satisfaction of defendant” it is held that this condition only requires that defendant should get such service as she was reasonably and legally entitled to under the contract.</p> <p>4. Evidence: reasonable value of services under special contract. In the case at bar evidence of reasonable value of services is admissible, upon the ground that the price to be paid is not such an essential element of a special contract as to render proof of the exact price essential to a recovery.</p> <p>5. Instructions: practice, trial: duty of trial judge. It is not the duty of the trial judge to prepare instructions.</p> <p>6. -: -:-: attorney must prepare instructions. The attorney must prepare and present instructions to the court, and when all the instructions presented are essentially erroneous, it does not then devolve upon the court to prepare a correct charge.</p> <p>7. -: -: READING DECISIONS of supreme court to the jury. It is within the discretion of the court to allow counsel to read from the decisions of the supreme court to the jury.</p>

<p>1. Assignee: power on circuit court to reopen an assignment. The circuit court has the power to reopen an assignment and set aside the discharge of an assignee at a subsequent term.</p> <p>2. -: NOTICE op discharge. The only notice required by an assignee, of his intention to apply for a discharge, is by general publication to that effect.</p>

<p>1. Contract: breach oe contract: certificate of acceptance of work by architect, effect of. A building contract provided that a bouse should be built according to certain drawings and specifications, and the work “to be done to the satisfaction of the architect” who should give a certificate to that effect. The alleged breach of the contract was that defendants failed to use a certain kind of varnish or wood finish as they agreed to do in contract, but substituted therefor a cheaper and inferior varnish; held, that the certificate of acceptance of the architect was not conclusive as to latent defects.</p> <p>2. -: -: -: instruction: evidence. And that an instruction based on the theory that the certificate of the architect accepting the work was conclusive was properly refused by the trial court, when the evidence tended to prove that the architect was absent while the varnishing was being done, and when the evidence tended to prove further that the use of the cheaper or inferior varnish could not be detected when put on, but would only be developed by time.</p> <p>3. Contract: construction of: notice. Under the contract, in the case at bar, the clause relating to notice therein provided, clearly refers to the time when the work is in progress, and not after its completion.</p> <p>4. -: -: measure of damages. Unquestionably, in the case at bar, the measure of plaintiff’s damages is the sum which he necessarily expended to make the varnishing of the wood work of his house conform to the contract, whether such sum be more or less than the sum for which the defendants contracted to do the work.</p> <p>5. Pleading. Pacts not pleaded can not be made the basis of relief.</p> <p>6. -: set-off: counterclaim: dama&es. No set-off or counterclaim was pleaded by the defendants in the case at bar nor did they offer any evidence to support either, and their attempt to graft it upon the petition must fail; it is not an element in the measure of plaintiff’s damages and can not take root in the petition.</p>

<p>Trustee: trust fund: liability of trustee. The law in this state now is, that where one is clothed with a double fiduciary capacity, if one trust is fully executed and the amount of the trust fund authoritatively and definitely ascertained, the trustee may by an unequivocal act change his liability for the fund from orie trust to the other, provided he has the trust money or property in hand, or if he then or afterwards segregates the amount from his general estate.</p>

<p>Appeal from the St. Louis City Circuit Court. — Hon. Seldon P. Spencer, Judge.</p> <p>Transferred to the supreme court.</p> <p>“Section 22, Article 5, of the constitution of the state of Arkansas 1868, is in force by virtue of the first clause of section 1, schedule to the constitution of Arkansas, 1874. Dyer v. Gill, 32 Ark. 410; Shinn v. Tucker, 33 Ark. 421; Lindsay v. Norrill, 36 Ark. 545; Cass v. Dillon, 2 Ohio St. 607; Cooley Const. Lim. [5 Ed.], pp. 70, 71. If the act of the Arkansas legislature of April 9, 1891, was a law in force on May 1, 1891, it was not operative in this case for the reason that if plaintiff was an innocent purchaser of the original notes, for value, and if the notes sued on were renewals of the said original notes, they would be held in like manner as the original notes and to apply to the law of April 9, 1891, to such contract made in November, 1890, would be to impair the obligation of contracts, which would be a violation of the constitution of the United States. Black on Const., pro. sec. 102; Story on Const., sec. 1385; Green v. Biddle, 8 Wheat. 346; Article 1, sec. 10, const. U. S.; 33 L. A. B., p. 556. One who purchases a negotiable note for value before maturity does not owe the maker the duty of making active inquiry into the origin or consideration of the note before purchasing same. See Clark v. Evans, 13 C. C. A. Bep. 433. The law is well settled that a party who takes negotiable paper before due, for value, without knowledge of any defect of title can hold it against all the world. King v. Doane, 139 U. S. 166, and other cases cited in Clark v. Evans. There was no evidence upon which to base the instructions given by the court. This court has jurisdiction. 67 Mo. App. 628; 5 Peters (U. S. Sup. Ct.), p. 179; 10 Am. and Eng. Ency. Law, p. 441. The burden of proof lies on the person who assails the right claimed by the party in possession of a note. Clark v. Evans, 13 C. C. A. Bep. 433. It is a question whether the notes of May 1, 1891, were ever given for stock and whether the consideration for them is not the surrender of the old notes.</p> <p>The judgment of the lower court should be reversed for the following reasons: First. Because the undisputed evidence shows that the notes sued upon were given for an interest in a patent right. Mansfield’s Digest of Ark., p. 315, secs. 492, 493; Clark v. Evans, 40 S. W. Rep. 771. * * * Second. Because the petition declares upon two separate counts and the verdict is general. State v. Bedell, 35 Mo. App. 551; Brieker v. Railway, 83 Mo. 391. Third. Because plaintiff was not a purchaser for value.</p>

<p>Appeal from the St. Louis City Circuit Court. — Hon. Daniel D. Fisher, Judge.</p> <p>The evidence detailed by witness Parkinson was competent, giving his opinion as an expert upon the matter in hand, and at the same time detailing the facts upon which his opinion, as expert, was based: he was an engineer of seven years experience; was called upon to examine the tank in question, he did examine it and gives the facts found, and communicated them to the defendant, together with his opinion based upon these facts. The jury had the facts before them, from which they could find whether the tank was reasonably safe or not. “An expert is supposed to have some special knowledge over and above men of ordinary education, derived from his peculiar pursuits or experience, that entitles his opinion to be received in evidence.” Gavisk v. Railroad, 49 Mo. 276, cited and relied on by appellant, and see Benjamin v. Railway, 50 Mo. App. 607; Goins v. Railway 181. “It may be laid down as a general rule, that the opinion of a witness possessing peculiar skill is admissible whenever the subject of inquiry is such that inexperienced persons are unlikely to prove capable of forming a correct judgment upon it without such assistance.” When defendant by an instruction of its own supplies the elements omitted in plaintiff’s instruction it ought not. to complain. Redpath v. Lawrence, 42 Mo. App. 101, cited by appellant, decides that defendant’s instructions are quite contradictory of those given for the plaintiffs. State v. Brumley, 53 Mo. App. 126: The instructions were held to be irreconcilable. So it is held in Gregory v. Sitlington, 54 Mo. App. 63. That there is a manifest conflict in these instructions, and they can not stand together. And in State v. Cobb, 117 Mo. on page 386, the court lays down the rule that “an erroneous instruction is not remedied by the giving of a correct instruction which is inconsistent and irreconcilable therewith.” It is only where instructions are in conflict one with the other that the jury may be mislead, but when plaintiff’s instruction manifestly implies what defendant’s instruction directly asserts, there is no inconsistency, and the instruction as a whole will be deemed sufficient in this regard. Pike v. Eddy, 53 Mo. App. 506. An omission in an instruction may be supplied by its insertion in another one. State v. Taylor, 118 Mo. 153; Crawford v. Doppler, 120 Mo. 362. And all instructions ought to be read together, and if they, when so read together, present the law to the jury, it will be sufficient. Burdoin v. Trenton, 116 Mo. 358; Easely v. Railroad, 113'Mo. 236. The defendant has two instructions on the assessment of damages, namely: the second and the last, which renders it impossible for the jury to be misled by plaintiffs’ instruction complained of. It is true that by a clerical error the name of plaintiffs’ father is mentioned in one of the instructions as Charles, when it should be John, but there was no dispute in the case as to the identity of the person killed with the father of the plaintiffs, and the testimony of all the witnesses speaks of the deceased as John Fischer. This slip of the pen could not mislead the jury. In Shortel v. City of St. Joseph, 104 Mo. 121, the defendant’s instruction uses in one place the word plaintiff, when it should be defendant, and in another place the word defendant, when it should be plaintiff. Says the court: They are mere clerical errors, readily discovered upon reading the instructions, and constitute no ground whatever for a reversal. There was no evidence whatever before the jury to which that part of the instruction struck out by the court could have applied,' as to the explosion being caused by the negligence of a fellow employee. There has been no claim made in the case • that the explosion was caused by the negligence of a fellow workman, even the defendant does not claim so. Mr. Heitzeberg testifies that he does' not know what caused the explosion. There was error in inserting the words “aggravating or” in defendant’s instruction. If there were any facts or circumstances developed by the testimony upon which defendant might base his instruction, as to mitigating circumstances, then there were more facts and circumstances which aggravate the wrong done by defendant.</p> <p>The court erred in allowing the witness, Parkinson, to give in evidence his opinion as to the “safety” of this boiler. The answer to that question necessarily depended upon many other contingencies, and was one for the jury to arrive at. King v. Railroad, 98 Mo. 235-240; Koons v. Railroad, 65 Mo. 597; Eubank v. Edina, 88 Mo. 655; G-avisk v. Railroad, 49 Mo. 276; Gutridge v. Railroad, 94 Mo. 472. The instruction for plaintiffs on the measure of damages was misleading and insufficient, and furnished to the jury no sound or satisfactory rule upon which to estimate such damages. Goss v. Railroad, 50 Mo. App. loe. cit. 623; McGowan v. Ore & Steel Co., 109 Mo. 518, 534, et seq. The vice in the above instruction is not cured by instructions given for defendant, which differ from, and are in conflict with the one given for plaintiffs. Frank v. Grand Tower, etc., 57 Mo. App. 181; Redpath v. Lawrence, 42 Mo. App. 101; State v. Brumley, 53 Mo. App. 126; State v. Cable, 117 Mo. 380; Gregory v. Sitlington, 54 Mo. App. 60. The first instruction given for plaintiffs is likewise defective in allowing a recovery if it is found that plaintiffs are the children of Charles Fischer. The petition averred that plaintiffs were the issue of John Fischer. The answer denied this. * * * The court erred in striking from the first instruction offered by defendant that portion which declared defendant’s non-liability in case the explosion was directly caused by the negligence of a fellow employee. * * * Higgins ,v. Railroad, 104 Mo. 413, and cases cited. The court erred in inserting the words: “aggravating or,” into the second instruction asked by defendant. Defendant may not have been entitled to submit to the jury the question of mitigating circumstances surrounding the transaction, but this does not justify an instruction to the jury authorizing them to aggravate the damages beyond mere compensation, especially without defining the meaning of these words. McGowan v. St. Louis Ore and Steel Co., 109 Mo. loe. cit. 536, and cases cited; Morgan v. Durfee, 69 Mo. 469, 478. What' are “pecuniary damages necessarily resulting to said plaintiffs from the death of their father,” * * * having “regard to any aggravating or mitigating circumstances attending the alleged wrongful act?”</p>

Louis City Circuit Court. — Hon. Jacob Klein, Judge. Judge Biggs dissenting. The facts in this case fully appear in the trans-script.

Louis City Circuit Court. — Hon. - James E. Withbow, Judge. Plaintiff contends that the reply is not a departure from the petition. Because plaintiff’s reply is in pursuance of plaintiff’s petition, is not inconsistent with it and does explain, support and fortify it. Ency. of Plead, and Prac., pp. 461, 465; Auchincloss v. Prank, 17 Mo.

Louis City Circuit Court. — Hon. Jacob Klein, Judge. The instruction given is faulty in that it declares the law to be that known insolvency is not sufficient to justify a finding for the plaintiff. This is contrary to the decision of this court. Strauss v. Hirsch, 63 Mo. App. 95; Blackwell v. Fry, 49 Mo. App. 638, at 639; Reid et al. v. Lloyd, 52 Mo. App. at 282.

Louis City Circuit Court. — Hon. Daniel D. Fisher, Judge. The evidence, abundantly suffices to make a prima facie case of partnership between defendants Stranghoenner & Boehmer at the time of the execution of the .note sued on. Grates v. Watson, 51 Mo. 585, loe. cit. 509; Meyers v. Boyd, 44 Mo. App. 378; Kelm v. Rathbon, 36 Mo. App. 199; 1 Lindley on Partnership, p. 195 et seq., title, Usual Evidence of Partnership.

Louis City Circuit Court. — Hon. Leroy B. Valliant, Judge. The instruction given by the court of its own motion through which it presented the law to the jury properly. American Brewing Ass’n v. Talbot, 141 Mo. 674 and 681; Stanard Milling Co. v. Transit Co., 122 Mo. 275, 258; Wiser v. Chesly, 53 Mo. 547, 550; Taussig v. Shields, 26 Mo. App. 318, 327; McCarthy v. Wolfe, 40 Mo. 520, 522; Arnot v. Branconier, 14 Mo. App. 437.

Louis City Gireuit Court. — Hon. John A. Talty, Judge. A principal is liable to third persons for the fraud and deceit of his agents, when committed within the real or apparent scope of his employment. Johnson v. Hurley, 115 Mo. 513; Hoppe v. Saylor, 53 Mo. App. 4; Carroll v. Railway, 14 Mo. App. 490; Ingalls v. Averitt, 34 Mo. App. 371, loe. cit. 377; Noble v. Steamboat, 23 Iowa, 109; Titus v. Turnpike Co., 61 N. Y. 237; Keedy vs. Howe, 72 111. 133.

Louis City Circuit Court. — Hon. Daniel D. Fisher, Judge. The court erred in admitting evidence as to whether or not, when the American Brewing Company first began to sell goods to Strube, they were, or were not, informed of a supposed indebtedness by Strube to Louis Obert. It was admitted that the American Brewing Company (one of the beneficiaries) knew of an indebtedness at the time when the mortgage to them and others was executed.

Louis City Circuit Court. — Hon. John A. Talty, Judge. Held: Rombauer, P. J. (p. 526): “That it was error to instruct that the burden is upon the defendant to show that he had exercised such ordinary care in driving said horse at the time he was killed.” The court further said (p. 527): “The defendant under all the evidence was a hired bailee of the class known as agistors.

Louis City Circuit Court.r-H.ox. Jacob Klein, Judge. The lease in question necessarily conveyed the ground upon which the building stands as appurtenant and incident to the building. Held: that a lien may be acquired against a tenant’s interest in all cases where it can be done without an invasion of the rights of the reversioner, and that a lien can not be used to the injury of the owner of the reversion.

<p>Appeal from the St. Louis City Circuit Court. — Hon. James E. Withrow, Judge.</p> <p>The judgment is against the law as declared in the instructions of the court. Leather Co. v. Hardware Co., 57 Mo. App. 297; Sauer v. Baer, 49 Mo. App. 86; Eby v. Watkins, 39 Mo. App. 27; Russell v. Rutherford, 58 Mo. App. 550; Smith v. Ham, 51 Mo. App. 433; Hardware Co. v. G-allant, 53 Mo. App. 423; Elliott v. Keith, 32 Mo. App. 579.</p>

Louis City Circuit Court. — Hon. Horatio D. Wool, Judge. The court erred in allowing George J. Phelps to become a party defendant in the cause. Sess. Acts 1895, p. 42. Assignee in a general assignment for the benefit of creditors has an interest in the assigned estate, and is authorized by law to be made a party defendant to protect the interests of the creditors. Sess. Acts 1895, p. 42; Sess. Acts 1897, p. 38.

— Hon. E. J. Broaddus, Judge. (1) The cashier of a bank has no authority to borrow money for his bank, execute its note therefor, and pledge the notes and assets of the bank as collateral security for the same, without the consent of the board of directors of the bank. R. S. 1889, secs. 2748, 2759; 1 Morawetz on Priv. Corp. [2 Ed.], sec. 540; Bank v. Hughes, 62 Mo. App. 576; Bank v. Sailor, 63 Mo. 24; Ringling v. Kohn, 6 Mo. App. 333; Fleckner v. Bank, 8 Wheat. (O'.

— Hon. Ralph Loziee, Special Judge. (1) The conductor was not bound to stop the train at Hardin even though an agent of the company, with authority so to do, had directed plaintiff to the train as one that would stop at that place. Sira v. Railroad, 115 Mo. 127; Logan v. Railroad, 77 Mo. 663; Marshall v. Railroad, 78 Mo. 610; Jackson v. Railway, 118 Mo. 199; Railroad v. Pierce, 3 Am. & Eng. R. R. Cases, 340; Railroad v. Gants, 38 Kan. 608; Wood’s Railway Law, sec. 355.

— Hon. Richard Field, Judge. (1) It was error to strike out that part of defendant’s answer, setting up the existence of a mob in the Kansas City yards, by reason of which defendant could not get its cars handled through sai.d yards, as an excuse for refusing to receive said cattle for shipment. The law is clear that under such circumstances the carrier is excused from receiving stock for shipment. For the same reason it was error to refuse defendant’s second instruction.

— Hon. E. J. Broaddus, Judge. (1) The court erred in giving instruction number 3, asked by plaintiff, declaring the law to be that “plaintiff is entitled to six per cent interest on the value of the stock of goods shown by the evidence to have been converted from the date of the seizure and conversion February 2, 1888;” and in given plaintiff’s instruction number 7, to the same effect.

— Hon. Gf. E. Longan, Judge. (1) The court erred in permitting the examination of the witness Lovinger relative to the statement made by him to Dun’s agent at Sedalia. It was made without the knowledge or authority of David. The court so ruled and excluded the paper. The same reasons rendered the contents incompetent and made it error to admit them.

— Hon. R. E. Culver, Judge. (1) The court committed error in giving the instruction requested by plaintiff. It was clearly erroneous. Held: it is the law in many states that a servant is presumed to have been hired for such length of time as the parties adopt for the estimation of wages. A hiring at a yearly rate is presumed to be for one year. 14 Am. and Eng. Ency. of Law, 762; Beach v. Mullin, 34 N. J. L. 343; State v. Fisher Yar. Co., 43 N. J. L. 151; Bascomv.

— Hon. A. M. Woodson, Judge. The instructions in the nature of a demurrer at the close of respondent’s case to find for the appellant should have been given, but if appellant waived it by introducing testimony then it should have been given as asked at the close of all the testimony. Felix v. Bevington, 52 Mo. App. 403; Hite v. Railway, 130 Mo.' 132; Weaver v. Railway, 60 Mo. App. 207; Weber v. Railway, 100 Mo. 194. Mere conjectures will not do.

Bay Circuit Court. — Hon. E. J. Broaddus, Judge. (1) The jurors challenged for cause by the plaintiff were competent triers of the case. R. S. 1889, sec. 6083; Burdine v. Grand Lodge, 37 Ala. 473; Robinson v. So. Pac. Co., 105 Cal. 526. “(2) The petition declared on a direct promise of indemnity, while the policy constituted only a conditional agreement to pay the loss. There was such a variance between the allegations and this offer as to amount to a failure of proof.

— Hon. E. J. - JBroaddus, Judge. (1) The objections of the defendant to the introduction of any evidence under the petition should have been sustained, and likewise the objections of the defendant to the introduction of the note in evidence, for the following reasons: First, the petition did not state facts sufficient to constitute a cause of action against the defendant as indorser.

— Hon. E. J. Broaddus, Judge. The court erred in sustaining the objections of defendant to plaintiff’s offer of testimony to prove the actual value of the hog. Kellerman v. Railroad, 136 Mo. 177; McFadden v. Railroad, 92 Mo. .343; Ragan v. Railroad, 51 Mo. App. 665; Duvenick v. Railroad, 57 Mo. App. 550; Conover v. Express Co., 40 Mo. App. 31. (1) The defendant was entitled to judgment on the pleadings, as the reply failed to traverse the allegations of the answer.

—Hon. J. A. Alexander, Special Judge. (1) Section 7796 of Revised Statutes 1889 as amended by the Session Acts of 1893, page 222, and section 5, page 224, gives the county court exclusive jurisdiction for the opening and laying out of new roads, and takes away from the township* board jurisdiction of the same. Session Acts of 1893, pp. 222, 224.

— Hon. E. J. Broaddus, Judge. (1) When a person places himself in connection with a telephone in his place of business, he invites communication in that channel. Wolf v. Railway, 97 Mo. 482. (2) Instructions number 1 and 2 are the law and should have been given. They properly declare the law and recognize the advancement of science and modern improvement, and under the evidence should have been given.

<p>Appeal from the Livingston Circuit Court. — Hon. E. J. Broaddus, Judge.</p> <p>(1) Injunction will not lie. Wilton v. Martin, 7 Mo. 310; Hayden v. Tucker, 37 Mo. 214; McDonough v. Robbens, 60 Mo. App. 159; 1 High on Injunctions, sec. 743; 2 Wood on Nuisance, sec. 797; Kerr on Injunctions [2 Ed.], and cases cited, pp. 165 and 187; Grandena v. Lovdal, 12 Am. St. Rep. 121; Robinson v. Clapp, 52 Am. St. Rep. 298; Musch v. Burkhart, 48 N. W. Rep. 1024; Robinson v. Clapp, 32 N. E. Rep. 939; Railroad v. Loop, 39 Am. Rep. 307. (2) Petition states no cause of action. McDonough v. Robbens, 60 Mo. App. 159; McKinzie v. Mathews, 59 Mo. 99. The decree is too indefinite. Robinson v. Clapp, 32 N. E. Rep. 940. (4) The facts show no ground for injunction.</p> <p>(1) Injunction will lie. R. S. 1889, sec. 5510, construed; Jones v. Williams, 139 Mo. 37, and authorities cited; 'Silver v. Railroad, 101 Mo. 91; Schoop v. St. Louis, 117 Mo. 131; Whipple v. Mclntire,'69 Mo. 397; Frost v. Phosphate Co., 26 L. R. A. 694, and authorities cited; Yonkers v. Copcut, 23 L. R. A. 487; Harber v. Evans, 101 Mo. 661; Bishop on Non-Contract Law, secs. 417-428. Where a mandatory injunction will lie for plaintiff. Harrington v. McCarthy, 61 Am. St. 298. (2) The fact that anything exists where it was not a nuisance, but becomes so by reason of an extension of a city, is no reason why it should not be abated. 2 Blackstone’s Com., ch. 13, p. 218; McLain v. New Castle, 6 L. R. A. 738; Ahern v. Steele, 12 Am. St. 778. (3) A landlord is liable for a continuance of a nuisance if erected by another, if continued by him. Lee v. McLaughlin, 26 L. R. A. 197 and note; Gilliland v. Railroad, 19 Mo. App. 411; Padberry v. Kennedy, 16 Mo. App. 556. Equity having obtained jurisdiction by injunction will allow all damages for nuisance. Price v. Oakfield, 24 L. R. A. 333, and authorities cited. (4) All nuisances are trespasses. Harber v. Evans, 101. Mo. 660, 667. Don’t need to have special damages." Spencer v. Railroad, 120 Mo. 559; Hawk v. Railroad, 94 Mo. 261. In this state no demand is necessary. Silver v. Railroad, 101 Mo. 79, 91, and authorities there cited. The court below should have given us the full damages. Emery v. Powder Co., 53 Am. Rep. 730. Even the first occupant acquires no right of an adjoining proprietor nor to use his own land to the injury of his neighbor. Platt v. Johnson, 8 Am. Dec. 233; Thurston v. Hancock, 12 Mass. 220; Campbell v. Seamen, 63 N. Y. 558. There is .no limitation in this case nor laches. High on Injunction, sec. 786. (5) Equity will enjoin a threatened injury. Eay v. Prentice, 1 C. B. 828; Wilmoth v. Woodcork, 58 Mich. 482; Copper v. Doloin, 68 Iowa, 757; Bishop, Non-Contract Law, sec. 417. No man can ameliorate the condition of his own land to another’s injury. Hosher v. Railroad, 60 Mo. 330; Spencer v. Railroad, 128 Mo. 159; Hawk v. Railroad, 94 Mo. 261.</p>

— Hon J. A. Hockaday, Judge. The court admitted illegal and incompetent evidence. ' It was perfectly competent for plaintiff to prove that, after the street was graded the first time, she made improvements upon her property to conform to the grade as it then existed.

— Hon. J. A. Hockaday, Judge. (1) Instruction number 1 given for plaintiff is error in that it fails to give the jury any proper legal standard by which the measure of damages should be determined. (2) Instruction number 4 given for plaintiff is error. Mutual insurance companies are exempt from all the provisions of chapter 89, Revised Statutes 1889. Among these provisions is section 5927, upon which this instruction is based. Warren v. Ins. Co., 72 Mo. App. 188.

— Hon. J. A. Hockaday, Judge. (1) The evidence of T. S. Riggs, Mrs. Warren, Miss Ada Warren and defendant, as to defendant having a written contract for the rent of this land, and as to the owner putting him in possession of said land, was improperly admitted. It was wholly foreign to the issue and constituted no defense to this action; he might have been entitled to and had a right to the possession, and yet be guilty of forcible entry and detainer.j Sitton v. Sapp, 62 Mo.

— Hon. E. W. Hinton, Special Judge. The administrator is properly chargeable with at least six per cent simple interest from the date of his final settlement and order of distribution, to wit, the sixteenth day of February, 1880, to rendition of final judgment herein, without reference to the manner of handling the fund, and no demand was necessary to make interest recoverable from said date in this action.

— Hon. J. A. Hockaday, Judge. (1) In order to be effective, the description in a chattel mortgage musí; be sufficiently definite to apprise all persons interested with reasonable certainty of the exact property conveyed. Goddard v. Jones, 78 Mo. 518; Stonebreaker v. Ford, 81 Mo. 532; Bozeman v. Fields, 44 Mo. App. 432.

'Error to the Boone Circuit Court. — Hon. J. A. Hockaday, Judge. (1) The petition failed to state facts sufficient to constitute a cause of action upon an account stated, since there is no allegation of a balance framed upon an accounting between the parties, and a promise by the defendants to pay the same. Wood v. Farrelly, 9 Mo. App. 370; Newberger v. Friede, 23 Mo. App. 631; Lustig v. Cohen, 44 Mo. App. 271; Marmon v. Waller, 53 Mo. App. 610.

— Hon. W. 'W. ; Rucker, Judge. (1) Respondent violated this contract when he sent the sample to Kansas City to be graded. The wheat was to be graded in Norborne according to the Norborne grade, as the circuit court decided, and as this court decided when this ease was here before, 56 Mo. App. 268. (2) The court erred in giving instruction number 2 for plaintiff' without qualification. Carder v. Primm, 60 Mo. App. 423; Yoegely v. M. & Q-. Co., 49Mo.

— Hon. W. W. Rucker, Judge. (1) On incidental expenses, hotel, railroad, telegrams, depositions, delays, loss of time and services, and all necessary losses and delays and damages by reason of the attachment. State ex rel. v. MeKeon, 25 Mo. App. 667, 679 and cases cited. (2) On attorney’s fees. State ex rel. v. Lumber Co., 70 Mo. App. 663, and cases cited.

— Hon. W. W. Ruceen, Judge. (1) The bond given by Ormiston, the plaintiff, as guardian of the person and estate of George Moarn, dated April 12, 1897, the date of his appointment, although not filed and approved until the May term of the probate court, yet took effect by relation from the day of its date. 20 Am. and Eng.

— Hon. W. W. Rucker, Judge. (1) If there was any contract, express or implied, entered into between Manard and the defendants (which-1 insist is not the fact), still the plaintiffs were not and are not privies thereto, and are not entitled to avail themselves of it. Howsmon v. Water Co., 119 Mo. 304; Ins. Co. v. Water Co., 40 Mo. App. 118; Kansas City ex rel. v. O’Connell, 99 Mo. 357; Vrooman v. Turner, 69 N. Y. 280.

— Hon. W. W. Ruokee, Judge. (1) There is no evidence whatever that John T. Flournoy or his wife, the defendant herein, was at any time indebted to Mr. Relph, the plaintiff’s intestate, on any account aside from the note for $250, sued on in this case. The trading mentioned in the evidence was not, in any instance, done between Mr. Flournoy individually and Mr. Relph. All the buying that Flournoy did was as a member of a partnership and in the firm name.

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

Writ of Error from the St. Louis City Circuit Court. Hon. Leroy B. Yalliant, Judge. Probate courts in Missouri, though courts of limited jurisdiction, are, nevertheless, invested with full power to determine all matters that may arise in the settlement of estates, and where the law is silent may and should exercise quasi equity jurisdiction.

Lotus City Circuit Court. — Hon. Daniel D. Fishee, Judge. While it is true that, as a rule the mere fact of insolvency of the vendee is not sufficient of itself to take the case to the jury, yet the insolvency may be so gross that it would authorize the inference that he never intended to pay for the goods; or- insolvency attended with evidence of other circumstances may support the inference of fraudulent intent. Reid v. Lloyd, 52 Mo. App. 283.

<p>Appeal from the St. Louis City Circuit Court. — Hon. Horatio D. Wood, Judge.</p> <p>The pledgee is in effect a trustee for the pledgor. While the property is in his possession he should treat it as trust property. Jones on Pledges, see. 405; Union Trust Co. v. Rigdon, 93 Ills. 458. No matter to what extent the powers of the pledgee in the sale of the pledge may be enlarged by contract, still his duty to act in good faith and to treat the pledge in his hands as trust property in which the pledgor has a right to the surplus, if any, arising after a sale made in good faith, and for the best price which the pledgee can obtain, continues and is imposed upon him by the law throughout all his dealings with the pledge. The extraordinary powers of sale conferred upon appellant, Theresa Fries, by the collateral note did not confer upon her the right to confiscate the pledge. On the contrary the proper construction of such a contract is that such powers are granted in the interest of both parties in order that the pledge may be disposed of in any one of the ways pointed out, which at the time. of sale will afford the best means of realizing the most money for it. It is admitted by the pleadings that the stock was fully paid and of the par value of $100 per share. It is alleged in the petition that the fifty-nine shares in question were worth $4,800 or $81 per share. The stock had no market value, and the burden was on appellants to show that the shares were worth less. Trust Co. v. Home Lumber Co., 118Mo. 448; MoffitV. Hereford, 132 Mo. 513. The judgment as finally is on the basis of a valuation of $66.50 per share. Evidence of the fact that no notice of the intended sale of the stock was given to, or demand of payment made of any person interested in the Sehaaf estate, was offered and admitted, not to prove a breach of the contract, but under the allegations of the petition and in connection with other evidence, to show that there was collusion and fraud in the manner of conducting the sale. Either notice or demand would have defeated the unlawful purpose the appellants had in mind, viz: “The intent and purpose to deprive the said estate of its entire interest in the said stock.” Evidence of what Oscar R. Pries did with the stock and assets of the corporation after the sale on April 18, was relevant as tending to prove, first, that the property represented by the shares of stock pledged, as well as the shares themselves, had been so changed as to render it impossible to restore the Sehaaf estate to its rights as a stockholder upon payment of the $1,900 note, and, second, that “the secret and unlawful understanding or agreement” entered into between appellants before the sale on April 18, had afterwards been consummated by them. The value at which the merchandise belonging to the company was entered on its books February, 1, was in the nature of an appraisement, and not a mere inventory, it being shown by competent testimony that the goods were taken at their then actual value. * * * Abbott’s Trial Evidence, p. 52; 1 Gfreenl. onEv.,sec. 493, Lewis Ed., 1896. The offer of Mr. Arnsteinto show by his own testimony, communications made to Mr. Bacon, was properly excluded, because there was nothing to show that Bacon represented Mrs. Sehaaf. The offer to show communications made to Judge Talty and Mr. Krone, and by them to her was also properly excluded, because neither was employed by Mrs. Sehaaf until some time after the sale on April J8. The jury having found that appellants disposed of the pledge in fraud of the estate of the pledgor, they are answerable for its fair and reasonable value, and will not be heard to say that such value would not have been realized had the sale been made in good faith and with a. proper regard for the rights of the pledgor. The instructions given by the court on its own motion in connection with those given at the instance of defendants, presented the case fully and fairly under the issues joined, and with due regard to the opposing theories upon which it was tried. There is not a correct proposition in any of the instructions refused that is not embodied in those given.</p> <p>Where the collateral agreement provides that upon default in payment of the debt a private sale may be made of the collateral without demand .or notice, the pledgee may sell at private sale without demand and without notice. Chouteau v. Allen, 70 Mo. 290; Bank v. Pretorius, 6 Mo. App. 410; Berlin v. Eddy, 33 Mo. 426. The private sale spoken of in the contract and which is within the intention of the parties is a “private sale,” to be made in the ordinary way, without notice of time or place, and known and made public to the parties thereto alone. Milliken v. Dehon, 27 N. Y. 364-369; Dulling v. Weeks, 40 S. W. Rep. (Tex.) 178. As the defendant Theresa Fries was authorized to make a private sale, without demand or notice, it was error to admit evidence to show that no demand was made or notice given. Joplin v. Walton, 138 Mo. 485; Hardwick v. Hamilton, 131 Mo. 465. Such evidence merely tended to prejudice the mind of the jury. The law recognizes but one legal representative of the estate of a deceased, the executor or administrator. It was therefore error to admit evidence to show that no demand was made of Mrs. Schaaf (the widow) and that no notice of sale was given her. Boeger v. Langenberg, 42 Mo. App. 7; Smarr v. McMaster, 35 Mo. 349; Leakey v. Maupin, 10 Mo. 368; Gelit v. Camp, 19 Mo. 404. The widow as such is no more the representative of the estate and entitled to notice, than are any of the other heirs, or the creditors; she has no greater rights than a stranger would have, hence all testimony to show that no demand was made or notice was given her, should have been excluded. The stock having no market value, it was competent to show the actual value of the assets at the time of the sale, in order that the value of the stock might thereby be fixed. Greer V. Bank, 128 Mo. 559; Trust Go. v. Lumber Co., 118 Mo. 447; Moffett v. Hereford, 132 Mo. 513; Robinson v. Hurley, 11 Iowa, 410. The testimony of the bookkeeper Bauer, who did not know the actual value of the merchandise, who testified from a trial balance made by him (not entered on the books) based upon an inventory (not an appraisement) made by third parties nearly three months before the sale as to the accuracy of which he knew nothing, was clearly incompetent to show the value of the assets. Hill v. Johnson, 38 Mo. App. 383. As the inventory made in January could not have been admitted in evidence, the contents of the trial balance, based upon that inventory, should have been excluded. State ex rel. v. Purcell, 13 Mo. 318; State v. Hattley, 131 Mo. 464. In an action for damages for improperly converting merchandise, the measure .is not the price paid for the goods, or at what they were sold, but their actual value at the time of conversion. Horne v. Bone, 69 Mo. App. 481; Spence v. Vance, 57 Mo. 427; Nance v. Metcalf, 19 Mo. App. 183. The same rule applies where certificates of stock, which represent the assets of a corporation, are charged to have been improperly sold; the actual value of the merchandise at the time of the sale, tends to fix their value. Even if the evidence contained in the books was competent to prove the value of the assets, the books themselves should have been offered; the bookkeeper’s testimony was secondary evidence. Walser v. Wear, 141 Mo. 443, 463; Ritchie v. Kinney, 46 Mo. 298. The court erred in permitting the bookkeeper to testify that $80 was the value of each share of stock April 1, 1896, according to the books, based upon the inventory made in January, 1896. The book value was not the question to be determined, but the actual value based upon the actual value of merchandise on hand when the sale was made. State v. Hattley, 131 Mo. 464; Hewitt v. Steele, 118 Mo. 463-474. The court erred in permitting the witness Meyer to testify as an expert. When in the store he had no inventory, measured no goods, opened no boxes or drawers, of which there were over one hundred. * * * His opinion was merely a “guess” and should have been excluded. Miller v. G-illick, 66 Mo. App. 500. In determining the value of stock it must be gauged by what it was worth at the time and place of sale, and not what was done afterward, or its subsequent value under different conditions. Deck v. Field, 38 Mo. App. 674. Privileged communications between attorney and client at common law as well as under the statute, consist only of “communications made to an attorney by his client and his advice thereon.” R. S., sec. 8925. The question asked Mr. Krone, as to whether he communicated to Mrs. Schaaf the facts which he had learned from Mr. Arnstein with reference to the collateral and nóte, was improperly excluded; it did not call for any communication made by Mrs. Schaaf to him or his advice thereon. Henderson v. Terry, 62 Tex. 281; Ford v. Tenant, 9 Jur. N. S. 292; Bartlett v. Bunn, 10 N. T. S/ 210. Mrs. Schaaf, having testified as to what Mr. Krone reported to her, she waived her right to object to his giving his version of the matter. Hunt v. Blackburn, 128 U. S. 464. Mr. Krone was not asked as to the advice he gave Mrs. Schaaf; the inquiry was directed to a question of fact, as to whether he imparted to her the information which he had obtained for her as her agent from Mr. Arnstein; this was not privileged. Bromwell v. Noakes, 4 Dowling & Ry. 367-372; Spenceles v. Schulenbach, 7 East, 357.</p>

<p>Appeal from the St. Louis City Circuit Court. — Hon. Hoeatio D. Wood, Judge.</p> <p>Plaintiff was not bound by the alleged contract between the Crown Coal and Tow Company and the Western Coal and Tow Company regarding the reduction in the price of coal and the release of interest. Ins. Co. y. Ins. Co., 8 Mo. App. 408; Huggins Candy Co. v. Ins. Co., 41 Mo. App. 541; Beach on Private Corp. sec. 248. Sufficient grounds were not laid by defendant to authorize the introduction of oral evidence as to the contents of the alleged written contract, whereby the plaintiff is alleged to have agreed not to charge interest on said note in consideration of the reduction in the price of towing. 1 Greenl. on Ev., sec. 558; Stephens on Ev., sec. 588; Howe Machine Co. v. Stiles, 5 New Rep. 577. The alleged contract in relation to towing and release of interest proved by the defendant’s oral evidence was a private agreement between parties not involved in this suit, and was not communicated to nor binding upon the plaintiff.</p> <p>Mr. Kribben expressly denied the existence of the contract mentioned in the testimony as executed by Adams, Taylor and Thomas, the parties responsible for the debts of the Crown Coal Company, in the interest of the Crown Coal Company, on the one hand and the St. Louis Dredging Company on the other. Mr. Kribben’s disclaimer was made in the broadest terms. So much for want of notice to produce. As to the showing that was made of loss — Mr. Bart S. Adams was the legal custodian of the paper. He testified that he had gone over all his papers when he severed his connection with the Crown Coal and Tow Company and that at that time the paper in controversy was missing. He further testified that he had on the day of the trial again examined his papers .and could not find the paper. Thomas and Taylor testified that it had never been in their possession. Mr. Leathe, who succeeded Adams as custodian of the papers of the Crown Coal and Tow Company testified that he had examined all papers bearing on Crown Coal and Tow Company business that day and that he had not found the paper. It is true, as counsel states, that he had been looking at this particular time for another paper; but he also added, as counsel fails to state, that the Crown Coal and Tow Company’s matters had been in constant litigation for a number of years, that he had gone over all the papers of the company carefully in connection with these litigations, in which Thomas, Taylor and Adams were adversely interested, a great number of times and that he had never seen any such paper. We respectfully .submit that under the most conservative rules the showing of loss and proper research was more than sufficient. The second point made by counsel is hardly worthy of consideration. The answer contained two separate and distinct defenses. First, that by an agreement, subsequent to the execution of the note, that portion of the note providing for interest was canceled, and an express agreement that the note should be void upon payment of the principal amount substituted therefor, and that there was a valuable consideration for such subsequent agreement. As the note was not in the hands of a Iona fide purchaser, before maturity, for value, and without notice, when sued on, this subsequent agreement was perfectly valid. As no declarations of law were asked the judgment must stand, if it can be made to stand in any theory consistent with the evidence. The court may have found, and, we submit under the evidence, did find, that the note was never to bear any interest. What then becomes of the supposed errors complained of by counsel which go entirely to the second defense set up in the answer, namely, that in view of the fact that plaintiff was annoying the defendant concerning a supposed one year’s unpaid interest, the defendant by an arrangement made through the only parties in interest paid a small tribute, for such it should be called, rather than have the expense of litigating the claim. We submit, however, that as to the second defense made by the answer the proof corresponded with the pleadings. * * * As to the complaint that sufficient foundation was not laid to allow defendant to introduce parol testimony as to the contents of the contract in question we merely ask an inspection of the abstract furnished by appellant. We insist the testimony shows without question that proper search was made by the proper custodians of the paper. The cause was tried in the court below by the learned judge without the intervention of a jury. He saw and heard the witnesses and decided the ease properly in favor of the defendant. No other conclusion could possibly be reached. It is respectfully submitted that this case must be affirmed.</p>

<p>1. Building Contract: bond. In the ease at bar it is immaterial whether or not a bond was provided for in the contract, or that the parties to the contract had in mind the execution of a bond when the contract was signed.</p> <p>2. -: -•: consideration: estoppel. The giving of the bond became necessary afterwards, and the fact that it was given for the purpose of raising money to pay the defendant company for its work, and that the money was raised partly on the bond and paid to the company for its work on the house, is a good and valid consideration to support the bond, and such an one as will estop the defendants from defending against it on the ground that it was given without consideration.</p> <p>3.---: -: alterations from plans. In the case at bar the alterations were made by agreement and were provided for by the terms of the contract and constituted no departure from or abandonment of the contract.</p>

Louis City Circuit Court. — Hon. Leroy B. Valliant, Judge. The court erred in giving plaintiff’s instructions numbered 1, 2 and 3 respectively. * * * The court erred in giving plaintiff’s instruction number 4, in this, that it allowed her to recover for loss of “future services” when there was no claim made in that regard in the petition, and no evidence at'all, as to that matter. * * * The court erred in striking out from plaintiff’s instruction number 2, as offered, that…

Louis City Circuit Court. — Hon. James E. Withrow, Judge. The circuit court had full power under the statute, as well as by express reservation in the decree, to-modify the alimony order. Held: that the motion was proper and that the court had before it all the evidence taken in the original divorce case which became a part of the records of the court, loe. cit. 521. The courts may order a reduction of alimony on remarriage. 2 Bishop Mar., Div. & Sep. [1 Ed.], sec. 1058.

Louis City Circuit Court. — Hon. Jacob Klein, Judge. The court erred in holding that the fact that the Union Mutual Eire Insurance Company had not obtained authority to do business in Missouri rendered the note sued upon void. The fact that the insurance company had failed to comply with the statutes, regarding the doing of business in Missouri, will not prevent it or its assignee from collecting a premium note. Ins.

Louis City Circuit Court. — Hon. John A. Talty, Judge. The court erred in holding that the fact that the Union Mutual Fire Insurance Company had not obtained authority to do business in Missouri rendered the note sued upon void. The fact that the insurance had failed to comply with the statutes, regarding the doing of business in Missouri, will not prevent it or its assignee from collecting a premium note. Ins.

Lotiis Court of Criminal Correction. Hon. David Murphy, Judge. The evidence is insufficient. It devolved upon the state to prove beyond a reasonable donbt that the alleged abandonment was without good cause and with a criminal intent, and that the defendant also with a criminal intent failed to provide for his wife. State v. Doyle, 68 Mo. App. 219; State v. Fuchs, 17 Mo. App. 458; State v. Greenup, 30 Mo. App. 299.

Louis City Circuit Court. — Hon. Selden P. Spencer, Judge. A defendant, by introducing evidence after his demurrer to plaintiff’s case has been overruled, waives the demurrer and takes the risk of supplying any defect in plaintiff’s case. Bowen v. Railway, 95 Mo. 268 (275); G-uenther v. Railway, 95 Mo. 286 (289); Eswin v. Railway, 96 Mo. 290; Hilz v. Railway, 101 Mo. 36; Jennings v. Railway, 112 Mo. 268.

— Hon. John A. Talty, Judge. The essential element of estoppel must be that the party setting up the estoppel must have been himself misled or deceived by such act or conduct. The primary ground of the doctrine is that it would be a fraud on a party to assert what his previous conduct had denied when on the faith of that denial others have acted. Bates v. Perry, 51 Mo. 453; Spurlock v. Sproule, 72 Mo. 508; Brick Co. v. Sadring, 68 Mo. App. 15.

<p>Appeal from the St. Louis City Circuit Court. — Hon. Selden P. Spencer, Judge.</p> <p>In referring to the assignment made by Dennis J. Dempsey to John Dempsey we shall refer to the one instrument which was delivered to Mr. Ludington, and in which no creditors were named, as assignment number 1, and the other instrument which John Dempsey-retained in his possession until his deposition was taken, as assignment number 2. Assignment number 1 is void for the following reasons: The evidence shows that this assignment was given without consideration, when the assignor was insolvent, and therefore void as to creditors, coming under the provisions of section 5172 of the Revised Statutes of 1889, which requires that there shall be either a bona fide change of possession or that the instrument shall be duly acknowledged or proved and recorded in the county where the donor or grantor resides. Robinson’s Ex’rs v. Robards, 15 Mo. 459; Jones v. Covington, 22 Mo. 163; Donovan v. Dunning, 69 Mo. 436. Because it appears from the evidence that it was given with the intention to hinder, delay and defraud creditors, the donee participating in the.intention to hinder, delay and defraud such creditors, and therefore comes under the provisions of section 5170 of the Revised Statutes of 1889, and is clearly and utterly void as to creditors of the grantor. Ames v. Gilmore, 59 Mo. 537; Crow v. Beardslee, 68 Mo. 435. It is sufficient to fender the instrument void if the intention in the sale is to either hinder or delay or defraud creditors. Crow v. Beardslee, 68 Mo. 435; Rupe v. Alkire, 77 Mo. 641. The change of possession necessary as contemplated by section 5178 must be open, notorious and unequivocal, such as from which the public can not be misled. Claflin v. Rosenberg, 42 Mo. 439; Wright v. McCormick, 67 Mo. 426; Stern v. Henley, 68 Mo. 262; Burgert v. Borchert, 59 Mo. .80; Mills v. Thompson, 72 Mo. 367.- If the deed is voluntary and hinders and delays creditors it is fraudulent in law, irrespective of the motives of the grantor. Potter v. McDowell, 31 Mo. 62; Cooper v. Standley, 40 Mo. 138; White v. McPheeters, 75 Mo. 294. Assignment number 2 is void for the following reasons: Because it appears from the evidence that it was a voluntary assignment, without consideration, and therefore comes under the provisions of section 424 of Revised Statutes 1889, in which all voluntary assignments made by a debtor to any person in trust for his creditors shall be void unless proved and acknowledged, certified and recorded in the same manner as prescribed by law in cases wherein real estate is conveyed. Because the evidence showed that the amount assigned by the insolvent debtor was more than sufficient to satisfy the claims of the creditors therein named; and if a part of the consideration of a conveyance is fraudulent or fictitious as to creditors, the whole conveyance is void. State ex rel. v. Hope, 102 Mo. 410; Segar v. Thomas, 107 Mo. 635; McDonald v. Hoover, 142 Mo. 495-498; Nat. Tube Works v. Machine Co., 118 Mo. 365. The conveyance was made with a view of hindering, delaying and defeating a certain particular creditor, and for that reason is fraudulent and void. Henderson v. Henderson, 55 Mo. 534. The conveyance was made as a means of preserving the property of the grantor from the lawful actions and judgments of his creditors and therefore made with the intent to hinder and delay and defraud his creditors, and is void for that reason. State to use v. Benoist, 37 Mo. 500. It is not necessary to show an actual intent to defraud; it is sufficient if the necessary consequence of the transaction is to defraud the creditors, and whatever satisfies the mind and conscience of the existence of fraud is sufficient. Snyder v. Tree, 114 Mo. 360. Because the trust was a secret one and for that reason was void as to creditors. Sibley v. Hood, 3 Mo. 290; McDonald v. Hoover, 124 Mo. 484. When a conveyance appears on its face to be a secret trust for the grantor the courts will declare it void as a matter of law. And the same facts that will render a conveyance void if expressed on its face, will render it void if proven aliunde. If the facts are in dispute their truth-may be established by a jury and then the court declares they constitute fraud. McDonald v. Hoover, 142 Mo. 484. Relationship between the parties to a conveyance charged to have been made in fraud of creditors and the insolvency of the grantor are not sufficient in themselves to establish fraud, but these, when added to other suspicious circumstances, may often be sufficient. Robinson v. Dryden, 118 Mo. 534; Burgert v. Borehert, 59 Mo. 80; Van Raalte v. Harrington, 101 Mo. 603. The participation of either the trustee or the beneficiaries in a deed of trust in the fraud of the grantor is sufficient to void the deed of trust. Crow v. Beardslee, 68 Mo. 435; Ames v. Gilmore, 59 Mo. 537. The change of possession necessary as contemplated by section 5178, Revised Statutes 1889, must be open, notorious and unequivocal, such as from which the public can not be misled. Claflin v. Rosenberg, 42 Mo. 439; Wright v. McCormick, 67 Mo. 426; Stern v. Henley, 68 Mo. 262. A demurrer to evidence is properly refused when there is evidence at least tending to show on the part of the debtor a design to hinder and delay if not defraud other creditors by placing assets not necessary to pay plaintiff’s claim, out of the reach of such creditor, and also evidence tending to establish the participancy of plaintiff in such design. Hanna v. Finley, 33 Mo. App. 645.</p> <p>The burden of proof rested on plaintiff and so the court held. Meyerburg v. .Jacobs, 40 Mo. App. 134. There was no evidence of fraudulent intent on the part of D. J. Dempsey in making the transfer to John Dempsey to secure the creditors, Buxton & Skinner,-Fisher & Company and Mrs. Bollman. If a fraudulent intent on the part of D. J. Dempsey there was no evidence that John Dempsey participated in such fraud, and the instruction asked by the interpleader at the close of plaintiff’s case should have been given. The instruction of the court limiting the issue to the question of fraud on the part of D. J. Dempsey; and the instruction of plaintiff to like effect, and predicating a right of recovery thereon are illegal. Shelley v. Boothe, 73 Mo. 77; Holmes v. Braidwood, 82 Mo. 616; Alberg v. White, 117 Mo. 363; Robinson v. Dryden, 118 Mo. 539; Nat. Tube Works v. Machine Co., 118 Mo. 375. And the vice of said instructions of the court and of plaintiff were not cured by any other instruction in the case.</p>

Louis City Circuit Court. — -Kg'S. James E. Withrow, Judge. The primary design of a building and loan association is to accumulate a fund by the savings of its meTnbers. Endlich on B. & L. Ass’n, sec. 91; sec. 17 of By-laws. And being a mutual association this fund is the property of all its members and can not be diverted by the association from its original purpose. (Ariing v. Kenton B. &. L., 26 Am.

Louis City Circuit Court. — Hon. Daniel D. Eisher, Judge. The contract between Jones and Pulitzer, the decree of the circuit court, and the decision of the supreme court, when all read together, can leave no possible doubt that Jones had authority to make the contract with Lewis. The contract itself was entirely reasonable, and the compensation agreed to be paid for the legal business was exceedingly moderate and unusually favorable to the newspaper.

Louis City Circuit Court. — Hon. Horatio D. Wood, Judge. The property in suit was in the possession and control of Joseph Schoettler, the agent of respondent, who put it in Schoettler’s possession to store for him. Schoettler stored the goods and took the warehouse receipt in his own name, after which he obtained $230 from the appellant, Yette, .on the receipt, which he indorsed and delivered to appellant.

<p>Appeal from the St. Louis City Circuit Court. — Hon. Leroy B. Valliant, Judge.</p> <p>This suit being one for unlawful detainer, and the verdict and judgment having been rendered when the circuit court was in session, the appeal should have been taken before six days, and the transcript of the justice of the peace should, have been filed with the clerk of the circuit court “within six days”,thereafter. The sixth day after the rendition of the verdict and judgment was on Sunday; therefore, the time within which the appellant should have taken his appeal wa's on the previous Friday, and he should have filed the transcript with the. clerk of the circuit court on the Saturday preceding, December 25. For when the last day within which the act is to be performed falls on Sunday, such day shall be excluded, and the preceding day is the limit of the time within which the act shall be done. The statute requiring the appeal to be perfected and the transcript to be filed with the clerk of the circuit court within a certain time must be complied with literally. “It is the only way in which the appellate court can acquire jurisdiction of the subject-matter of the former trial.” Robertson v. Walker, 45 Mo. 119; R. S. 1889, sec. 5138; R. S. 1889, sec. 6570; Patrick v.' Faulke, 45 Mo. 812. Neither the fault of the justice of the peace nor any other cause can avail the appellant as an excuse for not taking his appeal within the statutory period. His remedy, if any, is by proceedings against the justice. There was no escape from sustaining the motion to dismiss the appeal. Bernicker v. Miller, 44 Mo. 126; R. S. 1889, secs. 6333, 6334. There can be no filing of the transcript in an appeal from a justice of the peace in the city of St. Louis until a fee of $1 be paid to the clerk of the circuit court. The legislature has declared that “no writ shall be issued in any such action or transcript filed in any such appeal case, unless such fee be so paid.” 2 R. S. 1889, p. 2148, sec. 17.</p> <p>The case was tried and judgment rendered on December 20. Appellant appealed and filed bond December 27, and handed transcript to circuit clerk December 28, who made memorandum of receipt of that date, but did not, however, put formal file-mark on it until, and as of date, December 30, at which time filing fee was paid him. Section 5137 provides that appeal must be taken and bond filed in ten days after judgment and before return day of .appeal, although return day may be within ten days after judgment. The return day of appeal, by section 5138, is six days after judgment if circuit court is in session, and first day of next term if in vacation. As the circuit court was in session, appeal was returnable in six days after judgment, section 5138, which ordinarily would be December 26. But in this period there were two nonlegal and non-judicial days: Saturday, December 25 (Christmas), and Sunday, December 26, on neither of which could appellant have taken appeal or given bond, or filed his transcript, as the justice’s and clerk’s offices were not open. A holiday is a secular day, upon which the usual obligations of labor, attendance upon courts and attention to notices and service, and service in legal proceedings are, by law, remitted. In a sense Sunday is a holiday, but, as the word is usually employed, it does not include Sundays; thus Sundays and holidays is a common and correct expression. 9 Am. and Eng. Ency. Law, 419. * * * As the two holidays should not be counted against him, appellant had until and including December 28 to file. He did file on that date (December 28), as the memorandum of the clerk indicates, because he handed the papers to the clerk for the purpose of filing them, and the clerk received them. It is immaterial that the clerk did not put the file-mark on. That is merely evidence of filing. Appellant is not responsible for his failure to do so. 72 Mo. 664. “A paper is said to be filed when it is delivered to the proper officer, and by him received to be kept on file.” Black Die., p. 492; Rawle’s Bouvier, p. 782. “The lodgment of the policy with the justice, though not marked filed by him, was a sufficient filing within the meaning of the statutes. 68 Mo. App. 415; 55 Mo. App. 466; 46 Mo. App. 193; 57 Mo. 83; Anderson’s Law Die. 459.” Crenshaw v. Ins. Co., 71 Mo. App. 47. Sunday was the sixth calendar day after judgment, and being the last day it is expressly excluded by statute, so that he had all 'day Monday, December 27, even if we include Christmas Day. 2 R. S., p. 1542, lines 5 to 7. He filed affidavit, gave bond and was allowed appeal on December 27. The justice should have given him the transcript at once, but instead told him to come back the next day. * * * I am sure, though, the law means six full secular days because the justice can not allow appeals on holidays nor does the clerk open his office or file papers on Sundays or other holidays. “An appellant can not, moreover, be held responsible for the failure of public officials to perform their duties. Where he has tried to comply in good faith with all the obligations imposed by law regulating appellate procedure, he will not lose appeal, because of misconduct of an official prevents his effecting it intime.” 2Ency. PI. & Pr. 246. “Where the statutory requirement is deemed mandatory, no extension of time can be granted except where the failure to file is due solely to the neglect or default of an official, for which appellant is not responsible.” 2 Ency. PI. & Pr. 279, 280. “G-enerally a failure to file the transcript in time is excusable where due to mistake or inadvertence of the appellant or some unavoidable cause.” Ib., p. 280. “An appellant will not lose his appeal for a fault due entirely to the neglect of an official.” Ib., p. 345. The common law maxim is decidedly in point here: “Actus curiae neminem gravabit” (an act of the court shall prejudice no man). I submit therefore: (a) Appellant had six secular days after December 20 to take appeal, give bond and file transcript; that Christmas (December 25) and Sunday (December 26) are excluded, and that he had until and including December 28 to file, and did file on December 28. (b) Appellant had six secular days from date penalty of appeal bond was fixed by justice to give same and file transcript, that it was not fixed until December 23, and that within six secular days after December 23 (i. e., December 30) he did file it. To hold otherwise is to stick in the bark, is to say to a litigant, “you can appeal but you will be held responsible for the delay of the justice in fixing the amount of the bond (which is entirely discretionary with the justice, section 4141), and in furnishing transcript. Appellant was absolutely incapacitated from giving a bond until he knew the amount of the penalty and he could not appeal without giving bond and getting transcript. “In pursuing this course we do not follow well approved precedents, and allow the reason of the law to prevail over its letter; for the letter killeth, but the spirit • maketh alive.” 2 Cor. 3:6. Farris v. Coleman, 103 Mo. 352.</p>

Louis City Circuit Court. — Hon. John A. Talty, Judge. Tlie court erred in allowing defendant over plaintiff’s objection to introduce evidence attempting to impeach plaintiff’s title. Dillworth v. Fee, 52 Mo. 130. The court erred in allowing defendant over plaintiff’s objection to give evidence as to certain payments alleged to have been made to the Caledonia Building and Loan Association, with which plaintiff was not connected in any way.

Louis City Circuit Court. — Hon. Selden P. Spencer, Judge. At the final settlement of the estate of Lydia P. Mooers there was ordered to be paid to the legal representatives of Mrs. Isabella Garver (she having died previous thereto) the legacy amounting to $2,250; Mrs. Garver at her death lived in Pennsylvania, where three of her children lived, the fourth living in Ohio. This fund was distributable therefore according to the laws of Pennsylvania.

Louis City Circuit Court. — Hon. Sellen P. Spencer, Judge. Point number 1, made in brief of appellants, is not well taken. * * * Appellants’ second point is not well taken; there was evidence, reasonably satisfactory, from which the jury could readily find that the swindler’s name was not Fred Steiner.

<p>1. Motion for New Trial: newly discovered evidence: diligence. In the case at bar the newly discovered evidence discloses a very material and important admission of plaintiff, and had the defendant shown diligence to discover this testimony before the trial, his motion for a new trial should have been sustained; but, in the absence of such a showing his motion for a new trial on that ground was properly overruled.</p> <p>2. Unlawful Trespass: damages: recovery. If in the case at bar the mortgage was given and the conditions thereof broken, plaintiff was not entitled to recover the value or any part of the value of the property; but only exemplary or punitive damages for the alleged unlawful and wanton trespass.</p>

Louis City Circuit Court. — Hon. Daniel D. Fisher, Judge. Transferred to supreme court. The possession of Smith as plaintiff in replevin “gave her no right or authority whatever to sell or dispose of the goods.” A plaintiff in replevin, obtaining possession through the writ and bond, acquires no title through such possession. He becomes merely a custodian pending the suit and for the purposes of the suit only.

Louis City Circuit Court. — Hon. Daniel D. Fisher, Judge. Judge Biggs dissents. Defendant has shown no right to retain the .fund sued for. Homer v. National Bank of Commerce, 140 Mo. 225. The check being for the full amount of the fund was in itself an assignment to plaintiff. Boyer v. Hamilton, 21 Mo. App. 520, 524.

Louis City Circuit Court. — Hon. John A. Talty, Judge. I deem it unnecessary to cite authorities in support of a legal proposition that “stands on its own bottom. The verdict of the jury is clearly against the weight of the evidence and the preponderance of the testimony shows bias, passion or prejudice on the part of the jury and should be set aside. Eriesz v. Fallon, 24 Mo. App. 489; Empey v. Grand Ave. Cable Co., 45 Mo.

<p>Appeal from, the St. Louis City Circuit Court, — ITon. Leroy B. Yalliant, Judge.</p> <p>Transferred to supreme court.</p> <p>A contract procured through fraud is voidable at the election of the party defrauded. If the other party asserts a right or attempts a recovery on such contract, and the injured party desires to defeat such right or such recovery by reason of the fraud, he must resort to a suit in equity to set aside the contract, and where such resort to equity is made in a pending case, it should be separately and finally disposed of before any other issues are tried. Och v. Railroad, 130 Mo. 27; Hancock v. Blackwell, 139 Mo. 440-454. The answer admitted the plaintiff’s cause of action, and sought affirmative relief from the same, on equitable grounds. The entire case was thus converted into one in equity, to be governed by the rules of equity practice. The equity jurisdiction having once attached, it should be retained until complete justice is done.</p> <p>The court therefore erred in denying the defendant’s request for a trial in equity, and in trying the case as an action at law, before a jury, over the objection of defendant. Hodges v. Black, 8 Mo. App. 389; s. o., 76 Mo. 537; Schuster v. Schuster, 93 Mo. 443; Allen v. Logan, 96 Mo. 591; Woodward v. Martin, 106 Mo. 362; Wendover v. Baker, 121 Mo. 273-289; O’Day v. Conn, 131 Mo. 325; McCollum v. Boughton, 132 Mo. 601, 620, 621. The court erred in holding that section 5849 of Revised Statues 1889 prevented defendant having the relief sought by its answer, on account of the policy sued on having been secured by fraudulent representations and suppression of the truth. That statute only modifies the doctrine of “warranties” in insurance law, and does not destroy the right to invoke the power of courts of equity to annul contracts of insurance procured by fraud. White v. Ins. Co., 4 Dill. 177; Hermany v. Ins. Co., 151 Pa. St. 17; Ins. Co. v. Bank, 72 Eed. Rep. 418; Mengel v. Ins. Co., 35 Atl. Rep. 197; Zepp v. Grand Lodge, 69 Mo. App. 487-494. As construed and applied by the court, section 5849 of Revised Statutes 1889, is violative of section 30 of article 2 of the constitution of Missouri, and of sec-1 of article 14 of the amendments to the constitution of the United States, because, as so construed and applied it deprives the defendant of its property without due process of law and denies the defendant the equal protection of the laws. Cooley’s Const. Lim. [4 Ed.] 490 S. P. 391; Barbier v. Connolly, 113 IL S, 27; Yick Wo. v. Hopkins, 118 U. S. 356; Dent v. West Va., 129 U. S. 114.</p> <p>Though the defendant is a nonresident corporation, yet it is amenable to the operation of the statutes of this state. Pricev. Ins. Co., 48 Mo. App. 231; Fletcher v. Ins. Co., 13 Fed. Rep. 528; Ins. Co. v. Clemens, 140 U. S. 226. Sections 5849 and 5850, Revised Statutes 1889, entered into and became a part of this insurance contract. This statute is constitutional and conclusively binding on the appellant. Thassler v. G-erman Am. Mut. Life Ass’n., 67 Mo. App. 505; Ampleman v. Ins. Co. 35 Mo. App. 314. It is for the state to determine what class of cases shall be tried by jury. What is due process of law in the state is regulated by the law of the state. Walker v. Sauvinet, 92 U. S. 90; Murrey v. Hoboken L. & I. Co., 59 U. S. 376; Dent v. West Virginia, 129 U. S. 114; Ellenbecker v. Plymouth County District Court, 134 U. S. 31. Where rights are created or limitations prescribed by statute, and a procedure pointed out for the enforcement of these, that procedure is exclusive, unless waived by both parties. Sauter v. Leveridge, 103 Mo. 622; Eari v. Hart, 89 Mo. 270; Kitchen v. Railroad, 59 Mo. 515. Aside from the statute giving the respondent a right to trial by jury it could not be said the court erred in the simple fact of calling a jury as was done in the case at bar. The law which applies alike to all persons in the same business, answers all constitutional requirements of uniformity. Express Co. v. St. Joseph, 66 Mo. 675; St. Louis v. Sternberg, 69 Mo. 289, 301; St. Louis v. Spiegel, 75 Mo. 145,147. Insurance companies make their own conditions, and these should be construed most strongly against them. Burnett v. Ins. Co. 68 Mo. App. 345; Hoffman v. Accident Indemnity Co., 56 Mo. App. 301; Renshaw v. Ins. Co., 103 Mo. 611. Where the construction of a life policy is doubtful, it should be resolved in favor of the assured. Ethington v. Ins. Co., 55 Mo. App. 134; Hale v. Ins. Co., 46 Mo. App, 509; LaPorce v. Ins. Co., 43 Mo. App. 519. Statements made by the physician attending the assured, contained in the proofs of death, are privileged and inadmissible to show that false answers were made in the application. Streeter v. Breckenridge, 23 Mo. App. 244; Grroll v. Tower, 85 Mo. 249; Gartside v. Ins. Co., 76 Mo. 446; 2 Bacon on Ben. Soe. & Life Ins., 471. The court should not only affirm the judgment in this case, but it should also assess ten per cent damages on the amount of the judgment, for this is just. R. S. 1889, secs. 2303, 2305; Linnekohl v. Winkelmeyer, 54 Mo. App. 574; Milling Co. v. Coquard, 40 Mo. App. 41. In the last case it was held, a demand for an affirmance with damages held warranted on the ground that every proposition urged by the appellant had been determined adversely to him by prior decisions of the supreme court and this court. Osborn v. Oliver, 23 Mo. App. 667. It is a common practice in the federal courts, where a writ of error is sued out for delay, to award the defendant in error ten per cent damages. Halrner v. Arthur, 131 U. S. 60; Railway v. Volk, 151 U. S. 73; Mining Co. v. Star, 141 U. S. 222; Wilson v. Everett, 139 U. S. 616. And the same rule obtains in the highest courts of the State of New York. Warner v. Tessner, 33 N. Y. 296; Mayor v. Carmen, 38 N. Y. 25; Winfield v. Potter, 38 N. Y. 67; Sentems v. LaDeau, 140 N. Y. 463; Deginer v. Underwood, 30 N. Y. Sup. 399.</p>

<p>1. Assignee of Insolvent Corporation: suit in equity to charge assets with a lien: parties. The conveyance to the trustee devolved full title upon him and imposed on him the duty of full administration and disbursement of the assets, and he was the only necessary party to a suit seeking to charge the assets in his hands with a lien.</p> <p>2. -: —-: debtor and creditor: cestui que trust. In the ease at bar the contract is susceptible of only one interpretation, which is, that- the $1,000 therein receipted for was to be paid for the article therein agreed to be sold, to wit, “20 shares of its preferred stock” until this stock came into being, the price to be given for it belonged to plaintiff, and the prior custody of the money by the corporation was that of agent, bailee or trustee for the plaintiff, as against whom it could neither acquire nor assert title, to the money before rendering that which it had agreed to exchange for it.</p> <p>3. -: -: ACQUIESCENCE IN CHANGE OP RELATIONSHIP: SUBSEQUENT creditors: ESTorPEL. In the ease at bar, the facts in this record wholly fail to show either that the plaintiff agreed to conceal his claim against the corporation, or that with knowledge of its obtention of credit on the faith of the freedom of its assets from any liability to plaintiff, he withheld notice or information of his claim to the persons so dealing with the corporation.</p> <p>4. Practice, Trial: reply not piled to answer. Where parties proceed to try the issues tendered by the answer without filing a reply thereto, plaintiff will not be heard to say “the new matter stands admitted because no reply was filed.”</p> <p>5. Trust Funds: intentional misapplication. In the case at bar, . the trust funds of plaintiff were intentionally misapplied and converted to its own use by the defendant corporation, within ten months of its insolvency.</p> <p>6. -: interest prom time op conversion. When the defendant violated its written contract with plaintiff, it became liable for the money received thereunder and the trial court properly allowed interest from the time of the conversion.</p>

Louis City Circuit Court. — Hon. James E. Withrow, Judge. This is an equity case and will be reviewed and considered de novo in this court. Benne v. Schnecko, 100 Mo. loc. cit. 258; McElroy v. Maxwell, 101 Mo. loc. cit. 308. Our circuit courts have all the powers possessed by the old common law and equity courts and with respect to cases of this character all the powers of the ecclesiastical courts under the English system. Crump by G-uardian v. Morgan, 3 Ired. Eq.

Louis City Circuit Court. — Hon. James E. Withrow, Judge. Relator failed to show that there was no acceptance of his plant. It was not incumbent upon Shooting the Chutes Company to accept the plant of relator by any act of theirs, but they had ten days in which to reject it, if it did not work satisfactorily to them. The only requirement of the contract was that the plant should be operated until the Shooting the Chutes Company was satisfied, not to exceed ten days.

<p>Appeal from the St. Louis City Circuit Court. — Hon. Selden P. Spencer, Judge.</p> <p>This is a suit in equity. Wolf v. Ward, 104 Mo. 127; Thayer v. Campbell, 9 Mo. 280; Mosby v. Hodge, 76 N. C. 388; Welkins v. Gordon, 11 Leigh, 547; 26 Am. and Eng. Ency. of Law, 882. The appellants were not entitled to a trial by jury. Stilwell v. Kellogg, 14 Wis. 461; 6 Am. and Eng. Ency. of Law [2 Ed.], 976, par. 1; State v. Churchill, 48 Ark. 436; Flint Eiver S. B. Co. v. Foster, 5 Ga. 194. The court ruled correctly in striking out the defense of Knox, based on his sale pendente lite, under the deed of trust. Stephenson v. Edwards, 98 Mo. 622; Jenkins v. Bank, 111 111. 462; 1 Story’s Eq. Jur., sec. 405; Adam’s Eq., 278, note 2, p. 194; Story’s Eq. PL, sec. 156, notes. The court committed no error in permitting plaintiff to testify to what took place in the office of Jeptha H. Simpson. He was a competent witness against Campbell. Miller v. Wilson, 126 Mo. 48; Green v. Green, 126 Mo. 26, 27. And if any error was made it was harmless. This court will not remand the cause in equity for error in the admission of testimony. Davis v. Kline, 96 Mo. 401; Kleiman v. Geisselmann, 45 Mo. App. 497; 114 Mo. 437; Barrett v. Davis, 104 Mo. 549. Plaintiff, as the holder of the notes first maturing, was entitled to priority of payment out of the proceeds of the sale on foreclosure; Hurek v. Erskine, 45 Mo. 484; Mitchell v. Laden, 36 Mo. 526; Thompson v. Field, 38 Mo. 320. Special circumstances changing the rule laid down in those last cited decisions must be pleaded and -proved. Boone on Code Pldg., sec. 283, and cases cited in note 5; Herman on Estoppel and Res. Adj., 1442, sentence 5. Until the contrary be shown, plaintiff Weary is presumed from his possession of the notes indorsed by the payee, to have acquired them for value and before maturity. 4 Am. and Eng. Ency. of Law [2 Ed.], 318. The finding and decree are supported by the evidence. The judgment is not erroneous upon the record.</p> <p>The proceeding was an action of law under the statute for the foreclosure of. a mortgage, and the court erred in treating it as an equitable proceeding. Pithian v. Monks, 43 Mo. 503; Mason v. Barnard, 36 Mo. 384. Being a proceeding at law, the court erred in denying defendant Richardson’s motion for a jury. There was no waiver of this right. R. S. 1889, see. 2133; Briggs v Railway, 111 Mo. 175; Scott v.' Russell, 39 Mo. 410. There was nothing contained in defendant’s answers which would waive the right of trial by jury. Moline Plow Co. v. Hartman, 84 Mo. 610. The court erred in striking out new matter, plead as defense in third count of defendant’s answer, because the pendency of a bill in chancery to foreclose will not invalidate the exercise of a power of sale contained in, the deed of trust. Brisbane v. Staughton, 17 Ohio, 482; Van Vrankin v. Roberts, 29 Atl. Rep. 1044; In re Wilkinson, 41 L. J. C. H. 392; 13 L. R. E. Q. 634; Koch v. Briggs, 14 Cal. 256; Bank v. Mining Co., 8 Mont. 32; Jenkins v. Bank, 111 111. 462; Montgomery v. McEwen, 9 Minn. 103; Blackwell v. Barnette, 52 Tex. 331; Jones on Mort., sec. 1773'; Pingrey on Mort., sec. 1332; Guilford v. Jacobie, 69 Hun. 420; Trustees, etc., v. Connolly, 31 N. E. Rep. 1058. Matters arising after the filing of a bill or answer can be incorporated in the amended answer. R. S. 1889, sec. 2063; Ward v. Davidson, 89 Mo. 455. The mere filing of the suit to foreclose did not abrogate or annul the power of sale; there was no injunction asked or restraining order given against its exercise; this power of sale was irrevocable; it carried the legal title; it is appendant to legal estate and took effect out ■of it; the execution of this power, in breach of the trust or not in conformity with its letter, carries the legal title. Richardson, administrator, acquired the legal title under the sale, and this was a perfect defense to the action, and should have been allowed. Schanewerk v. Hoberecht, 117 Mo. 22; Kennedy v. Siemers, 120 Mo. 73. The testimony of Campbell, the pledger, and Simpson, the pledgee, shows that they did not assent to a transfer of the notes to plaintiff, and a mere delivery of a note, without mutilation or cancellation, to a person who accompanies his act of payment with the impression that he is protecting his sister, ought not to be held an assent to the transfer or sale of the notes. Wolff v. Walter, 56 Mo. 293; Thompson v. Logan, 42 Mo. App. 146. “Equity does not admit a doctrine of equitable assignment in favor of every person who pays off a mortgage; such relation must exist towards the mortgaged premises or with the other parties, that the payment is not a purely voluntary act but is an equitable necessary or proper means of securing the interest of the one making it from possible loss or injury. Johnson v. Goldsby, 32 Mo. App. 560; Norton v. Highleyman, 88 Mo. 621.</p>

Louis City Circuit Court. — Hon. Daniel D. Fisher, Judge. Held: “You have committed an act for which lean transport you” (Curtis v. Curtis, 10 Bing. 477). “I know enough he has done to send him to the penitentiary” (Johnson v. Shields, 25 N. J. Law, 116).

Louis City Circuit Court. — Hon. John A. Talty, Judge. Exacting usurious interest on a loan, or receiving it without exacting it, avoids a pledge of personal property made to secure the loan. Laws of Mo. 1891,. p. 170, sec. 2; Drennan v. Dalincourt, 56 Mo. App. 132. The evidence, as to the value of the property in this case, was proper and sufficient. Chemical Co. v. Nickells, 66 Mo. App. 678; Willison v. Smith, 60 Mo. App. 469; Jennings v. Sparkman, 48 Mo.

Louis City Circuit Court. — Hon. James E. Withrow, Judge. Where affirmative relief is asked by defendant the burden of proof is upon defendant as to its counterclaim. Church v. Fagin, 43 Mo. 123; Leveridge v. Lipscomb, 36 Mo. App. 630. Where both plaintiff and defendant claim under a special contract but differ as to its conditions the burden of proof is on the plaintiff. Hull v. Cooper, 36 Mo. App. 389; Leveridge v. Lipscomb, 36 Mo. App. 630, loe. cit. 634.

Louis City Circuit Court. — Hon. Selden P. Spenoer, Judge. A waiver of a right to discharge a servant may be presumed from circumstances. Prentiss v. Ledyard, 28 Wis. 131; 3 Poster & Pin. 160. Discharge for a certain cause should be reasonably soon after knowledge of the cause in order to avail the employer. Williams v. Jester, 64 Gra. 737; Bast v. Byrne, 51 Wis. 531; Jordan v. Webber, 72 Mo. App. 325; Shaver v. Ingham, 39 Mich. 654.

Louis City Circuit Court. — Hon., John A. Talty, Judge. When the officer taking the desposition, in his certificate, states the place of residence of the witness, such statement is prima facie evidence of the facts. R. S. 1889, sec. 4462. Even if this action were prosecuted by plaintiffs, solely as receivers, they would still be permitted to recover in this case.

Louis City Circuit Court. — Hon. Jacob Klein, Judge. There never was any legal suspension of the deceased G. A. Lewis, either by the Western Funeral Benefit Association, appellant, or by St. Louis Council No. 1, Junior Order United American Mechanics, of which he was a member. The appellant and said St. Louis Council No. 1 recognized and treated him as a member until the time of his death.

Louis• City Circuit Court. — Hon. Horatio D. Wood, Judge. An interplea in attachment proceedings is purely statutory, must be governed entirely by the statute, and is to be strictly construed. Grocer Co. v. Goetz, 57 Mo. App. 8-10; State ex rel. v. Barker, 26 Mo. App. 487-491; Bank v. Tracy, 141 Mo. 252-261; Smith v. Haworth, 53 Mo. 88, 89.

Louis City Circuit Court. — Hon. Jacob Klein, Judge. Plaintiff was a guest at defendant’s inn. Bouvier’s Law Dictionary, “Guest.” 1 Addison on Torts, sec. 684; Story on Bailments [9 Ed.], sec. 477. Innkeeper is liable for loss of goods of guest under the facts in this case. 6 Pothier, Pand. Lib. 4, title 9, n. 2; 1 Domat, B. 1, title 16, sec. 1, art. 5; York v. Grindstone, 1 Salkeld, 38; McDaniels v. Robinson, 26 Yt. 316.

Louis City Circuit Court. — Hon. Daniel D. Fisher, Judge. The court did not err in overruling defendant’s objections to the letters from defendant to plaintiff, (a) They constitute a part of the res gestae of defendant’s absence, and were admissible. Darrier v. Darrier, 58 Mo. 222; State v. Newberry, 43 Mo. 429; Sauter v. Scrutchfield, 28 Mo. App. 150. (b) Defendant waived objections by not objecting when the letters were offered in evidence.

Louis City Circuit Court. — Hon. Daniel D. Eisher, Judge. While in a bill of interpleader it is not sufficient to simply state that the defendants make conflicting claims, it is enough to set up a color of right on the part of rival claimants. Robards v. Clayton, 49 Mo. App. 608; Franco-American, etc., • Ass’n v. Joy, 56 Mo. App. 433; Heusner v. Ins. Co., 47 Mo. App. 342; Roselle v. Bank, 119 Mo. 84.

— Hon. E. L., Soarritt, Judge. (1) The contract under which the paving was done was duly authorized by any fair construction of ordinance 3636, on account of the reference to the plans and specifications. Cole v. Skrainka, 105 Mo. 303; Gallaher v. Smith,.55 Mo. App. 116. (2) The contract may stand on the affirming ordinance alone as the council has power to give effect to a contract made by an agent in excess of his authority.

— Hon. C. A. Anthony, Judge. (1) Defendant was not liable to plaintiff on account of the freezing of the apples, for the reason that by the terms of the contract defendant exempted himself from liability for damage by freezing, as appears by paragraph second in bill of lading.

— Hon. E. J. Broaddus, Judge. (1) The general manager, Grrady, was bound by the express terms of his written contract. An agent bound by a contract can not act without the scope of said contract. (2) Plaintiff in this case, and deceased, Eranklin L. Burdick, are bound by the express terms written in the contract, or policy of insurance.

— Hon. John B. Hale, Special Judge. (1) Plaintiff’s interest in the property insured being encumbered by chattel mortgage and therefore not absolute, no liability attached to defendant under the conditions of the policy. The word “absolute” defined.

— Hon. D. W. Shackleford, Judge. (1) There can be no recovery of damages in an injunction suit except on the injunction bond. The right of recovery depends entirely upon the bond. St. Louis v. Gaslight Co., 82 Mo. 349; Teasdale v. Jones, 40 Mo. App. 243; Campbell v. Carroll, 35 Mo. App. 640; Keber v. Bank, 4 Mo. App. 195. (2) The law in force at the time the bond is made is to be considered as incorporated in it, and a part of the contract.

— Hon. D. W. Shackleford, Judge. (1) The court in sustaining the motion for a new trial, expressly finds, as shown by the record, that the verdict of the jury was not against the weight of the evidence. (2) There was no illegal testimony permitted to go to the jury prejudicial to the defendant. The only two payments on the note submitted to be read to the jury to defeat the plea of the bar of the statutes of limitation were proved beyond question.

— Hon. Richard Field, Judge. (1) The question raised primarily by this record is, was there a sale of flour by defendant to plaintiff.

— Hon. Argus Cos, Judge. (1) Mrs. De Frese, wife of defendant, was not a competent witness to testify to any of the facts related by her. Holman v. Bachus, 73 Mo. 49; McFadin v. Catron, 120 Mo, 274; Waddle v. McWilliams, 21 Mo. App. 299; Herndon v. Triple Alliance, 45 Mo. App. 430; Brandon v. Dawson, 51 Mo. App. 244; Rider v. Culp, 68 Mo. App. 531; Basye v. Railroad, 65 Mo. App. 475; R. S. 1889, sec. 8922; Reno v. Kingsbury, 39 Mo. App. ,243.