Volume 78 — Missouri Appeal Reports

— How. J. D. Perkins, Judge. (1) Where a plaintiff seeks his remedy by action for specific performance he must show a greater degree of certainty in the contract than where he seeks his remedy by action at law. Wendover v. Baker, 121 Mo. 290; 3 Pom. Eq. Jur. [2 Ed.], sec. 1405; Foster v. Emmons, 54 Mo. 488, 494; Taylor v. Yon Schraeder, 107 Mo. 224; Louthan v. Stillwell, 73 Mo. 492.

— Hon. J. D. Perkins, Judge. (1) The charter of thé city of Joplin, to wit: the general law governing cities of the third class, Acts 1893, page 65,. does not authorize the taxing of natural persons engaged in the trade .or occupation of operating a foundry.

— Hon. G. E. Longan, Judge. (1) Tbe broom corn lost by tbe plaintiff comes witbin tbe meaning of tbe word grain as used in tbe policy, even from tbe standpoint of tbe critical lexicographer. 2 Universal Dictionary of tbe English Language (1898), p. 2364, vide grain (2) ; 3 American Encyclopedic Dictionary (1895), p. 2057, vide grain.

— Hon. E. L. Scarritt, Judge. (1) This suit is for failure to apprise relator of his exemptions; not for failure to set them off, and an officer is not liable for failure to apprise of exemption rights when the defendant in execution is aware of his rights and claims the benefit of them in proper time. Brown v.Hoffmeister,71 Mo. 411; State v. Kane, 42 Mo. App. 258; State v. Brooke, 29 Mo. App. 286,289. In State to use v. Harrington, 3 3 Mo.

'Appeal from the Jackson Circuit Court. — Hon. E. P. Gates, Judge. (1) Tbe transaction was neither a sale by Russell to plaintiff,, or by plaintiff to Russell; on the contrary, it was a purchase by plaintiff through Russell, as plaintiff’s agent with plaintiff’s money, of the cattle from their ownets near Lee’s Summit.

— Hon. E. L. Soarritt, Judge. (1) This was a suit for separate maintenance only, and a statutory proceeding, and the court had no right to -give, on a motion only, the very thing for which the suit was brought. In a suit for divorce, the court has a right to give the wife alimony, pending the suit, by virtue of the last clause of section 4505, Revised Statutes 1889, only. But, in the separate maintenance act, no provision is made for allowance pendente lite.

— Hon. J. H_ Slover, Judge. (1) The court erred in refusing to take the case from the jury at the close of plaintiff’s evidence, and at the close-of all the evidence, for the reason that plaintiff made no-case for the jury and it was the duty of the court to so declare. Herdler v. Stove Co., 136 Mo. 15; Inner v. Brewing-Co., 69 Mo. App. 17; Bullmaster v. St. Joseph, 70 Mo. App.. 60; Marshall v. Hay Press Co., 69 Mo. App. 256; Bender v..

Original Proceeding by Mandamus. (1) Section 2246, Revised Statutes 1889, says: “Every person aggrieved by any final judgment or decision of any circuit court in any civil cause, from which an appeal is not prohibited by constitution, may make his appeal to the court having appellate jurisdiction of such judgment or decision.” There is no prohibition of appeals in our constitution from judgments in suits for separate maintenance, and hence there can be no question that…

— Hon. J. H. Lay, Judge. (1) Fraud on tbe part of a trustee alone is sufficient to invalidate a deed of trust even where the debts are genuine. Crow v. Beardsley, 68 Mo. 435; Ross v. Ashton, 73 Mo. App. 254. (2) There may be a fraud perpetrated on creditors at a foreclosure sale under a valid deed of trust. Woodard v. Mastín, 106 Mo. 324; Miller v. Leeper, 120 Mo. 466.

Taking the official oath is a sufficient user of the office to support this proceeding to oust respondent therefrom. Rex v. Tate, 4 East. 337; People v. Callaghan, 83 111. 128; State ex rel. v. Meek, 129 Mo. 436. Justices of the peace shall be elected in this state by ballot by the qualified voters of the several townships and justice of the peace districts. Art. 8, sec. 3, Const, of Mo.; Sess. Acts, 1891, p. 175; R. S. 1889, sec. 6090.

<p>■ Practice, Trial: judgment: motion nor new triad. In the ease at bar, the motion for new trial, to the overruling of which defendant excepted, was not filed within the time prescribed by the statute and therefore the record proper was alone before the appellate court for review.</p>

— Hon. Beuben F. Eoy, Judge. The tenant and the tenant alone is liable for an injury that occurs to a traveler on the sidewalk while property is in possession of the tenant. City of Lowell v. Spoulding, 50 Am. Dec. 775.

<p>1. Practice, Trial: recoupment : stricken out. In the case at bar the action of the trial court in striking out part of defendant’s answer was not error, for the reason that the matter stricken out was not a defense to the action hut merely stated facts in which the defendant could not have any interest and pertained to a matter of which another alone could complain.</p> <p>2. Verdict: excessive. The plaintiff’s right of recovery against defendant can not he greater than the actual contract price with Hall if he were sued, and is excessive.</p>

— Hon. Edwin R. McKee, Judge. This cause was tried on tbe sole issue as to whether tbe engine in question was new or “second band and rebuilt,” and tbe burden of proving it to be “second band and rebuilt” was assumed by the respondent, Hunter.

<p>Appeal from the St. Louis City Circuit Court. — Hon. Jacob Klein, Judge.</p> <p>A claim tbat A. is indebted to B. for work and labor on personal property by contract, express or implied, does not comport with the assertion of a lien on the same property, based upon an indebtedness of C. to B. The permission granted by the circuit court to defendants to file a counterclaim different from that filed before the justice was error, and in contravention of the statute. R. S. 1889, secs. 6345, 6346. If by the amendment, defendants virtually abandon their claim against plaintiff and are to be held as making an election between inconsistent defenses, such election after the jury is sworn in the circuit court, and after a trial before the justice and an appeal from judgment there, is conclusive evidence of the abandonment of any claim of lien based upon any contract with Mr. Benoist at the time of the trial before said justice. Nelson v. Brodback, 44 Mo. 596; McAdow v. Ross, 53 Mo. 199-203. The fact that they sued plaintiff claiming he owed the amount on the pictures, is conclusive that the defendants did not when the trial in the circuit court began or before, claim any lien on account of the indebtedness of Benoist. Smith’s Mercantile Law. A common law lien is a right to hold only; not to sell or pledge. It must bh asserted when the property is claimed from them. It may be abandoned or lost. Defendants had no lien. And if they had, they did not assert it when they should; they waived and abandoned it. Smith, Mer. Law, 648, 653; Jones on Liens, secs. 3, 10; Cody v. Vaughn, 53 Mo. App. 174. Defendants made no claim of ownership, and based their right to take the pictures on the ground that they had a lien, and had themselves put them in the care of hi6 mother to hold for them, and that he held in place of his mother as their custodian; that this lien was based upon the agreement with their father. Because they had been authorized by their father to take the pictures from Mr. Pallen for the purpose of selling them and applying the proceeds to the payment of a debt upon which he and they were liable. As they claimed no ownership the burden was upon them to prove their lien and its continuance; or their right under their father. Springfield Grocer Co. v. Shackleford, 56 Mo. App. 645; Anderson v. Gouldberg, 53 N. "W". Rep. 636; Armory v. Delamirie, 1 Strange, 565. Plaintiff rested on his actual possession as prima facie evidence of his right; and in rebuttal, showed his interest in the portraits, and his right to possession against the whole world, save the persons named in the document of title and also rested his right upon the assent of Mr. Benoist and the others referred to in the document. Cases cited under subdivision 6, this brief; as to life interests, remainders, etc.; in personal property, see Brantley on Personal Property, chapter 10, page 179. The instruction criticised did not take into account the relation between Mr. Benoist and defendants; nor the age of defendants. In an action by a child against its parent for work and labor, the presumption is that the services were gratuitous and the burden is upon the child to show that they were not. Castle v. Edwards, 63 Mo. App. 567, and cases cited therein; Pearl v. Roberts, 1 Mo. App. 232; Lowder v. Hart, 52 Mo. App. 377.</p> <p>The formal answer fded in the circuit court does not set up a new counterclaim at all and is therefore no departure from the claim asserted before the justice. It is simply a statement of their defense and the defendants could have it set up under the general issue. And if plaintiff was surprised thereby he should have filed his affidavit as required by the statute. Indeed the defendant may offer any defense on a trial de novo in the circuit court, whether made before the justice or not. Comfort v. Lynam, 67 Mo. App. 668, 670, and cases cited. The defendant’s lien for work and labor done was an existing lien at the time of the seizure and they are therefore entitled to the possession until their special interest in the property is satisfied. Gentry v. Templeton, 47 Mo. App. 55, 60; Campbell P. P. & Mfg. Co. v. Roeder, 44 Mo. App. 324, 329; Peters v. Loewenstein, 44 Mo. App. 406, 410. The defendants were entitled to the possession at the time of the seizure under the express authority of the owner of the property and the plaintiff being a stranger has no paramount right. Plaintiff’s title being denied, naked possession is not sufficient to sustain the action and he must .prove property general or special in the portraits and the onus is upon him to prove it. Plaintiff proved neither. Scott v. Riley, 49 Mo. App. 251, 253, and cases there cited; Andrews v. Costican, 30 Mo; App. 29, 33 and cases cited. The presumption that services rendered by a child to a parent gratuitious can not be invoked here: First, because'the defendants were not “members of S. H. Benoist’s family” but on the contrary they were living with their grandmother, or he was boarding with defendants; second, because the first labor done upon the portraits was after Mrs. Bogy passed her majority; third, because he is shown to have requested them to do what was necessary for their care, restoration and preservation. It is not necessary to show an express contract in the sense of a direct promise to pay; an impled contract will suffice. Penter v. Roberts, 51 Mo. App. 222, 227; Ronsiek v. Boverschmidt’s Adm’r, 63 Mo. App. 421, 423; Woods v. Land, 30 Mo. App. 176, 181; Ramsey v. Hicks, 53 Mo. App. 190, 195. Whether services were intended as a gratuity was a question for the jury. Kerr v. Cusenbary, 60 Mo. App. 558, 563. The defendants were competent witnesses to prove the arrangement between them and Mrs. Pallen, deceased, as to the custody of the portraits, because that was not the contract or cause of action in issue and on trial. Gunn v. Thurston, ISO Mo. 339, 343; Ashbrook v. Letcher, 41 Mo. App. 374; R. S. 1889, sec. 8918. The rule that the special interest of defendants in the property should be assessed applies only where plaintiff is the general owner of the property, the plaintiff is not an owner in any sense, but a stranger to the title and therefore the full value should be assessed. Gentry v. Templeton, 47 Mo. App. 55, 60, and cases cited; Dilworth v. McKelvy, 30 Mo. 149, 154; Fellon v. Manning, 35 Mo. 271, 275; Nelson v. Luchtemeyer, 49 Mo. 56, 59; Pierce v. Lowder, 54 Mo. App. 25, 28; Coggshall v. Munger, 54 Mo. App. 420, 424.</p>

<p>Divorce: conflicting evidence. In the ease'at har, the evidence i» very conflicting and this court will defer to the findings of the trial court.</p>

Louis City Circuit Court. — Hon. Daniel D. Eisher, Judge. .(a) Appellants’ argument and citation of authorities to show their right to introduce extrinsic evidence to contradict tbe certificates are out of place in this discussion. Both the commissioner and the court below proceeded on tbe theory that such evidence was admissible and permitted appellants to introduce all the evidence they desired to contradict the certificate.

Louis City Circuit Court. — Hon. Jacob Klein, Judge. Ve submit that the propositions of law governing this ■case are familiar. Citations of authorities to support them would be superfluous. Upon all controverted facts the jury has passed, and the verdict and judgment are right. We ask an affirmance of the judgment.

'Appeal from the Si. Louis Oiiy Circuit Oourt. — Hon. John A. Tarty, Judge. On appeal from a justice the statement may be amended in the circuit court if such amendment does not change the cause of action, especially where the amendment consists of items which were evidently intended to be included in the original statement.

'Appeal from the St. Louis City Circuit Court. — Hon. Selden P. Spencer, Judge. The records of the city hospital were properly excluded from evidence. The ordinances requiring such records to be kept are merely police regulations, and the records are not public records in such sense as would make them evidence between private parties of the facts contained therein. Buffalo Loan & Trust Oo. v. Knight Templar & Masonic Mutual Aid Ass’n, 9 N. Y. Sup. 347.

Louis Oily Circuit Court. — Hon. John A. Talty, Judge. That under the law of this state a life tenant paying special tax bill for improvements to the property which will endure beyond the term of the life tenant is entitled to recover, in an equitable proceeding, that portion of the tax bill applicable to such remaindermen. Bobb v. Wolff, 54 Mo. App. 515; Reyburn v. Wallace, 93 Mo. 326; Schneider Granite Co. v. Taylor (this plaintiff), 64 Mo. App. 37.

<p>Appeal from the St. Louis Gity Circuit Gouri. — Hon. James E. Withrow, Judge.</p>

— Hon. J. W. Henry, Judge. (1) The court erred in refusing defendant’s request for a peremptory instruction at the close of plaintiff’s case and at the close of all the evidence, for the reason that no case wras made for the jury. Smith v. Railroad, 37 Mo. 297; Yarnell v. Railroad, 113 Mo. 570; Murphy v. Railroad, 115 Mo. Ill; Ryan v. McOully, 123 Mo. 636; Breen v. Cooperage Co., 50 Mo. App. 202; Gallagher v. Edison, etc., Co., 72 Mo. App. 576; Hicks v. Railroad, 46 Mo.

— Hon. E. Hirzel, Judge. (1) The testimony of all the witnesses introduced by plaintiff to prove tbe number of ties cut from tbe land in controversy was too vague, uncertain and conjectural to constitute any evidence, and tbe court erred in admitting it over defendants’ objections. No measurements were made by any witness^ and only small portions of the land were examined here and there. Tbe opinions were random guesses.

— Hon. D. W. Shackleford, Judge. r(l) The question presented on this appeal is no longer an open question in this state. The evidence admitted to show defendant’s general character for truth and honesty should have been excluded. Vawter v. Hultz, 112 Mo. 633; Dudley v. McCluer, 65 Mo. 241; Lumber Go. v. Hartman, 45 Mo. App. 647; Engel v. Dressel, 26 Mo. App. 43.

'Appeal from the Moniteau Circuit Court. — Hon. D. W. Siiackleeord, Judge.

— PIon. D. W. Shackleford, Judge (1) It was gross error in the court to sustain the motion to double the damages assessed and to render judgment for the amount. The allegations of the statement brings the case strictly under section 2612, inasmuch as there is no allegation that the horse was struck by the engine or cars, but only frightened into running against a wire fence. Section 2612 does not purport to be a double damage section. Geiser v. Railway, 61 App. 459.

— Hon. Richard STATEMENT BY ELLISON, J. The following is the petition in this cause : “Plaintiff, for his cause of action against the defendants and for his amended petition, states that he is the duly appointed, qualified and acting administrator petition. of the estate of Sallie E. Broughton, deceased; that said.

— Hon. W. W. Wood, Judge. (1) “If there is any evidence, however slight it may be, and whether direct or inferential, it must go to the jury, who are the exclusive judges of its weight and sufficiency.” Twohey v. Eruin, 96 Mo. 104-109; Oharles v. Patch, 87 Mo. 450-462 “In passing upon a demur to the evidence, the court is required to make every inference of fact in favor of the party offering the evidence which a jury might, with any appearance of propriety, have inferred in…

— Hon. E. C. Crow, Judge. Under the agreed statement of facts the defendant was not guilty of any crime and should not have been convicted. State v. Reilly, 4 Mo. App. 392; McClain on Criminal Law, sec. 117; Bishop’s New Criminal Law, sec. 345; Price v. People, 109 111. 109; Campbell v. Commonwealth, 84 Pa.

— IIon. J.-D. Perkins, Judge. (1) 'Respondents had a license to work and produce ore, which belonged to the licensor, and their compensation for this work was determined by the amount of ore produced. Therefore they never had any possession of the premises in controversy, and could not assert such right or license as a defense in this action, and the trial court should have directed a verdict for appellant. Garvey v. Gunther, 51 Mo. App. 545; Zinc Oo. v. Freeman, 75 Mo.

— TIon. J. D. Perkins, Judge. . (1) It being admitted by the evidence that the property at the time of the application and issuing of the policy was incumbered for $1,000, renders the policy void. AYolf, Adm’r, v. Ins. Co., 1 Mo. App. Bep. 310; Lama v. Ins. Co., 51 Mo. App. 447; Barnes v. Ins. Oo., 30 Mo. App. 539; Men-sing v. Ins. Oo., 36 Mo. App, 602.

— Hon. D. P. Stratton, Judge. (1) Appellants Eundell,Cole and Moore, placed their names on the bach of the note several days after its execution and delivery, and after the original consideration had passed between Garrett and Abrams. That that consideration was not sufficient to bind them is shown by an abundance of authority, of which the following recent case decided by this court may serve as an example. Lowenstein v. Sorge, 75 Mo. App. 281.

— ITon. J. H. Lay, Judge. Defendant’s counsel objected to tbe remark of the prosecuting attorney to the effect that “this man bad been violating tbe laws of this state for three years.” This was said in the closing argument for the state in commenting upon defendant’s -boast that “they have been jerking me down here for the last two or three years and never proved it,” and “I wasn’t afraid of them proving it against me, for they can’t do it.” Defendant’s own testimony…

— Hon. John Francisco, Special Judge. (1) This kind of an action is only maintainable by reason of section 6856, Revised Statutes 1889. To constitute a cause of action under this statute, there must be an abandonment and a refusal or neglect to maintain and provide for the wife. The evidence in this case wholly fails to prove these two necessary elements ctf the action and plaintiff’s bill should have been dismissed. Droege v. Droege, 52 Mo. App. 84-90; State v. Weber, 48 Mo.

— ITon. G. E. Logan, Judge. (1) Defendants can not complain that such description is not sufficient to identify the property sought to be charged with the lien and to give notice through the record. It is the same description which they employ for a similar purpose. Buchanan v. Cole, 57 Mo. App. 11; Ralls Bros, v. McCrary, 45 Mo. App. 365; Holland v. McCarty, 24 Mo. App. 82; Brown v. Wright, 25 Mo. App. 54; Fairbanks v. Elevator Co., 52 Mo.

— Hon. J. H. Sloveb, Judge. The evidence shows in this case conclusively that the plaintiff always regarded the Prey Coal Company as liable; sold the coal to them; charged it on their books to them; presented their bills to them, and their own witness, Dusky, testifies that they expected to hold both Williams and the Prey Coal Company, or both Williams and Prey, and expected if Prey did not pay it, or the Prey Coal Company did not pay it, to hold Williams also.

— Hon. J. W. Henry, Judge.' After Arnold made the deed to Mrs. Lovitt, conveying the same property and in which he recited over his own sig- ’ nature and recognized the existence of our note, then same was proof that Arnold had accepted the deed by which he acquired this property, and was at least an admission of (if not estoppel to deny) the existence and validity of our note.

— Hon. E. P. Gates, Judge. (1) Tbis was an astonishing proposition. This was not an action between the husband and wife at all, but between a married woman and a third party, and it is not true and never was true, that the assent had to be in writing between the plaintiff and her husband as against the defendant in this case. If she gave this money to her husband without her assent in writing, it was absolutely binding on her as against this defendant.

— IIon. J. IT. Slover, Judge. (1) The main question in this case was raised by the demurrer to the evidence and the peremptory instruction requested by the defendant at the close of all the evidence.

Louis City Circuit Court. — Hon. Rudolph ITirzel, Judge. The plaintiffs fully and legally established their right to a mechanic’s lien under the statute, and the trial court, therefore, erred in the instructions given at request of defendant, Emilie O. Broderick. 1 R. S. 1889, sec. 6726, p. 1577; Earley v. Stroeh, 68 Mo. App. 85; Phillips’ Mechanic Liens [3 Ed.], secs. 104- and 182; Oollins v. MeGraw, 4:7 Mo. 495; McDonald v. Stevens, 67 Mo.

<p>Appeal from the Howell Circuit Court. — -TIon. W. N. Evans, Judge.</p> <p>The defendants’ motion to dismiss and dissolve the attachment should not have been sustained. R. S. 1889, sec. G347; ITeman v. Earning, 33 Mo. App. 50; Butts v. Phelps. 79 Mo. 302. It was not necessary in this case for plaintiffs to amend statement in the circuit court. The filing of a statement of facts constituting the cause of action before process is issued is directory merely, and at most did not prevent defendants from waiving the filing of such statement. Sublett v. Noland, 5 Mo. 519; Webb v. Robertson, 74 Mo. 380. Defendants’ acts should be held to have that effect in this case. Their partial payments of the account on which the action was commenced, their appearances, consents, agreements, continuances, trials and appeals, are such acts as amount to a waiver by defendants of the filing of any formal account other than that contained in plaintiffs’ affidavit for attachment. Wathen v. Earr, 8 Mo. 324; Parmerlee v. Williams, 71 Mo. 410; Bank v. ITammerslough, 72 Mo. 274; Webb v. Robertson, 74 Mo. 380. On October 21, 1897, the next day after the court sustained defendants’ motion to dismiss the attachment, pláintiffs filed their motion for a new trial, assigning as one of the reasons therefore that the court erred in not permitting plaintiffs to amend their statement. Thus the attention of the trial court was called again to the willingness on the part of plaintiffs to amend their statement if same was bad, before the cause passed out of his court. Even if plaintiffs’ statement is bad, this cause should be remanded with instructions that plaintiffs be permitted to amend their statement, even if they had not offered to amend same in circuit court. Butts v. Phelps, 79 Mo. 302.</p> <p>The paper filed was wholly insufficient and no. “statement of the account or of the facts constituting the cause of action upon which the suit is founded,” which is required by the statutes “before any process shall issue.” R. S. 1889. sec. 6138. “It has been uniformly held by this and the supreme court that a statement of a cause of action or account filed before a justice of the peace should be sufficiently definite to advise the opposite party with what he is charged and to bar another action.” Doggett v. Blanke, 70 Mo. App. 499; Lean v. Pacific Express Co., 45.Mo. App. 598; Hill v. St. Louis Ore'& Steel Co., 90 Mo. 103; Nutter v. Houston, 32 Mo. App. 451, and cases cited. Even if the appellant had offered to amend, under the most liberal construction of the section, 6347, Eevised Statutes 1889, it has never been claimed that an amendment would be allowed, when absolutely no cause of action was stated. In fact it is expresly held that “there are but two limitations upon the power of amendment possessed by the circuit court in civil cases appealed from justices of the peace. One is, where no statement was filed before the justice, or when the statement which was filed is so radically defective as to mean nothing so that it is'equivalent to no statement. In either of these cases there could be no amendment in the circuit court because there is nothing to amend.” Language of Judge Thompson, in case of Dowdy y. Womble, 41 Mo. App. 573, at page 583, and adopted by the supreme court in same case in 110 Mo. 280; Dalhgren v. Yocum, 44 Mo. App. 277; Lamb v. Bush, 49 Mo. App. 337. The appeal in this case should be dismissed because the record does not show that the motion for new trial was filed within four days and does not show that appellant excepted to the action of the court in overruling motion for new trial. In case of State ex rel. v. Garther, 77 Mo. 304, the court says: “It is also settled by the decisions of this court that the action of the trial court on. the motions for a new trial is a matter of exceptions and not of error, and it is accordingly held, that when the bill of exceptions fails to show that the action of the court in overruling the motion for a new trial was excepted to, this court will not review such action of the trial court.” Citing Hart v. Walker, 3l Mo. 26; Bakison v. Clark, 37 Mo, 34; State v. Marshall, 36 Mo. 403; Duke v. Houston, 23 Mo. App. 211; Ryan v. Growney, 125 Mo. 414.</p>

— Host. Argus Cox, Judge. John Wright became the agent of appellant company by ratification. Kelly v. Gay, 55 Mo. App. 39; Turner v. Railroad, 51 Mo. 501; Earris v. Thaw, 72 Mo. 446; Burk v. Gay, 63 Mo. 33. This is an action on a fire insurance policy for a loss alleged to have occurred in Laclede county, hence it can not be regarded as a transitory action.

— IIow. Elliott M. Hughes, Judge. The decaying carcasses of dead hogs were allowed to remain in the pens and pollute the air for weeks at a time.

— Hon. Elliott M. Hughes, Judge. Under tbe conditions of the sale pf tbe property made by plaintiffs to G. L. Ferris, the title to the same remained in plaintiff until it was paid for in cash. Phillips v. Scholl, 21 Mo. App. 38; Tufts v. Thompson, 26 Mo. App. 564; Defiance Machine Works v. Fisher, 21 Mo. App. 69; Johnson v. Central Bank, 116 Mo. 559; Coover v. Johnson, 86 Mo. 533; Columbus Buggy Co. v. P. F. Hord, Assignee G. L. Ferris, 65 Mo. App. 41.

<p>• Appeal from the Pike Circuit Court. — Hon. Beuben Ft Boy, Judge.</p> <p>“Although the evidence be but slight, and the weight of the evidence is apparently against the verdict, this court is not authorized to interfere. It was for the trial court to say whether the verdict is the result of passion or prejudice or whether it is fairly supported by the evidence. At any rate they (the jury) had all the facts and circumstances before them and we will not examine the facts with a microscope in order to overturn the verdict.” Parsons v. May-field, 73 Mo. App. 399. This case-was here on a former appeal. The testimony on behalf of the plaintiffs on that appeal and this is not only substantially, but precisely the same. It was then held by this court, that the circuit court-in the first trial erred in withdrawing the case from the jury, and ruled that “the law is well settled that this can only be done when the totality of the evidence excludes any legitimate inference tending to prove the causé of action alleged.” Burkholder v. Iienderson, 69 Mo. App. 359. This constitutes res adjudícala. Masterson v. Railway, 58 Mo. App. 573, is a case directly in point. “A valid presumption must be based upon fact, and not upon inference or upon another presumption.” Grlick v. Railroad, 57 Mo. App. 97; Bigelow v. Railroad, 48 Mo. App. 367; Yarnell v. Railroad, 113 Mo. 570, S. W. Rep. 1. The law presumes that the deed from plaintiffs to defendant contained a correct expression of the intention of the parties, viz.: That defendant was to pay $4,000 for the land. Oooper v. Deal, 114 Mo. 527. The defendant asks that that presumption be overcome by the execution of said note four days afterward and that we are’to presume that defendant was only to -pay $3,000 for the farm. “So that the result is that one presumption rebuts and neutralizes the other, like the conjunction of an acid and an alkali * * * but it is not allowable to build one presumption on another, and thus make a cause of action.” Yarnell v. Railroad, 113 Mo. 570. Said instruction is erroneous, because it can not be presumed from the execution of the note referred to therein, that at that time defendant did not owe plaintiff. Mechanics Bank v. Wright, 53 Mo. 153; Burkholder v. Iienderson, 69 Mo. App. 359. This is the same case in which the court held that the parties had a right to transact business that way. Said instruction is erroneous because the note referred to therein was not executed at the time plaintiffs deeded the land back to the defendant as is assumed by the instruction. Said instruction is erroneous in this that it declared that to be a presumption of law, which was only a presumption of fact to be raised or not as the jury would determine from the circumstances in the case. * * * But anyway the defendant was the first to introduce evidence of the value of the land. “A party can not invite error, consent to- error on the trial of a cause, and afterward be heard to complain of such error on an appeal. He can not introduce irrelevant evidence and afterward complain that the court erred in permitting him to do so.” Carlin v. Haynes, 74 Mo. App. 34. Counsel for respondent insist that the evidence as to value of land and improvements was competent on the first or quantum meruit count of the petition, and asked instructions upon that theory, which were refused by the court. The court was authorized to render judgment in favor of the plaintiff for $1,133, on the verdict of the jury after remittitur was entered. The verdict was as follows: “We, the jury, find for the plaintiff on second count of petition and assess his damages at the sum of one thousand dollars with interest from March 7th, 1895, at legal interest. J. S. Jones, foreman.” This verdict is sufficiently certain to enable the court to ascertain the amount for which the judgment should be rendered by a simple arithmetical calculation. “The maxim, Id cerium est quod cerium reddi potest, is readily applicable to verdicts. Whenever the amount for which judgment should be rendered can be determined by a simple arithmetical calculation, this may be done-by the clerk at the request of the judge, or by the judge himself, and a judgment rendered accordingly. Hence, though it is the province of the jury to find the exact amount of damages by their verdict, where the finding is for a certain stun with a specified rate of interest from a designated date, judgment may properly be rendered for tbe principal sum, and tbe interest calculated in conformity witb tbe terms of tbe verdict.” 28 Am. and Eng. Ency. of Law, p. 300. See, also, to tbe same effect, Gibson v. Lewis, 27 Mo. 532.</p> <p>Tbe evidence does not sustain tbe verdict and judgment. It supports appellant’s contention. It is manifest from all of tbe evidence that appellant did not agree to pay •$1,000, or any other sum, hence bis demurrer to evidence .should have been given. Appellant’s other refused instructions should have been given, as they correctly declare tbe law. Error was committed in admitting evidence of value and improvements. Case was tried and jury, at respond•ent’s instance, instructed on count on contract, not quantum meruit, and such evidence did not tend to prove contract, but no doubt did prejudice tbe jury. Its alleged purpose was not declared. Thompson v. Railroad, 37 Mo. 307; Link v. Yaugban, 17 Mo. 585; Gaslight Go. v. Mercer, 48 Mo. App. 644; Edelen v. Strong, 34 Mo. App. 287, 295; McDermott v. Railway, 87 Mo. 286, 301. Tbe verdict of tbe jury did not authorize tbe court to enter judgment for a sum exceeding $1,000. They were not directed by instructions to find any interest. R. S. 1889, sec. 2166; Poulson v. Collier, 18 Mo. App. 583, 604; Burgbart v. Brownj 60 Mo. '24.</p>

— Stow. Elliott M. Hughes, Judge. The petition is loosely drawn, nevertheless after verdict it is sufficient. The defects complained of by the defendant should have been reached by demurrer, or by appropriate motion; they come too late after verdict. Where the facts necessary to constitute a cause of action can be inferred from the allegations in the petition taken as a whole, the petition after verdict will support a judgment, though informally and loosely drawn.

Louis City Circuit Court. — Hon. James E. Withrow, Judge. * * 'x' Tbe evidence at the second and third trials on the question whether the arrival notices had been received by defendant, was exactly the same, consisting of the same deposition and other evidence on this point at each trial. The issues were also identical.

<p>1. Contract: performance: interference. Where one party to a contract interferes with its performance by the other party to such an extent as to amount to a refusal to perform, the party interfered with may recover as for a full performance on his part.</p> <p>2. -Practice, Trial: exceptions. When no exceptions are saved to the admission of the evidence, the action of the trial court can not be reviewed.</p>

— Hon. Reuben E. Roy, Judge The first instruction given by the court directed the-jury to decide a point not in dispute and should not have been given. Russell v. Ins. Co., 55 -Mo. 585; Safety Eund National Bank v. Westlake, 21 Mo. App. 565. Defendant was a bailee of sacks he obtained from plaintiff. Schouler on Bailments, sec. 3. As such bailee he is responsible for slight, ordinary or gross negligence in handling them. Schouler on Bailments, sec. 15.

— Hon. Eeuben E. Eoy, Judge. Appellant’s theory of the case is that Lewis’ object and. purpose in making the sale-was to apply the assets to the payment of his creditors. In support of this theory Lewis’ conversation with witness, O. T. Lovell, and with witness, Morrow, both tending to show an intent to pay his creditors was put in evidence. The evidence objected to tends to show that he was urged to make pro rata payments in such assets as he had — notes or cash.

— IIon. Reuben E. Roy, Judge. Mrs. Eowler paid the creditor’s claim in full.

<p>Damages: negligence: liability. In the case at bar there is no evidence showing that in constructing the tanks complained of defendant did anything calculated to excite just apprehension of fire in the minds of persons of normal nervous sensibility. The mere fact that the rental value of the plaintiff’s property was injured does not render defendant liable, in the absence of any showing of negligence. Held, that the trial court correctly sustained the demurrer to the evidence.</p>

— Hon. Elliott M. Hughes, Judge. The evidence was amply sufficient to sustain tbe finding of tbe court. Tbe note sued on was not barred by tbe statute of limitations upon its face. Besides, tbe evidence, oral and 'written, was overwhelmingly against tbis theory. Garter’s Adm’r v. Garter, 44 Mo. 195. Tbe declarations of law given for defendant were exceedingly favorable to bis defense. In fact, too much so.

— Hon. Edwin R. McKee, Judge. The evidence was competent and should have been received, it being admitted by respondent to be the evidence taken at the trial of said cause by Bert Gridley, stenographic court reporter, and that his translation thereof was correct. See record, p. 71. Miller v. Anheuser, 4 Mo. App. 436; State ex rel. v. Perkins, 139 Mo. 106 and 117; E. S. 1889, sec. 2171; State ex rel. Brown v. Walls, 113 Mo. 42-44.

— ITon. Edwin R. McKee, Judge. Where services are rendered the law implies a promise to pay for them, unless it be agreed or inferred from the circumstances that the services were to be rendered without compensation. There is no such agreement or inference in this case and plaintiff’s instructions numbers 1 and 2 should have been given. Dougherty v. Whitehead, 31 Mo. 255.

Louis City Circuit Court. — Hon. Jacob Klein, Judge. A peremptory instruction to find for defendant can not be given where the plaintiff’s case is supported by substantial evidence. Woods v. Ins. Co., 50 Mo. 112, 116; Kenney v. Railroad, 80 Mo. 573; Wolff v. Campbell, 110 Mo. 114, 120; Schroeder v. Railroad, 108 Mo. 321, 326; Gibson v. Zimmermann, 27 Mo. App. 90; Boone v. Railroad, 20 Mo. App. 232.

<p>Appeal from the Lincoln Circuit Court. — Hon. Elliott M. Hughes, Judge.</p> <p>The court erred in admitting parol evidence tending to show that defendants were sureties for James M. Newland and his mother. Kenefick v. Type Foundry Go., 72 Mo. App. 381; ITowser v. Newman, 65 Mo. App. 367; Bank v. Terry, 67 Mo. App. 12; Squire v. Evans, 127 Mo. 514 (518); Boyd v. Paul, 125 Mo. 9 (13) ; Tracy v. Union Iron Works, 104 Mo. 193 (198); Daniel, Neg. Inst., sec. 80. And even if such evidence was admissible it was error, for the court, to permit such proof to be made, through James M. Newland. one of the parties to the note, Mrs. Newland, another party thereto being dead. Bieber’s Adm’r v. Boeckman, 70 Mo. App. 503 (506); Nowack v. Berger, 133 Mo. 24 (37) ; Meier v. Thieman, 90 Mo. 433 (441) ; Chapman v. Dougherty, 87 Mo. 617. The note being the joint obligation of all those signing it, or defendants and Mrs. Newland being sureties or accommodation makers for James M. Newland, and James M. Newland being insolvent, plaintiff is entitled to recover from defendants by way of contribution two thirds of the amount paid in satisfaction of the note out of Mrs. Newland’s estate. Cole Co. v. Angney, 12 Mo. 132; 24 Am. and Eng. Ency. of Law, p. 234; Beyburn v. Mitchell, 106 Mo. 380; Valle’s Heirs v. Fleming’s Heirs, 29 Mo. 152; Turner v. Johnson, 95 Mo. 431 (451); Throckmorton v. Pence, 121 Mo. 50 (57); Thomas v. Bridges, 73 Mo. 530; Sheldon on Sub., secs. 11 and 216; Acer v. Hotchkiss, 97 N. Y. 395 (402).</p> <p>It was proper to admit parol evidence to show that James M. Newland and Catherine Newland were principals and respondents were sureties. Garrett v. Ferguson’s Adm’r, 9 Mo. 125; Bank v. Wright, 53 Mo. 153; Coats v. Swindle, 55 Mo. 31. James M. Newland was a competent witness for the purpose of showing which were principals and which were sureties, he not being a party to the suit nor his testimony being in his own favor. Bank v. Hunt, 25 Mo. App. 171; Ford, Adm’r, v. O’Donnell, 40 Mo. App. 53; Looker v. Davis, 47 Mo. 141; E. S. 1889, sec. 8918.</p>

— ILon. Elliott M. Hughes, Judge. The acceptance by plaintiff of the amount of a judgment is not a release or waiver of errors, and plaintiff is not es-topped thereby from appealing. 1 Ain. and Eng. Ency. of Law [1 Ed.], p. 623; Embry v. Palmer, 107 TJ. S. 8. In ■cases where appeals and writs of error are concurrent remedies, the taking of an appeal by one party does not deprive the other party of his right to sue out a writ of error.

— Hon. Reuben E. Rot, Judge. All the evidence was oral, save Mr. Austin’s deposition, and Mr. Pollard’s deposition, which was read by plaintiff as an admission, but he subsequently testified orally in court, and in such cases the rule is that the findings of the chancellor are deferred to by appellate courts, and his finding on this point was against appellants’ contention. Kincaid v. Irvine, 140 Mo. 615; Hartley v. Hartley, 143 Mo. 217 loe. cit.

<p>Appeal from the St. Louis City Circuit Court. — IIon. Daniel D. Eisher, Judge.</p> <p>The action of defendant’s attorneys in bringing the re- . plevin suit of Richard Merkle v. W. W. Hays and Sullivan & Steinmetz, in the district court of Sedgwick county, Kan-, sas, in which the judgment was rendered that is the subject of litigation herein, was ratified by defendant. Defendant and his general attorney in St. Louis, were advised, after defendant’s son had authorized the institution of the replevin suits in the district court of Sedgwick county, Kansas, that the deposition which defendant’s general attorney took, and which defendant gave in the case of Richard Merkle v. W. W. Hays and the Oliver & Imboden Company was in a replevin suit brought in defendant’s name to recover goods attached in the hands of his son at or about the time of the in-* stitution of the suit, the judgment in which is the cause of action herein. Opinion on motion, for rehearing. Hays v. Merkle, 67 Mo. 60. Defendant got the benefit of the goods replevied, in the case in which the judgment was rendered that is the subject of litigation herein, and they were turned over to his son while he was still engaged in closing out his father’s business in Wichita, Kansas. Opinion on motion for rehearing. Hays v. Merkle, 67 Mo. 60. "The attorneys who instituted the suit of Richard Merkle v- W. W. Hays and Sullivan & Steinmetz in the district court of Sedgwick county, Kansas, in which the judgment was rendered that is the subject of litigation,herein had authority from defendant herein to institute the same. * * * Mechem on Agency, sec. 707 et seep; Johnson v. Hurley, 115 Mo. 513 ; McLachlin v. Barber, 64 Mo. 511.</p> <p>The brief, as presented by appellant, does not comply with rule 15 of this court, in that it does not contain a clear and concise statement of the pleadings and facts shown by the record. The statement of counsel showing his conclusions can not be taken in lieu of an abstract or statement as above. Clark v. Eairley, 100 Mo. 236; Jayne v. Wine, 98 Mo. 404; Coy v. Robinson, 20 Mo. App. 462. This case was 'in. the court of appeals before, and the question of the authority of Houston & Bentley in assuming to act as attorneys for Richard Merkle in instituting the suit of the Citizens’ Bank and Richard Merkle v. W. W. Hays, Charles Sullivan and George Steinmetz, was determined against such original authority; and such adjudication became the law of the case. Hamilton v. Marks, 63 Mo. 167; Hays v. Merkle, 67 Mo. App. 60; James v. Eender, 82 Mo. 497. When the case went back to the circuit court the only open question was that of ratification by subsequent conduct, and this was affirmative matter, and should have been pleaded. Webb v. Allington, 27 Mo. App. 559; Wade v. Hardy, 75 Mo. 399; Kersey v. Garten, 77 Mo. 645; Stones v. Richardson, 21 Mo. App. 17; Noble v. Blount, 77 Mo. 235; Bank v. Armstrong, 62 Mo. 59. The burden of proving a fact is in the party who asserts the affirmative of the issue. Cravans v. Gillilan, 63 Mo. 28; Glover v. Henderson, 120 Mo. 367. And a party is precluded from making proof of matter not pleaded or of having an instruction thereon. Halpin Mfg; Co. v. School District, 54'Mo. App. 371; Bank v. Doran, 109 Mo. 40; Bank v. Armstrong, 62 Mo: 59-66. The rule as to pleading is as applicable to counts as to defenses. Roberts v. Railroad, 43 Mo^ App. 287.. Where- authority is denied the onus is on plaintiff to show its grant by the principal, or ratification of the acts'claimed to be done with full knowledge of the facts. Oravans v. Gillilan, 63 Mo. 28; Steunkel v. Railway, 42 Mo. App. 73; ITyde v. Larkin, 35 Mo. App. 365. The cause was submitted to the court below without a jury; no instructions were asked by plaintiff; none given in the case. The judgment below should therefore be affirmed. James v. Henderson, 74 Mo. App. 280; Rice v. Harper, Ibid, 383; Ohurch v. Church, 73 Mo. App. 421. This was a void judgment under the Kansas law as well as under Missouri law. R. S. Mo.'1889, sec. 7490; Hays v. Bank, 51 Kan. 535. The Kansas record shows the judgment against Merkle to have been set aside, and no further action taken with respect to it. Not being final it was no cause of action, a final judgment must dispose of all parties to the record. Beshears v. Banking Ass’n, 73 Mo. App. 293; St. Erancis Mill Co. v. Sugg, 142 Mo. 364; Caulfield v. Earish, 24 Mo. App. 111. An authority to do an act in the name of a principal confers no authority to join another with the principal, or even with the agent. Stainback v. Read, 11 Gratt. 28. And there is no jétense that Merkle ever heard of such joinder of the Citizens’ Bank with him until December 24, 1889, when the letter was sent to Houston when Merkle immediately repudiated the whole affair. Parties are prestuned to have introduced all their proof and will be conclusively presumed to have done so. Taylor v. Heitz, 87 Mo. 660. Ratification to be available must be shown to have been the result of full knowledge of all the circumstances. Winsor v. Bank, 18 Mo. App. 665; Baldwin v. Bunous, 47 N. Y. 211-212. * * *</p>

— Hon. O. A. Anthony, Judge. (1) Was the tender which appellant made to respondent, prior to commencing this suit, properly made? It is scarcely necessary to remark that at the trial of a cause, one will not be permitted to object to the legality of a prior tender, for reasons other than those given at the time the tender was made, especially if the reason not given is a trivial one, and one which could have been easily satisfied at the time. 25 Am. and Eng.

— Hon. D. W. Shackleeord, Judge. (1) The court erred in overruling defendant’s motion in arrest of judgment. The petition does not state a cause of action. The misrepresentations alleged are not sufficient upon -which to predicate an action for fraud and deceit. They are not based upon past or existing facts. Bullock v. Wooldridge, 42 Mo. App. 356.

— Hon. D. W. Shackleford, Judge. (1) The foreign corporation act of 1891 applies only “to foreign corporations permanently located in this state,” and “expressly excludes from its operations business transacted by drummers and traveling salesmen soliciting business in this state for foreign corporations.” Blevins v. Eairley, 71 Mo. App. 259; Steam Heating Oo. v. Gas Fixture Oo., 60 Mo. App. 148; Maxwell v. Edens, 65 Mo. App. 440; Session Acts 1891, p. 75.

— Hon. D. W. Shackleford, Judge. (1) Divorce is a legal right. Where the facts entitle either party to it, the court has no discretion to deny it. Déschodt v. Deschodt, 59 Mo. App. 102, 105; Morris v. Morris, 60 Mo. App. 86. (2) Even though the plaintiff’s conduct may be reprehensible, still she will not, for that reason, be denied a divorce, unless such conduct was of a character (of which there is no evidence in this case) to entitle the defendant to a divorce on his part.

— Hon. Richard Eield, Judge. STATEMENT BY ELLISON, J. Tbe following is tbe finding of facts made by tbe court: I. “Tbe court finds from tbe evidence that on December 2nd, 1895, a petition signed by twelve citizens of tbe city of Marshall, was presented to tbe board of aldermen of said city asking that a sidewalk be constructed along tbe west side of lot 2, block 16 in tbe city of Marshall.

— Hon. J. D. Perkins, Judge, (1) Under section 4940, Revised Statutes 1879, which was in force at the time ordinance numbered 93 (now 32) was passed, defendant was given the power to prevent and extinguish fires, but no power was given to erect a system of waterworks for the purpose of supplying the city and the inhabitants thereof with water, or to contract with any person, company or association, giving to such person, company or association the exclusive right to furnish…

Appeal p'om the Jasper Circuit Court. — Hon J. D. Perkins, Judge. (1) The court erred in overruling the objection of the defendant to the introduction of the evidence on the ground that the petition did not state facts sufficient to constitute a cause of action. As the petition then stood it did not allege an insurable interest in the plaintiff at the time the policy was issued and contained no allegation of ownership at the time of the fire. Clevinger v. Ins. Co., 71 Mo.

— Hon J. D. Perkins, Judge. In cases appealed from justices’ courts, tlie circuit court has no jurisdiction to determine matters resting in or growing out of equitable estoppel. Kelckner v. Morris, 75 Mo. App. 588; Hicks v. Martin, 25 Mo. App. 359; Enlow y. Newland, 22 Mo. App. 581; Hannah v. Baylor, 27 Mo. App. 302; Rankin v. Fairley, 29 Mo. App. 587; Iron Co. v. McDonald, 61 Mo. App. 559 ; Phillips v. Burrows, 64 Mo. App. 351; Sandige v. Hill, 70 Mo.

— Hon. D. P. Stratton, Judge. (1) A board of school directors can not transact any official business, if there is a vacancy in, the board, until the vacancy is filled. R. S. 1889, sec. 7991. (2) Renewal funding bonds authorized to be issued by boards of education are not valid unless the original issue was valid and binding on the district. Board of Public Schools v. Gaylord, 86 Mo. 401.

- — -Hon. G-. E. Longan, Judge. (1) The petition states a cause of action and the evidence supports the allegations of the petition. If there is any evidence tending to support the material allegations of plaintiff’s petition it is the duty of the court to submit it to the jury. Higgins v. Railway, 43 Mo. App. 547; Kelly v. Railroad, 70 Mo. 604; Cook v. Railroad, 63 Mo. 397; Davis v. Clark, 40 Mo. App. 515.

- — -Hon. G. E. Longan. Judge. (1) The case should have gone to the jury; where the evidence is conflicting, the question is one for the jury. Smith v. Railway, 119 Mo. 246; Erante v. St. Louis, 110 Mo. 516. (2) The credibility of witnesses and the weight of testimony are always matters exclusively for the jury. Railway v. Dawley, 50 Mo. App. 480; Lee v. Knapp, 55 Mo. App. 390. (1) Tbe instrument given by plaintiff to Daniels constituted a mortgage on the insured goods.

— IIon. G. E. Longan, Judge. (1)' The payments made by tbe debtor, Stewart, to plaintiffs, and for wbicb Hoffman contends that Stewart ought to have credit as for materials, were not directed by Stewart at the time he made them nor thereafter to be applied in any particular manner. It follows inevitably then, that plaintiffs may declare the application at any time up to and at the trial. 1 Am. Lead.

— Hon. G. E. Longan, Judge. (1) The bank having taken the five shares of original stock in the defendant corporation for value and without notice of any defect in the title of J. O. Thompson or any equities existing between Thompson and the defendant, and having complied with all the requirements of the by-laws of the defendant corporation, was entitled to recover the cancellation value thereof. Watson v. Printing Go., 56 Mo. App., 150.

— Hon. Gr. F. Longan, Judge. (1) The $1,000 in dispute was paid precisely as the Miles people had contemplated to have it paid, and precisely as they agreed, at the very incident of payment, it should be appropriated. In effect, it was appropriated on their order., request, acquiescence and procurement, and for their own purposes. Such being the case, it was in legal effect a full payment by Miss Drucker of the whole purchase price, and the court below should have so held.

— ILon. G-. E. Longan, Judge. (1) If there are any inferences wbicb can be drawn from the facts proven, or where there is some evidence, however slight, tending to establish the facts necessary to a recovery, the evidence should be submitted to the jury. Higgins v. Railway, 43 Mo. App. 547; Bender v. Railroad, 137 Mo. 240; Chamberlin v. Smith’s Adm’r, 1 Mo. 482; Speed v. Herrin, 4 Mo. 356; Robbins v. Ins.

— Hon. J. H. Slover, Judge. (1) It is-undoubtedly true that stolen personal property can be recovered from any one who has possession of it, even from a purchaser in g'ood faith. The only exception to the foregoing principle of law is, in the case of money being stolen.

— Hon. E. P. Gates, Judge. (1) Tbe burden of proving tbe material allegations in bis petition rested upon tbe plaintiff. See 14 Greenleaf on Evidence [14 Ed.], sec. 74. And that tbe court erred in refusing an instruction to that effect. (2) Tbe admission in evidence of tbe building inspector’s notice was error. Tbe court will observe that tbe notice is dated August 5, 1897, some four months after tbe alleged damage. (1) Tbe court committed no error in instruction number one.

— Hon. E. P. Gates, Judge. (1) The petition alleges that the instrument sued on was indorsed by the payee “and transferred to this plaintiff,” and that the plaintiff is now “the owner and holder” thereof. There is no allegation that the payee or then holder transferred the same to the plaintiff, nor is it stated by whom such transfer was made.

— Hon. E. L. Soarritt, Judge. The abstract of record fails to show even judgment sought to be reversed or when the motion for new trial was overruled, and fails to show that the court, at the term when motion was overruled, gave definite time thereafter to file a bill of exceptions, or within such time gave an extension, or that the bill was ever filed within such or any other time.

— Hon. E. L. Scarritt, Judge. (1) A married woman is not bound under section 6864, Revised Statutes of Missouri, where she signs a promissory note as surety for her husband’s preexisting debt. Brown v. Dressier, 125 Mo. 589; Ilgenfritz v. Ilgenfritz, 49 Mo. App. 127; Williams v. Schmidt, 84 111. 183; Foster v. Conger, 61 Barb. 145; Godfrey v. Megahan, 57 N. W. Rep. 284; Webster v. Helm, 24 S. W. Rep. 488; 1 Randolph, Com.

— Hon. O. O. Tichenor, Special Judge. ’ (1) It is our contention here by these assignments, as it was at the trial, that there is no case presented by this record for a jury to pass upon. Lovelace v. Protective Ass’n, 126 Mo. 114. (2) In this state of the record, we insist that there are no inferences to be drawn, no contradictions to be reconciled, no disputed facts to be considered, no conflicting stories to be weighed and taken or rejected.

— Hon. E. L. Scarritt, Judge. (1) This case comes fully within the provisions of the case of McQuiddy v. Brannock, 70 Mo. App. 535, holding the contract void and inoperative after the expiration of the time limited by the express terms of the contract. Broclc v. Tuning, 89 Oal. 316; Raiscb v. San Francisco, 80 Oal. 1; Fanning v. Schammel, 68 Oal. 428; Daugherty v. Coffin, 69 Cal. 454. (2) “The verdict and judgment is against the law.” McQuiddy v. Brannock, 70 Mo.

— Hon. E. P. Gates, Judge. It is difficult to see how there can be contention about this matter; the facts are undisputed and the law is in plain print. Unless the title to the Scarritt property was divested out of the Scarritts, November 14, 1896, at the time of the judgment upon the verdict, then the tax bills became and were a lien thereon, December 16, 1896, and April 1, 1897, respectively. Kansas City v. Ward/ 134 Mo. 172.

— Hon. E. L. S oarritt, Judge. (1) To determine whether “openings” made in the party wall by Woolf, the common tenant of deZeng and Huston, is a use of said wall, it is necessary to consider carefully tbe meaning of tbe phrase “party wall.” Yolmer’s Appeal, 61 Pa.

Original Proceeding by Mandamus. (1) In canvassing the election returns, and in casting up the votes given to each candidate, the county clerk and justices of the peace act in a… Held: on November 8, 1898; the canvassing board met and improperly east up the returns on Saturday, November 12; the alternative writ was issued and served on Monday, November, 14. This was within the five days provided by law, in which the county clerk and the justices should canvass the returns.

- — -Hon. J. W. Henry, Judge. • (1) The true construction of the laws of tbs order, under which, plaintiff claims that Stone was relieved from the payment of dues and assessments, is that before a member can require the lodge to pay assessments for him he must be unable, through sickness or other disability, to follow his usual business, or some other occupation, etc. Curtin v. Grand Lodge, 65 Mo. App. 294.

— TIon. E. P. Gates, Judge. (1) To simplify matters and to get at the real points in this ease, we are willing to concede: Eirst, that these associations, whether incorporated or not, can so draw their articles of association or by-laws as to have boards or committees with limited judicial powers, so as to pass upon the misconduct of members, providing they do so fairly, in accordance with rules of the association which are not invalid because contrary either to public…

<p>1. Damages: aveement of penalty of bond. In the case at bar, the petition contains the following averment: “Whereby defendants became liable to pay plaintiff to the use of said relator the sum of $2,000; wherefore plaintiff prays judgment against defendants in the sum of $2,000, the penalty of said bond, and that execution issue against the defendants for the sum of $177, the damages aforesaid, and for costs;” held to be a sufficient averment of the penalty of the bond.</p> <p>2. Pleading: jurisdictional facts. At common law it is necessary in pleading the rendition of a judgment of an inferior tribunal, or that of a court of general jurisdiction, in the exercise of a special jurisdiction, to aver all jurisdictional facts. Under the statute it is only necessary to state that such a judgment was duly rendered. (R. S. 18S9, sec. 2079.)</p> <p>3. Attorney an Agent of the Constable: eetuen on the weit. In the case at bar the relator could have nothing to say as to the manner of making the levy; nor had he the right to direct or dictate to the constable as to the form of his return; held that the attorney must be treated as the agent or serivner of the constable.</p>

Louis City Circuit Court. — Hon. Rudolbi-i IIirzel, Judge. The fourth instruction, of which alone appellants complain, is as follows: “Bad words, hard names and approbrious epithets constitute no cause or justification for an assault, but they may be considered as mitigating circumstances.

— Hon. W. N. Evans, Judge. A bill of sale or any conveyance absolute on its face but made with, tbe agreement that the property conveyed thereby shall be security for a debt, is a secret trust and is void as to attaching creditors of the grantor. Pattison v. Litton, 56 Mo. App. 325; Molaska Mfg. Co. v. Steele & Walker, 36 Mo. App. 496.

Louis City Circuit Court. — Hon. Jacob Kxeiit, Judge. An inspection of the record will disclose that the allegations of the petition were substantially proven. Mr. Brady was chairman of the Democratic committee, and the money was given him because of such fact. Pie agreed to use the money, through the committee, in advertising Sedalia, and the statute imposed upon him the duty to turn the money over to the committee. Session Acts Mo. 1893, secs. 17 and 18, p. 163.

<p>Appeal from the Shelby Circuit Court. — Hon. Andrew Ellison, Judge.</p> <p>This debt was fraudulently contracted. Blackwell v. Ery, 49 Mo. App. 638, and cases cited; Herboth v. Gaal, 47 Mo. App. 255; Clarkson v. Creely, 40 Mo. 114; Cole Mfg. Co. v. Jenkins, 47 Mo. App. 664; Elsass v. Harrington, 28 Mo. App. 300; Reid v. Lloyd, 52 Mo. App. 278; * * * Sharp v. Knox, 48 Mo. App. 169; Johnson V. Hinder, 115 Mo. 513; Hoppe v. Saylor, 53 Mo. App. 4; Mitchum v. Dunlap, 93 Mo. 418; Banning v. Cobb, 20 Mo. App. 577; Hull v. Jones, 69 Mo. 587; Ingalls v. Averitt, 45 Mo. App. 371; Rice v. Groffman, 55 Mo. App. 439; Johnson v. Hurley, 115 Mo. 513; First National Bank v. Badger Lumber Oo., 54 Mo. App. 327; Kelly v. Gay, 55 Mo. App. 39. Under the law and the evidence the verdict in the principal suit against both parties and judgment thereon in favor of the' respondents against both Charles Culver and E. W. Culver should be sustained. The judgment on the plea of abatement of Charles Culver and E. W. Culver under the law and testimony should be set aside and judgment entered in this suit against both Charles Culver and E. W. Culver.</p> <p>The testimony nowhere shows that there .ever existed any partnership between Charles Culver and E. W. Culver, nor facts from which any legal presumption of the existence of a partnership relation between them could be inferred. There was no evidence upon which to base instruction number 1, given at the request of plaintiffs. There being no evidence of a partnership relation existing between Charles Culver and E. ’W. Culver, then E. W. Culver must be liable, if at all, either, first, by reason of authority in Chas. Culver to bind him, as agent in making the purchases, or, second, by E. W. Culver having ratified the acts of 'Chas. Culver in making’ the purchases after the same were made. Chas. Culver had no authority to bind E. W. Culver in making these purchases. E. W. Culver never ratified the acts of Chas. Culver in making these purchases. There can be no ratification without knowledge. Hyde v. Larkin, 35 Mo. App. 372; Winsor v. Lafayette Co. Bank, 18 Mo. App. 665; Middleton v. Railroad, 62 Mo. 579; Cravens v. Gillilan, 63 Mo. 28. Burden of proof is on the party seeking to show the ratification. Cravens v. Gillilan, 63 Mo. 28. If the knowledge that an agent has of his own unauthorized act, can be imputed to the principal, there will never arise any question of ratification. Hyde v. Larkin, 35 Mo. App. 373.</p>

— Hon. James T. Neville, Judge. If appellant was a partner with Gage and Ermentrout •then he is liable for their services. A partnership can be proven by acts and admission of the party sought to be held as a partner. The partnership was proven abundantly in this case by the conduct and statement of the appellant himself.

— Hon. W. N. Evans, Judge. That this is a penal statute and should therefore be •strictly construed, and that the -pleadings based thereon should allege every jurisdictional fact, is so well settled that it is needless to cite-authorities. It is evident that this statute' .gives the right of action to the party aggrieved, but no one •else.

— TIon. John Gr. Wear, Judge. “It is neither uncommon nor unreasonable for a debtor to make provision by contract for the payment of his obligations; and if a purchaser of property, instead of paying the whole consideration, should assume to pay certain liabilities of his vendor, and be able to escape his obligation and retain the property, the statute would be one of frauds in a new sense.

Louis City Circuit Court. — Hon. John A. Talty, Judge. Parol evidence is inadmissible to contradict, add to, subtract from, control or vary a written contract.

— Hon. Argus Cox, Judge. The petition is sufficient, for the reason that if all the facts alleged therein are true, the petitioner is entitled to the relief prayed for, as the true test of the sufficiency of a petition is whether, if all the facts stated therein are true, the plaintiff is entitled to any relief. Wetmore v. Crouch, 55 Mo. App. 441.

— Hon. Elliott M. Hughes, Judge. Tbis being a suit to recover tbe contract price on a sale of tbe note, before be can recover all tbe elements of a sale must be proven — i. e.: Parties competent to contract, mutual consent and absolute property in tbe thing transferred. Martin v. Ashland Mill Co., 49 Mo. App. 23.

<p>Shipping Agreement: special contract: damages. In the ease at bar, the special contract, supported as it was by a reduced rate, entitled defendant to the exemptions from liability which it contained, except to relieve it from liability for negligence, and the loss therein provided for not having been occasioned by the negligence of the defendant, the terms of the contract must govern the rights of the parties as to the damages recoverable.</p>

<p>Appeal from the Butter Circuit Court. — Hon. John G. Wear, Judge.</p> <p>The only question presented by this record is, do the facts alleged entitle the plaintiff to relief? The plaintiff placed money in the hands of the defendant to he used for a specific purpose; the defendant received the money for the express purpose contemplated by the plaintiff; defendant diverted the money to another purpose and for his own benefit ; he took a mortgage securing a debt due him, paying our money to buy that mortgage which secured his debt. The agent must be loyal to his principal, accounting to him alone; and this rule applies to all cases in which the agent holds a particular fund for a particular principal. See Winning-ham v. Rancher, 52 Mo. 458, This being an action for money had and received, the foregoing case is directly in point as to facts. The action for money had and received, will lie in general whenever the defendant has received money which is the property of the plaintiff and which the defendant is obliged by the ties of natural justice and equity to refund. Cary v. Curtis, 8 How. (U. S.) 246, 247. The ties of natural justice and equity do require a person receiving money to be applied to the purposes and benefit of the donor, the receiver applying the same to his own benefit, to refund; hence we have made a good case for the court to act upon, and should have acted in this case, but on the contrary virtually ruled that the ties of natural justice and equity did not require a return of this money, which defendant used for his own purposes. We hope this court will take a different view of equity.</p> <p>The judgment aforesaid is merely a judgment of non-suit, and the alleged reasons for the same, recited therein, form no part of said judgment and this court can not consider said reasons in determining this appeal. The reasons for taking a nonsuit could alone be saved by bill of exceptions. Berkley v. Cobes, 13 Mo. App. 502; Story v. Bags-dale, 30 Mo. App. 196; McNeil v. Ins. Co., Ibid 306; State v. Burkkartt, 83 Mo. 430; U. S. v. Gamble, 10 Mo. 59. Section 2618, Revised Statutes 1889, among other things, provides that: “All exceptions taken during the trial of a cause or issue, before the same jury, shall be embraced in the same bill of exceptions. A motion to set aside a non-suit strikes at errors arising in the progress of the trial. Its office is similar to that of a motion for a new trial; and if this motion be continued to a succeeding term, and then overruled, that is the time for the losing party to file his bill of exceptions, which ought to include all exceptions taken during the progress of the trial. Cranor v. School District, 18 Mo. App. 397; Riddlesburger v. McDaniel, 38 Mo. 138; Gray v. Parker, Ibid, 160; Henze v. Railway, 71 Mo. 644. In the case,at bar the motion to set aside the nonsuit was determined at the same term of the trial, and of course, if plaintiff felt aggrieved, he should have filed a bill of exceptions containing all the errors complained of, and excepted to, during the progress of the trial. The statute is plain and simple, and it requires that “all exceptions taken during the trial * * * shall be embraced in the same bill of exceptions.” If this law can be violated by filing two bills of exceptions, as was attempted in this case, then a party can file a separate bill of exceptions to every adverse ruling, made during a long, protracted trial. This court will exclude from its consideration the first bill of exceptions filed by plaintiff herein, and determine this case upon the record as made by the bill of exceptions last filed, which contains alone the motion to set aside the nonsuit. This court will presume that the trial court’s rulings are correct, and in the language of the supreme court in the 'case of Wentzville Tobacco Oo. v. Walker, 123 Mo. 670, loc. cit. “It devolves on him ascribing error to the trial court to show it affirmatively. In the absence of such showing we should always presume that the judicial action of our brother on the circuit was right.”</p>

— Hon. Elliott M. Hughes, Judge. In determining this question of law there was no question of waste or devastavit raised or could be raised, but the sole question was to whom did the fund belong? Creditors whose claims have been allowed are not compelled to wait until a final settlement of the estate for distribution.

— Hon. W. N. Evans, Judge. The court erred in refusing to allow the assignee the sum of $760 for his time, services and traveling expenses in administering the estate of said Citizens’ Bank, and in wholely disregarding the evidence of appellant’s witness proving the value of appellant’s services. State ex rel, Lesueur v. Greene County Bank, 69 Mo. App. 536.

<p>Appeal from the St. Louis Circidi Court. — Hon. Rudolph Hirzel, Judge.</p> <p>The information is as follows: “E. A. Heidorn, prosecuting attorney, within and for the county of St. Louis, in the state of Missouri, acting herein under his oath of office, and upon the affidavit of Charles Walker, herewith filed, informs said C. IL Coggeshall, a justice of the peace,” etc., and is sufficient in itself as an official information without regard to the affidavit referred to. State v. Ransberger, 106 Mo. 135; State v. Eletchall, 31 Mo. App. 296; State v. McCarver, 47 Mo. App. 650; State v. Webb, 47 Mo. App. 599; State v. Hart, 47 Mo. App. 653. The filing of a complaint before a justice of the peace is not the commencement of a criminal prosecution, but it requires the filing of an information by the prosecuting officer. City of Pilot Grove v. McCormick, 56 Mo. App. 530. Hpon the filing of the complaint “it shall be the duty of the complainant to forthwith inform the prosecuting attorney what facts can be proved against the accused, and by what witnesses and the residence of such witnesses; and if after investigation of such facts, the prosecuting attorney be satisfied that an offense has been committed and that a case against the accused can be made, it shall be his duty to immediately file his information before the justice taking the complaint. Acts 1895, p. 166, amending secs. 4-330, 4:332 and 4:336, R. S., approved March 9, 1895. * * * If it should be held that an affidavit is necessary, we submit that the affidavit as filed is sufficient to support the information. First. It clearly charges an assault and battery, as charged in the information. Second. Failing to properly charge a felony, it states additional facts, which may or may not support a charge of felony upon proper investigation; but even if a felony should be distinctly charged, it can not be denied that the'preferment of this charge includes, also, that of the information. Third. “Words insufficient as the aggravation may still leave the indictment (complaint) good for a simple assault or assault and battery; being rejected as surplusage. 2 Bish. New Grim. Proe., sec. 63a, p. 6Í.</p> <p>Appellant relies in this her appeal chiefly upon the grounds set out in the aforesaid motions in arrest and for new trial, directed to the affidavit filed with information and submits: That the information herein is one clearly and solely based upon the said affidavit of Charles Walker, which is in title, language and substance an affidavit charging a felony, and not such affidavit as the law requires to authorize the filing of the information herein for a common assault, and to have put appellant to trial therefor. See State v. White, 55 Mo. App. 356. In which says Judge Ellison: “It is therefore clear that when the prosecuting attorney chooses to base the information upon the affidavit of an individual, such affidavit must show the information to be well based, must set forth the offense charged.” The affidavit in this case does explicitly set forth the offense complained of, to wit: a felonious assault, an assault witli intent to kill— upon wliicli'the justice only acquired jurisdiction of tbe appellant and her codefendant, for tbe purpose of a preliminary examination, and no jurisdiction (defendant in custody for such purpose only), to fo'rce defendant to trial upon this information, for a common assault; in fact and law unsupported by any affidavit filed before him, nor could be do so by consent of defendant, hence, without jurisdiction, tbe circuit court could acquire none by appeal. 1 Bishop on Crim. Prac. [3 Ed.], secs. 316, 893 and 1350. And tbe court should have sustained appellant’s motion in arrest of judgment. Unless appellant was as tbe court in its overruling of appellant’s said motions, gave as bis most potent, if not only reason therefore, that: “Here are over $100 costs accrued and this is tbe first time tbe question was raised. Both motions are overruled,” too late in excepting thereto, which we respectfully submit is no ground in law for overruling said motions. In fact tbe point can be raised at any stage of tbe proceedings, even here for tbe first time in tbe appellate court. State v. Schuchmann, 133 Mo. 112. Tbe prosecuting attorney should have, we submit procured an affidavit corresponding with tbe charge made in bis information or have filed same as of bis own knowledge, but. refusing to do either, tbe state can not now complain of tbe appellant, at any stage of tbe case, standing upon ber right to avoid final results of a- prosecution.</p>

— Hon. W. W. Wood, Judge. (1) The court erred in admitting the evidence relative to the value of horses in Kansas Oity. The inquiry should have been restricted to the value in the neighborhood where the horses were owned and injured.

— Hon.,W. W. Wood, Judge. (1) The intention of the parties is “the pole star of construction,” and there is a long and unbroken line of decisions of the most respectable courts, to the effect that “a guaranty is a mercantile instrument, to be construed according to what is fairly to be presumed to have been the understanding of the parties without any strict, technical nicety;” that “every instrument of this sort ought to receive a- fair and reasonable interpretation,…

— Hon. J. D. Perkins, Judge. (1) Where there is no evidence on which to base the judgment of a trial court, the appellate court will reverse it. Freeman v. Hemmingway, 1 Mo. App. Rep. Held: 58 Mo. 216; Christian v. Newberry, 61 Mo. 446. The second declaration of law asked by respondent and refused by the court, correctly declared the law on this point. Authorities above cited.