Volume 80 — Missouri Appeal Reports

Francois Circuit Court. — Hon. James D. Fox, Judge. The counter propositions of respondent to the third assignment of error by appellant is, that the trial court had jurisdiction of the appellant loan and investment association, and that its judgment is valid. R. S. 1889, secs. 2526, 2527, 2528 and 2529; Mikel v. Railway, 54 Mo. 145; Rippstein v. Ins. Co., 57 Mo. 86; Roberts v. Ins. Co., 26 Mo. App. 94; Hoen v. Railway, 64 Mo. 563.

Louis Gity Circuit Court. — Hon. Horatio D. Wood, Judge. The agreed statement of facts in a cause upon which it is to be determined occupies the same- footing and stands in-lieu of a special verdict, and the court pronounces its conclusions upon such agreed facts precisely as if a jury had found a verdict in that form. Gage v. Gates, 62 Mo. 412;. Carr v. Lewis Coal Co-., 96 Mo. 149; Field v. Railway, 21 Mo. App. 600; Smith v. Railroad, 47 Mo App. 546.

— Hon. L. B. Woodside, Judge. The second point raised on appeal is that the petition “does not state the value of the property destroyed,” and cites the foregoing oases to show a necessity for such allegation; but the trouble with those cases is, that wheye the court declares such averment necessary, the issue raised relates to personal property only. The case of Walker v. Ins. Co., 62 Mo.

— Hon. Elliott M. Hughes, Judge. The bona fides of plaintiff’s possession was submitted to the jury under proper instructions, and the jury found for plaintiff. This court will not disturb the verdict of the jury. The case of DeGraw v. Prior, 60 Mo. 56, cited by appellant, lays down this rule at page 57, in the following language: “What acts constitute possession is certainly for the court to decide.

<p>Appeal from the St. Louis City Circuit Court. — Hon. Leroy B. Valliant, Judge.</p> <p>The answer admits the execution and delivery of bond and contract sued on. It nowhere raises the issue made on the trial that no contract was annexed at the time of execution of the bond, or that the contract now annexed was subsequently made. The question of the identity of the contract was presented to the jury under instruction number 2 asked by plaintiff, and instructions 3 and 4 asked by defendants. The verdict is conclusive on that question of fact. Oberbeck v. Mayer, 59 Mo. App. 298; s. c., 67 Mo. App. 249. The building association does not claim any greater rights than Mrs. Tracy possessed. What it paid in discharge of lien judgments and for counsel fees was for her benefit and she so recognized it by-making formal assignment of the bond. If the bond were not assigned she could maintain an action for her own use, as payments made by the building association as mortgagee became an additional charge on her real estate. The bond was delivered to the building association as additional security to the mortgage or deed of trust. It was not necessary to offer expert testimony on the subject and the jury would not be bound by their opinion. Cosgrove v. Leonard, 134 Mo. 419. This was not an action by counsel for fees; it was an action upon a bond conditioned to keep “Laura E. Tracy harmless and indemnified from and against all and every claim, demands, judgments, liens and mechanic’s liens, costs and fees of every description incurred in suits or otherwise.” The amount paid isprimafaeie the damages. If the admission of Hayden’s testimony concerning reasonableness of fee was error, it is harmless and this court is prohibited by statute from reversing a cause except for “error materially affecting the merits.” R. S. 1889, sec. 2303. An error seems to have been made by the circuit clerk in entering the judgment, as it was entered for the amount of the damages, instead of for penalty of the bond with execution for damages as required by statute. R. S. 1889, sec. 869.</p> <p>When a bond recites that it is given for the performance of a contract of a stated date, and that it is annexed to suoh contract, bnt it is in fact subsequently annexed to a contract of a- subsequent date, tbe sureties in the bond can not be held for tbe performance of tbe latter contract, except upon proof that they authorized the annexation, or knew when they signed the bond that it related, or was to be annexed to, such latter contract. Overbeck v. Mayer, 59 Mo. App. 289. The assignee of a bond can have no greater rights against the sureties than the original obligee. Lie can only recover the amounts paid and damages sustained by the original obligee, and not damages which the assignee may have sustained. 4 Am. and Eng. Ency. of Law [2 Ed.], p. 648, note. If such value could be said to be a matter of common knowledge, then the question calling for the witness’ opinion was also improper. Benjamin v. Railway, 133 Mo. 274, 289; State v. Dusenberry, 112 Mo. 277, 292. A judgment upon a bond simply for damages, and not for the penalty, is erroneous. State to use v. Eitzpatrick, 64 Mo. 185; State ex rel. v. Cooper, 79 Mo. 464; R. S. 1889, sec. 869.</p>

— Hon. James T. Neville, Judge. The justice of the peace had jurisdiction. R. S. 1889, sec. 6122. The jurisdiction of the justice of the peace is sufficiently shown if it appears from the entire record in the proceedings. Sappington v. Lenz, 53, Mo. App. 44.

<p>Divorce: desertion: practice, trial. The desertion being for the statutory period, willful and without legal excuse or consent the plaintiff, upon proof of her good conduct and that she was an injured and innocent party, was entitled to a divorce on the Say following the expiration of the time prescribed by statute.</p>

Louis City Circuit Court. — Hon. Selden P. Spenceb,, Judge. A warehouse keeper may legally carry an insurance against loss by fire on goods stored with him, where he is liable for their safekeeping. Eerguson v. Pekin Plow Co., 141 Mo. 161. When a contract is not void at law, it is no defense to its enforcement to say that the profits would not equal the costs of carrying the contract into full effect.

<p>1. Assignment for the Benefit of Creditors: time checks: rights of laborers to preferences. In the ease at bar the right of preference became a fixed right attached to the debts and it passed with the assignment of the debts. Held, that the circumstances that the wages were past due, and that the employees held checks therefor, are sufficient to justify the inference that a demand of payment was made.</p> <p>2. -: -: assignee: jurisdiction of circuit court. The judgments or actions of an assignee from which appeals are contemplated concern the allowance of demands rather than their classification. Held, that any action of the assignee as to rights of preference or priority of payment is subject to a final review and control by the court where the assignment is pending.</p>

Louis City Circuit Court. — Hon. Selden P. Spencer, Judge. When Mrs. Schworm joined the order it was incorporated as a Missouri corporation. Under the laws of Missouri the benefit can be paid only to persons coming within certain classes. When the statute, charter or by-laws prescribe the classes to whom such benefit may be made payable, no one, outside of these classes can become entitled to the fund. Ney v. Grand Lodge, 9 Ind.

Louis City Circuit Court. — Hon. Selden P. Spencer, Judge. This court has full power to review the evidence and make such decree as it may deem proper. Deschodt v. Deschodt, 59 Mo. App. 102. Divorce is a legal right and, where the facts entitling either party to it exist the courts have no discretion to deny it.

— Hon. D. W. Shacklefoed, Judge. (1) The failure to keep and produce such complete books avoided his policy. See policy provision called “Iron safe and inventory clause.” Crigler v. Ins. Oo., 49 Mo. App. 11; Fleisch v. Ins. Co., 58 Mo. App. 596; Ins. Co. v. Bates, 65 111. App. 37; Lozano v. Ins. Co., 78 Fed. Rep. 278; Ins. Co. v. Stubbs, 98 Ga. 754; Alfred v. Ins. Co., 37 S. W. Rep. 95. (2) Plaintiff was required by the policy to keep and produce these books.

— Hon. D. P. Stratton, Judge. (1) Statements made by a vendor or bis agent as to cost price of tbe subject-matter of tbe trade, however false they may be, are no grounds for avoiding tbe sale or an action of damages for deceit. Garrett v. Wannfried, 67 Mo. App. 437, 441; Cabn v. Reid, 18 Mo. App. 127. (2) Instructions must be consistent and not misleading, and based on tbe pleáding and the evidence. Authorities unnecessary.

— Hon. J. W. Alexander, Special Judge. There is no bill of exceptions in this case, and nothing before the court except the record proper, and there is no error therein.

— Hon. D. W. Shackleford, Judge. (1) The city had power to authorize the construction cf the railroad in the street, and to establish or change the grade of the street. The law required that the railroad should conform to that grade. A railroad built under such authority and in conformity to such requirement is not wrongfully built, and in no sense a nuisance. R. S. 1889, sec. 2543; Ray’s Neg. of Imposed Duties, chap.

<p>Appeal from the Jasper Circuit Court. — Hon. J. D. Perkins, Judge.</p>

— Hon. E. L. Scarritt, Judge., (1) If there is any such thing as selling materials under such circumstances that the plaintiff, while knowing what building they are to be used in, can not claim a lien, then this is that sort of case. Buckner, the lumber dealer, was merely a materialman and not a subcontractor within the meaning of the Missouri statute.

— Hon. C. O. Tichenor, Special Judge. • (1) Our contention is that without the statute there could be no change of beneficiary entitled to receive the money under the certificate without the consent of the association. Candell v. Woodward, 96 Ky. 46; Supreme Oouncil, etc., v. Perry, 140 Mass. 580; Taylor v. Relief Ass’n, 145 Mass. 184; Clark'v. Schwartzenberg, 162 Mass. 98; Skilling v. Mass.

— Hon. O. A. Anthony, Judge; (1) The court erred in refusing to permit defendant to introduce the evidence of Frank Jones, to prove the allegations in the second defense of the answer. Ern v. Rubinstein, 72 Mo. App. 337; Hamilton v. Marks, 63 Mo. 167. (2) The court erred in refusing to give defendant’s demurrer at the close of plaintiff’s evidence. If the evidence would not support a verdict for plaintiff, then the demurrer should have been given.

— Hon. O. A. Anthony, Judge. (1) As the act charged in the indictment does not fall within the express terms of the statute (E. S. 1889, sec. 7827), the indictment no doubt was intended to charge a common law offense, and it is by us so considered. State v. Turner, 21 Mo. App. 324. There was absolutely no testimony offered in the case tending to establish the fact that filling brick, stone and dirt into the drain in controversy obstructed the road at this point.

— Hon. O. A. Anthony, Judge. (1) The court below erred in refusing to strike out parts of defendant’s answer and in overruling objection to evidence of fraud as against the insurance company, and also in not sustaining the motion in arrest, for the reason that this defendant in a personal suit against him can not set up the alleged fraud against an outside third party, the insurance company in this case.

— Hon. W. S. Herndon, Judge. (1) The instruction which was given by the court, upon its own motion, to the effect that defendant could not be acquitted if he used any more or greater force or violence than was necessary in keeping McIntyre from killing Price or doing him some great bodily harm, i$ erroneous. This instruction is vicious and is not the law, as has been decided several times by the courts of almost every state.

— Hon. W. S. Herndon, Judge.- (1) Where a court of equity once takes jurisdiction of a matter it will do complete justice in all matters before it; and the dismissal of the plaintiff’s petition will not prevent defendants having proper affirmative relief. Jordan v. Harrison, 46 Mo. App. 172; Woodard v. Mastín, 106 Mo. 324; Reyburn v. Mitchell, 106 Mo. 365; Story’s Equity Pleading [9 Ed.], sec. 399.

— Hon. A. M. Woodson, Judge. (1) The court erred in not sustaining Appellant J. M. • Bisel’s demurrer to the evidence of respondent, which appellant offered at the close of plaintiff’s evidence on the trial of this ease. Aldrich v. Wright, 16 Am.

— Hon. A. M„ Woodson, Judge. (1) Plaintiff had the right to amend his petition to more explicitly explain or state the canse of action mentioned in his petition, but he did not have the right to change its nature and character, and by so doing he substituted a new cause of action. Hernán v. G-lann, 129 Mo. 325; Ross v. Ross, 81 Mo. 85; Scovill v. Glasner, 79 Mo. 449; Parker v. Rodes,'79 Mo. 88; Sims r. Eield, 24 Mo. App. 558; Drake v. Railroad, 35 Mo.

— Hon. C. F. Strop, Judge. (1) The evidence conclusively shows that appellant on March 4, 1895, became the owner of the stock sued for, subject only to a claim the respondent then held thereto as collateral security. The evidence tends to show that Smith was released and discharged from said debt about January, 1896, long before this suit was instituted. If he was so released, appellant is entitled to recover.

— Hon. E, J. Broaddus, Judge. (1) There was ho physical or bodily injury to plaintiff, and in such case fright and mental suffering are not elements to be considered. Strange v. .Railway, 61 Mo. 586; Trigg v. Railroad, 74 Mo. 147; Nelson v. Railroad, 68 Mo. 593*; Marshall v. Railroad, 78 Mo. 610; Connell v. Tel. Co., 116 Mo. 34; Wood’s Mayne on Damages, p. 74 (note); Pierce on Railroads, 302.

— Hon. J. ~VV. Alexander, Special Judge. Tbe special judge committed error in sustaining tbe motion to enter judgment nunc pro tunc, and in ordering tbe clerk to enter up sucb a nunc pro tunc judgment, as be did. To authorize sucb change, sucb entries can not be made from outside evidence, or from facts existing alone in tbe breast of tbe judge, after tbe term at which final judgment is entered.

— Hon. J. A. Hockaday, Judge. (1) Upon the undisputed facts in the case the judgment should have been for the defendant. Eirst, because tbe defendant was not responsible, either at common law or under the contract of shipment for the delay occasioned by circumstances wholly outside of its duty, as well as beyond its control. Balletine v. Railway, 40 Mo. 500; Francis v. Transfer Co., 5 Mo., App. 7; Pruitt v. Railroad, 62 Mo. 527.

— Hon. J. A. Hockaday, Judge. Since there was no trial of this cause by reason of the plaintiff’s voluntary nonsuit, the provisions of section 6089, Revised Statutes 1889, were inapplicable, and all costs should have been adjudged against the plaintiff under section 2932.

— Hon. J. A. Hockaday, Judge. (1) Tbe petition fails to state facts sufficient to constitute a cause of action, against tbe individual defendants; or rather its allegations show that tbe plaintiffs bad no cause of action against these defendants.

— Hon. J. A. Hockaday, Judge. (1) Tbe returns showed that the appellants could not comply with the command of the alternative writ to immediately levy, assess and collect a tax, because they had already exhausted their powers in that respect. At the time of the issuance of the alternative writ, therefore, the relator had no right to have a tax levied, and hence it was .error to award the peremptory writ.

— Hon- W. W. Rucker, Judge. (1) The testimony of witnesses Corthon and Richie, as contained in tbe notes of tbe official court reporter, should have been admitted and read in evidence to ‘the jury. 1 Greenleaf on Ev., sec. 163; 2 Burr W. Jones on Ev., secs. 344, 345; 1 Wharton on Ev., sec. 178; 7 Am. and Eng. Ency. of Law [1 Ed.],, p. 75; King v. McCarthy, 55 N. W, Rep. 960; Hill v.Winston, 75 N. W. Rep. 1030; 1 Rice on Ev., sec. 214.

— Hon. P. C. Stepp, Judge. (1) Dobyns v. Ben. Ass’n, 144 Mo. 95, relied upon by respondent, is not decisive of this case upon tbe question of the conclusiveness of the recital, “in consideration of $15, paid,” etc. The Home Insurance Company does insure, etc. The Dobyns policy contained no such condition as appears here. Our policy recognizes the fact that the premium may be acknowledged as paid and yet a note may be outstanding for same.

— Hon. D. W. Shackleford, Judge. The evidence is insufficient to show an executed gift of the note to the plaintiff. The only witness on this point was O. L. Roe. He admitted that he could not identify this note as the paper he saw J. B. Roe hand to the plaintiff. Neither did he hear what was said between J. B. Roe and the plaintiff.

— Hon. D. W. Shackleford, Judge. (1) The justice had jurisdiction to try and determine the attachment suit on the allegations of the complaint and affidavit although the rent was not then due. 2 R. S. 1889, sec. 6384; Newman v. York, 74 Mo. App. 292.

— Hon. D. W. Shackleford, Judge. The court erred in not passing on the whole report of the referee. The parties to the suit were entitled to have all these differences settled in one action without resorting to another action to ascertain as to whom credit should be given for rafts 2, 4 and 7 upon which the court refused to pass. The court must either accept the findings by the referee or set them aside altogether. Lingenfelder v. Brewing Co., 103 Mo. 578.

— Hon. E. P. Gates, Judge. (1) It appears on the record that the alternative writ and the peremptory writ vary from each other, thus a fatal defect apparent of record and justifies a reversal of the case.

Louis City Circuit Court. — Hon. Rudolph Hirzel, Judge. Held: “It was the duty of the gripman and other employees to keep a vigilant watch for persons on or approaching the track and when discovered in danger to use every possible effort consistent with the safety of passengers to avoid striking them.

<p>Appeal from the St. Louis City Circuit Court. — Hon. Selden P. Spencer, Judge.</p> <p>Where facts are admitted which establish a prima facie right of recovery in the plaintiff, and the defendant relies upon matters which do not constitute a good defense in point of law, the trial court should direct the jury to return a verdict for the plaintiff. Chvens v. Eector, 44 Mo. 389; Benton v. Klein, 44 Mo. 97; Wolf v. Campbell, 110 Mo. 114; Mitchell v. Bradstreet, .116 Mo. 226, loe. cit. 247; Erankenthal v. Goldstein, 44 Mo. App. 189; Mineral Land Co. v. Eoss, 135 Mo. 101, loe. cit. 107. Where it is specially provided in the lease that the lessee shall pay double the usual rent for every day he holds over after the termination of the lease, it is no defense to an action to collect such double rent, that he was permitted to remain upon the premises during negotiations for a new lease. The terms for his holding over are fixed in the lease, •and if he elects to remain he does so subject to them. Deaver v. Randall, 5 Mo. App. 297; Green v. Kroeger, 67 Mo. App. 621; Kerr v. Simmons, 8 Mo. App. 431; Kerr v. Simmons, 9 Mo. App. 376; Walker v. Engler, 30 Mo. 130. The receipt •and retention of the check for $50 by appellant’s agents, the Noonan Real Estate Company, as full payment at the single rent rate for the time the respondent occupied the premises after the termination of his lease would not afford a valid defense even if it had not conclusively appeared from the evidence that it was never accepted by the real estate company. 1 Woodfall on Landlord and Tenant, p. 355; 2 Taylor on Landlord and Tenant, sec. 485; Doe v. Calvert, 2*Oampbell, 387; Fitzpatrick v. Childs, 2 Brews. 365. The instruction requiring the jury to find for the defendant if they believed that the $50 check was received and retained by the plaintiff, in full payment for the time during which the respondent held over, was erroneous for various reasons. In the first place it does not distinguish between the receipt and retention of the check by the appellant and the receipt and retention by the real estate company, the agent of appellant, and consequently was calculated, to mislead the jury. Fire Olay Works v. Ellison, 30 Mo. App. 67; Clamp v. Eodwalt, 19 Mo. 449; Cole v. Long, 1 Mo. App. 215.</p> <p>The defendant continued in possession with the express consent of the owner and he can not therefore claim double rent. The evidence clearly shows that the treaty for a lease was begun before the termination of the tenancy, and the landlord should therefore not be permitted to reap an unfair advantage, the fruitage of his own fraudulent acts or that of his authorized ¿gent. Grant v. White, 42 Mo. 285, 290; Ish v. Chilton, 26 Mo. 256, 259, 260; Doe ex dem. v. Stennett, 2 Esp. 718; Fitzpatrick v. Childs, 2 Brews. 867. A tenant who holds over pending a treaty for a renewal of the lease, is a tenant at will, and if the renewal is not effected may be ejected without demand or notice. Hence he should not be held for double rent. 1 Wood’s Landl. and Ten. [2 Ed.], p. 48; Simkin v. Ashurst, 1 O. M. R. 260; Dóe ex dem. Hollingsworth V. Stennett, 2 Esp. 716, 71-7. The check was sent plaintiff in “full payment of rent up to and including June 8, 1897,” and was accepted as such. By retaining the same he waived a payment in cash and therefore the instruction for defendant on that point was proper. Johnson-BrinkmanCo’.v.Bank, 116 Mo. 558, 570; 18 Am. and Eng. Ency. of Law, p. 167, sec. 6, and following; Rice v. Dudley, 34 Mo. App. 386, 387, 389; Adams v. Helm, 55 Mo. 468, 471. And the question whether it was received as payment is for the jury. 18 Am. and Eng. Ency of Law, p. 169, col. 2, and case there cited; Steamboat Charlotte v. Hammond, 9 Mo. 41. He should have returned the check within a reasonable time. Fitzpatrick v. Childs, 2 Brews. 368. The court can not direct a verdict for the defendant where there is any controverted issue involving as is the case at bar. Benton v. Klein, 42 Mo. 97, 100; Wolff v. Campbell, 110 Mo. 114.</p>

<p>Appeal from the Lewis Circuit Court. — Hon. Edwin R.. McKee, Judge.</p> <p>The indictment correctly states and charges that Wilson was to be arrested for an offense, “malicious trespass.” See •offenses grouped under this head. 1 R. S., p. 1188.. See 2 Bishop’s New.Criminal Law [8 Ed.], p. 299, sec. 520 A, and authorities there cited; also section 215, page 118. Indictment will not be deemed invalid for any defect or imperfection, which does not tend to the prejudice of the substantial rights of the defendant upon the merits. R. S. 1889, sec. 4115. The warrant, information, affidavit or complaint upon which Wilson was arrested, charges malicious trespass; also justice’s docket wherein case is docketed. Defendants can not say that affidavit was insufficient and does not charge an offense. Matlick v. Crump, 62 Mo. App. 21; Stocking v. Howard, 73 Mo. 25; Best v. Haeffner, 39 Mo. App. 682. “Forcible entry and detainer” is malicious trespass. The affidavit signed by Wm. M. Slattery and one signed by C. E. Blair, upon which Wilson was arrested some two or three times, were both competent, and either or both were competent. All the facts and circumstances as well as acts and conduct of defendants are competent. The recognizance given by Wilson to appear before Davies was taken by defendants and they can not now say it is insufficient. Matlick v. Crump, 62 Mo. App. 21; Best v. Haeffner, 39 Mo. App. 682; Stocking v. Howard, 73 Mo. 25. The affidavit signed by C. E. Blair dated March 2, (9) and warrant issued February 25, and recognizance taken March 2, 1897, with (10) Squire Davies’ docket entries in same case, were all facts and circumstances, as well as acts of defendants, and were competent. State v. Ross, 29 Mo. 32; State v. Duncan, 64 Mo. 266; State v. Hickman, 75 Mo. 416; State v. Cooper, 85 Mo. 260. All of this evidence is part of the res gestae and competent. The remark of the court was not error, and witness Hand’s testimony was competent. The declarations or act of a conspirator or accomplice are receivable against his fellows where they were either in themselves acts, or accompany and explain acts done in pursuance of a concerted criminal purpose, and made or done during the pendency of the common criminal enterprise. State v. Melrose, 98 Mo. 594; State v. Eoss, 29 Mo. 32; State v. Hickman, 75 Mo. 416; State v. Daubert, 42 Mo. 239; State v. Minton, 116 Mo. 605; State v. Walker, 78 Mo. 380.</p> <p>The indictment does not contain facts sufficient to constitute a criminal offense. The conspiracy must be in this case to arrest Wilson for an offense, either a misdemeanor or a crime — whatever the offense is, the facts constituting it must be clearly stated in the indictment, and show that an offense known to the laws of Missouri was actually committed. This is not done. 2 Whart. Or. L. [9 Ed.], sec. 1343, p. 178; 2 H. S. Dig. (New Series), sec. 6, p. 142; Am. Dig. 1893, sec. 14, p. 783; 4 Am. and Eng. Ency. of Law, sec. 1, p. 6236, and note 5. And more especially should this be the case when the name given the supposed offense in the indictment is not known to our statute or common law. No offense, or criminal offense, is known to our statute as a “malicious trespass.” Hence the greater necessity for stating the acts in full in the indictment, going to show what offenses is intended to be charged against defendant. State v. Ragsdale, 59 Mo. App. 590, 607. The charge that defendants conspired to arrest A. L. Wilson for “malicious trespass” upon the property of Slattery is too broad and indefinite to apprise defendants of the offense intended to be charged against them. Malicious trespass, as used in common parlance, includes injury and sometimes destruction to both real and personal property. Nobody can tell whether real estate or personal estate be intended to be included in the charge of malicious trespass in the indictment. The charge should have been more specific. EEs Or. L. & P. [2 Ed.], 172, pp. 105, 184, 112; State v. Olay, 100 Mo. 571, 582, 584. The property of Slattery is not described. “Property” under our statute includes personal and real estate alike — neither is distinctly stated in the indictment. The property in the indictment, though described as the property of Slattery, is not even designated as “personal” or “real property.” The location of the property is not given- — state, county, city nor town is given. The facts stated should show jurisdiction in the trial court. No one can tell whether the property lies in Clark or another county in the state of Missouri, or in some other state. The want of jurisdiction is fatal to the indictment. 1 R. S. 1889, secs. 3979, 940; authorities supra.</p>

Louis City Circuit Court. — Hon. Rudolph Hirzel, Judge. STATEMENT OP THE CASE BY THE COURT. On the third of February, 1894, the plaintiff, a New Jersey corporation, sued the defendant for $1,791.23, balance alleged to be due upon an itemized account for sales of white lead and oil. The petition contained a second count, praying for the same sum alleged to be due upon account stated.

— Hon. Elliott M. Hughes, Judge. The question is not whether this or that fact alone would render it the duty of the court to decree a divorce, but whether all the facts combined ought to lead to that result. Saunders v. Saunders, 1 Rob. Eccl. 549; Jones v. Jones, 60 Tex. 451; May v. May, 62 Pa. St. 206.

<p>Appeal from the Texas Circuit Court. — Hon. L. B. Woodside, Judge.</p> <p>The record discloses the presence of the defendants at the commencement of the trial, this presence the court will presume to continue throughout the entire proceedings, where the record fails to disclose their absence. R. S. 1889, sec. 4191. The remainder of authorities cited by appellants on this proposition are not in point; they refer to cases where the record fails to disclose the presence of defendants at any stage of the trial. The sentence and judgment of one convicted of a crime may be postponed until a future day or term of court, to suit the convenience of the court, for cause shown. State v. Watson, 95 Mo. 411. In certain cases of misdemeanors judgment and sentence may be passed in the absence of the defendants. Kelley’s Grim. Law, sec. 447. This rule certainly applies in this case, as the defendants were only ad-judged to pay a fine. State v. Glassner, 7 Mo. App. 572. The instructions given by the court correctly declared the law on all theories of the case presented by the evidence. The term family has no technical meaning and, therefore, requires no technical definition, as clearly appears from the examination of the following authorities: Wade v. Jones, 20 Mo. 75; State v. Slater, 22 Mo. 464, and authorities there cited.</p> <p>Tbe record fails to show that defendants were present when sentence was passed. This necessitates a reversal of the case. Sec. 4191, R. S. 1889; 1 Bishop’s (New) Or. Proc., sec. 268; Mo. Const., art. 11, sec. 22; In re Miller, 44 Mo. App. 125. "While the statute does not presume the presence of defendants once shown by the record to have continued until after final sentence, this presumption is overcome by the adjournment of that term of court and the lapse of one year between the trial and sentence. Taking all definitions for family and head of family, two distinct ideas are developed. State v. Slater, 22 Mo. 464; Phillips v. Eergerson, 1 L. R. A. 837; Moyer v. Drummond, 7 L. R. A. 747. The family is an association of individuals based on kinship, regardless of domicile. Or in other words, it is children and the common ancestor is the head of the family. This is the primary meaning, and so they must be construed unless.the context shows they are used in a different sense. Phillips v. Eergerson, 1 L. R. A. 837. The family is an organized household. It includes all who live under the same roof with the paier-familiaSj whether children, servants or lodgers. The one who manages and controls its affairs and supplies its wants is the head of the family. " The statute viewed as a whole and in the light of history shows clearly to the legal mind that the legislative intent was to protect the home — the organized household rather than dispersed individuals. See State v. Schlottman, 52 Mo. 164; State v. Eogerson, 29 Mo. 416. There was absolutely no evidence in the case tending to prove that Sarah ECorter had a family in its organic sense. The only evidence on the subject shows conclusively that she had no such family. This is a fatal variance and the cause should be reversed and defendants discharged. Again the expressions family and head of family are purely English and are commonly used in both senses. This ambiguity the court failed to explain. The preponderance if not all tbe evidence used as a criterion lead tbe jury to accept the wrong and primary meaning. Under-these circumstances the court should have told the jury what was meant by the word family and what constituted the head of a family. Sess.'Acts 1895, page 161; 11 Ency. PL and Pr. 228, and cases cited.</p>

<p>1. Practice, Trial: amended information: amended affidavit. In the ease at bar an amended information with an amended affidavit were filed at the same time before the justice. Held, that as they were filed together, the presumption must be indulged that the amended information- succeeded the amended affidavit upon which its context shows it was based.</p> <p>2. -: --: PRESENCE OF DEFENDANTS DURING TRIAL. As the charge, in the case at bar, is a mere misdemeanor it will be presumed that the personal presence of the defendants, once shown, continues during the remainder of the proceedings, or that they were absent by the consent of the court and prosecuting attorney.</p>

— Hon. J. C. Lamson, Judge. There was but one issue before the jury. - Under the • stipulation, plaintiff’s claim was admitted, and plaintiff was to have a verdict for the amount of its claim, $44, unless the jury should find that the defendant was entitled to the damages asked for in his counterclaim.

— Hon. Reuben F. Roy, Judge. The finding and judgment are not responsive to the issues and is a nullity. Mills v. Thompson, 61 Mo. 415-417; Plewson v. Tootle, 72 Mo. 632; Nelson Distilling Co. v. Hubbard, 53 Mo. App. 23-28. An interplea is peculiarly a possessory, action, the right of the present possession of the property being the principal question in controversy. Wells Replev., sec. 39.

Genevieve Circuit Court. — Hon. John V. Noel, Special Judge. Corporations must act through their agents, and tbe acts of such agents within tbe scope of their authority are tbe acts of tbe corporation. Sparks v. Dispatch Co., 104 Mo. 431, 439; Jones v. Williams, 139 Mo. 1-26; Bank v. Gilstrap, 45 Mo. 419; Moore v. Gauss & Sons Mfg. Co., 113 Mo. 106.

— Hon. Elliott M. Hughes, Judge. Appellant’s complaint as to instructions given for the plaintiff and refused for the defendant, can not be noticed or considered by this court. The record affirmatively shows that it does not contain instruction number 1 given for the plaintiff, and none of the instructions asked for by defendant, are in the record.

— Hon. Elliott M. Hughes, Judge. Defendant complains of the action of the court in refusing four instructions set out on page 5 of his abstract: As to the first refused instruction, there was no evidence that defendant had ever sold a jack to “plaintiff” under the special agreement that he should be returned and exchanged in the event he should turn out to be not a good breeder. Defendant testified that he mailed such a stipulation to “Moomaw & Buck,” as purchasers of a jack.

— Hon. Elliott M. Hughes, Judge. By it the mortgagor waived her right to redeem and the mortgagee agreed to sell the property, pay himself ont of the proceeds and account to the mortgagor for the surplus. Besides it is the holding of the courts that where on an appeal the judgment is reversed and the cause remanded, the rulings of the appellate court constitute the law of the case and generally speaking, become res adjudicata. Ooquard v. Prendergast, 47 Mo.

<p>Divorce: desertion: justification: cross-bill. No attempt was made to prove the recriminatory matter pleaded in the defendant’s cross-bill. Held, that in the case at bar it must therefore appear by a preponderance of the evidence, that the acts of the defendant, on account of which the plaintiff seeks a divorce, “were the natural or probable result of his own conduct and hence extenuate the defendant’s acts, and reduce the offensive character below the degree which the law requires to justify the separation of the marriage tie” to sustain the trial court in refusing plaintiff a divorce.</p>

<p>1. Pleadings: cause of action: general demurrer. Where a petition shows by implication a contract between plaintiff and defendant, and a right of recovery thereon, a general demurrer will not lie. In the case at bar the petition when fairly construed contains sufficient allegations to sustain a cause of action. 2. Contract: substitution: waiver: volunteer. In the ease at bar the defendant in effect transferred his contract with the syndicate to pay, to the plaintiff and substituted the plaintiff as obligee to receive the first payment on his subscription in lieu of the syndicate, and thereby waived his right, if any he had, to treat the plaintiff as a mere volunteer.</p>

— Hon. Henry C. Riley, Judge. Tbe circuit court bad no jurisdiction. This suit did not effect tbe title to real estate, nor was the title to real estate in any way in issue, and tbe amount involved did not exceed $50. R. S. 1889, sec. 6122 and 6124; Monks v. Strange, '25 Mo. App. 13.

Elliott M. Hughes, Judge. Iu the case of Nealy v. Simpsou, 113 Mo. 340, we find a case very similar to the one at bar. See the instrument sued on as the basis of the action set out in full on pages 342, 343. They are also similar in the fact that the estate was all personalty, and also in the pleadings. In fact, the pleader in the case at bar had this case before him at the time he drew the petition.

<p>Appeal from the St. Charles Circuit Court. — Hon. Elliott M. Hughes, Judge.</p> <p>In this case this court is not called upon to say whether a given state of facts, or whether certain conduct constituted a failure to prosecute the appeal. The record of the judgment of the circuit court is that defendants refused to further prosecute their appeal. This record, of course, imports absolute verity.. That the record of a court, especially a court of record, and a home court, imports absolute verity, is an elementary principle of law, and we do not believe it will bo controverted. .Any number of authorities might be cited in support of Tt. 1 Greenl. on Ev. [Lewis’ Ed.], sec. 19; 2 Wharton, Law of Ev. [3 Ed.], secs. 980 and 982; 1 Ereeman on Judg. [4 Ed.], see. 76; 1 Black on Judg., sec. 273; Warren v. Lusk, 16 Mo. 102, 111, 113. The statute directs that in case of failure to prosecute the appeal the judgment of justice shall be affirmed or appeal dismissed. Judge Thompson, in Eay v. Railroad, supra, recognized the right of circuit court to affirm judgment or dismiss the appeal when appellant fails to prosecute his appeal. (See his language at bottom of page 107 of 26 Mo. App.) In the case at bar the record shows that defendants, appellants, not only failed, but .refused to prosecute their appeal. There is another principle of law somewhat allied to the last and equally as well established, viz.: That when the record is silent or uncertain or indefinite, all presumptions are in favor of the judgment of a court of record. Bearden v. Miller, 54 Mo. App. 201; In re Tucker, 74 Mo. App. 334, 335; Murphy v. DeErance, 105 Mo. 62; The State ex rel. v. Bank, 120 Mo. 168.</p> <p>In an appeal by any defendant from a justice of the peace, all that is necessary to constitute “prosecution of the appeal,” is to file the transcript and give the proper notice of appeal. When this is done the appeal is fully prosecuted, and it is error to dismiss the appeal without requiring the plaintiff to prove his case de novo, and to prove the amount of damages he has sustained. Eay v. Railroad, 25 Mo. App. 104; affirmed in Hockaday v. Sturgeon, 65 Mo. App. loe. cit. 188, 189; State v. B'uhs, 18 Mo. 318. In the case at bar not only was the transcript filed and notice given, bnt the defendants also appeared by counsel at the trial) and moved for a continuance. •</p>

<p>Appeal from the St. Louis City Court of Criminal Correction. — Hon. David Murphy, Judge.</p> <p>The act done and that alone violates the law. The fact that oleomargarine was artificially colored by whatever means ■or substance and sold makes a complete offense under the statute. State v. Bockstruck, 136 Mo. 335; Haggerty v. Ice Mfg. Co., 143 Mo. 246. There was no variance between the information and proof. See Bockstruck, supra.</p> <p>The proof does not sustain the allegation that the animal fat, etc., was colored “with annatto and the “compounds of annatto and with other substances.” There is no proof to sustain the allegation that the colored compound was of any “shade of g'emune yellow butter.” The alleged “doctor” did not qualify as an expert competent to analyze and determine the presence of the coloring matter. The verification of the information is insufficient. The allegations of the coloring effects should have been in the conjunctive and, and not in disjunctive or.</p>

— Hon. Elliott M. Hughes, Judge. The petition, the answer, the demurrer to the answer, the stipulation, the argument of counsel and the opinion of the court, all preserved in the record, show very plainly what the issues were and the theory upon which the case was tried, in the circuit court, and that the provisions of the constitution, the statute and the rule of our appellate courts were considered and discussed.

— Hon. James F. G-reen, Judge. If the alleged false evidence forms an apparent link in the chain of evidence and tends to prove the issue, or tends to support and give credit to a witness in respect to the main fact, it is sufficient. State v. Warfield, 73 Mo. 549; State v. Day, 100 Mo. 242; Green! onEv. [15 Ed.], par. 195. However, said ordinances of the city of De Soto, authorizing killing of dogs are constitutional. Oartliage v. Rhodes, 101 Mo. 175.

— Hon. Andrew Ellison, Judge. (1) Tbe demurrer to tbe evidence at tbe close of plaintiff’s case should have been sustained, because, first, tbe injury did not result from tbe negligence alleged; Clark v. Fairley, 24 Mo. App. 429; Kain v. Railway, 29 Mo.

— Hon. E. J. Broaddxjs, Judge. (1) It was unnecessary to plead conditions precedent when the petition stated that defendant had conveyed the land to other parties that he agreed to convey to plaintiff. Beck-man v. Ins. Co., 49 Mo. App. 607; Bayse v. Ambrose, 32 Mo. 484; Little v. Mercer, 9 Mo. 218; Estee’s Pleading [3 Ed.], sec. 323.

— Hon. Richard Field, Judge. .(1)- The court erred in refusing to give tbe instruction numbered 2 as originally asked by appellants and in interlining tbe words “and became a partner of Mathews,” and then giving it. (2) The court refused to give to the jury instruction 5,-asked by them, wbicb was based upon tbe evidence of Jas.

— Hon. Richard Field, Judge. (1) Before respondent can recover lie must show that delivery has been made. There was no delivery. Liability for its safety does not begin until that is done. The statute even forbids the giving of a receipt until it is loaded into the car. R. S. 1889, secs. 2578-2591, 743; Port Worth-v. Riley, 1 S. W. Rep. 446; 5 Am. and Eng. Ency. of Law [Rev. Ed.], 180, 181, 461, 462; Edwards on Bailments [2 Ed.], 680, 683-685; Merriam v. Railroad, 52 Am.

— Hon. Richard Field, Judge. (1) The suit of the plaintiff can not be maintained. Garnishment is strictly a legal proceeding and does not perform the office of a bill in equity. Only legal rights can be reached by it; equitable rights can not be. Lackland v. Garesche, 56 Mo. 267; Sheedy v. Bank, 62 Mo. 17, 25; Beckham v. Tootle, 19 Mo. App. 603; Mercantile Co. v. Betties, 58 Mo. App. 384; Heineman v. Solomon, 47 N. W.‘ Rep.. 107; Treusch v. Ottenburg, 54 Fed.

— Hon. Argus Cox, Judge. (1) The court erred in admitting the so-called return of W. J. McCullough to notice of change of road. It was merely the unauthorized ex parte affidavit of a private individual, nowhere known or recognized by the statute. The unauthorized return of an officer is not even prima facie evidence. Horton v. Railroad, 26 Mo. App. 349; Parker v. Evans, 23 Mo. 67.

— Hon. Argus Cox, Judge. (1) The declaration of law on the part of defendants was wrong and should not have been given. Even if it be conceded for the sake of the argument that it was proper the prima facie evidence was clearly and positively overcome by the evidence.

— Hon. J. D. Pebkins, Judge. (1) No matters of exception should be reviewed on the part of'appellant Bank of Monett for the reason that its abstract of the record filed herein does not show affirmatively or otherwise the date it filed its motion for new trial or that the same was filed within four days after the rendition of judgment. Hohstadt, Assignee, v. Daggs, 49 Mo. App. 157; Clark v. Clark, 8 Mo. App. 601; Johnson v. Greenleaf, 73 Mo. 671.

— Hon. J. D. Perkins, Judge. .(1) The money in question became the absolute property of the defendant Moss, and subject to the rights of his creditors.

— Hon. D. P. Stratton, Judge. (1) The stipulation in the lease, under which plaintiff occupied a part of defendant’s right of way, barred any action against defendant for loss by fire of property on such leased ground. Griswold v. Railroad, 90 Iowa 269; s. c., 57 N. W. Rep. 843; Stephens v. Railroad, 109 Cal. 86; s. c., 41 Pac. Rep. 783; Ins. Oo. v. Railroad, 70 Eed. Rep. 201; Ins. Co. v. Railroad, 74 Mo. App. 89.

— Hon. D. P. Stratton, Judge. (1) The court erred in excluding the deeds from Red-field and wife to the defendant. Regardless of the question of the effect of the deeds and the plat of the town of Deerfield, the deeds should have been admitted to establish the defendant’s title and to afford a basis for the comparison of the rights claimed under the deeds and under the plat. (2) That the deeds were not recorded before the plat was makes no difference.

— Hon. D. P. Stratton, Judge. (1) Under the contract the claim would not become due until the expiration of the sixty days, and a denial of liability could not have the effect to make it due any more than a denial of liability upon a note payable in the future could have the effect to make it due-immediately. Quinn v. Ins. Co., 11 Iowa 615. The case of Phillips v. Ins. Co., 14 Mo. 220, does not apply.

— Hon. J. H. Lay, Judge. (1) A note given for money won at a bet or wager on any election authorized by the constitution and laws of this state is void under sections 5211 and 5215, Revised Statutes of 1889. The bets admitted to have been made by the parties in this cause, come within the inhibition of section 5215, Revised Statutes 1889. Ryan v. Judy, 7 Mo. App. 75; Biek v. Seal, 45 Mo. App. 475.

<p>Justices’ Courts: sufficiency of statement: jurisdiction: void judgment. A statement set out in the opinion is held insufficient in an action before a justice of the peace.</p>

<p>Sales: IMPLIED WARRANTY: REMEDIES OF VENDEE: INSTRUCTIONS. Goods sold for the ordinary price and for a particular purpose known to the vendor carry an implied warranty that they are reasonably fit for the use intended, and if not so fit the vendee may return them to the vendor thereby rescinding the sale or keep the same and defeat recovery of the purchase price to the extent of the difference between the value if the goods had been of the quality contracted for and their real value in their inferior condition. Instructions in this case approved.</p>

— Hon. Gh E. Longan, Judge. (1) The board of trustees, for and on behalf of the village of Houstonia, had full and ample authority to cause the construction of the sidewalk and assess a special tax to pay for same. Sections 1672 and especially 1677, 1678 and 1679 of Revised Statutes of 1889; Morse v. West Port, 110 Mo. 502.

Appealfrom the Jackson Circuit Court. — Hon. J. W. Henry, Judge. (1) The court erred in the admission of the plaintiff’s mortgage in evidence. Said mortgage is void,because of the indefiniteness and uncertainty of the description of the two hundred head of cattle described therein. Mackey v. Jenkins, 62 Mo. App. 618; Stonebraker v. Eord, 81 Mo. 532.

— Hon. E. L. Scarritt, Judge. (1) The vital question in the case is whether Mullins is a laborer within the meaning of section 20, article 9, of the charter of Kansas Oity. Erath v. Allen, 55 Mo., App. 107, is decisive of this case as the facts can not be distinguished. Linnenkohlv. Winkelmeyer, 54 Mo. App. 570, 573; Ereeman. v. Aylor, 62 Mo. App. 613, 616; Kelly v.. Rowane, 33 Mo. App. 440; O’Brien v. Mayer, 23 Mo. App. 648, 653; Heman v. Improvement Oo., 58 Mo.

— Hon. E. P. Gates, Judge. (1) This consignment of hay having been made generally, and advances made and liabilities incurred thereon by plaintiffs, 'plaintiffs were clothed by the law with the right to exercise their own discretion as.to the time, mode and price at which said hay might be sold. Brown v. McGran, 14 Pet. 479; Field v. Farrington, 10 Wall. 141; Given v. Lemoine, 35 Mo. 110; Howard v. Smith, 56 Mo. 314.

<p>■ Appeal from the Jackson Circuit Court. — Hon. J. H. Slover, Judge.</p> <p>If plaintiff filed an affidavit for a change of venue in substantial compliance with the statute and the application was iu due form, the only action the court was warranted by the law in taking, was to sustain the application and send the cause to some adjoining or next adjoining circuit.</p> <p>Appellant’s abstract of record fails to show that any bill of exceptions was filed, and as the refusal of the court to grant ln'-m a change of venue is the only error he urges, there is nothing before this court to review. The application for change of venue must be made a part of the record by a bill of exceptions. Wolff v. Ward, 104 Mo. 127; Evans v. Trenton, 112 Mo. 390; Williams v. Williams, 26 Mo. App. 408.</p>

— Hon J. H. Slovee, Judge. (1) The bond sued on in this case comes under the classification under section 866, Revised Statutes of 1889, and therefore the petition was insufficient in failing to assign the breaches and pray for judgment for the penalty of the bond, and the court erred in instructing the jury and entering judgment for a greater amount than the penalty of the bond.

— Hon. E. L. Soarritt, Judge. (1) Section 6345 of the statute is as follows: “The same cause of action, and no other, that was tried before the justice, shall be tried before the appellate court upon the appeal.” Evans v. Railway, 67 Mo. App. 257; R. S. 1889, sec. 6347; Dowdy v. Wamble, 110 Mo. 283; Scovill v. Glasner, 79 Mo. 449. (2) Upon the undisputed facts of this case the plaintiff was not entitled to recover, and the jury should have been so instructed.

Louis City Circuit Court. — Hon. Rudolph Hirzel, Judge. The court erred in rejecting the testimony in reference to transactions between defendant O’Bear and Phil. Chew in reference to sale of property purchased by Chew. High on Inj. [8Ed.],sees.748,1549,p.1178; Kerr onInj.l2Ed.],sec. 25, p. 25; Michael v. St. Louis, 112 Mo. 610; 7 Am. and Eng. Ency. of Law, 18 et seq. and cases cited; Midland L. Co. v. Kruger, 52 Mo. 418; Longworth v. Aslin, 106 Mo. 155; Pelkinton v. Ins.

<p>Appeal from the Newton Circuit Court. — Hon. J. C. Lamson, Judge.</p> <p>As was well said by Judge Bond when this case was here before “the law applicable to the cause of action and facts shown in this record is simple and well settled. It is not brought under the statutes (R. S., 2611-4428) giving double or single damages for injuries to stock. It is therefore necessary, in order to recover, for the plaintiff to show that the actual negligence of the defendant caused the killing of the cow. Wallace v. Railroad, 14 Mo. loe. cit. 591.” Wasson v. McCook,'70 Mo. App. 393. In order to show negligence, since to recover he must do so, the plaintiff contends: That the bell was not rung or the whistle sounded. That the engineer could have seen the cow’s situation of danger but did not, and could have stopped the train in time to avoid the injury. . In addition to proving these grounds of negligence or one of them, it is incumbent upon the plaintiff to go further and show that they or the one proven was the cause ■of the injury, and if he fails to do this he can- not recover. Stoneman v. Railroad, 58 Mo. 503; Yannote v. Railroad, 70 Mo. 641; Wasson v. McCook, 70 Mo. App. 393. And lastly, could the engineer have stopped? The plaintiff’s witness, Martin, says the cow ran upon the track when the engine was within forty feet of her. The plaintiff says he looked up Avhen the train whistled and the cow was just on the track less than fifty feet from the engine, but that the engineer struck her before he could think of it.The engineer says, “at the moment that I saw the cow going to cross the track I tried to stop. I applied the air, but I saw •all appliances of stopping could not prevent striking the cow. We had eighteen cars of cattle; was running from fifteen to twenty miles per hour. Such a train can not be stopped in from thirty to fifty feet. It would have been impossible to have stopped the train in time to have avoided striking the cow.” There is not the least evidence contradicting the ■engineer’s statement. Indeed it can not be denied. Boyd v. Railroad, 105 Mo. Rep. 371; Eenton v. Railroad, 26 N. E. Rep. 967; Young v. Railroad, 79 Mo. 336; Caster v. Railroad, ■65 Mo. App. 359; Railroad v. Mitchell, 33 S. W. Rep. 622.</p> <p>Under the general allegation of negligence in the plaintiff’s petition, the plaintiff could succeed by proving negligence at common law, or by proving the constructive statutory negligence. Negligence may consist of any number of negligent acts. Hill v. Railroad, 49 Mo. App. 520; s. c., 121 Mo. 477. The evidence shows that the bell was not rung or the whistle sounded as required by the statutes. The'testimony of defendant’s witnesses on this point is not from memory, but from habit. The signals required by statute, ■ringing the bell and sounding the whistle, were not the only ■duties imposed on the defendant under the circumstances of this case. This was a place where the company was not required to fence, but at a place where people and stock were continually passing and repassing, and where stock was liable to stray upon the track, and where the engineer in charge had reason to and was required to apprehend and anticipate the presence of cattle on the track at said point, and it was the duty of the engineer in charge to exercise ordinary care and prudence, if not the greatest diligence, watchfulness and care. Burger v. Railroad, 112 Mo. 238-246. "It will be noted that the Wallace case, supra (cited by appellants), has been qualified and explained. Kendig v. Railroad, 79 Mo. 208; Hill v. Railroad, 49 Mo. App. 532; Averill y. Santa Ee Receivers, 72 Mo. App. 245, 246. Rate of speed, negligence when: While no rate of speed is negligence perse, yet the speed, even where there is no law or ordinance regulating the speed in evidence, at which a train is run over a crossing may be such as to be negligence under the circumstances, as a matter of fact, and this is a question for the jury on the fact3 of each case. Bell v. Railroad, 72 Mo. 54, 61; Erick v. Railroad, 75 Mo. 612; Pryor v. Railroad, 69 Mo. 217, 218; Campbell v. Railroad, 59 Mo. App. 151.</p>

— Hon. Argus Cox, Judge. The appellant can only obtain relief on grounds of error made from abstract of record. Coy v.,Eobinson, 20 Mo. App. 462; Cuomo v. St. Joseph, 24 Mo. App. 570; Shaw & Co. v. Bryan, 39 Mo. App. 523. The appellate court looks alone to the abstract for its guidance and it stands in place of the record and the court will not-in such cases go into the record to fish out those matters necessary to a full understanding of questions presented for its decision.

<p>Appeal from the Montgomery Circuit Court. — Hon. Elliott M. Hughes, Judge.</p> <p>See points and authorities between same parties on page 357 of this volume.</p>

<p>Appeal from the Douglass Circuit Court. — Hon. W. W. Evans, Judge.</p> <p>There never was any petition filed in this cause to which the statute of amendments would apply. The code prescribes how a suit must be brought. “Suits may be instituted in courts of record, except when the statute law of this state otherwise provides.' First, by filing in the office of the clerk of the proper court a petition setting forth the plaintiff’s cause or causes of action, and the remedy sought.” R. S. sec. 2013. “May” in this section means “must” or “shall” file, etc. Steines v. Franklin Co., 48 Mo. 178, and cases cited. The petition must set forth plaintiff’s cause of action, and it must also set forth the remedy sought. These two facts are conditions precedent to the acquisition of jurisdiction over the parties and subject-matter. The code prescribes, in another section, what the petition shall contain. It shall contain, inter alia: “Third. A demand of the relief to which the plaintiff may’ suppose himself entitled.” R. S., sec. 2039. Prayer for judgment, for the relief to which the plaintiff may suppose himself entitled, is the crucial test of a petition. Paxon v. Talmage, 87 Mo. 18; Gist v. Loring, 66 Mo. 437; Madkins v. Trice, 65 Mo. 656; Oxley Stave Co. v. Whitson, 34 Mo. App. 624; Rigert v. Voelker, 6 Mo. App. 53. Amendments will not lie where there is no petition or statement, and this rule applies in practice before justice courts as well as before courts of record. Oxley Stave Co. v. Whitson, 34 Mo. App. 626; Zimmerman y. Downey, 66 Mo. App. 109, and eases cited. There never, was any petition, filed in this case, and no amended petition or statement will lie, and for this reason the court should reverse the finding of' the lower court, and dismiss the cause.</p>

— Hon. W. W. Evans, Judge. The thirty year statute of limitations is not a defense to plaintiff’s demand in this case. Schultz v. Lindell, 30 Mo. 310; Taylor v. Ladew, 33 Mo. 205; Beeper v. Baker, 68 Mo. 400; Herbest v. Merrifield, 133 Mo'. 267; Charles v. Morrow, 99 Mo. 338. The appellant’s allegation of a variance is without merit. R. S. 1889, sec. 2096; Laylor v. Byrne, 51 Mo. App. 578; Golden v. Clinton, 54 Mo. App. 100; Bank v. Leyser, 116 Mo. 51.

Louis City Circuit Court. — Hon. Rudolph Hirzel, Judge. The trial court did not err in refusing to give, at tbe close of plaintiff’s case, defendant’s instruction in the nature of a demurrer to tbe evidence. Tbe cause of action averred in the petition was abundantly sustained by tbe evidence; and it. was tbe cause of action submitted to tbe jury and decided for respondent.

— Hon. W.*W. Evans, Judge. Appellant under the first subdivision of “points and authorities” cites a number of cases in support of a proposition not denied nor even raised by this record. At the outset we conceded that if the justice in the case of Machine Oo. v. Livingston, had jurisdiction of the subject-matter, that the appearance shown by the justice’s docket gave the court jurisdiction of the person, if it had not already acquired this by its process.

<p>1. Action on Promissory Note :■ surety: extension on time. In the case at bar the evidence tends to show a positive contract for an additional credit and that the agreement was made upon a sufficient consideration and without the consent of the surety. Held, that these facts, if true, released the surety.</p> <p>2. -: -: -: evidence: practice, trial. In the case at bar the court did not err in refusing to allow the entries in the general blotter to be read in evidence as they were not original entries.</p>

Louis City Circuit Court. — Hon. Daniel D. Fisher, Judge. Tbe trial court erred in sustaining tbe demurrer of tbe Union Depot Company to tbe petition of plaintiff and rendering judgment thereon; because tbe averments in tbe petition admitted by tbe demurrer established: Tbat plaintiff was entitled to tbe money in court awarded by tbe commissioners in tbe condemnation proceeding for tbe improvements in question, and tbat tbe company and its codefendants withdrew the fund from…

Louis Circuit Court. — Hon. J. E. Green, Special Judge. Appellant’s failure to incorporate in his bill of exceptions, his motion for a new trial,is a fatal defect in his appeal,and this is true even though he may have procured a stipulation thatthe bill of exceptions should contain the fact that upon the defendant’s motion for a new trial being'overruled by the court, the defendant then and there saved its exception to such ruling. Story & Camp v. Ragsdale, 30 Mo.

— Hon. J. C. • Lamson, Judge. Upon the insolvency of the association and the appointment of a receiver the mortgages became immediately due and payable. Such insolvency works a rescission of the contract between the association and its members who have secured advancement upon their shares of stock, for the reason that such contract was dependent entirely upon the stock maturing and attaining its ultimate or par value. .

<p>Jurisdiction of Circuit Court: section 3403, revised statutes 1899, construed. In the ease at bar no formal objection was made either in writing or otherwise to the newly elected probate judge acting on the report of sale, but the record shows that all the parties, the executor and heirs and legatees appeared and consented to the ' certification of the case to the circuit court.</p> <p>See next case. — Eeporter.</p>

— H on. Henry‘0. Riley, Judge. The statute'regulating the sale of real estate of a deceased person, indebted to an amount larger than personal property would pay, in this case strictly complied with. R. S. 1880, secs. 161, 162, 163 and 164. The report of the sale was made strictly in accordance with the facts, and as required by the statute. R. S. 1889, sec. 166.

Elliott M. Hughes, Judge. There is no evidence that tbe jury were guilty of misconduct. A juror can not impeach bis verdict by affidavit or otherwise. Easley v. Eailroad, 113 Mo. 237; State v. Bush, 95 Mo. 199; State v. McNamara, 100 Mo. 100. If the jury were guilty of misconduct the appellant should in some way show when they were apprised of the fact.

— Hon. J. C. Lams on, Judge. The manner of defendant’s entry into plaintiff’s field; his threat that he would “fix” plaintiff if he ever caught plaintiff on the premises again, clearly show that defendant’s entry was for the sole purpose of obtaining and detaining possession of the premises from plaintiff.

— Hon.* James T. Neville, Judge. The answer admits the necessity for the walk and that the ordinance was not unreasonable or oppressive and appellants will not be heard to aver against their answer, or try to disprove its admissions or effect. Bruce v. Sims, 34 Mo. 246; Donan v. Print. & Pub. Co., 70 Mo. 168-175; Wilson v. Albert, 89 Mo. 537-546. The city authorities, and not the courts, are the judges of the necessity of improvements for street purposes.

— Hon. Jambs T. Neville, Judge. The fees in controversy were earned by the appellant, Hindman, from the fourth day of May, 1894, to the fourth day of May, 1898. The charter then provided the city should in no event be held liable for any costs or fees to any police judge or marshal in any case tried before the police judge of said •city, unless the defendant be convicted and committed. . Session Acts of 1893, page 75, section 56.

<p>Appeal from the Jefferson Circuit Court. — Hon. F. R. Deeping, Judge.</p>

Louis Gity Circuit Court. — Hon. Leroy B. Valliant, Judge, The point relied upon by respondents is that when their withdrawals were given the association was solvent.

Louis Gity Circuit Court. — Hon. John A. Talty, Judge. The instruction of nonsuit should have been given, as the policy provided it should be void if the building containing the insured property was unoccupied for ten days, and the testimony, of plaintiff established it was unoccupied for that time. Cook v. Ins. Co., 70 Mo. 610; Craig v. Ins. Co., 34 Mo. App, 484; Norman v. Ins. Co., 74 Mo. App. 460.

<p>Practice, Trial: instructions criticized. An instruction which purports to cover the case and directs a finding must not omit any material defense within the just scope of the pleadings and evidence. Held, that the only instruction given in the case at bar excluded from the view of the jury a material defense.</p>

— IIon. Elliott M. Hughes, Judge. The loss occasioned by the decline of twenty-five cents a hundred in the sheep market from the twentieth of July, when the lambs should and would have been sold if transported with diligence and in the usual and customary time, to July 21, when the lambs were sold, by reason of defendant’s negligence in transporting the same, is an element of damage for which the defendant is liable, and the refusal of the trial court to so instruct was…

— Hon. Elliott M. Hughes Judge. The petition sufficiently charges ownership of the road by defendant and of the property destroyed as that of plaintiff. Bondurant v. Ins. Co., 73 Mo. App. 477. As to the proof, take John H. Fields’ evidence. He locates his farm and the Wabash railroad track.

<p>Trustee’s Sale: purchaser’s sale to trustee: knowledge. In the ease at bar the trustee did not buy at his own sale, and he did not know of the intention of his vendors to purchase at the trust sale until the property had been struck off to their agent as the highest and best bidder; held, that without such knowledge or any participancy in that purchase, the trustee was in no wise 'disabled to buy the property which in the hands of its new owners was entirely freed from its trust character.</p>

<p>Demand in Probate Court: substitution of demands : estoppel. In the case at har, it is claimed that the plaintiff is estopped to ask 'and recover in excess of the balance as shown by the first demand ■ exhibited by him; held, that the plaintiff could withdraw the first demand, which was the result of a compromise agreement which the administrator repudiated, and substitute one for the amount which was justly due him.</p>

Louis Gity Circuit Oourt. — Hon. Horatio-D. Wood, Judge. Neither Mr. Einkelnburg nor Mr. Dobyns is a party to the record in the suit of Robinson v. Dundee Land and Investment Company et ah, and hence neither of them has any standing or right to make a motion in that cause for any purpose. Their remedy is by petition, stating all the facts entitling them to recover. Aveline’s Estate, 53 Cal. 254); Case v. Case, 137 Ind. 526; Wallop v. Scarburgh, 5 Gratt. 1.

Louis City Circuit Court. — Hon. Selden P. Spencer, Judge. The admission of the record in the case of the Springfield Boiler & Manufacturing Company v. Bowman and Woifort, over the objection of appellants was error. Henry v. Wood, 77 Mo. 281, 282; Quigley v. Bank, 80 Mo. 296. Plaintiff’s instruction number 4 should have been given by the court.

— Hon. P. C. Stepp¿ Judge. (1) We urge that the court erred in overruling the defendant’s motion for new trial, for there was no evidence whatever that plaintiff had any insurable interest in the life of deceased; and this being the case the policy was void and no action could be maintained thereon. Mutual Aid Society v. McDonald, 1L. B. A. 288; Warnoclc v. Davis, 101 IT. S. 775; Boiler v. Beam, 6 L. B. A. 136; Ins. Oo. v. McOrum, 36 Kan. 116; Oammack v. Lewis, 82 IT.

— Hon. O. A. Anthony, Judge. (1) The appellate court will reverse where there is absolutely no evidence on the part of plaintiff to fix defendant’s liability. Spohn v. Railway, 87 Mo. 74-85; Hunter v. Railroad, 116 N. Y. 615; s. c., 23 N. E. Rep. 9. (2) It is an elementary principle that, before a defendant can be called upon to introduce evidence to discharge himself, the plaintiff must, by some evidence, show a liability on- the part of -defendant. Diel v. Railway, 37 Mo.

— Hon. C. E, Strop, Judge. (1) Eor the agent to issue a policy on mortgaged property which provides that if the property is or becomes mort•gaged the policy shall be void, is to permit the agent to modify or strike from the policy one of its conditions.

— How. A. M. Woodson, Judge. (1) When a maker of a promissory note with his own money pays the amount due thereon to the holder, the transaction constitutes payment and releases the surety regardless of the intention of the parties. 24 Am. and Eng. Ency. Law, p. 819; Burnett v. Courts, 5 Harr & Johns (Md.) 78; Brandt on Suretyship [1 Ed.], sec. 292; 2 Daniels, Neg, Inst., secs. 1221, 1236, 1238; Swope v.Leffingwell, 4 Mo.

'Appeal from the Lafayette Circuit Court. — Hon. Richard Eield, Judge. (1) The judgment should be reversed on account of the error of the court below in refusing to sustain the defendant’s demurrer to the plaintiff’s evidence. The -plaintiff’s own evidence showed: First, that the draw-head was broken out of the car while in transit. Second, that it was. necessary to take it to a repair station to be repaired, and that this was done.