Volume 81 — Missouri Appeal Reports

— Hon. Richard Field, Judge. (1) When there is no adequate remedy at law, although no irreparable injury has been done, equity will restrain a trespass against the right of way of a railroad if it threatens such great injury to property that it would be beyond the power of the trespassers to make compensation therefor, and especially if it endangers the lives of employees operating and passengers traveling on the railroad.

— Hon. Bichard Eield, Judge. , (1) Tbe transfer of tbe checks by tbe plaintiff to her husband, E. M. Stone, was not by indorsement in blank but by written assignment in full, in her own handwriting, and signed by herself. This assignment had the legal effect to put the title of said checks in her husband and gave him full power and authority to collect them and use the- proceeds as he saw proper; and this is even true of a blank indorsement. Bank v. Bank, ¶1 Mo. 183.

'Appeal from the Oass Circuit Court. — Hon. W. W. Wood, Judge. (1) The landlord’s lien upon the tenant’s crop attaches from the beginning of the tenancy and is paramount to a mortgage on the crop executed by the tenant. 1 Jones on Liens, secs. 553-556; Selecmanv. Kinnard, 55 Mo. App. 635; Toney v. Goodley, 61 Mo. App. 235; Dawson v. Coffey, 48 Mo. App. 110; White v. McAllister, 67 Mo. App. 314.

— Hon. J. D. ■Perkins, Judge. (1) Although defendant’s ear may have been running in excess of ten miles an hour in violation of the ordinances of Webb Oity, yet the evidence showing that the accident was not caused by the speed of the cars, plaintiff is not entitled to recover on that ground, and the instructions to that effect should have been refused. Hanlon v. Railway, 104 Mo. 381. Plaintiff’s first and sixth instructions are erroneous, should not have been given.

— Hon. D. P. Stratton, Judge. (1) Insurance companies in their contracts may impose any conditions not prohibited by law and unless the imposed conditions are assented to and complied with the contracts never take effect. Dumas v. Ins. Co., 40 L. E. A. 358 (Dist. Columbia Court of Appeals); Ins. Co. v. Ewing, 92 H. S. 377; Giddings v. Ins. Co., 102 U. S. 108.

— Hon. J. H. Slover, Judge. (1) Verdict was against weight of the evidence. -(2) Erroneous instruction as to measure of damages. The evidence does not support this instruction. (3) The reasonable expectancy of this life to warrant such an instruction should have been shown by some evidence. O’Mellia v. Railway, 115 Mo. 205-222; Sellers v. Foster, 42 N. W. Rep. (Neb.) 907; Ohase v. Railroad, 39 N. W. Rep. (Iowa) 196.

— Hon. J. W. Henry, Judge. (1) Mr. Morse in bis work on Banks, says tbat it is of •course, irregular and illegal for a bank to indorse paper for accommodation, and tbat sucb indorsement is only good wben it is done by an officer authorized to indorse tbe bank’s paper and taken by a person for value, wbo lias bad no notice of its being for accommodation. 1 Morse on Banks [3 Ed.], par. 98, p. 208; cf. par.158, p. 326; par. 156 p. 324; Bank v.- Bank, 95 U.…

— JIon. J. W. Henry, Judge. (1) The plaintiffs having accepted the written proposition of the defendant whereby they became conditional purchasers at a reduced price, and the proposition being in writing unambiguous and in recitals unconnected with the contract of agency, and itbeingthe last expression of the agreement between plaintiffs and defendant, its meaning can not be changed or varied by parol evidence and plaintiffs are es-topped to deny its force and effect.

— Hon. J. W.Henry, Judge. (1) Plaintiff sued on a special contract, and he was allowed to recover on quantum meruit. Plaintiff was entitled to recover the balance due on the contract price or nothing. Crapson v. Wallace Bros., 71 Mo. App. 682. Under this authority plaintiff was not entitled to recover at all in this action, but he should have sued on quantum meruit. (1) The decision in Crapson v. Wallace Bros., 71 Mo.

— Hon. J. W. Henry, Judge. (1) A minor can begin and prosecute a suit in two ways only, by a next friend appointed by the court in which the suit is instituted, or by a guardian appointed by the probate court. The petition must allege the plaintiffs infancy and the appointment of a next friend or guardian, which facts must also be proved. The caption is no part of the petition. Porter v. Eailroad, 60 Mo. 160; Gamache v. Prevost, 71 Mo. 84; Sherman v. Eailroad, 72 Mo. 63.

— Hon. E. P. Gates, Judge. (1) When a married woman receives personal injuries through the negligence of another, two causes of action arise, one for the wife for the pain and suffering and the other for the husband for the loss to him of the society of his wife and the expense incurred by him by reason of her injuries. Thompson v.. Eailway, 135 Mo. 217; Smith v. St. Joseph, 55 Mo. 456.

— Hon. E. P. Gates, Judge. (1) A street railway is not a railroad within the meaning of section 2611 of the Revised Statutes of Missouri. R. S., ch. 42, art. 2, sec. 2611; Railroad v. Railroad, 2 Duv. (Ky.) 175, 178; Booth on Street Railways, p. 2, sec. 1; Williams v. Railway, 41 Eed. Rep. 556, 557; 23 Am. and Eng. Ency. Law, 941; Trust Co. v. Railway, 68 Eed. Rep. 82; Railway v. Johnson, 25 Pac.

— Hon. E. L. Scarritt, Judge. (1) Unless a market is shown to exist, wherein plaintiffs could have bought another engine in time to serve their purpose, the convenience rule of difference between purchase price and market price can not apply. 1 Sutherland on Dam., p. 91; Woods’ Mayne on Dam., par. 22. (2) Defendant’s instruction number 6 gave the jury the true mode for estimating the plaintiffs’ damage, by being compelled to feed cotton seed meal, and should have been given.

— Hon. E. L. Scarritt, Judge. (1) The circuit court, on the trial of this case, erred in receiving in evidence the chattel mortgage from Duckworth to plaintiff. Defendant, by its counsel, objected to the introduction of that mortgage in evidence for the reason that the description of the property therein is indefinite and uncertain, and because tbe mortgage does not state where the cattle are located in Jackson county, Missouri. Mackey v. Jenkins, 62 Mo.

- — Hon. J. W. Henry, Judge. (1) The charter limitation of the tax lien to two years unless suit is brought and notice given extinguishes the lien if said provisions are not complied with. The limitation is not a personal privilege (any more than the tax bill constitutes a personal obligation) and can not be waived. Smith v. Rarrett, 41 Mo. App. 460. (2) Plaintiffs remedy under his own testimony was a personal action against defendant upon his promise to pay the tax bill.

— Hon. E. L. Scarritt, Judge. (1) Upon tbe undisputed facts in tbis case tbe verdict should bave been for tbe defendant, (a) Because tbe injury sued for resulted from tbe vitality of tbe animals transported. Hutchinson on Carriers [2 Ed.], sec. 218, p. 238, and cases cited; Ray on Freight Carriers, p. 254, and cases cited; Hussey v. Suragossa, 3 Woods 380; Hance v. Express Co., 48 Mo, App. 183; Tbe Rowhattan, 12 Eed. Rep. 886.

— Hon. J. IT. Slover, Judge. (1) The judgment should be reversed absolutely. The testimony all showed that Otto Anderson was injured twelve feet or more east of the cinder pile. The existence of the cinders did not contribute to the accident. (2) The knowledge and intelligence of Otto are sufficient, as a matter of law, to charge him with contributory negligence. (3) Otto’s opportunity to see the train and cinders was ample. Drake v. Railroad, 51 Mo. App. 562.

iAppeal from the Jackson Circuit Court. — Hon. E. P. Gates, Judge. (1) The court erred in overruling defendant’s objection to the introduction of any evidence under the petition, on the ground that it does not state facts sufficient to constitute a cause of action. Glover v. Meinrath, 133 Mo. 292, 303.

— Hon. J. H. Slower, Judge. (1) If desired to see the exact effect as between themselves of this assignment by Mrs. Mueller to Cornelius and Menia as husband and wife, and that same vested in Cornelius and Menia an estate by entireties with ownership of the whole policy by Menia, the survivor, see Edmondson v. City, 98 Mo. 523, 526;-State ex rel. v. Brady, 53 Mo. App. 202; Shields v. Stillman, 48 Mo. 82.

— Hon. 0. C. Bland, Judge. On a breach of warranty on the sale of personal property the vendee has two remedies. He may rescind the sale and recover back the purchase price. Under this remedy he must first have tendered back the chattel to the vendor before his action will lie. He may retain the chattel warranted and sue for the difference between the value of the chattel at the date of sale as it was warranted to be and as it actually was.

<p>1. Special Tax Bill: filing notice of suit: lien. Under the amended charter of Kansas City the lien of a special tax bill will not he continued beyond the express term of two years, unless notice of the commencement of suit is filed with the city treasurer; and the filing of such notice with the board of public works is insufficient to continue the lien, although the tax bill was issued before the amended charter.</p> <p>2. Legislative Power: altering remedy: preserving writ. In modes of proceeding and of forms to enforce a contract, the legislature has control and may enlarge, lighten, or alter them, provided it does not deny a remedy or so embarrass it as seriously to impair the value of the right.</p>

<p>Appeal from the Gentry Circuit Court. — Hon. 0. A. Anthony, Judge.</p>

— Hon. B. P. Gates, Judge. (1) Plaintiff’s evidence shows that he was guilty of such negligence as precludes recovery. There was nothing in appellant’s evidence to aid him. Hicks v. Railway, 46 Mo.

<p>Appeal from Lawrence Circuit Court. — Hon. John G. Lcumson, Judge.</p> <p>(1) When John 0. Spencer sold to Lawson, Lawson as part of the purchase price assumed to pay the debt to Stately and the notes of Cundiff and Spencer to Lawrence county. By this arrangement, Lawson became the principal debtor and Spencer but the security upon these obligations as between themselves. Commercial Bank v. Wood, 56 Mo. App. 217; Wayman v. Jones, 58 Mo. App. 318; Insurance v. Hanford, 143 H. S. 147; Nelson v. Brown, 140 Mo. 589; Orrick v. Durham, 79 Mo. 179; Nelson v. Brown, 140 Mo. 500. (2) Spencer is entitled to the value of his improvements upon the land. Martin v. Ratcliffe, 101 Mo. 258; Bank v. Grewe, 101 Mo. 629; Giraldin v. Howard, 103 Mo. 46. He is also entitled to taxes by him paid upon the land. Sampson v. Mitchell, 125 Mo. 238; Gooch v. Botts, 110 Mo. 424. (3) Appellant, as purchaser from Robert S. Spencer, succeeds to all the rights and remedies of his vendol in réspect to his payments of liens and his improvements upon the land. 24 Am. and Eng. Ency. of Law 259. Appellant’s plea of the statute of limitations should not have been stricken out. Session Acts of 1891, p. 184; Noell v. Gaines, 68 Mo. 649; Brownlee v. Arnold, 60 Mo. 79; Wapples v. Jones, 62 Mo. 440.</p> <p>(1) This is an action at law under R. S. 1889, secs. 7078 and 7079 to foreclose a deed of trust. Riley v. McCord, 24 Mo. 268; Smith v. Einn, 74 Mo. 499. (2) “The fact that the answer contained an equitable defense did not change the character of the action and convert it into a case in equity. It follows that the principles governing appeals in law cases as contradistinguished from appeals in equity must control in its disposition in this court.” Kerstner v. Yorweg, 130 Mo. 199; Carter v. Prior, 78 Mo. 222; Wolf v. Schaeffer, 4 Mo. App. 372. (3) “No declarations of law were given or refused, and, under the assignments of error in the motion for new trial, the sole question for review is, whether there was substantial testimony to support the finding and judgment of the court.” Kerstner v. Yorweg, 130 Mo. 199 supra; Smith v. Einn, 74 Mo. 499; Garland v. Smith, 127 Mo. 567. (4) Stakely took personal security on the two notes given as a part of the purchase price of the land sold. The taking of personal security waives the vendor’s lien. Christy v. McKee, 94 Mo. 250; Sullivan v. Eerguson, 40 Mo. 79; Routte v. Murray, 48 Mo. App. 17. (5) A purchaser under execution, “buys only. such interest as the judgment debtor has,” “and if the interest is subject to equities, although totally unknown to the buyer the title is subject to the same equities.” Mann v. Best, 62 Mo. 496; Graves v. Ewart, 99 Mo. 17.</p>

— Hon. William N. Evans, Judge. (1) Said deed dated June 2, 1881, made by John A. Eice and wife to an unincorporated association of persons known by the name of Ames Iron Works of Oswego county, New York, as the grantee in said deed, is void. Tiedeman on Eéal Property, sec. 798; Arthur v. Weston, 22 Mo. 378; Douthett v. Stinson, 63 Mo. 275; Jackson v. Corey, 8 Johnson, 385; Hornbeck v. Westbrook, 9 Johnson, 73; Ilamman v. Southern, 16 Ind. 190.

<p>1. Action: trespass upon realty: evidence. In an action brought for trespass upon realty the defendant may dispute the plaintiff’s possessory right by showing that the title and possessory right are vested in him.</p> <p>2. -:--: --INSTRUCTION. An instruction is not erroneous which submits the issue to the jury of “title and possessory right,” as in the case at bar.</p>

Louis City. — Hon. Jacob Klein, Judge. (1) There is a departure in the cause of action set up, in the replication from that set forth in the petition. Crawford v. Spencer, 36 Mo. App. 82; Huston v. Tyler, 38 S. W. Rep. 654; 1 Chitty on Pldg., p. *675.

<p>Appeal from S'fc. Louis County Circuit Court. — Eon. Rudolph Eirzel, Judge.</p> <p>(1) A board of directors of an insolvent corporation has not only tbe right to make an assignment for the benefit of its creditors, bu't it is their duty to do so, and such assignment can be made by the board of directors not only without the consent of its stockholders, but it may be made against their expressed wish. Chew et al. v. Ellingwood, 86 Mo. 273; Descombes v. Wood, 91 Mo. 196; Elutchinson v. Green, 91 Mo. 375; Poster v. Mullanphy Planing Mill"Co., 92 Mo. 80. (2) The mortgage in question was assignable. Detweiler v. Breckenkamp, 83 Mo: 45; Callahan’s Appeal, 124 Pa. St. 138. Upon the premature dissolution of a building association the members who have received advances may be compelled to pay forthwith the balance due from them on their securities, although the latter be given in terms only for the payment of instalments.' End. on Bldg. Ass’ns, [2 Ed.], sec. 523, p. 518; Kent v. Wright, 2 Ch. 462; Brownlie v. Russell, 8 App. Cas. 235; Towle v. Am. Bldg. Loan, 61 Eed. Rep. 446, 447; Strohen v. Eranklin Sav. Eund and Loan Ass’n, 115 Pa. St. 273. (3) In the accounting between an insolvent building association and its borrowing stockholders, the laitter will not be entitled to receive any credit for dues paid by him, but will be entitled to receive credit for premiums paid, together with interest thereon at the same rate that the bond bears. Strohen v. Ass’n, 115 Pa. St. 273; Rogers v. Hargo, 92 Tenn. 35; Post v. Mechanic’s Bldg. Ass’n, 97 Tenn. 408; Bi*own v. Arch, 62 Mo. App. 277.</p> <p>(1) The petition alleges the insolvency of the building association, not because of inability to pay its own shareholders, but inability to pay outside debts. A building association, incorporated under our statute of 1887 (art. 9, chap. 42 of Revision of 1889) save for the trifling and necessary expense of conducting the business, can not legally contract outside debts. It had no power to* accumulate a fund by borrowing money, nor to borrow money for any purpose, until the amended law of April 20, 1895, sec. 17, conferred a very limited and carefully guarded power. “The insolvency of a building association is a thing peculiar to itself and consists in its inability, not to pay outside debts (for such a case can hardly ever occur, and in 'the nature of things is- not to be thought of), but to satisfy the demands of its own members.” 2 Am. and Eng. Ency. of Law, p. 643, sec. 13; Endlich on Bldg. Ass’ns, sec. 488. (2) An assignee, under our voluntary assignment statute (of his own motion) has no power to institute and prosecute a suit in equity with 'reference to the assigned estate. His powers and duties as assignee are prescribed and limited by that law, and he can not go beyond that limit. If not precluded by said section 2513, a court of equity might, under its general powers, wind up the affairs of the dissolved building association by the intervention of a receiver, but not through an assignee under the general assignment law. But in that case the application must be made by a bona fide creditor, or a member of the corporation. 2 Am. and Eng. Ency. of Law, p. 643, sec. 13; Endlich on Bldg. Ass’ns, sec. 488; In re Assigned Estate of Nat. Say. L. and B. Ass’n, 9 W. N. 0. (Pa.) 79.</p>

— Hon. P. 0. Stepp, Judge. (1) The court erred in admitting irrelevant, illegal and incompetent evidence on the part of the defendant over the objections of plaintiff. Direks v. Ins. Co., 34 Mo. App. 31; Ins. Co. v. Mowry, 96 IT. S. 544; Greenwood v. Ins. Co., 27 Mo. App. 401; Evans v. Mfg. Co., 118 Mo. 548; Morgan v. Porter, 103 Mo. 135; State ex rel. v. Hoshaw, 98 Mo. 358.

— Hon. P. G. Stepp? Judge. Instruction number 1 for the state is erroneous, because it does not require the jury to find that the defendant was a registered pharmacist; nor does it tell the jury what it takes to constitute a druggist within the meaning of the law. State v. Greene, 27 Mo. App. 626; State v. Baskett, 52 Mo. App. 389; State v. Carnahan, 63 Mo. App. 244; State v. Marchand, 25 Mo. App. 657; State v. Douglass, 48 Mo. App. 39.

— Hon. W. W. Wood, Judge. (1) The defendant was an officer and is exempted from the operation of section 3502, Revised Statutes 1889. R. S. 1889, sec. 3503; Clayton v. State, 21 Tex. App. 17 S. ~W. Rep. 261; Williams v. State, 42 Tex. 466; State v. Pollock, 49 Mo. App. 445.

<p>1. Divorce: jurisdiction: personal judgment: service. A court may have jurisdiction over the status of a party to a marriage and proceed to annul such status, but it can not fix the collateral rights of property of the absent party unless he has been served with process within the jurisdiction.</p> <p>2. --: ALIMONY: PERSONAL JUDGMENT: CONSTRUCTIVE SERVICE-. OHIO statute. A judgment for alimony is in personam and jurisdiction can only be acquired by service within the state or appearance, and the Ohio statute permitting service by leaving a copy at the defendant’s usual place of residence, is constructive service only unless defendant is a citizen of Ohio.</p> <p>3. -: definitions: resident and residence. In divorce statutes the terms resident and residence are equivalent in meaning to those of citizen and domicile. The meaning in attachment and limitation statutes distinguished.</p> <p>4. -: knowledge of invalid decree: estoppel. Although a decree granting the wife a divorce with alimony be invalid as to such alimony, yet if the husband with full knowledge thereof accepts the same, declares himself single and unmarried, conveys his property on that theory and marries again, he will be estopped to deny his liability for alimony under the judgment, as he can not enjoy the benefits and escape the burdens of the judgment.</p> <p>5. -:--:--: assignor, ellison, J., concurring. The plaintiff stands in the shoes of the Ohio wife, his assignor, and the ease is considered as though she were the plaintiff, and still he is estopped, since he accepted the judgment in full and asserted and exercised his rights thereunder; and this, notwithstanding the doctrine that a divorce can not be established by estoppel, as the questions here are property rights solely.</p>

— Hon. W. S. Herndon, Judge. (1) The judgment rendered in the court below W3S against the evidence, and ithe weight of the evidence, and should be reversed. (2) The trial court erred in refusing the declarations of law requested by defendant, as they contained the law applicable to the issues and evidence in this case. 19 Am. & Eng. Ency. of Law, p. 1090; Bryant v. Saling, 4 Mo. 522; Strange v. Wilson, 1Y Mich. 342; Abel v. Mun-son, 18 Mich. 306; Cocker v. Mfg. Co., 3 Sumn.

— Hon. E. J. Broaddus, Judge. (1) The action is grounded on a negligent breach of contract on the part of the defendant. There was no negligent breach of the contract. Tel. Co. v. Trotter, 55 111. App. 659; Tel. Co. v. Taylor, 3 Tex. Civ. App. 310; 22 S. W. Rep. 532; Tel. Co. v. Henderson, 89 Ala. 510; Reese v. Tel. Co., 123 Ind. 294; Tel. Co. v. Lindley, 62 Ind. 371, 375; Green v. Cole, 103 Mo. 70, 76; Palls Wire, etc., Co. v. Broderick, 12 Mo.

— Hon. D. W. Shacldeford, Judge. (1) “When the damage to the thing shipped is apparently the result of its inherent nature or inherent defects, the shipper must show something more than its damaged condition before the carrier can be called on to explain.

— Hon. Richard Field, Judge. (1) The issues were properly framed and presented to a jury, and the jury returned a verdict in favor of the inter-plea. Then the interpleader, Iona A. Burns, was clearly entitled to a judgment for the property, or for the proceeds thereof in the hands of the sheriff. Hat Co. v. Hombs, 127 Mo. 392; Allen.v. Sales, 56 Mo. 28, 34; Engine & Thresher Co. v. Glazier, 55 Mo. App. 95.

— lion. J. H. Lay, Judge. (1) The alleged oral agreement was clearly inadmissible for the purpose of varying, affecting, modifying or controlling the written contract of September 23, 1896, and clearly inadmissible for any purpose in this case. Squier v. Evans, 127 Mo. 518; Tracy v. Iron Works, 104 Mo. 198; State ex rel. v. Hoshaw, 98 Mo. 358, and cases cited. R. S. 1889, sec. 2050; Brockhausv. Schilling, 52 Mo. App. 82; Barnes v. McMullins, 18 Mo. 269.

: — Hon. Q. F. Longan, Judge. (1) The court erred in giving defendant’s instruction in the nature of a demurrer to the evidence. All the evideuce produced in the case shows that appellant never sold said engine to Peter Prank and never parted with the title to it. The only question in the case was, who owned the engine in question.

— Hon. J. H. Slover, Judge. The only errors assigned or complained of by the appellants grow out of the action of the trial court in sustaining the plaintiffs’ motion to strike out parts of the amended ahsver in these eases. These are errors of exception and not errors which appear upon the record proper. No motion for a new trial in any of these cases has been incorporated or preserved in any bill of exceptions and none therefore appears in the record of these cases.

— Hon. P. O. Stepp, Judge. (1) In an action of replevin the plaintiff can not recover unless it is shown on the trial that the property was in the possession of the defendants at the date of the issue of the writ of summons. R. S. 1889, sec. 6185; Penn v. Brashear, 65 Mo. App. 24; Davis v. Randolph, 3 Mo. App. 454; Gulath v. Waldstein, 7 Mo. App. 66.

— Hon. P. 0. Stepp, Judge. (1) It is a well settled proposition in this state that where a contract is complete in itself, as the guaranty on the back of this note is, parol testimony can not be introduced to contradict, vary d£ add to, and especially is this true where the parol testimony pertains to agreements claimed to have been made prior to reducing the contract to writing.

<p>Mortgages: amendment of 1893: foreclosure emblements. This ease is affirmed on the authority of Walton v. Fudge, 63 Mo. App. 52.</p>

— Hon. Nat. M. Shelton, Judge. (1) A petition — as in this case — that sets forth successful deception intentionally practiced by the defendant upon the plaintiff to his injury, states a good cause of action according to all the authorities. Brocket v. Griswold, 112 N. Y. 454; Shaw v. Stine, 8 Bosw. 157; Shinnabarger v. Shelton & Lane, 41 Mo. App. 147; James v. Hodsden, 47 Yt. 127. (2) And a person defrauded in a contract has his election of remedies.

Appeal!rom ¡the Buchanan Circuit Court. — Hon. 0. T. Strop, Judge. (1) George W. Ferbrache was not a member of the family of Walter H. Ferbrache within the meaning of the statute governing defendant, nor was he a dependent relative, and, therefore, could not be recognized as a beneficiary. R. S. 1899, sec. 2823; Wagner v. Benefit Society, 70 Mo. App. 161; Lister v. Lister, 73 Mo. App. 99.

— Hon. A. M. Woodson, Judge. (1) The trial court erred in excluding the .ordinance, contract, and the offer of oral testimony made by plaintiffs, and in compelling plaintiffs to take an involuntary nonsuit. The trial court, in its rulings, applied to the facts in this case the case of Beatty v. St. Joseph, 57 Mo. App. 251, and in so doing erred.

<p>Rescission: delay: demurrer. If one seeks to rescind a contract of sale of personal property, he must exercise the right within a reasonable time after the happening of the cause which gives him such right; and where the delay is for such period as to be unquestionably without cause, the court may so declare as a matter of law.</p>

— Hon. B. J. Broaddus, Judge. (1) The finding and verdict of the trial court, sitting as a jury, is against the undisputed evidence. Held: that the lien of a mortgagee, although for a pre-existing debt, is superior to vendor’s lien or claims of any kind. Straus v. Rothan, 102 Mo. 261; Corning v. Medicine Co., 46 Mo. App. 16; Taylor v. Smith, 47 Mo. App. 141; Lawrence v. Owens, 39 Mo. App. 318.

— Son. J. A. Sochaday, Judge. (1) The finding of facts and conclusions of law are unsupported by the evidence and constitute reversible error. (2) There can be no recovery in an action of forcible entry and detainer of premises not described in the complaint. R. S. 1889, secs. 5092, 5117; Lamine v. Buse, 70 Mo. 463.

— Hon. J. A. Hockaday, Judge. (1.) The indictment is bad for uncertainty. The indictment alleges that the sale was “on or about the ninth day of May and divers and sundry other times.” The indictment charges no offense. The defendant is charged with selling one pint of whiskey, one offense, and that one offense is alleged to have been committed “on or about the ninth day of May and on divers others days.” Kelley’s Criminal Law, sec. 182.

— Hon. W. W. Rucker, Judge. (1) The marriage contract in this case is in strict accord with our statute. R. S. 1899, secs. 6858, 6851, 6855. (2) The estate conveyed thereby was a present estate in fee in lieu of dower and homestead. Anglade v. St. Avit, 67 Mo. 131. (3) Nor is this result changed by reason of the fact that the marriage conveyance contained a clause whereby the wife’s title might be defeated by her misconduct.

— Hon. W. W. Bucher, Judge. (1) The court erred in overruling defendant’s objection to the introduction of any evidence in support of plaintiff’s complaint. English v. Railway, 73 Mo. App. 232; Sutherland on Damages, p. 17. There must be a value to property before there can be damages measured by dollars, and in this case there is neither pleading nor proof that this property had any value.

— Hon. J. P. Butter, Judge. (1) Hon. John P. Butler, special judge, acquired no jurisdiction of tbe cause by agreement of tbe parties. Before a special judge can acquire jurisdiction by agreement tbe inability of tbe regular judge must appear from tbe record. Bank v. Graham, 48 S. W. Rep. 910. Tbe question of jurisdiction can be raised at any time.

— Hon. J. P. Butler, Judge. • (1) The plaintiff, the vendor of the goods, having elected to have its.claims, to the extent of $483.50, against Allen for the part of the gouds in question allowed by the assignee, Wayland, and having received from him as assignee a dividend of 15 per cent thereon, its right to reclaim said goods by replevin, or otherwise, was extinguished and gone. Plaintiff could not pursue both remedies.

— Hon. Argus Cox, Judge. (1) There is not a scintilla of evidence to support the material allegations. Nor was there any attempt to support them. But against appellant’s objections, the court permitted the respondent to attempt to make a totally different case, and submitted an entirely different ease to the jury by instructions. This gross error needs.neither argument nor citation of authorities. Meriwether v. Cable Co., 45 Mo. App. 528; Jacquin v. Cable Co., 57 Mo.

— lion. N. M. Shelton, Judge. (1) The execution in this case, based as it is upon a judgment more than ten years old, without reviver, is void. R. S. 1889, sec. 6290, p. 1484; R. S. Mo. 1889, sec. 6020, p. 1436; George v. Middough, 62 Mo. 549; Pears v. Goff, 76 Mo. 92; Session Acts 1895, p. 201; Session Acts 1895, p. 221. (2) The appeal, although accompanied by a supersedeas bond, did not prevent or suspend the operation of the statute of limitations.

— Mon. P. G. Stepp, Judge. (1) A justice court is a court of limited jurisdiction, and is confined strictly to the authority given; and the record of such court must show every fact necessary to give jurisdiction both of the subject-matter and the parties. State v. Metzger, 26 Mo. 65; Hansberger v. Railroad, 43 Mo. 196; Edmondson v. Kite, 43 Mo. 176; Schell v. Leland, 45 Mo. 289; Iba v. Railroad, 45 Mo. 469; Eisher v. Davis, 27 Mo. App. 321; Allen v. Scharringhausen, 8 Mo.

Louis City Circuit Court. — Hon. James E. Withrow, Judge. (1) Tbe allegation of ownership is material, as without a contract with the owner of tbe land there can be no lien. Planing Mill v. Obristopbel, 60 Mo. App. 106; Duross v. Broderick, 1 Mo. App. Eep. 301; secs. 6705 and 6709 E. S. Mo. 1889; Boisot on Mechanics’ Liens, sec. 379. And it must be proved as'alleged, and not otherwise. McAdow v. Miltenberger, 75 Mo. App. 346, and see Hilliker v. Francisco, 65 Mo. 598.

Louis City Circuit Court. — Hon.. Franklin Ferris, Judge. (1) The only question in this case is whether the court below erred in instructing a finding in favor of the defendant, and this question depends upon the construction of the clause of the contract sued on in the following language: “Upon condition that work on said road is commenced within sixty days after date and the said road completed within six months thereafter.” (2) The stipulation as to the time of completing…

Louis City Circuit Court. — Eon. Franklin Ferris, Judge. (1) That defendant was the agent of the seller, and not of the buyer. The court should have given the instruction that plaintiff could not recover at close of plaintiff’s case. There can be no recovery if defendant’s principal could have recovered. Whart. on Agency, 517; Winningham v. Eaucher, 52 Mo. App. 464. (2) That defendant’s principal could recover from defendant the amount sued for is elementary law.

Louis City Circuit Court. — Hon. Pembrook B. Flitcrafk, Judge. (1) If plaintiff’s negligence “directly contributed to produce tbe injury,” he can not recover; and the trial court erred in declaring a different rule of law by the tenth instruction to the jury. It is only where plaintiff’s negligence is “previous” or “remote” or “secondary” that the principle illustrated by Davies v. Mann, 10 M. & W. 546, becomes applicable.

Louis City Circuit Court. — Hon. Daniel D. Fisher, Judge. (1) “The court erred in permitting plaintiff to testify, notwithstanding the death of Thoman, who was the maker of the note;” to all that occurred when the note was made by Thoman, and alleged to have been indorsed by Buddeeke, as well as all that Thoman claimed to have said at that time.

Louis City Circuit Court. — Hon. L. B. Valliant, Judge. (1) Appellants, as commissioners on charitable institutions, had the power by unanimous vote (and upon sufficient charges, notice and hearing), to remove respondent from his office. Charter of St. Louis, art. 4, sec. 49; Laws of 1873, p. 353, relating to House Refuge; State ex rel. v. Brown, 57 Mo. App. 199.

Louis City Circuit Court. — Hon. James E. Withrow, Judge. In an action of replevin for a number of specific articles, where plaintiff proves title to a part, and defendant to the remainder, the costs should be apportioned equally between them.

<p>Pleading: practice, trial: burden of proof. Where plaintiff alleges in his petition that a party is indebted to him for work done and materials furnished in the performance of a contract, and that the money had been deposited with defendant for the purpose of paying the same to plaintiff, by said party, and that said money had not been paid to plaintiff, the proof of these facts as alleged makes a prima, facie case for plaintiff; and where the defendant pleads and attempts to prove that said money was deposited with him, to be paid' to plaintiff conditionally, this is affirmative matter, and the onus is on defendant to prove the condition by a preponderance of evidence.</p>

.Louis City Circuit Court. — Son. Beldon P. Spencer, Judge. (1) The court committed error in ruling that it would sustain defendant’s demurrer to the evidence. If there is any evidence whatever, however slight, it must be submitted to the jury. Twohey v. Eruin, 96 Mo. 104; Charles v. Patch, 87 Mo. 450; Taylor v. Short, 38 Mo. App. 21; Rippey v. Eriede, 26 Mo. 523.

Louis City Circuit Court. — Hon. James E. Withrow, Judge. (1) The plaintiff’s own evidence clearly shows that she was guilty of negligence contributing to the accident, and that she ought not to recover; and she must be held conclusively bound by her own evidence, and can not be allowed for any purpose to contradict or vary the same by the testimony of other witnesses. State v. Brooks, 99 Mo. 137; Payne v. E. E. Co., 136 Mo. 562.

<p>1. Pleading: petition, sufficiency of. Where a petition fails to allege that a debt is due, and the omission can not be supplied by any inference deducible from any or all of the allegations in the petition, it is fatally defective.</p> <p>2. -: -: ANSWER MAY SUPPLY DEFECT IN PETITION. And' a judgment founded on such a defective petition will have to be reversed unless the defect is cured by some allegation or admission in the answer.</p> <p>3. Guarantor: construction of contract of guarantor. One interpreting a contract of guarantyship should put himself in the place of the contracting parties and view the subject-matter of the contract and the object to be accomplished, from their standpoint.</p>

<p>Appeal from tbe St. Louis City Circuit Court. — Hon. Pembrook B. Fliicmft, Judge.</p> <p>(1) In support of his contention appellant submits three propositions: First, respondent haying sought by her petition to recover as the indorsee for value, and all evidence-in the case establishing that her rights of action, if any, were for money loaned by her to appellant, can not recover in this action. Second, that respondent, having entrusted her money to George H. Ehea, Jr., and invested him with the insignia of ownership thereof, and he having dealt with appellant as the owner of the money without disclosing his mere agency, or the fact that he was acting for another, can not recover, if, in good faith, and without knowledge of her right' and interest, appellant has paid his note in full to the agent with whom he dealt. Third, that, under the undisputed facts, respondent is estopped to deny the validity of all payments made to her agent. The correct rule applicable to the case at bar is laid down in the case of Baring v. Cory, 2 B. & Aid. 131, which is stated fully in Bernshouse v. Abbott, 46 Am. Eep. 189, and quotes Chitty on Contracts, page 306, as follows: “Where a principal permits one not known to be an agent to sell as apparent principal, and afterwards intervenes, the buyer is entitled to .be placed in the same situation at the time of the disclosure of the actual principal as if the agent had been the actual contracting party; he is entitled to the same defense against the principal, whether it be by common law or statute, as he was entitled to at that time against Ithe agent, the apparent principal.” “An undisclosed principal who undertakes to enforce the contract made with an agent supposed to be the sole principal, must take the contract subject to all the equities in the same way as if the agent was the sole principal, and if the contract gave the , agent no cause of action, the principal can have none.” Henderson v. Botts, 65 Mo. App. 141. (2) “If the note is made to an agent, the principal receiving it by indorsement from such payee will not be in the position of a bona jide holder.” Randolph on Commercial Paper, page 1482; Neil v. Cummings, 75 111. 170; Merrill v. Packer, 80 la. 542; Hardy v. Bank, 56 Kan. 492.</p> <p>(1) The petition should show the authority of plaintiff to bring the suit, and when he does not sue as payee, he must show his title to the note. Wilson v. Murphy, 45 Mo. 410. (2) Where the negotiable, instrument is supported by a consideration, it is no defense to an action by the indorsee against the maker, that the plaintiff is not a holder for value. “The want of consideration for ¡the transfer by indorsement is a good defense only in an action by the indorsee against his immediate indorser.” Tiedeman on Commercial Paper, sec. 154; Middleburg v. Case, 6 Yt. 165; Slane v. Lowry, 48 Ind. 205. (3) So that plaintiff being indorsee it was proper to- bring suit as such and to make the necessary allegations to show her title thereto and authority to sue. This action was brought in a justice court. No set-off or counterclaim was filed, as the statute requires. Hence all evidence offered or admitted tending to show a claim of defendant against George H. Rhea, Jr., was immaterial and incompetent as against this plaintiff no set-off or counterclaim having been pleaded. R. S. 1889, sec. 6205; Comfort v. Lyman, 6Y Mo. App. 668. (4) The defendant issued a negotiable instrument and as to the liability of the defendant thereon in the hands of an indorsee or transferee receiving it before maturity it is exempt from all equities between the original parties. Under the evidence this note passed to plaintiff exempt from all rights of set-off or counterclaim on account of independent transactions between the original parties. These rights of set-off, such as in this case are not “equities” at all. And the statute of set-off does not in any way apply to negotiable paper, but only to non-negotiable paper. R. S. 1889, sesc. 8161; Cutler v. Cook, YY Mo. 388.</p>

<p>Criminal Law: practice, appellate. When the information is in the usual form, charging the defendant with larceny of the property of the prosecuting witness, the evidence tends to prove the accusation, the instructions unobjectionable, the verdict and judgment regular, as in the case at bar, the judgment of the lower court will be affirmed.</p>

<p>Appeal from the St. Louis City Circuit Court. — Hon. Pembrooh B. Flitcraft, Judge.</p>

Louis City Circuit court. — Son. William Zachritz, Judge. (1) While as a rule an appellate court will not reverse the finding of a jury, or court sitting as a jury, yet where it appears upon a review of the evidence that the verdict is “inconsistent with the admissions of the successful party” or is “strongly opposed to reasonable probability,” or “seems to be the result of bias, mistake or prejudice,” or is “clearly wrong,” or results in “obvious injustice,” etc., etc., the…

<p>Appeal from the St. Louis City Oircuit Oourt. — Mon. Pembrooh B. Flitcraft, Judge.</p> <p>(1) The subcontractor, before he made the bid, knew that the excavator would be obliged to gobelowthedepthmentioned in plans; he knew of the special exception made in sec. 22 of the specifications. He was familiar with the original contract, and he was told by" the officer in charge to state in his bid what extra work there was. The coiirt, in submitting the question of extra work to the jury, erred. Yatels Law of Nations, 244; Ellerbe v. Barney, 119 Mo. 632; Goode v. St. Louis, 113 Mo. 257; Johnson Co. v. Wood, 84 Mo. 489. (2) The verdict of the jury is clearly against the weight of the evidence and the preponderance of the testimony shows bias, passion or prejudice on the part of the jury, and should be set aside, and also for the reason that the same does not conform to the proof. Friesz v. Eallon, 24 Mo. App. 439; Empey v. Grand Avel Cable Co., 45 Mo. App. 422; Whitsett v. Ransom, 79 Mo. 258; Spohn v. Railway, 87 Mo. 74; Bank v. Wood, 124 Mo. 72.</p> <p>The bill for extra work was not denied, but the claim was and is conceded to be for correct amount. The only question was, did the decision of United States government bind Mr. Heller. Mr. McMahon made a claim for it as extra work done by the mason. Neither party knew at the time that extra masonry would be required, but after excavating part they found that the ground was not solid enough. So there could not have been an intention to include this in Heller’s bid, and that it was not so included will readily be seen by McMahon’s action thereafter, viz: Claiming it from the government as extras.</p>

<p>Appeal from tbe St. Louis City Circuit Court. — Son. William Zaehritz, Judge.</p> <p>(1) A demurrer to the evidence admits the fact that the evidence tends to prove; and where 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. Riñe v. Railroad, 100 Mo. 228; Doáohoe v. Railway, 91 Mol 357; George v. Railway, 40 Mo. App. 433; Taylor v. Short, 38 Mo. App. 21; Damhorst v. Railway, 32 Mo. App. 350. (2) It is the duty of the pledgee to take active steps to enforce the collection of a note held by him as collateral security, or to return the note to the pledgor, and if he sits supinely by, and lets the note be lost by operation of the statute of limitations, he is liable for the value of the note. • Bank v. O’Connell, 84 la. 377; Kennedy v. Rozier, 71 la. 617; Mansur-Tebbetts v. Carey, 45 S. W. Rep. 120; Semple v. Dedtwiler, 30 Kan. 386; Bank v. Thompson, 71 Eed. Rep. 113; McQueen’s Appeal, 114 Pa. St. 595; McLemore v. Hawkins, 46 Miss. 715; Lamberton v. Windon, 12 Minn. 151.</p> <p>(1) Where there is an entire absence of evidence to support the claim relied upon, there is nothing for the jury to consider, and the court may direct the verdict. ' Dunham v. Joyce, 129 Mo. 5. (2) It is the duty of the trial court to direct the jury to find a verdict where the undisputed facts show no liability to have been incurred, although there is some evidence which might justify the court in submitting the case to jury. Powell v. Railroad, 76 Mo. 83; Jackson v. Hardin, 83 Mo. 186; Hiltz v. Railroad, 101 Mo. 36; Reichenbach v. Eller.be, 115 Mo. 588; Hite y. Railway, 130 Mo. 141.. (3) Pledgee is bound only to use reasonable diligence in the collection of collateral. Wells & Dewing v. Wells & Scribner, 53 Vt. 1; Reeves v. Plough, 41 Ind. 204; Kiser v. Ruddick, 8 Blackford (Ind.), 382; Lenore v. Hawkins, 46 Miss. 115; Lamberton v. Windom, 12 Minn. 241-248; Lee v. Baldwin, 10 Ga. 208. (4) The burden of proof is upon the debtor to show that the creditor has by his negligence occasioned loss to debtor. Plant’s Mfg. Oo. v. Ealvey, 20 Wis. 200-1; Barnes v. Bradley, 56 Ark. 105; Murphy v. Bartsch, 23 Pac. Rep. 83; Reeves v. Plough, 41 Ind. 208. (5) Pledgor not entitled to return of collateral until payment of principal or tender thereof. Smith v. Eelton, 85 Ind. 224; Marschuetz v. Wright, 50 Wis. 175; Jenkins v. Bank, 111 111. 462. (6) Pledgee not required to sue on uncollectable debt. Clark v. Young & Co., 1 Cranch, 190; Smith v. Eelton, 85 Ind. 226. (I) Pledgee,not liable for loss of collateral, unless the same could have been collected by ordinary and reasonable diligence, and this is true, although the statute of limitations may have run against the collateral while in possession of pledgee. Mfg. Oo. v. Dedtwiler, 30 Kan. 386; Lamberton v. Windom, 18 Minn. 515.</p>

Louis City Circuit Court. — Eon, D. D. Fisher, Judge. • (1) Plaintiff can not recover upon a theory of the case adverse to that upon which… Held: That the ruling denying the motion for an election between the- counts was harmless and a mere abstract question on appeal.” Gardner v. Crenshaw, 122 Mo. 79. “Where the evidence is conflicting, this court will not disturb the findings of the trial court, on the ground that they are against the weight of evidence. “This position is…

<p>Appellate Practice: dissent: transfer: opinion affirmed. The judgment of circuit court that petition did not state cause of action — -this court held that judgment erroneous. A dissent was announced, cause transferred, and Supreme Court affirmed majority opinion, reversed and remanded cause for new trial.</p> <p>biggs’ dissent.</p> <p>1. --: -: -: additional abstract. Abstract failed to show bill of exceptions. In Supreme Court this omission was supplied, and having' been done, the majority opinion of this court was properly affirmed.</p>

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

<p>Appeal from the Cape Girardeau Circuit Court. — -Hon. Henry G. Riley, Judge.</p>

<p>1. Promissory Notes: eumwal m part: void in toto. F., of the firm of F. G. and M. executed the notes of the firm in settlement of his individual debt and a firm debt, without the knowledge of G. These notes in the hands of the payee were void.</p> <p>2. -: PAYEE’S FRAUD IN ACCEPTING NOTES: NOTES VOID. The giving of the notes by F., without the knowledge of G., and acceptance of them by the payee or plaintiff were fraudulent acts, and rendered both notes void.</p>

<p>Appeal from Circuit Court, City of St. Louis. — Hon. Pembrook B. Filter aft, Judge.</p> <p>Judgment was rendered for tbe defendant upon tbe demurrer, and plaintiff appealed. Tbe demurrer was general, and no grounds for sustaining it were given by tbe judge of tbe circuit court. Tbe question is simply: Does tbe petition state a cause of action ? If it does, tbe court below was in error. As no reasons for sustaining tbe demurrer bave been given, and as tbe writer is wholly in tbe dark as to tbe views beld by tbe court below, and as it devolves upon tbe defendant to sustain bis demurrer, tbis memorandum is submitted to tbe court as a statement of tbe case, to be followed by sucb argument as circumstances may require, when tbe defects in tbe petition, real or imaginary, upon wbicb respondent relies, are pointed ont by his counsel under the rules applicable to cases of this nature.</p> <p>Bespondent makes the point that as appellant only set out in his brief the pleadings and the action of the court thereon, that he has not pomplied with the statutes nor the rules of this court. B. S. 1889, sec- 2301. It nowhere appears that defendant testified that he was not the agent of his father to make the contract of hire; he testified that he was not the agent to accept that particular contract of purchase, which fact does not absolve the principal in the contract of hiring a real estate agent to sell his land and to pay for his services for liability for the services rendered, and which liability on the part of the principal can not be shifted to the shoulders of the agent, by non-acceptance of the contract of purchase by the principal, such principal being liable for the services rendered, as soon as a valid contract of purchase is procured whether same is accepted or not, or whether the contemplated sale is effected and consummated or not. Hayden v. Grillo, 35 Mo. App. 647. He who assigns errors must make that error apparent, as “that which the court did is to be taken to be right, till the contrary appears;” this is the rule, that he who wishes to reverse anything done by the court below must show it to be wrong. A motion to dismiss the appeal will therefore lie. Honeycutt v. Bailroad, 40 Mo. App- 674; Schultz v. Moon, 33 Mo. App. 329; McGarry v. Bailroad, 36 Mo. App. 340-345; Snyder v. Free, 102 Mo. 325.</p> <p>appellant's reply brief.</p> <p>The counsel for respondent seems to have lost sight, both of the fact that the error complained of is one apparent upon the face of the record, and also of the rulings of this court and the supreme court in many cases adjudicated. The supreme court in Childs v. Bailroad, 117 Mo. 426.</p>

<p>Appeal from Circuit Court, City of St. Louis. — Hon. Selden P. Spencer, Judge.</p> <p>(1) The court erred in admitting the mechanic’s lien in evidence, because not “a just and true account of the demand due after all just credits had been given” (section 6709, R. S. 1889), as three of the houses and lots covered by the lien had been released. (2) The pleadings and evidence show that the grounds on which houses stand were owned by the Gray Bros., individually, and as such sold to the defendants; that the contract on which this suit was brought was made with E. H. Gray & Bro., a co-partnership — hence respondent was not the original contractor. (3) No separate description is contained in respondent’s petition of appellants’ house and lot. Section 6712, R. S. 1889. Respondent could not dismiss his cause of action against all the interested parties and release the two eastern houses and lots and the western house and lot, and have a lien against the remaining house and lot to secure the payment of less than one-fourth. Poppert & Son v. Wright, 52 Mo. App. 576.</p> <p>(1) The mechanics’ lien offered “a just and true account due respondent after all just credits had been allowed,” when filed. R. S. 1889, sec. 6709; Miller v. White, 28 Mo. App. 639; Burrough. v. White & O’Connor, 18 Mo. App. 229; Hayden v. Wulfing, 19 Mo. App. 3563; Hydraulic Press Brick Co. v. McTaggert, 7 6 Mo. App. 347; Mitchell Planing Mill Co. v. Allison, 138 Mo. 50. The including of the inspection items in the lien is not fatal. Edgar v. Salisbury, 17 Mo. 273. (2) Tbe petition and lien paper both contain a sufficient description of the property to be charged with the lien. Oster v. Rabenau, 46 Mo. 595; Dewitt v. Smith, 63 Mo. 263; Brodist v. James, 83 Mo. 313; Eairbank Marsh & Oo. v. Orescent Elevator Oo., 52 Mo. App. 627. (8) The release of part of the property covered by a lien does not waive right to lien on the balance. Hall v. Sheehan, 69 N. Y. 618; Reilly v. "Williams, 47 Minn. 590; 50 N. "W. Rep. 826; Carr v. Hooper, 48 Kan., 253; 29 Poe. 253; Lax v. Peterson, 42 Minn. 214; 44 N. W. Rep. 3; Hydraulic Press Brick Co. v. Neumeister, 15 Mo. App. 592.</p>

Louis City. — Hon. William Zachritz, Judge. (1) The- agreement of sale comes within the Statute of Frauds. R. S. 1889, sec. 5181. (2) There is no evidence of a compliance with the statute, neither an acceptance nor memorandum sufficient to bind contract. Smith v. Thell, 82 Mo. 215; Story on Sales, sec. 269; Brown on Statute of Frauds, sec. 384; 1 Greenleaf on Evidence, sec. 268.

Louis City. — lion.' Seldon P. Spencer, Judge. Tbe president and secretary are at best but agents' of tbe defendant association, and it bad given them no authority to print tbe proceedings of tbe convention, save upon condition that it could be done without expense. They were powerless to make an original contract to that end. What they could not do directly, they had no authority to do indirectly.

Louis. — Hon. ” James E. Wiihrow, Judge. Rule 15 of this court requires the appellant to file “a clear and concise statement of the pleadings and facts shown by the record.” In this case the appellant has filed an alleged statement which does not even so much as mention the pleadings or judgment appealed from,_ does not purport to give any of the evidence or instructions in .the case, or any reference to the record.

Louis City Circuit Court. — Hon. William Zachritz, Judge. (1) The court erred in giving the plaintiff’s instruction number 1, because, first, it had not been shown that the defendant was amenable to the ordinance, upon which the instruction was founded; and, secondly, there was no evidence that the car could have been stopped in time to save him, even if the motorman had seen plaintiff as he left the pavement; thirdly, to have seen him as he left the pavement, the motorman…

<p>Appeal from the St. Louis City Circuit Court. — Hon. H. D ■ Wood, Judge.</p> <p>Where deceased’s representative examines the other party as to transactions with deceased, he 'thereby waives the incompetency of such party. “To constitute such a waiver, it is not necessary that he should have been put upon the stand by deceased’s representative; but if, after he has been examined concerning indifferent matters in his own behalf,- he is asked a question upon cross-examination in relation to a transaction between 'himself -and the deceased, that renders him the witness of the opposite party and competent to speak to the whole matter.” 13 Central Law Journal, 342, citing Thomas v. Thomas, 42 Ala. 120, and Harper v. Parks, 63 G-a. JO 5. “Where a party, competent for some purposes in his own behalf, though incompetent for others, has- testified for himself, he may be compelled on cross-examination to testify to other matters, and then becomes the witness of the other party.” 2 Woerner on Administration, chap. XLII, sec. 398, p. 834; Carney v. Carney, 95 Mo. 353; Tomlinson v. Ellison, 104 Mo. 114; Hickman v. Green, 123 Mo. 165; Banking House v. Rood, 132 Mo. 256; Ess v. Griffith,.139 Mo. 322; Hume v. Hopkins, 140 Mo. 65; In re Estate of Sou-lard, 141 Mo. 642; Borgess Inv. Co. v. Yette, 142 Mo. 560; Nichols v. Nichols, 14J Mo. 403. (2) Where a party waives the incompetency of a witness, he can not raise the objection at a subsequent stage of the same proceeding. McKinney 7. Railroad, 104 N. T. 52; Bait v. Eischkorn Bros., 151 Pa. St. 466; Boone v. Ridgway’s Ex’rs, 29 N. J. Eq. 543; Hord’s Adm’r v. Colbert, 28‘ Gratt. 44; Lisbon v. Bath, 23 N. H. 1; ILndson v. Crow, 26 Ala. 521; In re Estate Dunlap, 94 Mich. 11; Thomas v. Irvin, Adm’r, 90 Tenn 512.</p> <p>(1) This witness, being one of the claimants in this action, was disqualified to testify, except as to whose handwriting the items charged in the book are, and when made. Sec. 8918, R. S. 1889. "What transpired in the oral cross-examination in the probate court is of no importance in the hearing on appeal to the circuit court, because the circuit court must hear the cause de novo. Sec. 292, R. S. 1889. In the matter of Wilson’s Estate, 89 Mo. 58, is to the same effect, 'the court holding, in addition to the foregoing, that this court would not review the action of the probate court. The authorities cited by appellants’ counsel are not in point as they refer to instances where the testimony was reduced to permanent form either by deposition or bill of exceptions, or where the waiver occurred in the court whose action is being reviewed. What occurred in the probate court orally, could not affect the rights of claimants in the circuit court, as there was nothing in the record or in the proceedings in the circuit court to adversely influence the court or jury. But, in addition to the other reasons against appellants’ contention, they having made claimant their witness in the probate court the executor had the right to cross-examine her generally, and the exercise of that right- surely does not estop him from objecting to her testimony in the appellate court, where the trial is de novo and where the executor refrains from subjecting the-witness to examination.</p>

<p>1. Action for Deceit: defective instruction: not reversible error. An instruction submitting to the jury an issue not counted upon in the petition, is not necessarily reversible error, as.it only serves in this case to east an additional burden upon respondent, of which appellant is in no 'position to complain.</p> <p>2. -: THE ELEMENTS OF DECEIT: ERRONEOUS INSTRUCTION. To recover damages caused by fraudulent misrepresentations in an action at law, it is necessary to allege and prove, first, that the representations were untrue; second, that defendant knew them to })e false when made, or that he made them as of his own knowledge when in fact he had no knowledge whatever on the subject; third, that the plaintiff 'had a right to and did rely upon the truth of such representations and suffered damage or loss by reason of their falsity. Plaintiff's instruction omitted, “Or that he made the representations as of his own knowledge when in fact he had no knowledge whatever on the subject,” which omission, rendered the instruction given by the court at the instance of plaintiff vitally defective.</p> <p>3. -: -: practice: bill OF exceptions. The court does not by granting an appeal, lose jurisdiction in a cause to the extent, that a bill of exceptions may not be signed and allowed during the term after the order granting the. appeal is made.</p>

<p>1. Action on Judgment: involuntary nonsuit: motion to set same aside: bill oe exceptions. When a party takes an involuntary nonsuit, and moves to set same aside, which motion though not acted upon or continued by order of court to next term, is yet pending, and is in effect a motion for a new trial, it suspends the judgment until acted upon after which a bill of exceptions may be allowed and signed.</p> <p>2. -: JUDGMENT: LIMITATION OE ACTION: NEW STATUTE A new statute shortening the time within which an action may be brought on an existing judgment, when the time within which it might have been brought under a former statute had not yet run, but which by the new statute was barred at the time of its passage, is not available as- a defense.</p> <p>3. -: -: JOINT AND SEVERAL: ERRONEOUS RULING. A judgment rendered in Kentucky, on a note joint and several, and a suit instituted in this state for a part of such judgment might be instituted against one or both such joint obligors, and the holding of the trial court, that both obligors must be sued, was erroneous.</p> <p>4. -: -: judgment: new cause OE ACTION. A valid judgment constitutes a new cause of action, though it does not create a new liability, and when founded on a joint and several contract does not merge the contract into a joint one, but follows the original. A judgment is a contract within the meaning of the statutory provisions of this state, that all contracts which by the common law arc joint only, shall be construed to be joint and several. (Overruling Sheehan, etc.,- Oo. v. Sims, 28 Mo. App. 64.)</p> <p>5. -: -: -: parties: instructions. An instruction for nonsuit, which ignores the proof in support of a reply, alleging that one of the judgment defendants was at the time of the institution of the suit a non-resident of the state, is erroneous, for even when the common low prevails as to the nature and effect of joint contracts, a suit may be brought on a joint undertaking against the obligors who are residents of the state without joining others of the obligors, non-residents and beyond the jurisdiction of the court.</p>

Louis City Circuit Court. — lion. Selden P. Spencer, Judge. (1) The fact that the insurance company did not object to Mrs. Saetelle’s testimony when it was first offered, did not render tbe testimony competent. Tbe only way to bave rendered her testimony competent was for tbe administrator to bave called on ber to testify. That was not done, and ber test! mony was wholly incompetent, without any objection to it having been made.

Louis Circuit Court. — Hon. Horatio D. Wood, Judge. (1) The clause in the contract requiring that the dressing of rock used should be done in the State of Missouri did not contravene either the letter or the spirit of Article YI, section 27, of the charter of the city of St. Louis. Yerdin v. City of St. Louis, 131 Mo. 26, p. 173; Sanitary District of Chicago v. Lee, 79 111. App. 159; Littler v. Jayne, 124 111. 123.

Louis. — Hon. Selden P. Spencer, Judge. (1) The appellate court mil reverse where the finding, is opposed to all probabilities to such an extent as to indicate clearly that the trier of fact did not weigh the evidence, or else was clearly mistaken as to the applicatory law. Eriesz v. O’Eallon, 24 Mo. App. 439; Watson v. Fehlig, 59 Mo. App. 275; Craig v. Kelly, 49 Mo. App. 312; Rice v. Insurance Co., 48 Mo. App. 281; Spohn v. Railroad Co., 87 Mo. 74; Janis v. Roentgen, 52 Mo.

Louis. — Hon. Leroy B. Valliant, Judge. ' (1) The voluntary association was not such an association of individuals for profit and gain as to constitute the members thereof partners as to each other.

Louis City Circuit Court. — Son. Selden P. Spencer, Judge. (1) Plaintiff’s lien is not invalidated by the fact that the lien account for $304.04 included charges for lumber amounting to $42.20, of which the evidence showed that it was not used in the construction of the building, and for which plaintiff offered to give credit.

Louis Circuit Court. — Hon. Franklin P. Ferris, Judge. (1) Defendant was entitled to impeach witness Oehmig by reading in evidence his letter to defendant. Prewitt v. Martin, 59 Mo. 325. (2) Defendant should have been allowed to read in evidence the copy of the telegram dated December 14, 1897, produced by him. (3) It was error to refuse defendant’s instruction No. 4, because there was no evidence as to the value of the apples at St. Louis.

Louis Circuit Court. — Hon. Horatio D. Wood, Judge. (1) A person occupying the relation of mistress or concubine in ignorance of the true state of affairs, and in the belief that she is the wife of the member in a benefit society, when named, in his certificate as a “dependent,” and shown to have lived with the member and been supported by him, comes within the classes named in the law creating benefit societies in Missouri. Lodge v. Eisner, 26 Mo.

Louis. — Hon., Franldin Ferris, Judge. (1) The court erred in excluding the testimony of relator as against the executors of the estate of ¥m. Beating, for the reason that when a contract is made on one side by two or more persons, one of whom has since died, tbe fact does not disqualify tbe adverse party from testifying in tbe case. B. S. 1889, sec. 8918; Wallace v. Jecko', 25 Mo.

Louis Circuit Court. — Hon. Jas. E. Withrow, Judge. (1) Appellant Julia Maria Buscb is not the lawful widow of Peter Busch, because the latter, at the time of the pretended marriage to appellant at Cincinnati on November 29, 1880, had a wife living at Schriesheim, in Germany.

<p>Appeal from the Circuit Court, Oity of St. Louis. — Son. Selden P. Spencer, Judge.</p> <p>(1) This court has full power to review the evidence and. make such decree as it may deem proper. Deschadt v. Deschadt, 59 Mo. App. 102; Morris v. Morris, 60 Mo. App. 86; Kilpatrick v. Kilpatrick, 80 Mo. App. 70. (2) The desertion made out by appellant constitutes a prima facie case. Keaton v. Keaton, 74 Mo. App. 178. The wife leaving under instructions of physician with consent of husband is not bound to return unless requested and furnished means to return on. Spingler v. Spingler, 38 Mo. App. 266. The charge or ground of habitual drunkenness was established; was continuous and habitual within the meaning of our statute. Golding v. Golding, 6 Mo. App. 602; Moore v. Moore, 41 Mo. App. 176. (3) Courts ought not to disregard the uncontradicted testimony of unimpeached witnesses. Cohn v. City of Kansas, 108 Mo. 387; Efron v. Car Co., 59 Mo. App. 641. In all cases the positive testimony of an otherwise unimpeached witness, can only be disregarded when its improbability or inconsistency furnishes a reasonable ground for doing so; and this improbability or inconsistency must appear from the facts and circumstances disclosed by the evidence. It can not be arbitrarily disregarded by either court or jury for reasons resting wholly in their own minds or imaginations and not based upon anything appearing in the trial. Bank v. Donald, 58 Minn. 493; Clark v. McGrath, 22 S. ~W. Rep. 527.</p>

Lotus Circuit Court. — Hon. Horatio D. Wood, Judge. (1) An agent is not bound to those who know he is contracting as agent. Whart. on Agents, secs. 295-506. The agency of Annan, Burg & Smith was fully disclosed to the plaintiffs, therefore, they are not liable. Story oh Agency, sees. 263-264.

Louis City Circuit Court. — Son. John M. Wood, Judge. (1) A contracting agent who Las no interest in tbe contract, does not fall witbin tbe rule rendering parties incompetent, where tbe other party to tbe contract is dead or insane. Bates y. Forcht, 89 Mo. 121; Stanton v. Ryan, 41 Mo^ 515; Baer v. Pfaff, 44 Mo. App. 35, 38; Samuel v. Bartee, 53 Mo. App. 587; Leahy v. Simpson’s Adm’r, 60 Mo. App. 83 Meier v. Thieman, 90 Mo. 433, 441.

<p>Appeal from the St. Louis City Circuit Court. — Mon. Pembrook R. Flitcraft, Judge.</p> <p>Judge Biggs dissents.</p> <p>Appellants aver in their petition that other claimants have been paid under orders of the probate court, and that the administrator has reserved funds “a sum equal to'the per cent already paid to other claimants” and pray that appellants may have an order directing the administrator to pay them- “an amount equal to the amount heretofore paid by said administrator on other claims heretofore allowed.” Appellants ask that their claims be dealt with as others, and in order that this be done their rights must be measured by exactly the same measure. The same exactness with them as with others is consistent with justice, and nothing short of it would be just to either appellants or the other creditors. The orders of the probate court .are based upon the theory of partial payments, and this rule is the well settled law. of the state governing the partial payment of claims proven against an estate. It was stated in 1851, by the supreme court in the following terse language: “Interest is first to be calculated on the plaintiff’s demand up to the first partial payment, then add the interest to the principal and deduct the payment therefrom; then cast the interest on the remainder to the second payment, add the interest to the remainder and deduct therefrom the second payment; and so on until the last partial payment.” Rainey v. Hill, 14 Mo. 500; State to use, etc., v. Shaw, 1 Mo. App. 519; Estate of McOune, 76 Mo. 206.</p> <p>(1) ‘ The court below erred in admitting on behalf of the estate incompetent evidence. (2) The court below erred in its mode of ascertaining the pro rata amount to which claimants were entitled. (3) The court below erred in not giving to claimants an amount to which, under the law and the evidence, they were entitled.</p>

<p>Appeal from tbe St. Louis City Circuit Court. — Hon. Daniel D. Fisher, Judge.</p> <p>(1) In order to hold the bondsmen of the constable liable for his misconduct, it is necessary to show that he was in the performance of his official duties, under a valid writ issued by the proper authority. The execution or attachment debtor has the right, under section 4906, to elect whether he will claim, as exempt, $300 worth of property out of the general personal estate, in lieu of the property specifically exempted by section 4903. He can not claim under both sections. Davis v. Williamson, 68 Mo. App. 301. When an election creates the right or interest, no right or interest arises until the election is made.' Brawford v. Wolfe, 103 Mo. 391; Eox v. Windes, 127 Mo. 502. Until he elects to claim under section 4906, he acquires no right thereunder. Davis v. Williamson, 68 Mo. App. 307. He must claim only what the statute allows him to hold, or else the claim may be disregarded by the officer. Brown v. Hoffmeister, 71 Mo. 411. Where more than $300 worth of goods are levied upon, if the debtor elects to claim under section 4906, it is his duty to select what property he desires to hold as exempt and this duty can not be shifted to the officer. R. S. 1889, sec. 4906; Davis v. Williamson, 69 Mo. App. 307; Ereeman on Execution, sec. 212a.</p> <p>(1) The writ of attachment and return trere prima facie evidence of a writ having been issued. (2) It was impossible for Mrs. Henneke to select specific goods when she had no knowledge of them, and they were held in possession of constable. The officer’s return shows he did not itemize the property seized. She had a right to select specific articles in part, and take cash in lieu thereof for balance of $300 in value. Mahan v. Scruggs, 29 Mo. 382. (3) She had a right to take the horse at an appraised value, and other specific property or cash for balance, to aggregate of $300 in value. If the constable refused to recognize her right to any exemptions, she was not required to specify any specific property that she desired. “The law does not require the doing of a nugatory act.” Brown v. Hoffmeister, 71 Mo. 411; State ex rel. v. Romer, 44 Mo. 99.</p>

Louis City Circuit Court. — Son. Pemhrook B. Flitcrafi, Judge. (1) Miss Probst, not having been related to, or dependent on Martinez, and not having been a member of his family, can mot recover this fund. That she is designated in the certificate as the beneficiary will not avail. Bacon on Ben. Soc., secs. 37, 239, 244; Ben. Assn. v. Bunch, 109 Mo. 578; Keener v. Lodge, 38 Mo.

Louis City Circuit Court. — Hon. William Zachritz, Judge. (1) This is an equity case and the evidence will be reviewed and considered de novo by this court. ChaplinQ v. Stone, 77 Mo. App. loc. cit. 529; Benne v. Schnecko, 100' Mo. loc. cit. 258; McElroy v. Maxwell, 110 Mo-, loc. cit. 308. (2) The law in force at the death of a member- of a fraternal order determines the classes of persons who may become beneficiaries.

<p>1. Suit for Past Maintenance: against guardian and infant: before justice of the peace. Under the facts in this case, plaintiff -will either have to apply to a court of equity for relief or the probate court where the guardianship is pending. Either court would have power, and should, if the facts are as claimed, order a reasonable allowance for the past maintenance of the child provided the estate after paying the allowance is ample for his future maintenance and education.</p> <p>2. -: -: NO JURISDICTION. Only a court of equity or probate court where the guardianship was pending, could take jurisdiction of the subject-matter of the suit and the lower court decided correctly.</p>

<p>Appeal from the St. Louis City Circuit Court. — Hon., Franklin Ferris, Judge.</p> <p>(1) The law of Mississippi'governs as to the limitation of this action. Mississippi Code, 1892, Oh. 83, secs. 2739 and 2755; McMerty. v. Morrison, 62 Mo. 140; Baker v. Stonebracker’s Adm’r, 36 Mo. 338; St. Louis Type Foundry On. v. Jackson, 128 Mo. 119; Lyman v. Campbell, 34 Mo. App. 243. (2) This is an action for breach of contract, and not on a judgment'.. Morse on Arbitration and Award [Ed. 1872], pp. 576 and 579; Bates v. Curtis, 21 Pick. (Mass. 1838), 247; Whitcher v. Whitcher, 49 New Hampshire, 176; Morse on Arbitration and Award [Ed. 1872], 3 and 36; Morse on Arbitration and Award [Ed. 1872], page 36, says: “Submission is the technical designation of that contract (italics are ours), by which the parties agree to refer matters which are in dispute, difference or doubt between them, to be finally decided by judges named by the parties and called arbitrators.” And again (page 3): “A submission is a contract.”</p> <p>Under the head of “Specialties,” “Bushnell on Limitations,” etc., uses the following language: “The statute can not be pleaded to defeat an action of debt on an award under the hand and seal of arbitrators, for, although such an award may not, for all purposes, be considered a specialty, that name being given only to an instrument under the hand and seal * * * yet it has been considered as being of the nature of a specialty, so far as to be within the intent of the statute of limitations. Eor, the purpose of the statute being to limit the time for bringing actions on simple contracts, without writing under hand and seal, the prosecution of which, long after the cause of action had accrued, was the occasion of perjury * * * this reason can not apply to a case so easily to be ascertained, as an award under the hand and seal of the arbitrator. And the statute can not be pleaded in an action of debt on such an award, even though the submission be not under seal; and it seems that if the submission be under seal, the award need not be.” Bushnell on Limitations, etc., p. 217-218; Smith v. Lockwood, 7 Wend. 244; Pierce v. Pierce, 60 N. H. 355; Green & Coats v. Moore, 67 Pa. St. 79; Iíalon v. Halón, 55 Vt. 321.</p>

Louis City Circuit Court. — Hon. Selden P. Spencer, Judge. (1) The trial court erred in overruling appellant’s objection to the introduction of any evidence, on the ground that plaintiff’s petition does not state facts sufficient to constitute a cause of action; for there can be no recovery upon a general allegation of negligence which gives no notice of facts. Benham v. Taylor, 66 Mo. App. 311; Troth v. Nor-cross, 111 Mo. 630; R. S. 1889, sec. 2039.

Louis City Circuit Court. — Son. Bolden P. Spencer, Judge. (1) While the case was tried by the court sitting as a jury, and no instructions or declarations of law were asked or given or refused, this court will review the evidence to ascertain whether or not the judgment is supported by substantial evidence. Kehoe v. Philippi, 42 Mo. App. 294; McGrath v. Mitchell, 56 Mo. App. 629; Watson v. Eehlig, 59 Mo. App. 276; Smith v. McCall, 63 Mo.

<p>Appeal from the St. Louis City Circuit Court. — Eon. Daniel D. Fisher, Judge.</p> <p>(1) The court instructs you that if you believe from the evidence that some time about the month of April, 1897, certain money of Minnie Stagl, wife of Charles Stagl, was put into the business theretofore belonging to and conducted by Charles Stagl, and if you further' believe from the evidence, that said money was intended either as a loan or as a gift of so much money by said wife to said husband, to put into his business, then your verdict must be in favor of the plaintiff. This instruction is erroneous, in that it assumes as a fact that the business had been theretofore conducted by Charles Stagl, which fact was controverted by plaintiff. Bergman v. Railroad, 104 Mo. 90; Mooró v. Hawh, 57 Mo. App. 495. (2) The court instructs you that there is nothing in the case of Minnie Stagl, plaintiff, v. Holland Building Company and others, defendants, referred to in the evidence, which constitutes of itself in law a defense of this proceeding. It was error-to give this instruction. It points out a single fact, or piece of evidence, and discusses its weight. Steinwender v. Creath, 44 Mo. App. 356; Benjamin v. Metropolitan St. Ry., 50 Mo. App. 602; Bond v. Reid, 53 Mo. App. 553; Ry. v. Union Stock Yard Oo., 120 Mo. 541; J-ones v. Jones, 57 Mo. 138. (3) The court instructs the jury, that although a husband may be indebted to creditors, he may without any fraud whatsoever upon such creditors, give to his wife 'without any charge whatsoever therefor, all his time, services 'and labor. This instruction the court refused to give on garnishee’s request, but in its stead gave the following instruction: (4) The court instructs the jury that although a husband may be indebted to creditors, he may, without any fraud whatsoever upon such creditors, give to his wife without any charge whatsoever therefor, all his time, services and labor, provided he does so in good faith. The court having added the words, “provided he does so in good faith.” The instruction as offered was a correct statement of the law; as given it is not and is erroneous. The husband is not compelled to work for his creditors; he may give all his time and energy to his wife’s business if he so elects, even though his intent may be to -earn nothing that his creditors may seize upon. Seay v. Hesse, 123 Mo. 450.</p> <p>(1) Upon the record it is manifest that the judgment is for the right party. State ex rel. v. Jones, 131 Mo. 194; Williams v. Mitchell, 112 Mo. 300; Phillipps v. Bach-elder, 47 Mo. App. 52; Vaughn v. Daniels, 98 Mo. 230; Clark v. Waldron, 39 Mo. App. 21; Bank v. Armstrong, 92 Mo. 265; Bassett v. Glover, 31 Mo. App. 150; Eell v. Mining Co., 23 Mo. .App. 216. (2) The matters alleged by appellant to be assumed in instructions given in behalf of plaintiff, following after the words “if you shall find and believe from the evidence” are hot assumed, ljut are included among the facts the jury are to find. Morgan v. Wattles, 69 Ind. 260: City of Logansport v. Justice, 74 Iud. 378; Chicago, ere., R. R. v. Wolf, 137 111. 360; Klutts v. Railroad, 75 Mo. 642; Blockman v. Cowan, 11 Mo. App. 589.</p>

Louis City Circuit Court. — Hon. Franlelin Ferris, Judge. (1) The language and terms of the contract will be understood in their ordinary sense; but where they relate to some particular trade or calling, their technical meaning will be giyen them. Bradshaw y. Bradbury, 64 Mo. 334; Eaton v. Smith, 20 Pick. 150; Bindley y. Bindley, 11 Grat. 434;' Rindskoff y. Barrett, 14 la. 101;.Robinson y. Fiske, 25 Me. 401; Hanna y. South St. J. Land Co., 126 Mo. 11.

Louis City Circuit Court. — Hon. Daniel D. Fisher, Judge. (1) Had Mr. Goessling prosecuted bis suit against Lees-burg et al., mentioned in tbe petition in tbis cause, to a final decree and collected any money under it be would bave been compelled to pay it. over to tbe assignee for distribution amongst tbe creditors of 'tbe estate of Leesburg & Werner. 3 Am. and Eng. Ency. of Law [2 Ed.], p. 134; City of St. Louis v. O’Neil Lumber Co., 114 Mo. '74; Hyman v. Eisber, 11 Mo.

Louis City Circuit Court. — Hon. Selclen P. Spencer, Judge. No new judgment having been rendered by the court upon the filing and announcement of -remittitur by plaintiff, there, was no legal support for the issue of the execution attacked. “It does not appear that the judgment was corrected after the remittitur, but it was allowed to stand for the full amount of the verdict.

Louis City Circuit court, i (1) The special tax bill made a prima facie case for plaintiff. Donovan v. Coles, 33 Mo. App. 161; Paving Co. v. Young, 68 Mo. App. 175; Moberly v. Hogan, 131 Mo. 19.

Louis City Circuit Court.- (1) Where an obligation is made to two parties jointly, they can not separate the liability and bring an action in favor of each. Dewey v. Carey, 60 Mo. 224. One of two obligees in a joint contract can not sue alone upon the contract. Henry v. Mt. Pleasant Tp., 70 Mo. 500; Thieman v. Goodnight, 17 Mo. App. 429; McLaren v. Wilhelm, 50 Mo. App. 658. (2) The plaintiff might have proceeded under the statute, section 1994, Revised Statutes 1889.

Louis City Circuit Court. — Ron. Selden P. Spencer, Judge. (1) The deed of trust in this case is not void, but is legal and valid, and judgment should therefore have been rendered in favor of appellant. Hazell v. Bank, 95 Mo. 60;' Yan Raalte v. Harrington, 101 Mo. 611; Jaffrey v. Matthews, 120 Mo. 317; Dry Goods Oo. v. Grocer Oo., 68 Mo-. App. 290; Alberger v. Bank, 123 Mo. 313; Wait on Eraud.

Louis City Circuit- Court. — Son. Selclen P. Spencer, Judge. (1) The petition does not state facts sufficient to constitute a cause for action, by failing to state that the lien claim gave the names of the owners or contractor, or that it was verified, and which statements are necessary to a cause of action. R. S. 1889, secs. 6709 and 6712; Bradish v. James, 83 Mo. 313; Sanderson v. Fleming, 37 Mo. App. 597; Ewing v. Donnelly, 20 Mo. App. 9.

Louis City Circuit Court. (1) A foreign judgment valid on its face, when made the ground of an action in this state, is conclnsive, where it appears that the court rendering the judgment had jurisdiction of the person and the subject-matter of the suit. Hays v. Merkle, 70 Mo. App. 509; Williams v. Williams, 53 Mo. App. 619.

•Appeal from the St. Louis Oity Circuit Court. (1) Instruction number 1 is erroneous in that it directed the jury to return a verdict for the plaintiff without submitting to their consideration, all the material issues raised by the pleadings and evidence. Vogeli v. Pichel M. Co., 49 Mo. App. 643; Hohlstadt v. Daggs, 50 Mo. App. 240; Maaek v. Schneider, 57 Mo. App. 431.

- — Hon. Andrew Ellison, Judge. (1) While it is apparent from ithis record that the plaintiff was entitled to recover and have judgment for a considerable sum as the balance due on bis note, and at least for a part of the costs, yet the judgment as rendered is for the defendants, and that plaintiff take nothing by his appeal (writ) and that defendants go'hence without day and recover their costs, etc. (2) There was evident error in the second instruction given for the…

— Hon. P. 0. Stepp, Judge. (1) The court erred in the admission of illegal, irrelevant and incompetent evidence. It was an error for the court to permit the witness, J. A. West, justice of the peace, to testify that he changed and altered the date of the execution from the ninth day of August, 1895, to the fifth day of August, 1895. A justice of the peace has no authority +o amend or alter any process of his own motion after return day. Norton v. Porter, 63 Mo. 345.

— Son. W. 8, Stochwell, Special Judge. (1) The tender of one dollar by defendants to the plaintiff after the action was instituted, and the deposit of the amount of the tender with the clerk of the court, is a conclusive admission by the defendants that plaintiff’s petition stated a good eause of action and that they were liable to him in damages, and such being the case the lower court manifestly erred in giving judgment absolutely for the defendants. 2 Greenl. on Evid.,…

— Hon. J, D. Smoot, Special Judge. (1) It was shown that the machine was crowded and carelessly operated, particularly on the last day of defendants’ threshing, and it was claimed by defendants that their grain •was negligently left in the straw and blown over. .