Volume 82 — Missouri Appeal Reports

— lion. G. A Anthony, Judge. (1) The first finding is .that there was fraud because Mclnineh took possession of the goods and used some of the proceeds of the sale thereof, with Arnold’s consent, to pay debts not included in the mortgage. What if Mclnineh and Arnold did do this ? Had not Arnold a right to prefer other creditors? This had been accomplished before respondents brought suit. Who but the mortgage creditors had a right to complain?

— Eon. E. P. Gates, Judge. (1) The court erred in refusing to sustain defendant’s demurrer, and in refusing to give a peremptory instruction to find for the defendant. Barney v. Railroad, 126 Mo. 372; Moran v. Car Co., 134 Mo. 642; Overholt v. Yieths, 93 Mo. 422; Butz v. Cavanaugh, 137 Mo. 511; Klix v. Nieman, 68 Wis. 271; Gillespie v. McGowan, 100 Pa. St. 144; Richards v. Connell, 63 N. W. Rep. 915; 45 Neb. 367; Mergenthaler v. Kirby, 28 Atl.

— Eon. Andrew Ellison, Judge. (1) The damages allowred on the dismissal of a temporary injunction are only such as are the actual and proximate cause of the wrongful issuing. Holloway v. Holloway, 1.03 Mo. 274. There can be no recovery for improvident or imprudent expenditures. 10 Am. and Eng. Ency. of Law, p. 996'and.cases cited.

— Hon. P. G. Stepp, Judge. (1) The court erred in overruling defendant’s objections to the introduction of any evidence under the petition for the reason that it failed to state any cause of action and will not support the judgment. Morrow v. Railroad, 74 Mo. 82; Luckie v. Railroad, 67 Mo. 245; Johnson v. Railway, 76 Mb. 553; Cecil v. Railroad, 47 Mo. 246, 247; Cunningham v. Railroad, 70 Mo. 202; Gilbert v. Railroad, 23 Mo. App. 65; Seibert v. Railroad, 72 Mo. 566.

— Hon. P. C. Stepp, Judge. (1) The court erred in overruling defendant’s demurrer to plaintiff’s evidence for the following reasons, viz.: Because if said contract is held to be a chattel mortgage, being one without any condition as to advertisement, sale, etc., it ought to have been foreclosed under the provisions of section 1090, Revised Statutes 1889.

— Hon. O. A. Anthony, Judge. (1) It appears upon tbe face of tbe petition that tbe plaintiffs (assuming tbalfc they have any claim) are simple contract creditors of Saunders & Butcher. They must under tbe general rule reduce tbeir claim to judgment before they can seek relief in a court of equity.

— Hon. O. A. Anthony, Judge. Appellant claims the court should have sustained the demurrer offered at close of plaintiff’s evidence because there was not a “scintilla of evidence offered by plaintiff which tended to show that these cattle guards and particularly the north “positive’ cattle guard, was in any manner defectively erected or maintained,” and because the trial court ““finding as it did, that plaintiff’s horses passed in over this “positive’ cattle guard.” This is…

— Hon. 0. A. Anthony, Judge. (1) The instruction for defendant is here printed in form and spacing just as the jury saw it. The first'division directs a verdict for the defendant, the last part of it directs one for the plaintiff. They would naturally read them separately, and hence the error. They are directed to find for the defendants if they find said animal was worthless as a work animal or brood mare. This, of course, is not the law. Machine Oo. v. Brady, 67 Mo.

— Hon. W. 8. Herndon, Judge. The defendant was not guilty of a violation of the dram-shop law.

— Hon. W. S. Herndon, Judge. (1) If-being evident that the indictment was drawn under chapter 111, Revised Statutes 1889, it is insufficient and the judgment can not be permitted to stand because it fails to show upon its face that appellant is a merchant as defined by statute, section 6894, Eevised Statutes 1889. State v. Eunyan, 26 Mo. 167; State v. Eyan, 30 Mo.

— -Hon. B. E. Quiver, Judge. ' (1) The court erred in failing to call a jury to try the question of former conviction. State ex rel. v. Withrow, 133 Mo. 519; State v. Van Matre, 49 Mo. 268; Railway v. Story, 96 Mo. 611. Under the common law the defendant could not waive a jury in this case and our bill of rights, section 28, refers to the common law jury.

— lion. A. M. Woodson, Judge. If a party obtains leave to amend he may elect to make the amendment or not, as he pleases; and if he fails to amend, the issue made by the original pleading should be tried. Permission to amend does not per se amount to an amendment, but the amendment must be actually made either by altering the pleading or by filing a new one. Lohrfink v. Still, 10 Md. 530; Kimball v Gearhart, 12 Cal. 46; Briggs v. Bruce, 9 Colo. 282.

— Hon. A. M* Woodson, Judge. STATEMENT BY GILL, J. This is a suit for the partition of certain real estate in St, Joseph. The controversy here is not as to the title of the property, but as to whether or not The Ayr Lawn Company, a corporation, should be allowed to come into the case as a party defendant and share in the proceeds, because of having paid certain taxes, etc., on the undivided half interest owned by the other defendants.

— Hon. E. J. Broacldus, Judge. Even though defendant gratuitously undertook to procure this policy in the Royal, it is nevertheless liable to plaintiff for any loss accruing to him thereby, if it performed this office in so negligent a manner as to cause a forfeiture of the Hartford policy. 1 May on Insurance, sec. 124, says: “The agent employed to effect insurance, it scarcely need be said, is responsible to his principal for every negligence in the performance of his…

— Eon. E. J. Broaddus, Judge. (1) A divorce is a legal right; the granting or holding of which is in no way dependent upon the discretion of the trial court. It is a proposition so elementary as not to require the citation of authorities. The proceedings of that character have always been reviewed on appeal in this state upon the weight of the evidence. Ulrey v. Ulrey, 80 Mo. App. 48; Moore v. Moore, 41 Mo. App. 176; Owens v. Owens, 48 Mo. App. 208.

— Son. E. J. Broaddusr Judge. (1) No action can be maintained under section 2611 or section 2612 for stock that is struck and killed within the corporate limits of any city or town. Edwards v. Railroad, 66 Mo. 567; Cousins v. Railroad, 66 Mo. 572; Elliott v. Railroad, 66 Mo. 683; Rhea v. Railway, 84 Mo. 345; Brandenburg v. Railroad, 44 Mo. App. 244.

— Son. J. A. Soclcaday, Judge. (1) The plaintiff acquired the land from John 0. Griffin with notice of the grant of right of way by the latter to the Central Missouri Railway Co., and therefore was not entitled to recover on the first and second counts. It is not required that he should have been informed of all the details, or have had positive information. “Anything which0 will put a prudent man upon inquiry is notice.’i ‘Ins.

— Ron. J. A.'Rodeadas Judge. (1) The plaintiff acquired the land from Jas. T. Mc-Baine with notice of the grant of right of way by the latter to the Central Missouri Railway Co., and therefore was not entitled to recover on the first and second counts. It is not required that he should have been informed of all the details, or have had positive information — “anything which will put a prudent man upon inquiry is notice.” Ins.

— Hon. J. A. Hoclcaday, Judge. (1) An administrator may recover money or property, which his intestate has been induced through fraud or undue influence to give away. Hall v. Knappenberger, 97 Mo. 509; Teegarden v. Lewis, 35 N. E. Rep. 25. (2) It is not necessary for plaintiff to show that John Carlisle was an imbecile, or that he was unable to understand what he was doing.

— Hon. J. A. Hochaday, Judge. (1) Where injunction proceedings have been brought to prevent the sale of personal property by an officer for taxes, the time of the sale of the property should be alleged in the petition, for the property may be sold or a delivery bond forfeitured before the petition is filed or a temporary injunction is served; and the petition should show on its face that'such is not the case, and, to entitle the respondent to a final or perpetual injunction…

— Hon. J. P. Butler, Judge. (1) One who contracts with the agent of an undisclosed principal, may hold the latter, but can not hold both the agent and principal. There is no joint liability. Sessions v. Block, 40 Mo. App. 569; Provenchere v. Eeifess, 62 Mo. App. 50. (2) The objection that the petition does not state a cause of action, is not waived by answer, but may be raised at any time during trial. Walker v. Point Pleasant, 49 Mo. App. 244; Brown v. Shock, 27 Mo.

— Hon. W. W. Bucher, Judge. . (1) The mortgage in question was fraudulent in law, because to the grantor’s use, as shown by its terms. Bullene v. Barrett, 87 Mo. 185; Bank v. Powers, 134 Mo. 432; ITisey ■v. Goodwin, 90 Mo. 366. (2) This mortgage was also fraudulent in fact. Russell v. Rutherford, 58 Mo. App. 550: Helm v. Helm, 52 Mo. App-. 615; ITisey v. Goodwin, 90 Mo. 366; Bank v. Doran, 109 Mo. 40.

— Hon. P. 0. Stepp, Judge. (1) The demurrer to the evidence ought to have been sustained. There was no evidence of any negligence on the part of the defendant which caused the death of the cattle. Defendant had the right to stop its train at stations for a reasonable time, and there is not a particle of evidence that the stops were unreasonable.

<p>Appeal from tbe Buchanan Circuit Court. — Hon. 17. 17. James, Judge,</p> <p>(1), The court committed error in instructing the jury to find for respondent. Seoville v. Railroad, 81 Mo. 434; Hanlon v. Railway, 104 Mo. 381; Eiedler v. Railway, 107 Mo. 645; Lynch v. Railroad, 111 Mo. 601; Reardon v. Railway, 114 Mo. -384; Chamberlain v. Railway, 133 Mo. 587; LeMay v. Railway, 105 Mo. 361; Williams v. Railway, .96 Mo. 275; Kelly v. Railway & Transit Co., 95 Mo. 279; Dunkman v. Railway, 95 Mo. 233; Baird v. Railway, 146 Mo. 265; Brazier v. Railroad, 75 Mo. App. 253; McCormick v. Monroe, 64 Mo. App. 197; Meyers v. Railroad, 59 Mo. 223; Petty v. Railroad, 88 Mo. 306.- (2) The court excluded proper and legal evidence offered by the appellant. See cases above cited and Kansas v. McDonald, 6 Am. Neg. Rep., p. 67, Supremo Court of Kansas. (3) The court committed error in refusing to submit appellant’s case to the jury. See cases above cited. (4) Appellant made out a strong case and was entitled to have the jury pass on it.</p> <p>(1) The trial court committed no error in excluding the evidence offered to show holes in the floor of the bridge. Hnder such circumstances it was not prejudicial error to exclude evidence of its condition. If admitted, it would not have relieved her of contributory negligence. Weld v. Railway, 17 Pac. Rep. 306-309. (2) The examination and the cross-examination must relate to facts in issue and be relevant thereto. 7 Am. and Eng.. Ency. of Law, 108; Diel v. Stegner, 56 Mo. App. 540; Brooks v. Blackwell, 76 Mo. 309; State to use v. Roberts, 62 Mo. 390. (3) On the trial of the case plaintiff offered to prove that from the time she entered, the bridge until she was struck by the engine, no bell was rung on the engine and no whistle was sounded; but the court excluded this testimony and such ruling is now claimed to be error. It is well established law, even as to statutory signals, that the.party injured must be able to show that the omission of the signals was the proximate cause of the injury, and in no case can one recover on account of such omission, who, by other means, has timely notice of the approach of the train, for after he has seen the danger the purpose of the signals is subserved, whether they have been given or not. 3 Elliott on Railroads, sec. 1158; 11 Am. and Eng. Nailroad Cases (N. S.), 92; Kreis v. Railroad, 49 S. W. Rep. 879; Pakalmsky v. Railroad, 82 N. T. 424; Railroad v. Waltz, 40 Kan. 433; State v. Railroad, 35 Am. and Eng. Railroad Oases, 412; Saldana v. Railroad, 43 Eed. Rep. 862. Our own supreme court recognizes the above rule of law. Moody v. Railroad, 68 Mo. 474; McManamee v. Railway, 135 Mo. 440. (4) Opposite counsel also complain that they were not permitted to prove that there were no stationary lights on the bridge. This accident did not happen on a part of the bridge where it was dark. On the contrary, plaintiff alleges in her petition such an excess of light that she was completely dazzled thereby. The law gives those in control of a train the right to presume that, as plaintiff and her companion were coming directly towards the train, they were in possession of their senses, and that they would see not only that the train did not run over them, but that they would also see that their persons were far enough away not to be hit by the passing train. Maloy v. Railroad, 84 Mo. 275-276; Beach on Oon. Neg. [3 Ed.], secs. 393, 394; 3 Elliott on Railroads, sec. 1253; Oandee v. Railroad, 130 Mo. 152; Maxey v. Railroad, 20 S. W. Rep. 654; Brennan v. Railroad, 83 Eed. Rep. 124; Kreis v. Railway, 49 S. W. Rep. 878; Railroad v. Roberts, 37 S. W. Rep. 870; Railroad v. Brinson, 19 Am. and Eng. Railroad Oases, 56, 52, 55; Pzolla v. Railroad, 19 Am. and Eng. Railroad Oases, 334-337; Bacon v. Railroad, 15 Am. and Eng. Railroad Oases, 412-413; Railway v. Stroud, 31 Am. and Eng. Railroad Oases, 446-447; Austin, Adm’r, v. Railroad, 91 111. 38; Railroad v. Modglin, 85 111. 481-484; Moody v.Railroad, 68 Mo. 473, 474; Pleteher v. Railroad, 64 Mo. 488; Wharton’s Law of Neg., sec. 384; Loring v. Railroad, 128 Mo. 349-360; 2 Thompson on Neg., 1157; Little v. Oar. Oen. Co., 26 S. E. Rep. 110; 4 Elliott on Railroads, sec. 1703, and cases cited; 129 Mo. 374, and cases considered.</p>

— Hon. F. J . Broaddus, Judge. (1) If the plaintiff’s theory was correct, then he waived his right by retaining the note eighteen months after knowl-’ edge that the defendant had not signed. Shoe Co. v. Bain, 46 Mo. App. 581; Robertson v. Tapley, 48 Mo. Ápp. 239; Botts v. Spencer, 42 Mo. App. 184. (2) And by suing the note, after knowledge, he accepted the same as it was, and can not afterwards sue this' defendant for the same debt. Perkins v. Headley, 49 Mo. App. 562; Ins.

Hon. J. A. Hockaday, Judge. (1) The unfenoed portion of defendant’s track where plaintiff’s animal passed upon the same and was struck, was used for switching and passing trains at Holliday station, and defendant was not required to fence at that place. Pearson v. Railroad, 33 Mo. App. 543-546; Jennings v. Railroad, 37 Mo. App. 651; Cox v. Railroad, 128 Mo. 362-371.

<p>Appeal from the Randolph Circuit Court. — TIon. J. A. Ilockaday, Judge.</p>

— Hon. J. A. Hochaday, Judge. (1) There was no evidence that the telegraph line running into the depot near where the accident happened belonged to the Western Union Telegraph Co. “Every plaintiff must prove by competent testimony the facts upon which he is to recover.” Moore v. Railway, 28 Mo. App. 622, 628; Diel v. Railway, 37 Mo. App. 454, 458; McCartney v. Einnell. 106 Mo. 445, 453, 454; Railroad v. Rooker, 13 Ind.

— Non. J. A. Hockaday, Judge. (1) The description of the premises contained in the complaint is too indefinite and uncertain. The complaint must describe the land with sufficient definiteness to enable an officer, charged with the execution of a writ of restitution, to find the property. Livingston Oo. v. Morris, Yl Mo. 603: Benne v. Miller, 50 S. W. Rep. 829; Thiemann v. Meier, 25 Mo. App. 306; Elliott v. Abell, 39 Mo. App. 316.

— Hon. W. W. Rucker, Judge. (1) It was error to give plaintiff’s first instruction for the reason that there was no evidence to justify it. An instruction not based on evidence in the case is erroneous. This point needs no citation of authorities.

— Hon. W. 8. Herndon, Judge. (1) In actions to recover treble damages, under section 8675, Revised Statutes, the trial court must not ignore, either in the reception of evidence or the giving of instructions, the provision of section 8678; and if it does, and then enters judgment for treble the damage, it will be error. Holliday v. Jackson, 21 Mo. App. 660; Austin v. Coal & Mining Co., 72 Mo. 585, 547; Schmidt v. Densmore, 42 Mo. 225; Lindell v. Railroad, 86 Mo. 545.

— Hon. N. M. Shelton, Judge. (1) The objection to the introduction of any evidence should have been sustained, for the reason that plaintiff admits in his petition that he had been using the car for about four weeks and knew its defects (if any there were). He pleads his inexperience, but that will not excuse him.

<p>1. Negligence: CONTRIBUTORY NEGLIGENCE: JURY QUESTION. The question of contributory negligence is usually for the jury unless the facts are clear and indisputable and free from conflicts.</p> <p>2. ---: -: RAILROAD CROSSING: EVIDENCE: PHYSICAL PACTS. Where the physical facts and the lay of the ground clearly contradict plaintiff’s evidence as to his looking and listening, they should govern, but otherwise the question is for the jury.</p> <p>3. Evidence: WHISTLING AT CROSSING: ORDINANCE: CONTRIBUTORY NEGLIGENCE. The plaintiff, injured by a train at a street crossing, may testify that* no whistle was sounded, though there was no ordinance or statute requiring whistling. It constitutes part of the res gestae and bears on the question of contributory negligence.</p> <p>4. -: SPEED OP TRAIN: EXPERT: RES GESTAE. A plaintiff who was injured at a crossing may testify to the speed of the train as a part of the res gestae without being an expert.</p> <p>5. Personal Injury: MEASURE OF DAMAGES: ELEMENTS OF: INSTRUCTION. An instruction on the measure of damages properly mentioned the bodily pain and mental anguish, loss of time and expense, without giving to the jury license to add to these any so-called general damages.</p> <p>6. -: DAMAGES: EXCESSIVE. -On the facts of this case a verdict for $2,000 is not excessive.</p>

— Hon. J. M. Wallenbarger, Special Judge. (1) The lease was not a contract for payment of claims against Gilman and Jacobs, but for indemnifying and bolding them harmless, and respondent had no right of action against appellant. State v. Railroad, 125 Mo. 596. (2) There was no promise on the part of appellant to pay this claim.

Louis City Circuit Court. — Hon. Franhlin Ferris, Judge. (1) Appellant did not commit adultery. (2) Adultery is a voluntary act of sexual intercourse by a man and a married woman. 1 Am. and Eng. Ency. of Law, 209. If appellant had intercourse with Morgan (which is not admitted), it was while she was under the influence'of drugs, administered by him, and therefore, the act was not voluntary on her part, and she can not be held responsible for what occurred.

Louis City Circuit Court. — Eon. William Zachritz, Judge, A part or all of the same names may lawfully appear upon two or more tickets as delegates; (a) The right of different persons or political parties to nominate the same candidate or candidates has been established from time immemorial.

<p>Appeal from tbe St. Louis City Circuit' Court. — Hon. Seldon P. Spencer, Judge.</p> <p>(1) The entire arrangement between the garnishee and the attachment creditor, by which the property was temporarily withdrawn from the reach of other creditors, and left in possession of the debtor for his use, was fraudulent in law, and can not stand. R. S. 1889, sec. 5170; Shelley v. Boothe, 73 Mo. 77; Bigelow v. Stringer, 40 Mo. 195. (2) The alleged levy in this case was no actual levy. The only property ostensibly levied on was such as was completely-left in the possession of the attachment defendant, to be used by him while he was in the city, the covinous levy being released as soon as defendant hgd finished his engagement here. Such a levy has been variously held to be either presumptively void or absolutely void. It has never been upheld. Ereeman on Executions, secs. 260, 261; Crocker on Sheriffs, sec. 435; Bond v. Willett, 1 Keyes (N. Y. App.), 386; Bump on Fraud. Convey., sec. 522; Burrows v. Stoddard, 3 Conn. 160; Reed v. Ennis, 4 Abb. Pr. 393; Chancellor v. Phillips, 4 Dali. 213; Tainterv. Williams, 7 Conn. 271, 273; Davidson v. Waldron, 31 111. 120. (3) To secure any legal right to the property of the defendant, as against other creditors, the officer must make an actual levy or seizure. To levy means to 'actually seize and hold such personal property of the debtor as can be sold by order of court. He could not levy on the future possible proceeds of property not even levied on. The “levy can not rest in mere undivulged intention to seize the property.” E. S. 1889,'sec. 539; Douglass v. Orr, 58 Mo. 575; Shaullein v. Erancis, 67 Mo. App. 462. (4) A garnishee who has received the money or goods of the debtor into his hands, pursuant to a fraudulent scheme between the two, is liable to other creditors on writ of garnishment. Lee v. Tabor, 8 Mo. 322; Potter v. Stevens, 40 Mo. 591; Strauss v. Ayers, 34 Mo. App. 248; Doggett v. Eire Ins. Co., 19 Mo. 201; Joseph v. Boldridge, 43 Mo, App. 333.</p> <p>“The right to dispose of one’s own property for an honest purpose is not terminated by indebtedness or insolvency; although such a disposition may, or does, have the effect of hindering or delaying other creditors.” Dougherty v. Cooper, 77 Mo. 528. “An insolvent debtor, or one in failing circumstances, has a right, with an honest view to pay his debts, to convey his property to one or more of his creditors in payment of their debts, and such creditors have the right to take an assignment of the property to secure their claims.” Ames v. Gilmore, 59 Mo. 537; Schroeder v. Bobbitt, 108 Mo. 289; Nelson Dis/t. Co. v. Creath, 45 Mo, App. 169; Larrabee v. Eranklin Bank, 114 Mo. 592. “Such a debtor may transfer all his property to one creditor, and leave the others wholly unpaid.” Cason v. Murray, 15 Mo. 378; State ex rel. v. Distilling Co., 20 Mo. App. 21. And this actual levy and continuous possession existed on Saturday evening when the sheriff’s attempted levy was made. His seizure of the money in the hands of the deputy constable, who was in possession, was a high-handed wrong.</p>

Louis City Circuit Court. — Hon. William Z-achritz, Judge. (1) The materials furnished by the appellant to the de- , fendant, Clark, were not furnished under a contract with the owner of the land upon which the building was erected, nor with a lessee or mortgagor and therefore the appellant was not entitled to a lien on the building, separately from the land.. Planing Mill Oo. v. Christophel, 60 Mo. App. 106; State to ulse Lumber Co. v. Hailey, 71 Mo. App. 200.

Louis City Circuit Court. — Son. Daniel D. Fisher, Judge. (1) Hpon tbe fact of the evidence the judgment in both cases should have been for the plaintiff. The firm of Sehubach’s Ticket Office was a trading copartnership, and as such, its individual members were prima facie, jointly and severally bound by a note given by one of them in the firm name, even though in fraud of the other members, and in the absence of notice.

Louis Oity Circuit Court. — Hon. William, Zachritz, Judge. Although the sheriff of the city of- St. Louis is required by statute to attend the courts trying criminal causes, yet, as no fee is allowed him by statute for such attendance, he is not entitled to compensation therefor from the city. State ex rel. Troll, Sheriff, v. Brown, Auditor, 146 Mo. 401. And, for the same reason, the sheriff is not entitled to compensation for summoning standing juries for said courts.

<p>Appeal from the St. Louis City Circuit Court. — lion. William Zachritz, Judge.</p> <p>The agreement constituted plaintiff and defendant partners. (a) They were jointly interested in the net profits (b) Both contemplated ownership in common in the horses bought and to be bought, (e) They adopted and used a firm name. Macloy v. Ereeman, 48 Mo. 234; Lengle v. Smith, 48 Mo. 276; Plummer v. Erost, 81 Mo. 425; Deyerle v. Henet, 50 App. 541.</p>

Louis City Oircuit Court. — Hon. William Zachritz, Judge. (1) A parol agreement by the grantee of real estate with his grantor to assume and pay off an existing incumbrance thereon is valid and binding upon the grantee, and may be enforced by the holder of such incumbrance, and that such an agreement is not inviolationof tbe statute of frauds. 2 Devlin on Deeds, sec. 1037; Lamb v. Tucker, 42 Iowa, 118; Putney v. Eorham, 27 Wis. 187; Merriman v. Moore, 90 Pa.

<p>1. Trespass on Case: VOLUNTARY UNDERTAKING: BINDING. Appellant wishing to do some excavating on his lot wrote respondent, the owner of an adjoining lot upon which was a building, notifying him to provide lateral support for a portion of the wall of his building, saying that he would leave sufficient earth to protect the other part of the wall. But the amount of earth left proved insufficient along that part of the wall which respondent agreed to protect: Held, that respondent had a right to rely on the promises of appellant though voluntarily given.</p> <p>2. -: PLEADING: NEGLIGENCE. In an action based on the facts showing negligence, if sufficient facts can be gathered from the averments to make out a case, however imperfectly stated, evidence is properly admitted in proof of the averments of the petition.</p> <p>3. -: INSTRUCTION: ERROR: NOT REVERSIBLE. To warrant a reversal of a judgment on account of an erroneous instruction, the error must be prejudicial to appellant.</p>

Louis City Circuit Court. — Hon.' Franklin Ferris, Judge. Plaintiff failed to comply with section 6138 of the Revised Statutes governing practice in justice courts, which provides that “before any process shall be issued in any suit the plaintiff shall file with the justice the instrument sued on, or a statement of the account, or of -the facts constituting the cause of action, upon which the suit is founded.” Olin v. Zeigler, 46 Mo. App. 193; Ins. Co. v. Foster, 56 Mo.

<p>Appeal from the St. Louis City Circuit Court. — Son. Pembrook B. Flitcraft, Judge.</p> <p>(1) The attempted pledge by Ramsey to the bank was a nullity, and conveyed to the bank no right, title, interest or lien of any kind or character as to said shares. Hotel Co. v. Eurniture Co., 73 Mo. App. 135; Carriage Oo. v. Hilbert, 21 Mo. App. 338; Bank v. Wuliekuhler, 19 Kan. 60; Abeles v. Cochran, 22 Kan. 105; see Gill v. Balis, 72 Mo. 121; Bank v. Kennedy, 167 H. S. 362; St. Louis'Rawhide Co. v. Hill, 72 Mo. App. 113. (2) Whether or not a corporation may deal in its own shares is not simply a question between the state and -the corporation or between the corporation and its creditors, but it is a question affecting the validity of the contract itself. Carriage Oo. v. Hilbert, 21 Mo. App. 313; Central Trust Oo. v. Pullman Oo., 139 H. S. 21.</p> <p>(1) No -statute of Missouri has ever prohibited a state bank, such as this one was, from loaning money upon its own stock as security. Such a transaction is neither a purchase -or sale of such stock, and, therefore, the authorities cited by counsel for plaintiff in his brief have no application to the case at bar. Nor can such a transaction be condemned -s injurious to the public interest, as the public really have no concern in it. Cook on Corporations, sec. 311; Lumber Co. v. Poster, 19 Iowa, 25; Rollins v. Wagon Co., 80 Iowa, 380. (2) Nor can such a question be raised in a collateral proceeding such as this one is. Reinhard v. Lead Mining Co., 107 Mo. 616; Granby Mining Co. v. Richards, 95 Mo. 106; Catholic Church v. Tobbein, 82 Mo. 418; Einch v. "Oilman, 105 Mo. 255; Keith and Perry Coal Co. v. Bingham, 97 Mo. 196; Kinealy v. Railroad, 69 Mo. 658. (3) Even if the transaction between the bank and Mr. Ramsey was invalid, still this action can not be maintained. Lindell v. McNair, 4 Mo. 380; Brandon v. Carter, 119 Mo. 572; Landes v. Perkins, 12 Mo. 238.</p>

<p>Appeal from the St. Louis City Circuit Court. — Hon. Jacob Klein,, Judge.</p> <p>(1) The court erred in giving' judgment in favor of A. G-. Tonnies as administrator; the authority of said administrator for the purposes of this action having long since ceased. State v. Rowland, 23 Mo. 95; Garner v. Tucker, 61 Mo. 427; Patterson v. Booth, 103 Mo. 419; Woerner’s, sec. 570. (2) The court erred in assigning said claim in the fourth class of demands, when it should have been assigned to the fifth class. Mullen v. Hecorte, 103 Mo. 639; Harness v. Greeno, Adm., 20 Mo. 316; Gainey v. Sexton, 29 Mo. 449.</p> <p>(1) An administrator or executor takes personal assets of estate, and title is in him until the court ordered them distributed to some one else and he discharged. Church v. Branch, 120 Mo. 247; Rugle v. Webster, 55 Mo. 250; Garner v. Tucker, 61 Mo. 432. (2) In case at bar, administration was still in force, in as much as the administrator of Tonnies had never yet been discharged when the notices were given. 55 Mo. 250; Garner v. Tucker, 61 Mo. 432. (3) Under section 4, chapter 1, Revised Statutes 1889 the judgments could not have been assigned any other class except the fourth.</p>

<p>Assault and Battery; MEASURE OE DAMAGES: INSTRUCTIONS: ACTUAL DAMAGES. The following instructions, in a case of assault and battery held to properly state the law upon measure of damages: “If you find for the plaintiff, you will allow her such damages as seem to you to be right and proper under all the facts and circumstances. In estimating the damages you have a right to consider the bodily and mental pain, if any, endured by plaintiff resulting directly from defendant’s wrongful act” “You may also take into consideration the probable future injury, if any, that you may believe will result to her from defendant’s wrongful act” “You may also consider the injuries to her feelings, if any, which you may believe she suffered by reason of any insult or indignity inflicted upon her person by the defendant in connection with the assault complained of. These damages are known as actual damages.”</p>

Louis City Circuit Court. — Hon. Daniel D. Fisher, Judge. This being a proceeding for equitable relief, the plaintiff can not recover at all, because he does not come in the tribunal with clean hands. This is a proceeding asking equitable relief. The controversy is between partners, and, primarily one partner can not bring suit at law against his co-partner. The co-partnership relation is only to be considered in a court of equity.

<p>1. Contract, Construction of; SPECIFIED SERVICES: CONSIDERATION: APPORTIONABLE CONTRACT: COMPENSATION. A deep rooted principle of common law is that when parties have entered into a contract by which the amount to be performed by one and the consideration to be paid by the other are made certain and fixed, the contract can not be apportioned. But where the services to be performed are specified and fixed, but the consideration to be paid is left to he implied by law, the contract may be apportionable, provided the nature of the contract is such that the accrual of the benefits go along and keep pace with the performance and are not dependent upon a completion of the contract in its entirety.</p> <p>2. -: .-: -. Where benefits accrue as they did in fhis case as the work progresses, it may be Well presumed that the parties contemplated remuneration should be paid from time to time during the progress of construction; especially may this presumption be indulged in view of the fact that the contract provided for monthly payments to the contractor on estimates to be made by respondent.</p> <p>3. Construction of Contract: PRESUMPTION. In the ease at bar, it is held that the contract is apportionable, and that the suit is not prematurely brought.</p> <p>4.-: INSTRUCTION. Instruction in the case at bar examined and held to properly submit the sole question of fact to the jury.</p> <p>5. Practice, Appellate: ERRONEOUS INSTRUCTIONS. Where, on the whole record the judgment is for the right party it should be affirmed notwithstanding the giving of erroneous instructions, which in the opinion of the appellate court did not materially affect the merits or prejudice the appellant.</p>

<p>Appeal from the St. Louis City Circuit Court. — Hon. Pembroólc B. Flitcraft, Judge.</p> <p>(1) The garnishee having treated the deposit as belonging to Brooks (and having paid it to him since the garnishment), can not set up an outstanding, right in third persons who are not parties to this proceeding or claimants of the fund. This may be done by the attaching creditor of the true owner, or by the true owner himself, but not by the' garnishee in the absence of any notice of claim and assertion of right by such true owner. Citizens Bank v. Alexander, 120 Pa. St. 476, 484; Bank v. Mason, 95 Pa. St. 118, following and affirming Jackson v. Bank, 10 Pa. St. 62, which was also followed and affirmed in McAllister v. Commonwealth, 30 Pa. St. 536; Patterson v. Bank, 130 Pa. St. 431; Bates v. Stanton, 1 Duer. 85. (2) The fund was prima facie the money of Brooks. When the garnishment was served the bank should have retained the fund and answered, setting up the claim of third parties, if any, and calling on them to assert their claim. Having failed to do this, the fund is conclusively presumed to be the money ^of Brooks. Gregg v. Bank, 80 Mo. 251; Proctor v. Greene, 14 R. L 42; Boatman’s Bank v. Overall, 16 Mo. App. 513; s. c., 90 Mo. 510; Wimer v. Pritchett, 16 Mo. 252; Jackson v. Bank, 10 Pa. St. 62; McAllister v. Commonwealth, 30 Pa. St. 536; Drake on Attachment, see. 491; 3 Am. and Eng. Ency. of Law; [new Ed.], page 831; Egbert v. Payne, 99 Pa. St. 239, 244; Swarbout v. Bank, 5 Denio, 555.</p> <p>(1) Money deposited in a bank payable to the order of B, agent, raises the prima facie presumption that the money does not belong to B personally, but that he holds it for some party or principal. Gregg v. Bank, 80 Mo. 256; Jones v. Bank, 42 Pa. St. 533; s. c., 44 Pa. St. 253; Bank v. Ryan, 64 Pa. St. 338; Bundy, Receiver, v. Town of Monticello, 84 Ind. 119; Pannell v. Hurley, 2 Collier’s Reports, 241; Dailey v. Pinch, Y Q. B. Law Reports, 34; Yan Allen v. Bank, 52 N. Y. 1; Shaw v. Spencer, 100 Mass. 382; Bank v. Conn. Mut. Life Ins. Co., 104 U. S. 54; Des Moines Cotton Mill Go. v. Cooper, 93 Iowa 654; 1 Perry on Trusts [4 Ed.], sec. 86, p. Y5. (2) 2 Daniels on Neg. Ins. [3 Ed.], sec. 1612a, reads: “If a deposit be made in bank to the credit of a certain person as agent or trustee, the use of such terms has charged the bank with notice that the funds were there in a fiduciary relation; it would have no lien on them for the private debts of the depositor, and if it permitted them to be used for his private purposes in transactions with the bank, it would be bound.” Gregg v. Bank, 80 Mo. 252.</p>

Louis City Circuit Court. — Hon. William Zachriiz, Judge. (1) The verdict was against the law. As will be seen by an examination of the record, the alleged “contract” or order was never filed or sued upon. The tabulated statement of figures filed is not sufficient to constitute a cause of action. Sections 2088, 6138, 6139, G-. S.; Rosenberg v. Boyd, 14 Mo. App. 429; Swartz v. Nicholson, 65 Mo. 508; Morrow v. Sturver, 97 Mo. 161; Nutter v. Houston, 32 Mo.

Louis City Circuit Court. — Hon. William Zachritz, Judge. (1) The allowance of the lower court is unreasonable. The evidence, on which the court in this, as in other cases, must act, all shows that the services rendered by the attorneys were worth far more than the amount allowed. LeBrun v. Boulanger, 56 Mo. App. 41; Mullinix v. Catron, 2 Mo. App. 341; State v. Grabell, 69 Mo. App. 536.

— Hon. D. P. Stratton, J udge. (1) Respondent's suggestion is that appellant ought not to be allowed for printing the abstract because it was not an abstract of the entire record. As it was it contained 224 pages. The testimony of some sixty witnesses was very much abbreviated. Enough appeared to warrant this court in reversing the judgment and remanding the cause.

— lion. D. W. Shacldeford, Judge. (1) The trial court erred in excluding the testimony of the witness, Frank Henderson, offered by defendant to show that the general reputation of plaintiff for chastity and morality was bad. Evidence in mitigation of damages is admissible under the general denial. Boggess v. Railway, 118 Mo. 328, 338; Gregory y. Chambers, 78 Mo. 291; Kniffin y. McConnell, 30 N. Y. 285; Beck v. Dowell, 10 Mo. App. 71.

— Hon. D. W. Bhachelford, J udge. (1) Does a writ of error lie from the order granting a new -trial or must it be by appeal ? If this court or the supreme court have passed upon this first question directly, we are net aware of it, hut -it has construed a similar statute, to wit, section 2253, of the Revised Statutes 1889, and the reason in thlat case well applies here. Eing v. Bailway, 112 Mo. 220.

— Hon. D. W. Shackleford, Judge. (1) The verdict was against the weight of the evidence and against the law under the evidence.

— Hon. D. W. Shackleford, Judge. (1) The notice of the appeal was acknowledged by plaintiffs attorneys, who filed the statement or complaint for plaintiff with the justice. This notice of appeal, with acknowledgment of service of notice by plaintiff’s ¡attorneys, wias a full compliance with section 6342, Revised Statutes after which, plaintiff was in court for all purposes. Litigants are bound by the action of their attorneys of record.

— Hon. D. W Shackleford, Judge. (1) Mandamus was the proper remedy in this case to compel the county clerk to recognize the limits of 'the old district. State ex. rel. v. Byers, 67 Mo. 706; State ex rel. v. Riley, 85 Mo. 156; State ex rel. v. Grimshaw, 5 W. Rep. 427.

— Hon. D. W. Shackleford, Judge. (1) There was no authority of the probate court to proceed further after the defendant had testified under oath in the probate court in answer to the complaint and affidavit, and especially after interrogatories had been filed, and answers to interrogatories filed, said notes showing on their face that she was entitled to the possession of said motes as her sole and separate property.

— Hon. Bichard Field, Judge. (1) The court erred in refusing to give the declaration of law prayed for by the defendant.

<p>Appellate Practice: ABSTEACT: MOTION POE NEW TEIAL. The motion for a new trial must show the ruling of the trial court relied upon to reverse the judgment, and the abstract must set out the motion for a new trial before the appellate court will review such ruling.</p>

<p>1. Real Estate Broker: DUAL AGENCY: COMMISSIONS. A real estate broker, who without the consent of the parties represents both vendor and vendee, can not recover commissions for the sale.</p> <p>2. -: --: JURY QUESTION: INSTRUCTION: APPELLATE PRACTICE. Whether the broker is the agent of both parties is a question for the jury, and when submitted on proper instruction and evidence the appellate court can not disturb the verdict.</p> <p>3. -: AMOUNT OP COMMISSIONS: JURY QUESTION: INSTRUCTION. Where the question of the amount of the broker’s commissions is submitted to the jury on proper instruction, the finding is conclusive.</p>

— Hon. W. W. Wood, J udge. (1) The allowance provided for in section 107 of Revised Statutes 1889, is not “dower” but is in the nature of au exemption. Dobson’s Adm’r v. Butler, 17 Mo. 88; Weindel Adm’r v. Weindel, 126 Mo. 610. (2) The exemption laws can not be invoked in favor of nonresidents. Steele v. Leonori, 28 Mo. App. 675; Stotesbury v. Kirtland, 35 Mo. App. 159.

— Hon. J. D. Perhins, Judge. (1) It is elementary that the evidence must correspond with the allegations, and be confined >to the point in issue. 1 Greenl. on Ev. [6 Ed.], sec. 50, p. 68; 1 Jones on Ev., sec. 136, p. 283; Haynes v. Christian, 30 Mo. App. 198; Eddy v. Baldwin, 32 Mo. 369; Greene v. Gallagher, 35 Mo. 226. (2) The issue in this ease was whether defendant had exercised ordinary care to provide plaintiff a reasonably safe place to work.

— Hon. H. 0. Timmonds, Judge. (1) The proper remedy for a party refused reinstatement in a corporation to which he is rightfully entitled, is mandamus. Lysaght v. St. Louis, etc., Ass’n, 55 Mo. App. 538. (2) A party can not sue upon one cause of action and recover upon another; he must recover, if at all, upon the theory presented in his petition. Wright v. Eonda, 44 Mo. App. 634; O’Brien v, Loomis, 43 Mo. App. 29; Price v. Railway, 40 Mo. App. 189; Mason v. Railway, 75 Mo.

— Son. J. S. Lay, Judge. (1) A judgment of a justice of the peace is not a lien on real estate owned by the defendant until a -transcript is filed in the office of the clerk of the circuit court of the county in which the land is located. R. S. 1889, sec. 6287. The deed of J. M. Rogers and wife to the other plaintiffs was recorded October 14, 1896. Tbe transcripts of the judgments webe filed long thereafter, to wit: March 19, 1897.

— Hon. J. H. Lay, Judge. (1)Failure to file plans and specifications by the city engineer does not invalidate the tax bill. Sheehan v. Owen, 82 Mo. 458; Marionville to use v. Henson, 65 Mo. App. 397; (2) Ordinance number 284 contained the plans 'and specifications. This was sufficient. Sheehan v. Owen, 82 Mo. 458. (3) The tax bill made a prima facie case. Session Acts 1895, p. 85, see. 92.

— Son. J. S. Slover, Judge. (1) The contract read in evidence was a joint contract, and the right of action thereon was joint. There .are no words in the contract of severance to produce a severed right. The right of action being joint, one party to it suing alone was not entitled to recover. 1 Parsons on Contracts [5 Ed.], p.ll; Henry v. Mt. Pleasant Township of Bates County, 70 Mo. 500; Ryan v. Riddle, 78 Mo. 522, 523; Churchill v. Rammers, 60 Mo.

J. W. Henry. Judge. (1) Bank checks axe negotiable instruments subject to the same rules which govern ordinary bills of exchange. Grate City v. Bank, 126 Mo. 82; Famous, etc., v. Cro'sswhite, 124 Mo. 34; Burns v. Kahn, 47 Mo. App. 215. (2) A check is presumed to have been given for value. Newcomb v. Jones, 37 Mo. App.- 475.

— Hon. B. W. Shackleford, Judge. (1) The court erred in refusing to permit defendant (on plaintiff’s cross examination as a witness) to show, that shortly after his dismissal from defendant’s service it offered to take him back for the additional two weeks claimed by him. This was competent in mitigation of damages. Bigelow v. Powder, 39 Hun. 599; Mitchell v. Tóale, 27 S. 0. 238.

<p>Error to the Cole Circuit Court. — Hon. D. W. Shackleford, Judge.</p> <p>(1) If there was no judgment the writ of error should be dismissed. Spears v. Bond, Y9 Mo. 46Y; Berry v. Zimmerman, 43 Mo. 215; Robinson v. Morgan Oo., 32 Mo. 428; Palmer v. Crane, 8 Mo. 619; Sater v. Hunt, 61 Mo. App. 228..</p>

— Hon. Richard Field, Judge. (1) Executors and administrators shall not be compelled to make distribution or pay legacies until one year after the date of the letters, unless the legacies specified would be perishable or subject to injury if retained one year. R. S. 1889, secs. 237, 238; Way v. Priest, 13 Mo. App. 555; s. c., 87 Mo. 180; Powell v. Palmer, 45 Mo. App. 243.

— Eon. Richard Field,, Judge. (1) A check is designed for immediate payment. St. John v. Homans, 8 Mo. 382. The law does not permit any extension of the risk of the drawer by a series of transfers. Tiedeman on Com. Paper, see. 443. It was the duty of the St. Joseph bank to send the paper to the place where the drawee bank was located for presentment. Dan. on Neg. Inst. [4 Ed.], sec. 15-92; Tiedeman on Com. Paper, sec. 443; Boone on Banking, sec. 173.

— Son. W. W. Wood, Judge. (1) If Wilson owes for five month’s rent he owes it to objector, whose tenant he became upon the death of H. J. Ruthrauff. She, as his landlord, as owner of the rent, has right of action against him for it, as her tenant, and the estate of Ruthrauff does not own it and could not sue for it. In re Est. of Stuart, 67 Mo. App. 61; Shouse v. Krusor, 24 Mo. App. 279, and cases cited. The law determines the jurisdiction, not the parties.

Original Habeas Corpus. (1) The court had jurisdiction in habeas corpus. Constitution of the state of Missouri, see. 12, art. 6; Act of March, 1883, sec. 4; Session Laws 1885, p. 215; R. S. 1889, chap. 78, sec. 5346. In court of record. In re McDonald, 19 Mo. App. 390; R. S. 1889, chap. 78, sec. 5415, as to the custody of children. (2) The action of any former court does not and can not be reviewed by this court. In re Laura Doyle, 16 Mo. App. 159.

— Hon. W. K. James, Judge. (1) An assignment of wages before the assignor has entered into 'any contract under wihch he hopes to earn them, is too vague and uncertain to be sustained; is against public policy, and is void as against attaching creditors. Eagan v. Luby, 133 Mass. 543; Herbert v. Bronson, .125 Mass. 475; Mullhall v. Quin, 1 Cray 105; Hartley v. Tapley, 2 Cray 565; Edward y. Peterson, 80 Me. 367; Rood on Camishment, sec. 73; Railroad Oo. v. Woodring, 116 Pa.

— Hon. W. W.-Wood, Judge. (1) This action is maintainable without final settlement having been made. State ex rel. v. Roeper, 9 Mo. App. 21; State ex rel. v. Miller, 44 Mo. App. 122; Clarke v. Sinks, 144 Mo. 448. (2) The annual settlements of defendant, Elliott, with the probate court have not the effect of judgments; and all errors found therein may be corrected at the final settlement, or in an action on the bond where no final settlement has been made.

— Ron. D. W. Bhachleford, Judge. (1) It is not tbe law'of tbis particular ease tbat if tbe judge below deemed tbe verdict against tbe weight of tbe evidence, it was witbin bis discretion to set it aside and grant a new trial, and tbat sucb action of tbe court below will not be disturbed unless judicial discretion was abused. Here tbe verdict was for tbe plaintiff.

— Hon. D. W. Shackleford, Judge. (1) The rule of damages which allows the difference between the actual rental value of leased premises and the rent reserved, applies exclusively to actions for the breach of lease contracts. This is self-evident. 3 Sedgwick on Damages [8 Ed.], sec. 1022, p. 211; 1 Sedgwick on Damages [8 Ed.], sec. 185, p. 269. (2) Such rule is therefore inapplicable to this case.

— Mon. Samuel' Davis, Judge. (1) This suit can not be maintained on the ground that a landlord has an action against one who purchases the crops raised on the leased premises with notice of the existence of the landlord’s lien. The case at bar does not come within the principle announced in Dawson v. Coffey, 48 Mo. App. 109, and the others of like character. The statute of limitations of five years would clearly bar such an action.

— Hon. E. P. Gates, Judge. (1) Tbe court erred in excluding defendant’s medical expert witnesses from tbe court room during tbe trial of the case. Our contention in this case is that the court’s discretion was abused. So far as can be discovered from the decisions of this state, the question as to whether experts should be excluded from the court room has never been passed upon. Brown v. State, 3 Tex. Grim.

— Hon. H. P. Gates, Judge. (1) This case must be reversed for the reason 'that Judge Gates had no jurisdiction to try it. Special Judge Carkener retained exclusive jurisdiction over the case, after he was elected. Bank v. Graham, 147 Mo. 250; 1 R. S. 1889, p. 828; Crossland v. Admire, 149 Mo. 655. (2) This is an •action for conversion, and not a question of accident, intent or guilty knowledge.

— Son. E. P. Oates, Judge. (1) Plaintiff’s pleadings admit that he failed to comply with the conditions of the contract requiring him to keep books, showing his purchases and sales, and to1 keep the same in a safe place, secure from' fire, which might destroy the building. There is no evidence whatever that there was any waiver of that condition.

— Hon. Edward L. Scarritt, Judge. . (1) While the question of damages in a personal injury-case is peculiarly one for a jury to decide, yet the jury can not give any amount they please. The verdict in this case was excessive in the opinion of the trial court to the amount of $350, and is still excessive. Weinberg v. Railway, 139 Mo. 286; Eranklin v. Eishe-r, 51 M-o. App. 345; Chitty v. Railroad, 49 S. W. Rep. 868; Haynes v. Trenton, 108 Mo. 123; Eairgrieve v. Moberly, 39 Mo.

— Hon. Edward L. \ Bcarritt, Judge. (1) We contend that the evidence does not substantiate the finding of the trial court that the Texas court had jurisdiction over the person of the defendant. Waddell v. Williams, 50 Mo. 216; Henry v. Bell, 75 Mo. 194, 199; Knapp, Stout & Co. v. Standley, 45 Mo-. App. 268. (2) There is no question that this court is authorized to pass upon the jurisdiction of the Texas court.

— Son. J. S. Slover, Judge. (1) The court erred in refusing to give instructions for defendant. Murphy v. Dott, 42 How. Prac. 31; 1 Am. and Eng. Ency. of Law [1 Ed.], 786; Gray v. McDonald, 28 Mo. App. 488; Nichols v. Winfrey, 79 Mo. 548. (2) The court erred in giving instructions for plaintiff. Morgan v. Durfee, 69 Mo. 476; Brownbach v. Erailey, 78 111. App. 262; State v. Palmer, 88 Mo. 572; Burke v. Melvin, 45 Conn. 243; Prentiss v. Shaw, 56 Maine, 427.

— Hon. J. H. Slover, Judge. (1) There was no valid claim of exemption from levy of this Burnham judgment by plaintiff, appellee Day. Held: can not be done. Gregor v. Carlson, 67 Mo. App. 179.

— Hon. J. H. Blover, Judge. (1) Possession by the defendant, either in person or by servant, licensee or agent, at the time of commencement of the action is essential to the maintenance of this action. Orrick v. Schools, 32 Mo. 315; DeGraw v. Prior, 53 Mo. 313; Armstrong v. Hendrick, 67 Mo. 542. (2) Plaintiff having testified that Greene was in possession and had been so for months prior to the commencement of the action, can not recover in this action against defendant.

— Hon. J. H. Slover, Judge. (1) The law presumes that all general employments like that of defendants by plaintiff as plaintiff’s insurance brokers are at will, and the burden of proving an employment for a definite period rests upon him who alleges it. Mechem . on Agency, sec. 210. (2) The fact of an agency may not only be proven by parol testimony, but also, as in this case, by the acts of the parties from time to time.

— Hon. George F. Longan, Judge. (1) Plaintiff’s instruction numbered 3 was erroneous and at war with the law fixing the liability of agisters: The law which governs in this case is: The defendants made out a -prima facie case of negligence by proving a delivery of the cattle in good condition and failure of plaintiff to redeliver on demand. Rayl v.'Kreilich, 74 Mo. App. 246; Casey v. Donovan, 75 Mo. App. 665; Hadley v. Orchard, 77 Mo. App. 141; Oasey v. Donovan, 65 Mo.

— Hon. G. F. Longan, Judge. (1) The fact that the defendant had paid the costs of improving the street in front of his property and his proportion of the cross street east of him does not relieve him from paying his share of the costs of improving the intersection of the street lying west of his property. The legislature had the power to amend the charter and change the methods of imposing the benefits of the work.

— lion. George F, Longan, Judge. (1) Plaintiff’s instructions numbered One, four and five, submitted to the jury a different cause of action from th.e one pleaded. Meriwether v. Cable Co., 45 Mo. App. 528; Ohitty v. Railway, 148 Mo. 64; Mason v. Railroad, 75 Mo. App. 1; Bartley v. Railway, 148 Mo. 139.

— Hon. D. P. Stratton, Judge. (1) The evidence in case at bar shows that plaintiff was subjected by her husband to a long catalogue of indignities which were well calculated to render her condition intolerable. Such treatment entitles the wife to a divorce. Tripp v. Tripp, 78 Mo. App. 413. (2) Divorce is a legal right and where the facts which entitle a plaintiff to it exist, as they do in this case, the courts have no discretion to deny it. Deschodt v. Deschodt, 59 Mo.

— Hon. D. P. Stratton, Judge. (1) If the word “willful” is used in this statute to’ convey its usual signification then its signification is “with a bad motive or purpose.” State ex inf. v. Equitable Loan and Investment Co., 142 Mo. 338. The word “willful” must be restricted to such acts as are done with an unlawful intent, and implies tort, wrong; it implies legal malice; that the act was done with evil intent, or without reasonable grounds to believe the act was lawful.

— Hon. D. P. Stratton, Judge. (1) There are no allegations in the petition proven that entitle plaintiff to equitable relief. All the testimony conceded the partnership was dissolved more than ten years before the filing of the petition. On plaintiff’s own testimony a settlement and accounting was had about the time of the dissolution of the partnership. There being but one item, suit at law was proper remedy. Equity will not lie.

— Hon. H. G. Timmonds, Judge. (1) Where the evidence, together with the admissions of a party to the record, admit of but one reasonable conclusion, it is the duty of the trial court to peremptorily instruct the jury. And the action of the trial court in so refusing will be reviewed on appeal. Janis v. Roentgen et al., 52 Mo. App. 114; Bank v. Gardner 57 Mo. App. 268.

— Hon. J. M. Hull, Judge. (1) The defendants’ theory of this case is that if their hogs escaped from their hog pasture and trespassed on plaintiff’s premises it must have been by reason of the bad condition of that portion of this agreed partition fence between plaintiff’s potato patch and defendants’ hog pasture. If defendants’ hogs did trespass as claimed by plaintiff they must necessarily have gone through this fence somewhere.

— Hon. H. G. Timmonds, Judge. (1) Suits by attachment must be brought in the county where the property of defendant is found. R. S. 1889, sec. 2010. (2) YHien property of the defendant has been attached in the county where suit is brought, other writs may then be sent to other counties; but not until then-.

— Hon. J. D. Perlcins, Judge. (1) The delivery by plaintiff of his indemnity claim and release, and the payment made him therefor, by defendant, were in compromise and settlement of all the former’s claims for injuries growing out of the accident to him, and bar this action. Hinkle v. Railroad, 31 Minn. 434; 18 N. W. Rep. 275; Retzer v. Packing Co., 58 Mo. App. 264; Homuth v. Railroad, 129 Mo. 629; Updegrave v. Railroad, 7 L. R. A. (Pa.) 213.

— Hon. J. D. Perkins, Judge. (1)The instruction complained of was not based upon the pleadings. Instructions should limit the issues to those made bv the pleadings. Gessley v. Railway, 26 Mo. App. 156; McMurry v. Martin, 26 Mo. App. 437; State v. Sitlington, 51 Mo. App. 252; Scott v. Allenbaugh, 50 Mo. App. 130. (2) There can be no evidence on which to base an instruction, if such evidence overthrows the pleadings of the party who introduces it.

— Hon. J. D. Perkins, * Judge. (1) The plaintiffs being tbe lessees of the owner in possession had no adequate remedy at law, and could resort to a court of equity. High on Inj. [3 Ed.], sec. 702; Wilson v. Mineral Point, 39 Wis. 160; Wren v. Walsh, 57 Wis. 98; Johnson v. Rochester, 13 Hun. 285; Newaygo v. Railway, 61 Mich. 111.

— Hon. J. D. Perhins, J udge. (1) The construction to be given the contracts was a matter for the court and manifest error was committed in submitting the question to the jury. Chapman v. Railway, 114 Mo. 542; Michael v. Ins. Co., 17 Mo.' App. 23. (2) The contract sued on described no property, shows on its face that it was only a memoranda and was not signed by the plaintiff.

— lion. J. D. Perhins, Judge. (1) Instructions number one and two given by the court aTe erroneous, because the defendant relied on an express warranty that the machine would bind and do good work, and the implied warranty that the machine was fit for the use for which it was sold was merged in said express warranty. Pavement Co. v. Smith, 17 Mo. App. 261; Lee v. Saddlery Co., 38 Mo. App. 201.

— Hon. J. D. Perkins, Judge. - (1) When a cause of action once accrues it can not be discharged except by actual release. Chapman v. Railway, 146 Mo. 481. A release is an act or writing by which some claim or interest is surrendered to another person. Beach on Modern Oontr., sec. 456.

— Hon. A. M. Woodson, Judge. (1) A surplus which arises after the death of the mortgagor belongs to and is recoverable solely by the heir. Whether it will be treated as personalty or realty, depends upon whether it accrued in the lifetime or after the death of the mortgagor.

Original Proceeding in Contempt. (1) An appeal of a proceeding in prohibition, under the statute of 1895, page 95, carries the entire case with all its orders, rules and judgments to the appellate court for review. An appeal is a continuation of the same case and transfers the entire case to the appellate court without any power of the trial court over the matter except such orders as are necessary to complete its records.

<p>Appeal from the Jackson Circuit Court. — Hon. John W. Henry, Judge.</p>

Henry, Judge. —Hon. Jóhn. W. (1) “It is needless to cite authorities that this bond, although voluntary and not authorized by any statute, is good as a common law bond. All bonds, though voluntary, if they do not contravene public policy, nor violate any statute, are valid and binding on the parties to them.” Barnes v. Webster, 16 Mo. 265.

— Hon. B. L. Scarritt, Judge. (1) Defendant’s demurrer should have been sustained, and at the close of the testimony in the case the court should have declared the law in defendant’s favor on the first count of the petition. This case is on all fours with the recent decision of this court in Ashford v. Ins. Go., 2. Mo. App. Rep. 766; 80 Mo. App. 638; 19 Am. and Eng. Ency. of Law, p. 565; Keener v. Grand Lodge, 38 Mo. App. 550.