Volume 84 — Missouri Appeal Reports

Louis City Circuit Court.—Hon. P embrocie B. Flitcraft, Judge. (1) The city of St. Louis has express charter power to establish a general sewer system, to construct sewers, and to regulate the use of the same. Charter, art. 6, sees. 20-23; art. 3, sec. 26, par. 2. And also implied power. Dillon’s Mun. Corp. [4 Ed.], sec. 805. (2) Having constructed its sewers the city may impose any reasonable terms and conditions upon which private citizens may use the same. Dillon’s Mun.

—Son. J. L. Fort, Judge. (1) Relators have no legal capacity to maintain the action, nor are they proper or necessary parties thereto. We have no statute in the state prescribing a rule of practice in cases of this sort; hence, must look for precedents to the common law authorities.

Louis City Circuit Court.—lion. Horatio B. Wood, Judge. (1) In the circumstances of this case the plaintiff was employed by the school board,- and is entitled to be paid the reasonable value of his services. Holmes v. Board of Trade, 81 Mo. 142; Thompson v. School District, 71 Mo. 495; Page v. Township, 59 Mo. 264; Board of Education v. Greenebaum, 39 HI. 610; Abbot v. School District, 7 Maine, 118; Langdon v. Town, 30 Yt. 284; Selma v. Mullen, 46 Ala. 411.

Louis City Circuit Court.—Eon. James Withrow, Judge. (1) Plaintiff’s petition fails to state a cause of action. The allegation of residence is not sufficient to give the court jurisdiction. Daniel Collins v. Etta Collins, 58 Mo. App. 470; R. S. 1-889, sec. 4503. (2) The rule of law is that when the appellate court becomes possessed of a cause by appeal, the jurisdiction depends on the jurisdiction of the trial court.

—Hon. Henry Olay Pepper, Judge. (1) The courts have no power to adjudge a city ordinance void, as being unreasonable, where the same is passed in pursuance of a legislative grant of power, authorized by the Constitution. Dillon, Mun. Cor. (4 Ed.), secs. 328, 54, 65; Beach, Pub. Coa’., secs. 80, 30, 397, 403; Kansas City v. Trieb, 76 Mo. App. 478; Dreyfus v. Lonergan, 73 Mo.

Writ of error to the St. Louis City Circuit Oourt.—Hon. Horatio B. Wood, Judge.

<p>Error from tbe Stoddard Circuit Court.—Hon. James L. Fort, Judge.</p>

Louis Oity Circuit Court.—Hon. Daniel D. Fisher, Judge. (.1) Tbe appeal in tbe attachment suit operated as a supersedeas. Laws of 1891, p. 45. (2) It was tbe duty of defendant, as sheriff, to protect claimant in bis exemption right. State v. Barada, 57 Mo. 567; State v. Barnett, 96 Mo. 140; State v. Bierwirth, 47 Mo. App. 553; Eisenberg v. Paulus, 70 Mo. App. 438.

—Son. Alonzo D. Burnes, Judge. (1) There was no substantial evidence to support the plaintiff’s cause of action, and the court erred after all the evidence was in, in refusing to direct a verdict for the defendant as it requested. Ilewitt v. Steele, 136 Mo. 327; Long v. Moon, 107 Mo. 3'34; Avery v. Fitzgerald, 94 Mo. 207.

Error from the Boone Circuit Court.—Eon. J. A. Hochaday, Judge. (1) Since the petition disclosed that the plaintiff was a foreign corporation engaged in business in this state, it was fatally defective in failing to allege a state of facts showing its right to carry on business-here. Laws of 1891, p. 75; Blevins v. Eairley, 71 Mo. App. 259.

—Hon. Gallatin Craig, Judge. (1) The information was not in its nature private. It was a statement of a fact of a public character well known to numerous other parties. Hence it did not come within either the spirit or the letter of the rule. Schaaf v. Fries, 77 Mo. App. 34-6; Deuser v. Walkup, 43 Mo. App. 625; Tyler v. Hall, 106 Mo. 313; Deuser v. Hamilton, 52 Mo. App. 394.

—Hon. J. A. Hochaday, Judge. (1) The court was correct in sustaining the defendants’ demurrer to the evidence. There was no testimony tending to prove plaintiff’s case. The plaintiff wholly failed to substantiate the allegations of fraud contained in its petition. (2) While fraud may be proved by circumstances, and express and positive proof is not required, yet mere suspicion leading to uncertain results is not sufficient to establish it.

<p>1. Railroads: KILLING STOCK: FENCING TRACK: CONTRIBUTORY NEGLIGENCE. If an animal is hurt at a point on a railway track where the same is required to he fenced and it has not been fenced, the company is liable regardless of the fault of the owner; but it is otherwise if the accident happens where the track is not required to be fenced.</p> <p>2. -:-: STATION GROUND: JURY QUESTION. Whether an animal was killed in the station grounds and where it was unsafe to maintain cattle-guards or within reasonable switch limits, are questions for the jury.</p> <p>3. -: -: -: DEMURRER TO THE EVIDENCE. If it be conceded that an animal is struck where the railroad company is not required to fence, the question of contributory negligence may be raised by demurrer to the evidence; but where that fact is controverted the demurrer is properly refused.</p> <p>4. -: —-: CATTLE-GUARDS: JURY QUESTION. Whether a railroad company could have safely constructed cattle-guards at a given point is controverted in the evidence, the court can not by peremptory instruction take the question from the jury.</p> <p>5. -: -: EVIDENCE: TOWN PLAT. Where railroad tracks do not intersect the streets of an adjoining town, the plat of such town is not admissible in evidence in an action for killing stock by reason of a failure to fence.</p>

<p>Appeal from tlie Macon Circuit Court.—lion. Nat M. Shelton, Judge.</p> <p>(1) Fraud is a question for the jury. Frankenthal v. Goldstein, 4-4 Mo. App. 189; Potter v. McDowell, 31 Mo. 62; Ross v. Crutsinger, 7 Mo. 245; Middleton & Riley v. Iioff, 15 Mo. 415 ; Owens v. Rector, 44 Mo. 389; Irwin v. Wells, 1 Mo. 9; Mathews v. Loth, 45 Mo. App. 459; Crawford v. Greenleaf, 48 Mo. App. 597; State to use v. Mason, 112 Mo. 374. (2) The question of good intent or of fraud of the interpleader, is a question for the jury and the court should not have withdrawn this case from the jury. Erankenthal v. Goldstein, 44 Mo. App. 189; Ross v. Crutsinger, 7 Mo. 245. (3) When an inference of fraud may be drawn from all the facts and circumstances of a transaction, the question of fraud should be submitted to the jury. The State to use v. Mason, 112 Mo. 374. (4) A sale, though made by a vendor with a fraudulent intent, will not be declared void unless the vendee had actual notice and knowledge of such intent and the knowledge of facts which, if investigated and followed, would lead to knowledge of fraud, is insufficient. State to use v. Mason, 112 Mo. 374. (5) After interpleader, Prickett’s, showing his open, notorious and visible possession the plaintiff had no just ground of complaint unless it was proven that the defendants, Vails, in selling such goods to Prickett intended thereby to defraud, hinder or delay their creditors, and that interpleader Prickett had knowledge of such fraudulent intention on the part of Vails at the time he purchased the goods. Dry Goods Oo. v. Schooley, 66 Mo. App. 417; Arnholt v. Hartwig, 73 Mo. 488; Bank v. Worthington, 145 Mo. 91.</p> <p>(1) The interpleader admitted in his testimony: (a) That he knew the Vails were heavily indebted, (b) Knew they were being sued, (c) Knew judgments aggregating $300 would be rendered against them on January 7, the day after he took possession or claimed to have bought on the sixth of January. (d) Knew they were insolvent and in a failing condition at the time, and for a long time before he bought them out, and that they were selling their entire property, (e) Knew that the draft for the claim against them in suit had been presented and not paid, (f) Admitted that he was not a creditor of the Yails at the time of the alleged purchase. Although the court did not do so, under the pleadings and the evidence its duty was to direct a verdict for the plaintiff if the case had been submitted to the jury. Seger & Son v. Thomas, 107 Mo. 635, and cases cited. (2) No final judgment has been rendered in this case and an appeal will not lie. E. S. 1889, sec. 2246; State v. Sutterfield, 54 Mo. 391; State ex rel. v. Horner, 16 Mo. App. 191; State ex rel. v. Woodson, 128 Mo. 497; Hobart v. McNamara, 13 Mo. App. 578. (3) The record shows that the interpleader appealed from a voluntary nonsuit. The interpleader prevented the court committing the very error of which he complains by taking a voluntary nonsuit. Moore v. Eailroad, 146 Mo. 572; Koger v. Hayes, 57 Mo. 329; Poe v. Dominic, 46 Mo. 113; McClure v. Campbell, 148 Mo. 96. (4) When the plaintiff takes a voluntary nonsuit he abandons his action and from the judgment entered upon it no appeal will lie. Chouteau v. Eowse, 90 Mo. 191; Kirby v. Burns, 45 Mo. 234. (5) It is not for the respondent to show that the court did not commit error, but for the appellant to show that it did. This court can not say, even if the lower court had actually given a peremptory instruction, which it did not, that in doing so the court below committed error, unless the appellant makes it appear in his abstract. This can only be done by printing all the evidence. Appellant’s abstract don’t purport to do this, and the appellate court will not say the peremptory instruction was not justified, even if one had been given. Christopher v. White, 42 Mo. App. 428; Bensberg v. Turk, 40 Mo. App. 227; Mc-Oarroll v. Kansas City, 64 Mo. App. 283; Costello v. Eesler, 80 Mo. App. 107; Grocery Co. v. May, 80 Mo. App. 300.</p>

—Son. J. P. Butlery Judge. (1) The measure of damages, in this state, for breach of the covenants contained in an ordinary warranty deed, when the covenantee extinguishes the outstanding paramount title, is the amount reasonable and necessarily paid for said outstanding title with interest and legal costs. Mathney v. Stewart, 108 Mo. 73, 79; Hutchins v. Roundtree, 77 Mo. 500, 508; Dickson v. Desire’s Adm’r, 23 Mo. 157, 167; Hall v. Bray, 51 Mo. 2'88.

—Hon. John P. Butler, Judge. (1) In an action by the daughter to recover from the deceased father’s estate for services rendered the father, the burden is upon the plaintiff to overcome the presumption that the services were gratuitous kindness. There must be substantial evidence of such a contract between the parties as the law could enforce. Woods v. Land, 30 Mo. App, 176; Koch v. Hebei, 32 Mo. App. 103; Brock v. Cox, 38 Mo. App. 40; Renter v. Roberts, 51 Mo.

—Hon. John P. Butler, Judge. (1) An action can not be maintained under section 2611 of tbe Revised Statutes of Missouri for tbe harness destroyed; and, as the verdict and judgment bélow was for a lump sum, it can not now be separated from the remainder of the claim nor from the residue of the verdict nor judgment. (2) The defendant is not subject to the provisions of section 2611 of the Revised Statutes of Missouri. Daniels v. Railway, 62 Mo. 43!

—Hon. J. A. Hochadaijj Judge. (1) The evidence does not sustain the verdict. (2) The court committed error in giving instruction number 1 for plaintiff. This instruction declares his right to give his wife this property, that he did give it to her and that such gift is binding on the heirs, executors and legatees.

—Son. A. M. Woodson, Judge. (1) The court erred in giving instruction number 1 for plaintiff. 1 Am. and Eng. Ency. of Law [2 Ed.], p. 967; Thompson on Trials, secs. 1368-70, and cases cited. (2) The court erred in refusing to give instructions, A, E and E, asked for by garnishee. Kean v. Bartholow, 4 Mo. App. 50S, 509; Swallow v. Duncan, 18 Mo. App. 630; Shanklin ex reh v. Erancis, 67 Mo. App. 461; Fletcher v. Wear, 81 Mo. 529; Eussell v. Major, 29 Mo.

—Hon. A. D. Burnes, Judge. (1) .By act of congress, the western boundary of the state of Missouri was fixed at the middle of the .channel of the Missouri river; and so the middle of the channel of the river as it ran continuously up to 1881 before the sudden change was the boundary line in 1881. Cooley v. Golden, 52 Mo. App. 229. And by statute the western boundary of Platte county was the “middle of the main channel of the Missouri river” as it then ran.

—Hon. Nat. M. Shelton, Judge. (1) The defendant being a town mutual insurance company, is exempt from the provisions of R. S. 1889, ch. 89, including the valued policy law, and had the right to demand plans and specifications, not only of the machinery damaged and destroyed, but of the two buildings as well. Warren v. Ins. Co., 72 Mo. App. 188.

—Ron. Gallatin Craig, Judge. (1) Section 7993, as amended (Session Acts 1897, pp. 229, 230), was in force when this debt accrued. This proviso, by expressing the classes of children who are not required to pay tuition, excludes all other classes. This section has been strengthened as against defendant’s contention since. Binde v. Klinge, 30 Mo. App. 285.

—Hon. John A. Hochaday, Judge. (1) The demurrer to the evidence should have been sustained. Plaintiff knew the danger that he was incurring and assumed the risk. Nelson v. Railroad, 68 Mo. 593; Price v. Railway, 72 Mo. 418; Richmond v. Railway, 49 Mo. App. 107; Jackson v. Railway, 29 Mo. App. 499; Weber v. Railway, 100 Mo. 202; Murphy v. Railway, 43'Mo. App. 351.

—Hon. J. H. Slover, Judge. (1) Tbe provision of tbe charter (art. IX, sec. 23), requiring objections to be filed to installment tax bills is valid legislation, and a failure by tbe property owner to comply with it is a waiver of all objections to tbe validity of tbe bills.

—Ron. P. B. D earing, Judge. (1) The court erred in overruling the objection made by defendants to the introduction of any evidence under the bill. Andrews v. Lynch, 27 Mo. 167; ECatten v. Bandall, 48 Mo. App. 203. (2) The failure to state the items or to give the particulars concerning the unsettled accounts, would make a petition at law demurrable. In a bill in equity a perfect and complete defense must be stated.

<p>Constitutional Question. Where the record presents to this court a constitutional question, the cause will be transferred to supreme court.</p>

Louis City Circuit Court.—Hon. Horatio D. Wood, Judge. (1) The only question to be determined by this court is, whether or not there was a valid consideration for the extension of the original note for $1,400. If there was no valid consideration of such extension, the respondent is liable for the balance due on his note. If there was a valid consideration for such extension, he is not liable. The point here involved has been fully discussed and settled in this state.

Louis County Circuit Court.—Hon. Rudolph Hirzel, Judge. (1) Plaintiffs are not entitled to maintain this action against defendant, Skinker, because there is no privity of contract. Eriemuth v. Rupp, 8 Mo. App. 568; Zweigardt, v. Birdseye, 57 Mo. App. 462; Roddy v. Railway, 104 Mo. 234-244; Laidlou v. Hatch, 75 111. 11; Rossman v. Townsend, 17 Wis. 95.

—Hon. Leigh B. Woodside, Judge. (1) Under the authority of the case of Johnson v. Latta, 84 Mo. 139, it is the duty of this court to fully review the action of the circuit court in this kind of a proceeding, whether the objections thereto are fully set forth in a motion for new trial or not. Bruce v. Yogel, 38 Mo. 100; Slagel v. Murdock, 65 Mo. 522.

Louis City Circuit Court.—Son. ■ Franldin Ferris, Judge. (1) A member of a voluntary benevolent association may, at any time, and under any circumstances, withdraw therefrom, without the consent of the association. Such resignation takes effect at once, and no action on the part of the society is necessary. Borgraefe v. Knights of Honor, 26 Mo. App. 224; Ellerbe v. Barney, 119 Mo. 632; Stewart v. Supreme Council, A. L. H., 36 Mo. App. 332; Bacon on Ben. Soc.

—Hon. Reuben F. Roy, Judge. (1) The admission of the testimony of J. W. Austin as to the $70 receipt given by J. W. Austin to J. D. Evans was improper and irrelevant and should not have been admitted by the court over the objection of appellant, as it was clearly a self-serving declaration (see pages 17, 38 and 34 of record and brief), and clearly error, and prejudicial to the appellant. State v. Sutton, 64 Mo. 107; McLean v. Eutherford, 8 Mo. 1Q9; Am. & Eng. Ency.

—Hon. Elliott 'M. Hughes, Judge. (1) The verdict or finding of the court is contrary to the weight of the testimony. Upon the testimony as a whole it is evident that the defendant is not a guilty party and the plaintiff is not an injured and innocent party in the causes which led to the separation .between the plaintiff and the defendant and in the separation itself.

Louis City Circuit Court.—Hon. James B. Withrowj Judge. (1) The sole defense tendered by the evidence of defendant in this case is that the note sued upon was at maturity renewed; that at its maturity plaintiff’s decedent accepted from defendant a renewal note in discharge thereof. This defense is tendered by the evidence of a single witness, James IF. Bullard.

Louis City Circuit Court.-—lion. Pembrooh B. Plilcrafl, Judge. The refusal of the court to give to the jury instruction number 3, requested by the defendant, was error. This error was not remedied by any other instruction given by the court. The instruction should have been given.

—lion. William N. Evans, Judge. (1) The court erred in overruling defendant’s objection to tbe question as to tbe reputation of Mary Brown for chastity. Greenleaf on Evidence, sec. 461. (2) Tbe verdict was against tbe evidence and the weight of tbe evidence and against tbe instructions given by tbe court, because tbe evidence showed that Westfall, prior to bis death, was in tbe habit of periodically getting drunk, and that be came to bis death because of alcoholic poison.

—Son. James Tilford Neville, Judge. (1) The answer of defendants to the petition in this cause, set up payment, as defense; and the weight of the evidence shows that the only claim of payment is that usury had been charged by plaintiff on all the notes executed to plaintiff by defendants, and that applying the usury so paid to the payment of the note in question that the note would thereby be “legally” paid.

Louis City Circuit Court.—lion. William Zachvitz, Judge. (1) Plaintiff alleges that defendant caused an execution in his favor against one Knickmeier to be levied on corporate stock which was pledged to plaintiff. This was no trespass.

—Hon. Edwin B. McKee, Judge. Defendant’s absence at the time plaintiff brought the suit was clearly such, as under the statute, gave plaintiff the right to institute his suit against defendant by attachment, in order to collect his debt. Temple v. Cochran, 13 Mo. 119; Emgsland v. Worsham, 15 Mo. Ml; Chariton County v. Moberly, 59 Mo. 238; Paddock-Hawley Co. y. Graham, 48 Mo. App. 638; Waples on Attachment, pages 32, 44, 45, 46.

Louis City Circuit Oourt.—Hon. Pembrooh. B. Fliteraft, Judge. (1) A person can not be compelled to pay another for services rendered or work done without request or assent expressed or implied. Mansur v. Murphy, 49 Mo. App. 267; Heimenz v. Georger, 51 Mo. App. 589. (2) A person dealing with an agent is bound to ascertain the nature and extent of his authority, and must act with ordinary prudence and reasonable diligence.

Louis City Circuit Court.—Hon. Franklin Ferns, Judge. (1) As the injunction was dissolved in the circuit court, and was not reinstated by this appeal, no damages can be assessed upon this bond for the services of counsel in the appellate courts. Neiser v. Thomas, 46 Mo. App. 47; Teasdale v. Jones, 40 Mo. App. 243. (2) Damages must be limited to the services reasonably necessary to procure the dissolution of the injunction. Anderson v. Anderson, 55 Mo.

<p>Trustee of Bankrupt Estate: ACTION BY TRUSTEE AGAINST A PREFERRED CREDITOR. The judgment in this ease is reversed and remanded on the authority of the ease of George Pepperdine, Trustee, etc. v. National Exchange Bank (see opinion in that ease page 237 of this volume).</p>

—Hon. James Tilford Neville, Judge. (1) Section 60 of the bankrupt act provides: “A person shall be deemed to have given a preference if, being insolvent, he has made a transfer of any of his property, and the effect of the enforcement of such transfer will be to enable any one of his creditors to obtain a greater percentage of his debt than any other of such creditors of the same class.” (2) “If a bankrupt shall have given a preference within four months before the filing…

—lion. James ■ Tilford Neville, Judge. (1) The court erred in refusing the declaration of law-asked at the close of the evidence, declaring that plaintiff was not entitled to recover, and erred in rendering a judgment for plaintiff for the reason that plaintiff having assigned his policy to Taylor, and the loss having been adjusted and paid to Taylor, and Taylor, the- assignee, having receipted for said loss in full, and surrendered the policy to defendant, the plaintiff was…

—Hon. Elliott M. Hughes, Judge. (1) Tbe whole case would seem to turn on tbe question as to whether or not tbe appeal by tbe plaintiff from tbe judgment in the case on its merits took up tbe whole case for a trial anew in tbe circuit court, so as to enable tbe defendant to file his plea in abatement in that court and try an issue in the circuit court, which was never presented in the justice’s court, and on which a judgment had been rendered in the justice’s court, and which…

<p>1. Chattel Mortgage: FRAUD: TITLE TO PROPERTY: CONSIDERATION. If a mortgage is in fact given without consideration, or if it is contrived to hinder or delay creditors, then in contemplation of law the title to the goods mortgaged does not pass by the mortgage.</p> <p>2. -:■ -: -: CONSTRUCTIVE FRAUD. The principle that even though a mortgage is tainted with fraud in the first instance, it may be cured by the mortgagee taking possession of goods under it, is applicable only when a chattel mortgage is constructively fraudulent, that is, where the mortgagor is left in possession of the goods with the understanding that he might sell them for his own benefit!</p> <p>3. -: -: -. And it can not be applied where the mortgagee holds the possession of the goods under a mortgage which is found to be actually fraudulent, that is, where it was executed as in the ease at bar, for the express purpose of cheating or defrauding the creditors of the mortgagor.</p>

—Hon. James J>. Fox, Judge. The injunction bond being payable to four joint obligees, viz.: Wm. Paar, mayor, the board of aldermen, the city of Jackson, and Wm. Wood, we say: (1) There can be no assessment of damages in favor of Wm.

—Hon. Henry Clay Pepper, Judge. (1) It was error in the court, over the objections of plaintiff, to allow defendant Hughlett to state that the president of plaintiff bank promised to release defendants from their liability on the notes if they would procure a chattel mortgage from Stockstill, when there had been no testimony introduced tending to show that said president had authority to make such a promise.

— Hon. F. F. Burrough, Judge. -■ - (1) The term fraud, as understood in the statutes concerning fraudulent conveyances, has the same meaning in the attachment law,- and it is not necessary to show that the act originated in any design to commit fraud. ' In other words it is determined by its legal effect and the intention with which it is done cuts no figure. Reed v. Pelliteer, 28 Mo. 173; Bullene v. Barrett, 87 Mo. 185; Smith v. Ham, 51 Mo.

Louis City Circuit Court.—lion. Pembroolc B. Flitcraft, Judge. (1) Tbe intention tbat tbe money should be divided •between tbe widow and surviving children is not in accordance with tbe purpose of tbe association, or tbe probable object of the applicant, and is not shown by tbe language of tbe designation. Addison v. Commercial Travelers’ Ass’n, 144 Mass. 591; s. c., 12 N. E. Rep. 401; Hall v. Hall, 140 Mass. 261.

<p>1. Prohibition: DEBTOR AND CREDITOR: SPLITTING CAUSES OP ACTION. Prohibition was employed by plaintiff to prohibit justice of the peace Pollard from proceeding further to hear and determine three suits instituted before him by Joseph Pranklin, Jr., on three accounts, obtained by splitting one running account into three parts, after the justice had refused to dismiss the suits of plaintiff on his motion alleging a want of jurisdiction in the justice to hear and decide them.</p> <p>2. -: -: -: ADEQUATE REMEDY: ERROR: JUDICIAL ACTION. Prohibition can not be resorted to when the party has an adequate remedy at law by appeal, nor can it be used to correct mere error in judicial action.</p>

<p>Appeal from the St. Louis City Circuit Court.—Hon. Daniel D. Fisher, Judge.</p> <p>(1) Where a director of a corporation is elected one of its officers for a yearly term, and his compensation is fixed by a resolution of the board of directors at a certain amount per week or per month, there is in effect an engagement by the corporation to pay the officer at that rate for a year, or at least until such resolution is by the board rescinded. Hassenfus v. Philadelphia P. & E. Co., 15 Pa. C. C., Rep. 650; Rosborough v. Shasta River Canal Co., 22 Cal. 556; See Bennett v. St. L. Car Roofing Co., 23 Mo. App. 587. (2) Even to consider the appellant’s position with the respondent to be merely that of a salesman at a monthly salary, yet he was never discharged, and it appearing that during his illness business relations were constantly kept up between respondent and appellant, it must be held that appellant has a right to recover the balance claimed by him. Cuckson v. Stone, 1 El. and El. 248. (3) The appellant should have been allowed to show any sales made by respondent as to which appellant was the producing cause. Tyler v. Parr, 52 Mo. 249. (4) The appellant should have been allowed to show that the sales made by and through himself were by their amount a full performance of his duties with the respondent as salesman, regardless of the time when such sales Avere made, or whether they were done by him directly or indirectly. In fact the burden of proof was upon the respondent to show that appellant’s services were not a full performance of his duties to respondent. Jaffray v. King, 34 Md. 217. (5) The respondent can not deprive appellant of his salary from April 16th until August 1st, because respondent took no action to discontinue appellant’s employment. O’Leary v. City of N. Y., 93 N. Y. 1; Devlin v. City of N. Y., 41 Hun. 281. (6) The appellant should have been allowed to show that attorney for respondent had admitted in the trial before the justice that respondent’s salesman, Carger, had represented to appellant’s customers that their orders to him would be for appellant’s benefit. Tierney v. Hannon’s Executor, 81 Mo. App. 488; Lord v. Biglow, 124 Mass. 185; Greenl. on Evid., sec. 186, and note b.</p> <p>(1) The mere election of a corporate officer for a year gives him no vested right to enjoy a compensation during the entire year*, where the resolution fixed the compensation on a weekly basis. Bennett v. Roofing Co., 23 Mo. App. 587. (2) An independent hiring at a stipulated sum per year, month, week or day, is a hiring at will and can be terminated by either party at the expiration of any year, month, week or day. Boogher v. Life Ins. Co., 8 Mo. App. 533; Finger v. Brewing Co., 13 Mo. App. 310; Rose v. Carbonating Co., 60 Mo. App. 28. (3) An officer of a corporation is not entitled to pay for services rendered the corporation in the absence of any agreement made with the board of directors to compensate him. Land Imp.Co.v.Webster,75 Mo.App.463; Remmers v. Seky, 70 Mo. App. 364; Pfeiffer v. Lansberg Co., 44 Mo. App. 59; Besch v. Carriage Co., 19 Mo. App. 349. Officers of a corporation can not vote for a resolution to fix their own salaries as officers of the company. Ward v. Davidson, 89 Mo. 445; Hax v. Mill Co., 39 Mo. App. 453; Mill Co. v. Bennett, 39 Mo. App. 460; Besch v. Carriage Qo., 36 Mo. App. 333; Hill v. Mining Co., 119 Mo. 59.</p>

—Hon. Elliott M. Hughes, Judge. (1) Erisner surrendered possession under the judgment of eviction and the paramount title held by Belle Simpson and Oommelia Woodson. The judgment in favor of Belle Simpson and Oommelia Woodson for possession was sufficient without actual eviction. Walker v. Deaver, 19 Mo. *6(54; Wheelock v. Oversheimer, 110 Mo. 100; Snell v. Harrison, 131 Mo. 495; Home Insurance Oo. v. Sherman, 46 N. Y. 310.

—Son. J. D. Perlcins, Judge. Respondent’s instruction on the measure of damages is erroneous in assuming physical injuries were inflicted and bodily and mental anguish endured. An instruction so worded was condemned as erroneous in Plummer v. Milan, 10 Mo. App. 599.

—Hon. O. A. Anthony, Judge. (1) Plaintiff in error earnestly contends that under tbe circumstances disclosed by tbe evidence of plaintiffs on the trial of the cause, he was a competent witness in his own behalf, that he is fully under the exception set forth in section 8918, E. S. 1889. Miller v. Wilson, 126 Mo. 48; Orr v. Eode, 101 Mo. 387; Bank v. Payne, 111 Mo. 298; Williams y. Edwards, 94 Mo. 447; Stanton v. Eyan, 41 Mo. 510; Eoeder v. Shryock, 61 Mo.

—Hon. R. R. Culver, Judge. (1) The contract sued upon was only a contract of indemnity against damages, and no right of action had accrued therein at the time of institution of this suit. 2 Sedgwick on Damages [8 Ed.], secs, 791, 792, 793; 2 Sutherland on Damages [Ed. 3884], p. 602; Borum v. Reed, 73 Mo. 461; Wicker v. Hoppock, 73 IT.

—Hon. William 8. Herndon, Judge. The evidence clearly proves that the defendant is the proprietor of a drug store under chapter’ 58, Revised Statutes 1889. If so, he should have been indicted under the druggist act, and not as a common merchant under chapter 111, Revised Statutes 1889, p. 1617. All druggists must have a merchant’s license. State v. Piper, 41 Mo. App. 160; State v. Rafter, 62 Mo. App. 101; State v. Goff, 66 Mo. App. 491; State v. McAnally, 66 Mo.

<p>Municipal Corporations: RAILROADS: VESTED RIGHTS: REGULATION : DIGGING IN STREETS. A company secured a franchise from the county court, to lay and operate a railroad on a highway. A city extended its limits and took in the highway. Held: The railway company retained all its vested rights to operate and do the necessary digging in the highway, but such rights were subject to reasonable municipal regulations, and a railway employee would be amenable to the city for digging in the highway without compliance with such regulations. Adhered to on motion for rehearing.</p>

<p>Appeal from the Harrison Circuit Court.—lion. P. G. Stepp, Judge.</p> <p>(1) The court erred in overruling plaintiff’s motion to reinstate said cause on the docket and to set aside the judgment against plaintiff therein, because of the irregularities appearing upon the face of the records. Hirsh v. Weisberger, 44 Mo. App. 506; Burgess v. Hitt, 21 Mo. App. 315; Craig v. Smith, 65 Mo. 536; Childs v. Railway, 117 Mo. 424. (2) The record proper consists of the petition, summons and all subsequent proceedings, including the verdict and judgment.. These the appellate court will examine and if error is apparent on the face of these proceedings, the judgment will be reversed, whether exceptions were taken or not. Nicol & Go. 7. Hvre & Co., 58 Mo. App. 134; Bateson v. Clark, 37 Mo. 31. (3) The judgment is erroneous, the plaintiff having dismissed his cause of action before any answer or motion was filed and after the demurrer to his petition had been sustained, there was nothing before the court as shown by the record and the judgment was erroneous. The plaintiff shall be allowed to dismiss his suit or to take a nonsuit at any time before the same is finally submitted to the jury, or to the court sitting as a jury, or to the court, and not afterwards. R. S. 1889, sec. 2084; Eink v. Bruihl, 47 Mo. 175; Wood v. Nortman, 85 Mo. 298; Wilson v. Stark, 42 Mo. App. 376; Mayer v. Old, 51 Mo. App. 214, 217 loe. cit.</p> <p>(1) The judgment was regularly reached in accordance with established rules of procedure, and can not be reversed by such a motion interposed at a subsequent term. State ex rel. Ozark Co. v. Tate, 109. Mo. 271. (2) The court had full power and authority to set aside the judgment and allow defendant the $150 alimony during the January term, 1899, of the court, dowser v. Noland, 72 Mo. App. 219; Waters v. Waters, 49 Mo. 385; Adams v. Adams, 49 Mo. App. 597, and 598.</p>

—Hon. J. A. Tloclcaclay, Judge. (1) Marriage is a civil contract,,to which the consent of parties capable in law of contracting is essential. R. S. 1889, sec. G840 (R. S. 1899, sec. 4311).

—Hon. James Gibson, Judge. (1) The verdict was directly opposed to the instructions given for defendant. These instructions fully covered ■ the case as stated in tlie petition. Straus v. Railroad, 75 Mo. 185-191; s. c., 86 Mo. 121; Swigert v. Railroad, 75 Mo. 475 ; Olotwortliy v. Railroad, 80 Mo. 220-221; Hurt v. Railroad. 91 Mo. 255-263; Yarnell v. Railroad, 113 Mo. 570; Hanks v. Railroad, 60 Mo. App. 271-281; Deming v. Railroad, 80 Mo. App. 152-156.

—Hon. James Gibson, Judge. (1) The court erred in admitting, over defendant’s objection, evidence concerning the sufferings of plaintiff’s wife. (Rec., pp. 16, 32 and 33.) The wife’s suffering was compensated for in her suit, and had nothing to do with the husband’s case. All he was entitled to recover was what he had expended, and compensation for his loss of that which he was entitled to.

—Hon. John W. Henry, Judge. (1) The undisputed physical facts show that there could have been no lack of light, and physical facts must control. Spohn v. Eailroad, 87 Mo. 71; Nugent v. Milling Co., 331 Mo. 211; Gurley v. Eailroad, 104 Mo. 211; Watson v. Goal Co., 52 Mo. App. 366; Kelsay v. Eailroad, 129 Mo. 376. (2) Failure to provide rules was not the proximate cause of plaintiff’s injury.

—Hon. B. P. Oates, Judge. (1) The court erred in giving plaintiff’s first instruction. It authorizes a recovery no matter how slow the train was moving. Defendant has a lawful right to put a trespasser off a slowly moving train, and to use all force necessary to do so. Eailroad v. Mitchell, 56 Kan. 324. (2) It does not submit to the jury the question of fact as to whether the brakeman was employed or directed by defendant to remove trespassers from its freight trains.

<p>1. Injunction: INSOLVENCY: IRREPARABLE DAMAGE: ADEQUATE REMEDY. Where the defendant is solvent and the injury not irreparable injunction will not lie; still if the legal remedy is inadequate and the mischief irreparable, injunction will lie whether the defendant is solvent or insolvent.</p> <p>2. -—: CONTRACT TO REFRAIN FROM PRACTICING MEDICINE : ADEQUATE REMEDY. When a physician who, has sold his practice and good-will to another practitioner with a covenant to refrain from the pursuit of his profession within a given county, again opens hi's office and resumes his practice, he may be enjoined without alleging his insolvency or averring or proving the wrong irreparable.</p> <p>3. Contracts: PHYSICIAN’S COVENANT NOT TO PRACTICE: RESTRAINT OF TRADE: PLACES: TIME. The covenant of a physician to refrain from practicing medicine within the county is valid and not in restraint of trade, since the restraint is not greater than the protection required and is not injurious to the public’s interest and the failure to limit the time in which the covenant is to be operative will not vitiate it.</p> <p>4. Appellate and Trial Practice: EVIDENCE: MOTION FOR NEW TRIAL. Where the trial court’s attention is not called in the , motion for a new trial to the admission of improper evidence there can be no complaint in the appellate court.</p>

—Son. J. A. Sockaday, Judge. (1) Defendant earnestly contends that there is no substantial evidence on which the jury could base their verdict. The order given by defendant called for a style “J” piano and the evidence is uncontradicted that the piano delivered to the defendant was a style “E Mahogany.” (2) The order in this case was for a piano, to be warranted as per catalogue.

—Hon. E. P. Oates, Judge.' (1) The case was not triable at the October term, 1898. The appeal was not “allowed ten days before the first day of the October term” as required by section 6311, Revised Statutes. The construction prescribed by section 6570, Revised Statutes, fourth sub-division, enforces this count. The court has no discretionary power. 26 Am. and Eng. Ency. of Law, pp. 3 to 5, and notes, especially nóte 1, page 5. Knapp v. Skeele, 31 Mo. 131.

<p>1. Agistment: LIENS: INSTRUCTIONS: EVIDENCE. A lien for pasturing stock must be based on a contract, expressed or implied, and in the absence of evidence showing such contract there is no authority to submit the theory of a lien to the jury.</p>

—Mon. A. M. Woodson, Judge. (1) We contend that, taking the whole testimony of the garnishee, there was no evidence upon which the court could find that the National Manufacturing Company was indebted to him for services rendered. The compensation of an officer of a corporation, who is also a director, must be fixed by corporate action, a record of which should be made upon the books of the corporation. Besch v. Carriage Co., 36 Mo. App. 333.

—lion. W. K. James, Judge. (1) The petition in this case states a cause of action, because, upon a valid contract, a municipal corporation is liable in the same manner and to the same extent as an individual. And where it prevents the performance of a contract, it is liable for damages resulting therefrom. Chambers v. City of St. Joseph, 33 Mo. App. 536; Murray v. Kansas City, 47 Mo.

<p>Appeal from the Cole circuit Court.—Hon. T. B. Robinson, Judge.</p> <p>(1) The fact that she was in possession of this property on which the crop was raised or grown gave her no right to it, unless she by her own means and labor produced it. A tres- , passer can not farm out land of the owner and claim the products of his wrongdoing. When appellant purchased this land he bought everything standing and growing on it, and if defendant, Eveler, was living on this land as a trespasser, or without title or right, and even if she could have claimed the'products of'the ground against the rightful owner, still she could not claim the labor of her co-defendant, who produced the crop, and when he surrendered his claim and interest to appellant, appellant became lawfully entitled to it. Reid v. Swan, 138 Mo. 100. (2) There never was such a set of instructions given as the court gave in this case —conflicting, contradictory abstract propositions of law. Defendant’s instructions were really a demurrer to plaintiff’s evidence, and plaintiff’s instructions • also a demurrer to defendant’s defense. (3) The damages assessed by the jury are not supported by any evidence. (4) 'In the case at bar, the corn was standing and growing in the field at the time the suit was brought and unquestionably, under the decisions of the courts of this state, plaintiff had a right to recover, the corn at least. Salmon v. Eewell, 17 Mo. App. 118; McAllister v. Lawler, 32 Mo. App. 91; Reed v. Swan, 133 Mo. Rep. 100, and the numerous authorities there cited. ■</p> <p>(1) Replevin will not lie in favor of owner of land, for crop grown on and severed from the soil by person in actual possession. In case at bar crops were gathered before appellant pretends to have acquired title. McAllister v. Lawler, 32 Mo. App. 91. (2) Plaintiff can not dismiss his suit, and thus avoid the assessment of the value of the property, and damages for its detention, and judgment for the amount so assessed. Collins v. Hough, 26 Mo. 149; Berghoff v. Heclcwolf, 26 Mo. 511; Ranney v. Thomas, 45 Mo. Ill; Blobaum v. Gambs, 56 Mo. 183; Herring v. Corder, 49 Mo. App. 378; "White v. Graves, 68 Mo. 218; "Wooldridge v. Quinn, 49 Mo. 425. (3) If plaintiff takes nonsuit same judgment and damages. Smith v. Winston, 10 Mo. 299. (4) Plaintiff will not be allowed to terminate suit at his own volition where he has taken and detained defendant’s property. . Rhoades v. McNulty, 52 Mo. App. 301. (5) Jury may find value upon sworn statement of plaintiff. Schultz v. Hickman, 27 Mo. App. 21; Hansard v. Reed, 29 Mo. 472; Hohenthal v. "Watson, 28 Mo. 360.</p>

—Eon. Nat M. Shelton, Judge. (1) The evidence as to the absence of signals and the speed of the train was incompetent. Stillson v. Railroad, 67 Mo. 671; Powell v. Railroad, 76 Mo. 80. (2) The peremptory instruction to find for defendant at the close of the plaintiffs evidence, and again at the close of all the evidence, should have been given.

—Eon. W. E. James, Judge. The letter of July 6, 1898, is not an unconditional promise to accept the draft sued on, and plaintiff can not maintain this suit on the draft. The proper remedy was suit for damages for failing to accept the draft. R. S. 1889, sec. 721; Yalle v. Cerre, 36 Mo. 575, loe. cit. 590; Boyce & Henry v. Edwards, 4 Pet.

—Hon. E. J. Broacldus, Judge. (1) Tkc suit must be commenced within thirty days after notice, and proceed with due diligence, in the ordinary course of law to judgment and execution. R. S. 1889, sec. 8344. It was the duty of the justice to issue execution as soon as judgment was rendered, unless he was expressly directed by the party entitled thereto, or his agent or attorney not to do so. R. S. 1889, sec. 6300; Peters v. Linenschmidt, 58 Mo. 467; O’Howell v. Kirk, 41 Mo.

<p>Errors and Appeals: FINAL JUDGMENT: DEMURRER. An appeal or writ of error lies only from a final judgment, and neither will lie from a judgment overruling or sustaining a demurrer.</p>

—Hon. John P. Butler, Judge. (1) The doctrine that entries nunc fro tunc can not be made upon parol testimony, is elemental.

—Hon. J. D. '■iPerhins, Judge. (1) Negligence can not be presumed when nothing is done out of the usual course of business, unless such course is improper. To create a liability there must be some special call for more particular care. An unusual occurrence producing injury, but not even inferentially the result of an unusual act of defendant, who is pursuing his usual coiirse theretofore pursued with safety, is what is called an accident. Guffey v. Railroad, 53 Mo.

—Hon. T. B. Robinson, Judge. (1) The plaintiff being a foreign corporation, it devolved upon it to show that it was authorized to do business in this state. Failing to do so and failing to so allege, a jurisdictional fact, defendant’s objection to the introduction of testimony was well taken. R. S. 1899, secs. 1024, 1025, 1026; Williams v. Scullin, 59 Mo. App. 30; Steam Heating Co. v. Gas Co., 60 Mo.

<p>Appeal from the Jackson Circnit Court.—Son. S. P. Oates, Judge.</p> <p>(1) The court erred in giving plaintiff’s instruction numbered'one. Breen v. Cooperage Co., 50 Mo. App. 202; O’Malley v. Railway, 113 Mo. 329; McDonald v. Glass Co., 9 Mo. App. 577; Elliott v. Railroad, 67 Mo. 272; Covey v. Railroad, 86 Mo. 635; Porter v. Railroad, 71 Mo. 79; Baustian v. Young, 152 Mo. 317; 53 S. W. Rep. 921; Doyle v. Trust Co., 140 Mo. 11; Sullivan v. Railroad, 107 Mo. 66; Bowen v. Railroad, 95 Mo. 276; Flynn v. Bridge Co., 42 Mo. App. 536. (2) The court erred in refusing to give defendant’s instruction number four. Railroad v. Love, 10 Ind. 556; Skipp v. Railroad, 9 Exch. 223; Hayden v. Mfg. Co., 29 Conn. 256; Eugler v. Bothe, 117 Mo. 475; Showalter v. Fairbanks, 60 N. W. Rep. 257; Junior v. Power Co., 127 Mo. 79; Epperson v. Postal Co., 155 Mo. 346; 50 S. W. Rep. 804. (3) The court erred in giving plaintiff’s instruction number two, as modified by the court. Epperson v. Postal Co.., 155 Mo. 346; 50 S. W. Rep. 804; Bailey on Master’s Liability, pp. 181, 182; Doyle v. Trust Co., 140 Mo. 19; Huhn v. Railroad Co., 92 Mo. 440; Soeder v. Railway Co., 100 Mo. 673; Mahaney v. Railway Co., 108 Mo. 201.</p> <p>(1) Where negligence consists in furnishing defective material and in negligent and dangerous construction, the law presumes knowledge on the part of defendant, and plaintiff need not show that it “might have known” of the danger by proper inspection. Especially is this true where the evidence shows actual warning as in this case. Russell v. Columbia, 74 Mo. 480; Sullivan v. Railway, 107 Mo. 66; Erante v. St. Louis, 110 Mo. 516; Whalen v. Church, St. Louis, 62 Mo. 326; Shortel v. St. Joseph, 104 Mo. 114; Hoyle v. Trust Co., 140 Mo. 1; Reber v. Tower, 11 Mo. App. 199; Porter v. Railway, 71 Mo. 66; Bowen v. Railway, 95 Mo. 268; Flynn v. Bridge Co., 42 Mo. App. 529; Higgins v. Railway, 43 Mo. App. 547. (2) Where the construction is proper and safe in the first instance, and becomes defective and-dangerous, then the rule “that the defendant knew or might have known” might be necessary in an instruction. Bowen v. Railway, 95 Mo. 268; Elynn v. Bridge Co., 42 Mo. App. 529; Russell v. Columbia, 74 Mo. 480.</p>

—lion. James Gibson, Judge. (1) The court erred in giving to the jury instruction No. 1, asked for by defendant, and in refusing to give to the jury, at plaintiffs request, instructions numbered 1, 2, 3, 4 and 6. In ordinary cases of breach of contract of sale by the seller, the measure of damages of the buyer is the difference between the contract price and the market value of the goods at the time and place of delivery. 21 Am. and Eng.

—Hon. Argus Gox, Judge. (1) A vendor has a lien against the land conveyed for any part of the purchase price remaining unpaid against the purchaser and subsequent purchasers who have notice of the nonpayment of the purchase price; this lien being an incident of the transaction can be excluded only by facts which show an intention to exclude it, and the vendee has the burden of repelling the presumption of the lien. 2 Jones on Liens, secs. 1064, 1065 and Í083; Major v.…

— Hon. F. H. Burroughs Judge. (1) Appellants insist that the property in controversy was liable to execution in the hands of Van Prank, who bought from the assignee with knowledge that the purchase' price had not been paid by Dunlop, the assignee. (2) Personal property is subject to execution on judgment against the purchaser for the purchase price, except in the hands of an innocent purchaser for value without notice of the existence of such claim. E. S. 1889, sec. 4914.

Louis City Circuit Court.—Hon. Iloratio D. Wood, Judge. (1) The failure of the assignee to pay a dividend to the appellant, within three days after notice so to do served upon him and upon the security on his bond, renders him and his surety liable to a judgment for such an amount of dividend on appellant’s, claim as the evidence disclose the estate in his hands can pay, together with a penalty of five per cent per month from the date of such service, and it was error for…

—Hon. Henry G. Biley, Judge. (1) If for any reason an account contains lienable and nonlienable items, general payments thereon, without indicating to which items or which part of the account they shall apply, will be applied by the court to the nonlienable' or least secure item. And this is the rule in other actions than liens—is a universal rule. Eield v. Holland, 6 Cranch 8-29; 1 Am. Law Oases, 292-296; Poulson v. Collier, 18 Mo. App. 588; Goetz v. Piel, 26 Mo.

<p>Appeal from the Lincoln Circuit Court.—Hon. Elliott Hi. Hughes, Judge.</p> <p>(1) In the interpleader’s petition the allegation is that appellants exhibited to him and demanded payment of what purported to be the note executed by him. In his evidence he says he refused to pay this note because it was not the note he had signed; that the note he signed was in Magruder’s handwriting and the note presented was not. “It imitates my handwriting, but I don’t know whether it is or not. I told him (Martin) I would not pay it because I didn’t believe it was the note I had signed to Mrs. Thomasson.” In his deposition taken after this suit was commenced, when the note held by appellants was presented to him and he was asked if that was the note he had given Mrs. Thomasson, he answered, “No, sir; I think not.”. On the trial of the case he testified that he did not believe when he brought the suit that the'note held by appellants was the note he had given Mrs. Thomasson. (2) From the interpleader’s petition and from all his evidence there can not be found a single admission or statement in which he has recognized any right whatever of appellants to the note he gave to Clementine Thomasson, but on the contrary everything he has said or alleged shows that he repudiates any liability to them. From all that he has said he may still dispute appellants’ claim to the note. A bill of interpleader can not be maintained unless title is admitted in at least two claimants. Story’s Equity, sec. 821; Barker v. Swain, 4 Jones Eq., N. O. 220. Shaw v. Coster, 8 Paige 339. Nor unless he gives color of title or right in each. Robards v. Clayton, 49 Mo. App. 608. (3) There was and is no serious doubt in the mind of the interpleader as to appellants’ right to the note he had given Mrs. Tbomasson. The note they held was not the note he had signed and hence they had no claim to the money. Gleason v. Priest, 29 Mo. App. 1. The interpleader in this case like the interpleader in the case of Christian v. Ins. Co., 62 Mo. App. 35, from start to finish has denied his liability on the note held by appellants, but still asks for an additional allowance.</p> <p>(1) This court will defer to the findings of the trial court unless some cogent reasons exist for a departure from the rule. Mathias v. O’Neil, 94 Mo. 520; Robertson et al. v. Reed et al., 38 Mo. App. 32; Bank v. Koeln, 60 Mo. App. 79. And where all the evidence is preserved, the court will examine it, and affirm, the judgment, if right, disregarding errors, if any, committed at the trial, Estes v. Pry, 94 Mo. 266; Taylor v. Cayce, 97 Mo. 242. (2) The petition is a good bill of interpleader. Sullivan v. Knight & Oo., 73 Mo. App. 43; Robards v. Clayton, 49 Mo. App. 608; Loan Association v. Joy, 56 Mo. App. 433; Glaser v. Priest, 29 Mo. App. 1; Roselle v. Bank, 119 Mo. 87; Story, Equity Pleading (8 Ed.), sec. 291 and note. And if it were true that the bill does not with sufficient exactness show appellants’ possession of the note, it shows apparent possession and their assertion of ownership. This was cured by the failure of appellants to take advantage of the alleged defect in the proper way. Marshall v. Eerguson, 78 Mo. App. 645. It was further cured by the answer which alleges with more exactness than the petition that appellants were in possession of the original Thomasson note and exhibited the same to respondents and claim to be the owners thereof. (3) The indifference which must characterize the attitude of the petitioner in a bill of interpleader lias nothing to do with his sentiments or opinions but relates entirely to his interest in a substantial pecuniary way in the result of the contest between the claimants.</p>

—Hon. Henry G. Riley, Judge. (1) The court erred in instructing the jury to find for the defendant. The cause should have gone to the jury on the evidence.

—Hon. James D. Fox, Judge. (1) The court committed error in refusing to give instruction, in the nature of a demurrer to the evidence, offered at the conclusion of plaintiff’s case, and also upon the close of the whole case. Harris v. Railway, 89 Mo. 233; Smotherman v. Railway, 29 Mo. App. 265; Ferguson v. Railway, 79 Ya. 241; Aspell v. Railway, 23 Pa. St. 147. (2) The court erred in giving instruction number 1, on part of the plaintiff.

.Appeal from the Howell Circuit Court.—Hon. William G. Evans, Judge. (1) The trial court should have granted the change of venue, the application was found to be in due form. Douglas v. White, 134 Mo. 228. (2) Instruction number 2 for respondent is not the correct interpretation of the written contract under the evidence. (3) There is an irreconcilable conflict between the instructions given on the part of plaintiff and those given on part of defendant.

Louis City Circuit Court.—Hon. Horatio D. Wood, Judge. (1) In the absence of an express provision in the mort- , gage deed of trust authorizing it, the allowance of an attorney’s fee was unlawful. The fact that a trustee, with power of sale, refused to sell and thereby rendered the foreclosure suit necessary, does not authorize a decree for the payment of an attorney’s fee.

Charles Circuit Court.—Hon. Elliott M. Hughes, Judge. (1) The value of the goods should be fixed in accordance with the value thereof at the lime of the trial, and if such value has depreciated since taking of the goods, and the goods have been rendered of less value by reason of the acts of the party having possession thereof, such depreciation should be considered in fixing the damages for the taking and detention of the property.

—Hon. Argus Oox, Judge. (1) The fact that Roote was superintendent and had charge of defendant’s mines was no evidence that he had power and authority to open an account in defendant’s name with the Spence bank, nor to overdraw such account after it was opened—no evidence that he was defendant’s agent to borrow money either express or implied. Brosnahan v. Brewing Co., 26 Mo. App. 386; Watson v. Race, 46 Mo. App. 546; Werth v. Ollis, 70 Mo.

<p>Appeal from tbe St. Louis City Circuit -Court.—Son. Pembrooh B. Plitcraft, Judge.</p> <p>(1) If Mr. Cross’ wages were not paid on tbe fifteenth or tbe nineteenth of June, 1894, then be bad a legal right to quit defendant’s employ, no matter what his motives in so doing might have been. Barr v. Oubbage, 52 Mo. 404; Buford v. Keokuk Northern Line Packet Co., 3 Mo. App. 159; Anderson v. Public Schools, 122 Mo. 61; Land and G-ravel Co. v. Commission Co., 138 Mo. 439. If defendant suspended plaintiff for the balance of the season, on June 19, 1894, then by that fact the wages due Mr. Cross up to that time became payable, whether the club was at home or abroad. (2) Under the terms of the contract offered in evidence, defendant had no right to discharge plaintiff, or to fine him for alleged personal abuse or epithets applied to defendant not in the course of his employment. Defendant’s only remedy was an action for slander. Jordan v. Webber Moulding Co., 72 Mo. App. 325. (3) The club was at home on Monday, January 18j and Tuesday, January 19, 1894, and therefore plaintiff’s wages up to and'including June 15, 1894, were payable on those days under the terms of the contract. (4) Where it is apparent from all the evidence that the trial court, sitting as a jury, has found for the wrong party and against all the evidence, an appellate court will not hesitate to reverse such a judgment and award a new trial. Meier v. The Proctor & Gamble Co., 81 Mo. App. 410.</p> <p>(1) As this case was submitted to the circuit court sitting as a jury, and said court found for respondent on the merits, the appellate court will not disturb the finding and judgment of the circuit court on the ground that such judgr ment was against the evidence, or the weight of the evidence. The appellate court, in such case, will assume the facts to be as found by the circuit court. No declarations of law were asked for by either party to the suit, and none were given voluntarily by tbe court; hence there is nothing for the appellate court to pass upon. Hamilton v. Boggess, 63 Mo. 233; Miller v. Breneke, 83 Mo. 163; Rice v. Dudley, 34 Mo. App. 389; Taylor v. Penquite, 35 Mo. App. 403; Warren v. Maloney, 39 Mo. App. 297. (2) Appellant, by failing to demur to the evidence, impliedly admitted the existence of evidence tending to support the finding of the, trial court. James v. Hicks, 76 Mo. App. 108. (3) Appellant having based his action solely upon his written contract with respondent, that contract alone can be looked to in order to determine the rights and obligations of the parties. Railroad v. Snyder, 28 Atl. Rep. 376. Appellant' having declared upon the special written contract, can not abandon that contract and recover upon a quantum meruit. Clarke, Admx. v. Kane, 37 Mo. App. 258. (4) Appellant demanded his money when, by the very terms of his contract with respondent, it was not due, and then, when it was refused him, quitted his employment. The Detroit ball club was not at home when appellant demanded payment of his salary,' and under the contract the same was only payable when the club was at home.</p>

<p>1. Mandamus: EXCISE COMMISSIONER: TO ISSUE DRAMSHOP LICENSE. Proceeding by mandamus to compel excise commissioner, at the end of the first six months, to issue a second license for another six months on a petition containing a bare majority of the property owners with the required bond, license fee, etc., tendered at the time of applying for such renewal license.</p> <p>2. —-:--: RETURN: MOTION FOR WRIT TO BE MADE PEREMPTORY. On this state of the pleadings an issue of law, only is raised which requires the construction of the Dramshop Act (articles 1 and 2, chapter 22, R. 8. 1899), whether granting a second license for a period of six months on a petition good for twelve months constitutes a ministerial or judicial act.</p> <p>3. -: -: -: JUDICIAL DISCRETION. If the Dram-shop Act clothes the commissioner with judicial or discretionary powers, he can not be compelled by the writ of mandamus to issue the license.</p> <p>4. —--: -: -: NOT CONCLUSIVE: NOT RES AD JUDI-CATA. The fact that the commissioner found when the petition was first presented to him that it was sufficient, and the applicant was a man of good moral character, is not conclusive, nor res adjudieata, as the commissioner may, and it is his duty to ascertain, before issuing the second license that applicant is, as when the first license was issued, a man of good moral character, and otherwise qualified as the law demands, and if he is not, refuse to issue to him the license.</p> <p>5. -:--•: -: PETITION FOR DRAMSHOP. The office of the petition is to confer jurisdiction on the commissioner or court to issue license to the applicant, and is good for one year from the date of its filing, but it gives no rights whatever to the applicant for license, nor does it bind the tribunal to which it is' addressed to grant a license.</p> <p>O. -:-:-: LICENSE ISSUED BY COUNTY CLERK. The county clerk may issue license in vacation, but the same must be reported to the county court, and whether issued by the clerk or the court, the act is a judicial one.</p> <p>7. -: ---: -: CONSTRUCTION OF SECTION 3001, R. S. 1S09. Section 3001, Revised Statutes 1899, should be construed so as to harmonize with the other sections of the act, relating to the same subject-matter, and this should be done even though it must be held to be inconsistent with the other sections of the act and nugatory.</p> <p>8. -: -: JURISDICTION TO ISSUE LICENSE: IN COMMISSIONER AND COUNTY COURT, ONLY. Thus construing section 3001, it is .held, that the jurisdiction over the' issuance of licenses to keep a dramshop does at no time pass from the county court or excise commissioner in cities of the class named, and whether it be the first or second license under the petition, the issuance thereof is addressed to the sound discretion of these tribunals, and that discretion is not the subject of control by mandamus.</p>

—Hon. Henry O. Riley, Judge. (1) The court erred in admitting evidence of previous oral agreements as tó pavement of freight. The contract executed in writing between plaintiff and defendants, is tbe only evidence of their agreement.

—Hon. Henry G. Riley, Judge. (1) Eabich’s agreement to remit for all sales at the end of each week, at the invoice price, is plain and unequivocal, and it was error to allow the introduction of extrinsic evidence to vary or modify this agreement. City of Cincinnati v. Gas Co., 41 N. E. Eep. 239; St. Louis Gas Light Co. v. City of St. Louis, 46 Mo. 121; Pearson v. Carson, 69 Mo. 550; Hair Co. v. Walmsley, 32 Mo. App. 118;'George v. Dean, 17 Mo.

<p>1. Habeas Corpus: BY MOTHER FOR CUSTODY OF HER INFANT DAUGHTER. On a full review of all the testimony offered, held that there is no substantial evidence of immorality on the part of the mother, or of any other misconduct unfitting her to enjoy her natural right, of the possession of her child.</p> <p>2. -: --: JUDGMENT OF THE COURT. The judgment of the court is that the child, Willie May Edwards, be discharged from the custody of its grandfather and re-committed to the care and custody of its mother.</p> <p>3. -: -: -: -: CUSTODY OF MOTHER, CONDITIONAL. The mother shall retain the custody of the child subject to the future supervision of this court, which is reserved to it to be exercised for the welfare of the child, as its best interests may require.</p>

<p>Appeal from St. Louis City Circuit Court.—Hon. William Zachriiz, Judge.</p>

Louis City Circuit Court.—Hon. Horatio D. Wood, Judge. (1) The verdict of lien is against the evidence, and respondent should have been nonsuited. The building contract was in writing, signed by Chas. N. Stevens, not by Mrs. Stevens, and there was no evidence that Mrs. Stevens had any agent. Garnett v. Berry, 3 Mo. App. 187; Barker v. Berry, 8 Mo. App. 446; Bauman case, 55 Mo. App. 208; Thompson case, 60 Mo.

—Hon. George F. Long an, Judge. The verdict of the jury is plainly the result of bias and prejudice on their part, and ought to be set aside. Ever since the decision of Landman v. Ingram, 56 Mo. 212, and McConnell v. Brayner, 63 Mo. 464, the acknowledgment of the consideration in a warranty deed has no other or greater effect than a receipt, and is open to contradiction.

—Eon. E. L. Bcarritt, Judge. (1) The petition does not state facts sufficient to constitute a cause of action. It is nowhere stated in the petition that the plaintiff did not know of the condition of the machine at which he was working, and did not know of the danger, if any, incident to its operation. The omission of this element is fatal to a recovery. Griffith v. Dock Co., 12 Q. B. Div. 493; Bagenschutz v. Smith, 84 Ky. 330; Buzzell v, Mfg.

—Hon. Jóhn D. Perkins, Judge. (1) The defendant had the undoubted right to defend his marital rights, and if, in pursuance of this purpose, he was assaulted by plaintiff’s husband, and thereupon shot and killed him, there is no law, natural, human or divine, that condemns him. If, then, Gilfillan could not have recovered if death had not ensued, the plaintiff who stands in his shoes in respect to the damages sought to be recovered, can not.

—Hon. Samuel Davis, Special Judge. (1) There is not a particle of testimony in this record, to the effect that the place kept by defendant was a place where there was buying or selling of stock, bonds, petroleum, provisions, cotton, grain or agricultural products on margins or otherwise without the intention of receiving and paying for the property or of delivering the- property; or that the party buying or selling did not intend to actually receive the same if purchased…

'—lion. Bichard Field, Judge. (1) “The doctrine now is that any taking or assumption of the right to control or dispose of property constitutes a conversion. Any wrongful act which negatives or is inconsistent with the plaintiff’s rights is per se a conversion.” Allen v. McMonagle, 77 Mo. 478; Warnick v. Baker, 42 Mo. App. 439, 442, and list of authorities; Moore v. Simms, 47 Mo. App. 182; Norman v. Horn, 36 Mo.

—Hon. C. A. Anthony, Judge. (1) There is no allegation in the petition that the injuries from which Summers died were incurred by him through external, violent and accidental means; nor are there any facts concerning said injuries alleged from which it can be inferred that the means were external and violent. “An allegation to this effect is essential to support a judgment for plaintiff.” Hester v. Eid. & Cas. Co., 69 Mo. App. loe. cit. 186.

—Hon. Nat. M. Shelton, Judge. (1) Where personal property is sold to a person who takes it'under a fictitious name and gives a chattel mortgage thereon for a part of the purchase price under such fictitious name, without knowledge that the- name was fictitious, and properly records the mortgage such person takes title thereunder and can recover the property from another person to whom the mortgager afterwards sells it under his true name.

—Hon.. O. F. Smith, Special Judge. (1) The agreement (as plaintiff by his first and second instructions concedes) is clearly within the statute of frauds relating to contracts for the sale of goods, wares and merchandise. Pratt v. Miller, 109 Mo. 78.

O. A. Anthony, Judge. Our contention is that plaintiff in error can not be held to pay any part of the indebtedness incurred by Erancis M. Setzer, before Setzer assigned plaintiff in error his interest in the trust estate.

<p>1. Bills and Notes: STRANGER TAKING UP: PURCHASE. When a stranger to a note takes it up from the holder the transaction will be deemed a purchase and not a payment, nothing more appearing.</p> <p>2. Banks and Banking: CASHIER’S AUTHORITY TO SELL: ASSETS: LAW OE 1895: RETROSPECTIVE. Under the law of 1895, the cashier of a bank has no power to sell the bank’s notes until authorized by the directors, and that act applies to notes obtained by the bank before it went into effect and such application is not retrospective.</p> <p>3. -: CONVERSION: PURCHASING NOTE. A party purchasing a note from a bank cashier who has no authority to sell takes no title and is guilty of conversion.</p> <p>4. -: -: -. Defendant was president of a bank and treasurer of a loan association. T. and H. were negotiating a large loan from the association but needed a small sum at once for which they gave the bank their note. Defendant drew his cheek as treasurer and took up the note, the cashier having no authority to sell and the bank being in failing circumstances. Held, defendant was guilty of conversion of the note.</p> <p>5. --: CONVERSION OE NOTE: RESCISSION OE CONTRACT: STATU QUO. Where one is guilty of conversion in attempting to buy a note from an unauthorized cashier by drawing his check on his account in the bank then in failing circumstances, he, upon being compelled to pay the value of the note to the bank’s.receiver, ■vill be entitled to have his accounts stand just as though he had not given the check; but the receiver will not be required to return the amo.unt of the check before he can recover in conversion.</p>

Original Proceeding in Prohibition. (1) ‘There-is a marked distinction as to the venue of actions against foreign and against domestic, insurance companies. E. S. 1899, sec. 562; E. S. 1889, sec. 5912; E. S. 1899, sec. 997.

—lion. Samuel O. Davis, Judge. Submitted a printed argument. (1) A parol contract for the purchase of land which is within the statute of frauds, is void, and no action can be maintained to enforce it, or for its rescission, or for damages by reason of its breach. Culligamv. Wingerter, 57 Mo. 241; Lydick v. Holland,, 83 Mo. 703.

—Mon. A. M. Woodson, Judge. (1) The jury alone must calculate the interest and assess the damages. Cates, Adm. of Snadon v. Nickell, 42 Mo. 169; Burghart v. Brown, 60 Mo. 24; Dyer v. Combs, 65 Mo. App. 151; Poulson v. Collier, 18 Mo. App. 583. (2) The instruction ignored facts to be found to make plaintiff’s case, viz., whether Rhodes was dead and Corbitt was duly appointed and qualified and in charge of his estate and the note sued on. Kennedy v. Klein, 19 Mo.

—lion. T. B. Robinson, Judge. (1) The writing on the back of the note is the joint and several contract of the defendant and Schnedler. Norris v. Spencer, 18 Me. 321; 1 Am. and Eng. Ency. of Law [2 Ed.], p. 101; Edwds. on Bills and Pr. Notes [2 Ed.], top p. 611 and note 2. (2) Although at common law it would be a joint contract or undertaking, it is to be construed under the statute of this state as joint and several.

Original Proceeding in Prohibition. (1) Under the statute, before there was anything for said district 5 to appeal from, or to give the county school commissioner jurisdiction of an appeal, and that would authorize him to appoint a board of arbitration to pass on an appeal, there must not only have been a proper, and legal notice posted in district 6, but also the qualified voters of said district 6, must have, when assembled at their annual meeting, “decided such question…

—Eon. D. ■ W. Shacldeford, Judge. (1) The court erred in sustaining the motion to quash summons. The law does not require a summons to be issued. R. S. 1889, sec. 6310. (2) This is not a judicial writ, and hence is not required to be signed by any officer. Grocer Co. v. Carlson, 67 Mo. App. 179; Daugherty v. Brown, 91 Mo. 26. (3) If summons is required, the summons in this case was sufficient, and appellant should have been allowed to amend tlie same.

—lion. W. W. Graves, Judge. (1) The court erred in its construction of the contract offered in evidence. The word “profits” has a fixed and definite meaning, and as used in contracts means the net amount after deducting all losses, and any proper expense incident to the business.

<p>Appeal from the Jackson Circuit Court.'—Hon. James Gibson, Judge.</p> <p>(1) ' Until the price is fixed the contract can not be enforced. The price being an essential ingredient. Ring v. Howard, 27 Mo. 25; St. Louis v. Gas Co., 70 Mo. 103, and citations; Biddle v. McDonough, 15 Mo. App. 540; Agar v. Macklew, 2 Sim. & S. 418; Morgan v. Millman, 3 De G. M. & G. 24; Baker v. Glass, 6 Munf. 218; Thumald v. Balbirnie, 2 M. & W. 789; Darby v. Whittaker, 4 Drewry .140; Wilkie v. Davis, 3 Mer. 507; Graham v. Call, 5-Munf. 396; Scott v. Liverpoole, 3 De G. & J. 334; Fuller v. Bean, 34 N. II. 304; Hutton v. Moore, 26 Ark. 382. (2) Under a contract whereby the price is to be fixed by appraisers, the failure of the appraisers a|>pointed by the parties to agree, will not give defendant right of action against plaintiff. St. Louis v. Gas Co., 70 Mo. 69, and citations; Biddle v. Mc-Donough, 15 Mo. App. 532; City of Providence v. Lodge, 2 R. I. 46; Milnes v. Gerry, 14 Yes. Jr. 400; Oooth v. Jackson, 6 Yes. Jr. 12. (3) Especially is this so where plaintiff is not in default and has not obstructed the performance of contract. Biddle v. McDonough, 15 Mo. App. 532; Strohmaier v. Zeppenfeld, 3 Mo. App. 129; Oooth v. Jackson, 6 Yesey Jr. 31; Morse v. Merest, 6 Mad. 27. (1) Gilbert was first in default and has no standing against Bales. Doyle v. Turpin, 57 Mo. App. 87; Eelix v. Bevington, 52 Mo. App. 103. (5) Gilbert by refusing to go on with agreement to submit to values put it out of the power of Bales to perform and thereby discharged Bales. Doyle v. Turpin, 57 Mo. App. 81; Little v. Mercer, 9 Mo. 218; Jarrell v. Earris, 6 Mo. 159; Kleine v. Catara, 2 Gallis 71; Shaw v. Hurd, 3 Bibb. 372; Marshall v. Craig, 1 Bibb. 379; Seaman v. Paddock, 55 Mo. App. 296.</p> <p>(1) The contract, that if the parties could not agree upon the price to be paid for the barns, they were to leave it to disinterested parties, does not bar a suit at law or oust the courts of jurisdiction, to determine the value. Ins. Co. v. Morse, 20 Wall. 115, 152; Calliman v. Railway, 27 N. W. Rep. 718; Oakwood retreat Ass’n v. Rathborn, 26 N. W. Rep. 712-711 and note 2 page 715; March v. Railway, 77 Am. Dec. 732-711; Allegro v. Maryland Ins. Co., 11 Am. Dec. 289; Robinson v. Ins. Co., 35 Am. Dec. 239; Perkins v. Electric Light Co., 16 Eed. Rep. 513. To the same effect aro our ovni decisions. King v. Howard, 27 Mo. 21; Biddle v. Ramsey, 52 Mo. 153, 159-160; Hug v. Yan Burkleo, 58 Mo. 203; Leonard v. Cox, 61 Mo. 32-31; Arnot v. Alexander, 11 Mo. 25; Black v. Rogers, 75 Mo. Ill; Strohmaier v. Zeppenfeld, 3 Mo. App. '129. (2) There was no provision in the agreement as to the number of arbitrators or the mode of their appointment and respondent was not bound to submit the price he was to receive, to arbitration. Mark v. Ins. Co., 24 Hun. 565. Appellant, by commencing suit for the rent before an award, waived Ms advantage given him by Ms agreement in this regard, if any be bad. Peters v. Orary, 6 Dana (Ky.) 307; Kimball v. Gilmore, 60 N. .H. 54.</p>

—Eon. George F.Longcm, Judge. (1) The court should have permitted defendant to show the action taken to rescind the award because it would liave appeared therefrom that no contract, in writing, including the consideration, and dated when made, and duly subscribed by the parties thereto, was ever entered into after the award, and that in consequence the plaintiff had no contract whatever with the school district. R. S. 1889, sec. 3157j Eurn. Co. v. School Dist., 51 Mo.

—Eon. Samuel G. Davis, Judge. (1) Respondent relies solely and only on the letter of appellant to Worthington, of date July 10, 1893, as and for a complete and absolute contract of employment for the services alleged to have been performed by him for appellant.