Volume 85 — Missouri Appeal Reports

— Hon. D. W. Shackleford, Judge. (1) Plaintiff is a minor. No evidence was introduced tending to show that a next friend had been appointed to prosecute, nor that any one had consented to act as such. Porter v. Railway, 60 Mo. 162; Sherman v. Railway, 72 Mo. 63; Lee v. Mfg. Co., 6 Mo. App. 578; Randolph v. Railway, 18 Mo. App. 609.

— Eon. W. K. James, Judge. (1) Conversations between husband and wife are not admissible in evidence. Brown v. Brown, 53 Mo. App. 453; Ayers v. Ayers, 28 Mo. App. 97; Miller v. Miller, 11 Mo. App. 118. (2) Divorce must be granted, if at all, on the facts existing at the time the suit was instituted. Dwyer v. Dwyer, 26 Mo. App. 617. (3) Defendant could only learn that sexual intercourse was .injurious to plaintiff by a communication from plaintiff to defendant.

— Eon. W. K. James, Judge. The court, under the pleadings, erred in admitting testimony over plaintiff’s objections tending to prove a warranty and a breach thereof; in refusing to permit plaintiffs, in rebuttal, to disprove a warranty or a breach thereof, and in giving instructions numbers 1 and 4 on behalf of defendant. Hay v. Short, 49 Mo. 139, cases cited; Brown v. Weldon, 27 Mo. App. 263; s. c., 99 Mo. 564; Stephens v. Supply Co., 67 Mo. App. 587; R. S. 1889, sec. 6138.

— lion. John A. Uochaday, Judge. The demurrer to plaintiffs’ amended petition should have been sustained. The petition does not state facts sufficient to constitute a cause of action against the city of Fulton. It is conceded that the special charter enacted in 1859, incorporating defendant, did not empower or authorize the city of Fulton to erect and operate-water and electric plants, especially for private purposes -and uses.

— Hon. J. H. Slover, Judge. (1) This statutory provision is not only in derogation of the common law, but its tendency is also to suppress the best evidence on the subject to which it relates. Hence the statute should be strictly construed, and the burden is on the objector to show that all the elements of exclusion exist. Linz v. Ins. Co., 8 Mo. App. 363; Gartside v. Ins.. Co., 8 Mo. App. 592; Weitz v. Bailwav, 53 Mo.' App. 39; Bowles v. Kansas City, 51 Mo.

— Hon. J. D. Perhins, Judge. (1) Under tbe petition in this case defendant was not liable, and plaintiff was not entitled to introduce any evidence as defendant is not liable for tbe wilful and malicious trespass of tbe conductor, nor for bis crimes. McKeon v. Railway, 42 Mo. 79, 88; Jackson v. Railway, 87 Mo. 422, 430; Hays v. Railroad, 15 Mo. App. 583, 584. (2) Instruction number 2, given for plaintiff was given without anything in the petition upon which to base it.

— Hon. John W. Henry, Judge. (1) The defendant was notified as required under the laws of Wisconsin, and there is no pretension that he did not have actual notice. Wis. Statutes, •ch. 127, sec. 2818 to 2826, inclusive. The court in Wisconsin was fully authorized, on motion, to set the satisfaction aside where the judgment was not in fact paid.

— lion. E. P. Gates? Judge. (1) Lydia C. Mitchener was jointly liable with the city to Mary Ryan for maintaining the driveway. Dillon on Mun. Corp. (4 Ed.), sec. 1032; Wood on Nuisances, sec. 120;. Matthews v. Railway, 26 Mo. App. 75; Stevens v. Walpole, 76 Mo. App. 218; Irvine v. Wood, 51 N. T. 224; Arpin v. Bowman, 83 Wis. 54; Cooley on Torts (2 Ed.), 729 n.; Merrill v. St. Louis, 83 Mo. 244; s. c., 12 Mo. App. 466; Kirkpatrick v. Knapp, 28 Mo.

— Hon. Argus Cox, Judge. (1) A contract of insurance is like any other contract, the terms must be accepted on both sides before it is binding, Wallingford v. Ins. Co., 30 Mo. 46; Worth v. Ins. Co., 64 Mo. App. 583-587. (2) The court should have given instructions numbers 1, 2, 6, 7, 8, 9 and 11. (3) The application for a continuance should have been sustained. (1) No diligence, in legal acceptation, is shown, to procure witnesses in defendant’s application for continuance.

— Son. E. P. Gates, J udge. The evidence being undisputed that the books were being carried for sale, and that the defendant’s agent had no authority to check them, and that the plaintiff knew that the books were not baggage, and that he had no right to have them checked, there was no case made by the evidence, and the court ought not to have given plaintiff’s instructions, but should have given the instruction asked by the defendant to the effect that the verdict must be…

— Son. James Gibson, Judge. (1) Having issued the stock to Smithson, defendants waived the by-law as to Downs and are estopped from now claiming that the stock belonged to Downs. Bank v. Bank, 105 H. S. 217; Moore v. Bank, 52 Mo. 311; Stebbins v. Ins. Co., 3 Paige (N. T.) 350; Hill v. Bank, 45 N. H. 300; 15 Am. and Eng. Ency. of Law p. 621, n. 1.

— Hon. James Gibson, Judge. ' (1) Does petition state facts sufficient to constitute cause of action ? This petition is based on the breach of a municipal ordinance. The breach of a municipal ordinance can not be the basis of civil liability between private individuals,. unless there has been a contractual liability by acceptance of ordinance by defendant. Senn v. Railroad, 108 Mo. 142; Moran v. Car Co., 134 Mo. 641; Railroad v. Erin, 89 Pa.

— Ron. W. L. Jarrot, Judge. (1) There was no property attached belonging to relator in said attachment suit, unless it was the money garnished in the hands of Klootz, and said money could not be garnished because it was affected by prior conditions of contract. Scales v. Hotel Co., 37 Mo. 520; Weil v. Tyler, 43 Mo. 581; McPherson v. Railway, 66 Mo. 103; Heege v. Bruin, 18 Mo. App. 139; Ritter v. Ins. Co., 28 Mo. App. 140; McQuarry v. Gever, 57 Mo.

— Hon. A. D. Burnes, Judge. This court in Wright v. Ins. Co., 73 Mo. App. 365, held that the point raised there, the same as our contention here, i. e..the failure of the petition to allege the value of the goods déstroyed at the time of the destruction was an objection properly raised and an omission which to plaintiff’s cause was fatal, that there should have been an allegation of the value of goods destroyed at the time of their destruction.

— Hon. Gallatin Oraig, Judge. (1) Plaintiff Jacob Book had no right to remain on the train after it had stopped, and he had been requested to alight; and when he refused to alight the conductor had a right to put him off. Logan v. Railway, 77 Mo. 663; Railroad v. Pierce, 3 Am. and Eng. Ry. cases, 340.

— Hon. Richard Field, Judge. (1) The board of directors, in graded schools in cities, such as the city of Higginsville, when.money is on hand, may erect school buildings in one or more wards, and consequently may add to, repair, alter or remodel. R. S. 1889, sec. 8088. (2) The board of directors had authority to rent rooms at or away from the school house to avoid the overcrowded condition of the school building. R. S. 1889, sec. 8075.

— Hon. J. B. Newman} Special Judge. (1) If the writ was void, Snyder, the constable, was a trespasser ab initio and can not shield himself behind Miller, between whom and Snyder there is no privity. “The constable could not acquire as against the owner, any special property in the goods” (mare and colt) of a stranger to the suit by the mere fact of levying upon them.

— Hon. John P. Butler, Judge. (1) The statute gives no lien for work and labor performed under such a contract as that between defendant railway company and Pugh. The contract was not for the construction or the improvement of the defendant’s railway, nor was Pugh a contractor “having in charge the building, construction or improvement of such railroad or any part thereof;” Pugh’s employees, therefore, are not entitled to liens.

— Eon. E. O. • Timmonds, Judge. (1) An examination of the several legislative enactments of the state of Missouri relative to fraternal beneficiary associations does not warrant the conclusion that beneficiary certificates, lawfully issued to their several members by such organizations, are “policies of insurance” within the the meaning of section 5855. (2) That the ruling in ease of Toomey v. Supreme Lodge, 74 Mo.

— Hon. James Qibson, Judge. (1) Plaintiff’s own evidence shows that immediately after the execution of said release contract, defendant tendered the plaintiff his former position of railroad conductor at his old wages, and that plaintiff refused to accept it because “he couldn’t do that work.” A party can not recover for breach of stipulation on a contract unless he has performed all the acts on his part which were conditions precedent, and is ready to perform those which…

— Hon. D. W. Shackleford, Judge. (1) Actual and exemplary damages are recoverable in cases of this character. Defendant’s unlawful acts were coupled with malice and oppression and intentionally committed. Eranz v. Hilterbrand, 45 Mo.. 121; Morgan v. Ross, 74 Mo. 318; Mohelsky v. Hartmeister 68 Mo. App. loe. cit. 322.

— lion. P. -Mercer, Special Judge. (1) The court erred in this case in not granting defendant a new trial, for the reason that the evidence in this case does not support the verdict; and defendant’s refused instruction number 10 should have been given. Green’s M. Practice (1 Ed.), p. 399, sec. 1090; Wright v. Railway, 20 Mo. App. loe. cit. 484; Reid v. Ins. Oo., 58 Mo. 422; Brewing Oo. v. Bodemann, 12 Mo. App. 573; Taylor v. Eox, 16 Mo. App. 527; Lionberger v. Pholman, 16 Mo.

— Hon. J. D. Perkins. Judge. (1) The United States commissioner of internal revenue, the officer charged with the enforcement of the revenue act of 1898, has decided that “a telegraphic dispatch or message is. required to be stamped by the person who makes, signs or issues it.” Gould & Savary on the War Revenue Law of 1898, p. 84.

— Eon. J. D. Perkins, Judge. (1) Defendant never heard from plaintiff in regard to the matter j it was a mere proposal to stand as guarantor for future credit, and in order to become a binding contract, must be accepted by tbe guarantee, and tbe guarantor notified thereof within a reasonable time. This was not done. Harvester Oo. v. Sulser, 78 Mo.

— Eon. T. B. Robinson, Judge. (1) It was not necessary, this suit having been begun in the circuit court, that a copy of the note should have been served on the executrix within the two years of her appointment. R. S. 1889, secs. 186, 190. (2) Where the demand is enforced by an original suit in the circuit court, the service of “summons takes the place of the notice otherwise required.” Stephens v. Bernays, 119 Mo.' 147; Wernse v. McPike, 100 Mo. 480.

— Hon. H. J. Broaddus, Judge. (1) The pleadings, orders of reference, the reports of referees (until rejected), the exceptions to the reports (until overruled or sustained), are parts of the record proper. Thomas v. Tanner, 14 How- Nr. (N. Y.), 426; 20 Am. and Eng. Ency. of Law (1 Ed.), 476, 477. (2) It appears from the record that the judgment was not based on a trial before a lawfully authorized tribunal.

— Hon. James Gibson, Judge. (1) Tbe motion of tbe defendant Crow went to tbe judgment rendered on November 2, 1898, as a whole, because while tbe city and tbe others “were defendants in tbe suit of plaintiff, and bad tbe right to make a common defense against tbe charge of negligence, and a common affirmative defense of contributory negligence, they were at tbe same time antagonists on tbe question of tbe primary liability for tbe injury to plaintiff.” And if Crow’s motion…

'Appeal from the Macon Circuit Oourt. — Hon. Nat M. Shelton, Judge. (1) A garnishee will not be allowed for attorney fees and expenses unnecessarily incurred by him, nor for such expenses incurred wdien he assumes an attitude adverse to plaintiff. Hansard v. Ins. Co., 62 Mo, App. 146-149; 8 Am. and Eng. Ency. of Law, p. 1266; 2 Shinn on Attachment and Garnishment, sec. 698; Hanson v. Butler, 48 Me. 81; Moursund v. Piess, 84 Tex. 554; Rood on Garnishment, sec. 400.

— Hon. P. G. Stepp, Judge. (1) A mere soliciting agent has no authority to waive or modify any requirements or conditions of an insurance policy, especially where such policy contains an express denial of such authority. Lama v. Ins. Co., 51 Mo. App. 4-51; Shoup v. Ins. Co., 51 Mo. App. 291; Wolf v. Ins. Co., 15 Mo. App. 831; Embree v. Ins. Co., 62 Mo. App. 134.

— Hon. O. A. Anthony, Judge. (1) Appellant contends that plaintiff’s instruction number 1 should not have been given. Eirst. Because it is a comment upon the evidence. Second. Because it declares the omission to protect the ditch by lights and guard rails negligence per se. Third. It requires that the city should have protected the ditch by sufficient guard rails and lights in the night time. Eourth.

— Hon. Gallatin Oraig, Judge. (1) The motion to quash alternative writ is the proper pleading to material defects in form or matter. It is admitted that the alternative writ is the first pleading and that it is “sufficient to show the execution, the return thereon and thén call for the alternative writ of mandamus. The statute evidently contemplates a summary proceeding in aid of the unsatisfied execution.” State ex rel. v. Slavens, 75 Mo. 508; State ex rel.

— Hon. W. K. James, Judge. (1) The oral testimony offered by defendants and excluded by the court should have been admitted because in the first part it placed the court in the position of testatrix when making the will so that it might be shown that the condition of the will objected to was not intended to produce a separation of husband and wife at the time living together, but to provide a support for a wife already separated from her husband and unsupported by him, and…

— Hon. W. W. Buclcer, Judge. (1) Plaintiff in error submits that the plain printed terms of the contract entered into by plaintiff in error through its general agent, and defendant in error through its secretary, governs and controls the issues in this case. 2 Parsons’ Contracts (3 Ed.), sec. 5, p. 34; see, also, sec. 3, p. 4, supra-, Dobbins v. Edmonds, 18 Mo. App. 307.

— Hon. H. P. Gates, Judge. (1) The verdict is not excessive. The amount of the verdict does not show either prejudice or passion. Verdiets should not be set aside on the ground of excessive damages in cases where the amount of damages is left to the discretion of the jury, unless the damages assessed are so extravagant as to bear evident marks of passion, prejudice or corruption.

<p>1. Vendor and Vendee: NUMBER OE ACRES SOLD: METES AND BOUNDS: ERAUD. Where land is described in a conveyance by metes and bounds “containing” a given number of acres, “more or less,” metes and bounds will govern in the absence of fraud, and all bargains will merge in the deed.</p> <p>2. -: -: MISREPRESENTATIONS: NEGLIGENCE. Where a vendee is well acquainted with the land purchased and was over it at the time of the trade with opportunity to measure the same, he can not be heard to charge the vendor with fraud in misrepresenting the number of acres it contained.</p>

— Hon. John A. •Hochaday, Judge. (1) The motion in arrest should have been sustained. The justice court did not acquire jurisdiction, nor did the circuit court by the attempted appeal. Keane v. Bartholow, 4 Mo. App. 507. (2) The records on their face show that the plaintiff had not obtained any judgment against the defendant Richards. The judgment against the garnishee 'Whittle was manifestly erroneous. R. S. 1889, sec. 5232; Miller v. Anderson, 19 Mo.

— Mon. John P. Butler, Judge. (1) That act (Session Acts 1897, p. 96), does not pretend to be so sweeping. If constitutional, it can apply only to injuries received while the injured party is “engaged in' the work of operating” a railroad. The intention is not to eliminate the question of fellow-servants from railroad employees, but simply from the “operating department” — the handling and moving of trains.

Original Proceeding. Plaintiffs haying an adequate remedy by certiorari the writ of prohibition should not issue. State ex rel. v. Bower-man, 40 Mo. App. 576;

— Hon. D. W. Shackleford, Judge. (1) The court properly permitted the plaintiffs to prove that the strip of ground was cut down below the level of the lots, and that thereby the remainder of the property not actually taken was damaged. McReynolds v. Railway, 110 Mo. 484; Doyle v. Railway, 113 Mo. 280.

<p>Appeal from the Monroe Circuit Court. — Ron. Beuben F. Boy, Judge.</p> <p>(1) Where there is an entire absence of any substantial evidence tending to prove the material allegations of the petition, or the evidence is insufficient in law to support a verdict, it is error to refuse to give an instruction in the nature of a demurrer. Charles v. Patch, 87 Mo. 450; Hyde v. Railroad, 110 Mo. 272; Gutridge v. Railroad, 105 Mo. 520; Twohey v. Eruin, 96 Mo. 104. (2) Appellant contends that under the authorities in this state the court should have sustained appellant’s motion in arrest of judgment for the reason that the petition in this said cause does not state a cause of action against defendant. Modisett v. McPike, 74 Mo. 636; Nichols v. Nichols, 134 Mo. 187.</p> <p>The pleadings in this case are copied in appellant’s- abstract of the record and a fair abstract of pleadings is- found in his brief, which raises but one issue of fact: to-wit, the charge by Yowell that Vaughn caused the loss of his wife’s affections, and a denial thereof by Vaughn.- Appellant’s first assignment of error is, the court’s refusal to permit Mrs. Cordelia Yowell to tell how Mr. Yowell treated her during the last three or four years they lived together and also why she left him. This witness was permitted however to testify that Mr. Vaughn “'in no way, shape or form” induced her to separate from her husband, while appellant did not state and preserve of record what he expected to prove by Mrs. Yowell in answer to the question excluded and is not entitled to have his assignment of error considered on appeal, therefore it is quite apparent that these questions called for acts and communications between husband and wife. In other words, it was asking the divorced wife to testify to acts and communications between her and her husband during the existence of the marital relation. At common law she could not do so, nor is there any statutory exception permitting her to do so. R. S. 1889, sec. 8922; Loovey v. Baxter, 59 Mo. App. 470; Moore v. Wingate, 53 Mo. App. 398.</p>

— Hon. J. D. Perkins, Judge. (1) An injunction will not lie to restrain the levy of an execution issued by virtue of a void judgment, rendered by a justice of the peace. Railroad v. Lowder, 59 Mo. App. 3; Straub v. Simpson, 74 Mo. App. 230; Railroad v. Lowder, 138 Mo. 533; Railroad v. Hoereth, 144 Mo. 136; Stockton v. Ranson, 60 Mo. 535; Bear v. Youngman, 19 Mo. App. 41.

<p>Appeal from the Jasper Circuit Court. — Hon. J. D. Perkins, Judge.</p> <p>(1) The court erred in giving instructions for the plaintiff, numbered 1, 2, 3, 4, 5 and 6. Oliver v. Railroad, 47 Am. and Eng. Railroad Cases, 576; Payne v. Railroad, 136 Mo. 594; Woods Railway Law (Ed. 1885), p. 1464; Elanagan v. Railway, 45 Wis. 98; s. c., 50 Wis. 462; Mfg. Co. v. Woodson, 98 Ala. 378. (2) The court erred in refusing to give instructions for the defendant. Moore v. Wire Mill Co., 55 Mo. App. 494; Youll v. Railroad, 21 Am. and Eng. Railroad Cases, 592.</p> <p>(1) The court did not err in giving instructions for plaintiff. They recite the facts necessary for plaintiff to recover and tell them if they believe from the evidence such facts to be true they will find for plaintiff. Zimmerman v. Railroad, 71 Mo. 476; Moor v. Railway, 73 Mo. 438; Humbird v. Railway, 110 Mo. 76. (2) An informality in an instruction which is not prejudicial does not warrant a reversal. Baskin v. Crews, 66 Mo. App. 22. .(3) The court did not err in refusing instructions asked by defendant, even though said instructions were correct, they are fully covered by the instructions given in the case. The court had a right to refuse on account of number. State v. Erazier, 137 Mo. 317; Crews v. Railroad, 19 Mo. App. 302; Buck v. Railway, 108 Mo.’ 179; Blanton v. Dodd, 109 Mo. 64; McCartney v. Ins. Co., 45 Mo. App. 373; Harkness v. Briscoe, 47 Mo. App. 196; Gelvin v. Railroad, 21 Mo. App. 273. Where a party offers thirteen to fifteen instructions the court is justified in refusing all. In this case defendant asked thirteen. Elynn v. Railroad, 43 Mo. App. 424; Connor v. Heman, 44 Mo. App. 346; Hannibal v. Richards, 35 Mo. App. 15; Girard v. Wheel Co., 46 Mo. App. 79.</p>

<p>Appeal from the St. Louis City Circuit Court. — Hon. Franldin D. Forris, Judge.</p>

<p>1. Injunction: DISSOLUTION OE: DAMAGES: STATUTORY CONSTRUCTION: PARTIES: ACTION: BOND. The evident intention of section 5498, revised Statutes 1889, is to extend the operation of the bond so as to protect all parties interested in the subject-matter enjoined against damages growing out of the injunction, and this section necessarily confers on anyone so injured a separate or independent right to seek redress on the bond.</p> <p>2. -: MOTION TO ASSESS DAMAGES: INSTRUCTION: ELEMENTS OE DAMAGES. The elements of damages upon a motion for an assessment of.the same are, attorney’s fees, loss of time and expense incurred in attending the hearing of and resisting the application for a temporary injunction.</p> <p>' 3. -: PRACTICE, APPELLATE. Where the assessment of the damages by the court was within the evidence, it will not be disturbed by the appellate court.</p>

Louis City Circuit Court. — Hon. Franklin Ferris, Judge. The properly constituted officers of the city of St. Louis are the sole judges of the necessity and expediency of sidewalk improvements, and with the exercise of such power the courts will not interfere. Skinker v. Heman, 148 Mo-. 349 ; Charter City of St. Louis, art. 4, sec. 35 (R. S. 1899, p. 2109); Moberly v. Hogan, 131 Mo. 19-24; City v. Oeters, 36 Mo. 456.

<p>1. Damages, Nominal: PROPERTY RIGHTS: CITIES OP THE THIRD CLASS. Where plaintiff sues city officers for alleged injuries to his residence lot by the cutting away of the soil and the closing up of drains or sewers, and there is no evidence of any street ordinance providing for this work on the part of the city and its officers, it follows that if the jury believe the testimony as to the character of the work adduced by plaintiff, the defendants were simply trespassers, and whether the work performed by the defendants was beneficial of detrimental to the property of the plaintiff is immaterial and the plaintiff is entitled to a verdict for nominal damages for the violation of his property rights.</p> <p>2. -: -: SUBSTANTIAL DAMAGES: STATUTORY CONSTRUCTION : BENEFITS. And upon the same theory of the proof the plaintiff was entitled to recover whatever substantial damages were proven, less any pecuniary benefits resulting to his property from the performance of the work.</p>

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

Louis City Circuit Court. — rHon. James E. Withrow, Judge. (1) All of the competent, relevant and material evidence adduced shows that all legal and proper costs in the case, as alleged in appellants petition, were, by him either, paid or tendered. R. S. 1889, secs. 5005, 4997, 4989, 5002, 5003, 6149, 6150 and 6242; Laws 1891, pp. 149, 150, 151 and 146, secs. 26, 18, 10, 23, 24 and 9.

Circuit Court. — Hon. Elliott M. Hughes, Judge. (1) The chattel mortgage given by Beagles to appellant was due one day after date; was past due at the time the corn was sold. Hence appellant was the absolute owner of the corn. This is the universal doctrine. Pollock v. Douglass, 56 Mo. 487; White v. Quinlan, 30 Mo. App. 54; Barnett v. Timberlake, 57 Mo. 510.

<p>Appeal from the St. Louis City Circuit Court. — Hon. Horatio D. Wood, Judge.</p> <p>(1) The act of 1895 did not have any retrospective effect, and hence the judgment sued upon so far from being barred at tbe time tbe suit was brought had about eleven years longer to run. Cranor v. School District, 52 S. W. Rep. 232; Weber v. Manning, 4 Mo. 229; Riggs v. Goodrich, 74 Mo. 108. (2) If plaintiff himself had made the agreement of compromise he might still recover the difference between the amount actually due him and what was paid under the supposed settlement. The amount was fixed by judgment and could not possibly be disputed ;• hence, there was no consideration for an agreement to accept less than was due. Klaussman v. Schoenlau, 32 Mo. App. 357; Reilly v. Kershaw, 52 Mo. 224.</p>

<p>Appeal from the Greene Circuit Court. — Hon. B. U. Massey, Special Judge.</p> <p>The appellant’s motion for a new trial should have been sustained. Where the verdict of a jury is mot supported by the weight of evidence the trial court should set aside the verdict and grant a new trial. Reed v. Piedmont & A. L. Iron Co., 58 Mo. 429; Iron Mountain Bank v. Armstrong, 92 Mo. 281; Helm v. Bassett, 9 Mo. 54; Hull v. Mo. Pac. Ry. Co., 60 Mo. App. 597.</p>

— Hon. James T. Neville, Judge. (1) “A rule never to be lost sight of in determining the liability of a surety or guarantor, is, that he is a favorite of the law and has a right to stand upon the strict terms of his obligation. This is a rule universally recognized by the courts, and is applicable to every variety of circumstances. No principle is more firmly settled in this state than this ;_that sureties may stand on the very terms of a statutory bond or undertaking.

Louis City Circuit Court. — Hon. Horatio D. Wood, Judge. (1) In an appeal, the judgment is superseded and execution stayed from the time that the circuit court fixes the amount of the bond and approves the bond. State ex rel. v. Dillon, 98 Mq. 90; American Brewing Co. v. Talbott, 135 Mo. 170; State ex rel v. Hirzel, 137 Mo. 446; State ex rel. v. Klein, 137 Mo. 673. (2) The statute allows an appeal in every civil cause and prescribes but one form of bond.

<p>Appeal from the Howell Circuit Court. — Ron. W. N. Evans, Judge.</p> <p>(1) There being no fraud or mutual mistake in the contract of sale, neither party could rescind without the consent of the other. Cloes & Lehenbnter Mfg. Go. v. McOord, 65 Mo. App. 509; Davis v. Bond, 75 Mo. App. 35. (2) Tender or offer of judgment will be of no avail to appellee in this case. R. S. 1889, sec. 3945; 59 Mo. App. 121. (3) The law presumes that charges for storage and caring for the goods have accrued although not a matter of proof. The only ground for refusal of goods ever offered by appellee was appellant’s letter stating that they were shipped on the strong letter of their salesman, Mr. Moore, who wrote it that the bill would be paid promptly when due.</p>

' — Ron. J. L. Fort, Judge. (1) Plaintiff waives his right of lien — being on the ground and allowing and giving his tenant Grogan permission to sell the corn and Grogan did sell and collect the money therefor, under said permission the vendee took the corn free of the landlord’s lien. Toney v. Goodley, 57 Mo. App. 235; Eulkerson v. Eynn, 64 Mo. App. 649.

Louis City Circuit Court. — Eon. Horatio D. Wood, Judge. (1) If Giesler, in April, 1895, when the assignment of lease was delivered to Elbert, made an agreement with him, that he, Elbert, should collect all rents and turn them over to Giesler who, on his part, would pay the ground rent, taxes and expenses, then this is a promise which plaintiff, for whose benefit it was made, can enforce. School District v. Livers, 147 Mo. 580; Davers v. Howard, 144 Mo. 671-678.

<p>Appeal from the St. Louis City Circuit Court. — Son. William Zachritz, Judge.</p>

<p>1. Contract of Sale of Safe: REFUSAL TO ACCEPT IT ACCORDING TO CONTRACT: DAMAGES. As plaintiff agreed to purchase the safe by a plain and unconditional contract, his refusal to aecept ■ it would render him liable for nominal damages in any event.</p> <p>2. -: -: EVIDENCE TO INTERPRET, CONTRACT. Unless a contract is ambiguous in some way, parol evidence is not admissible to affect it for any purpose, not even to show the interpre- . tation placed on it by the parties.</p> <p>3. -: -- — : DAMAGES, RULE OE. The measure of plaintiff’s damages for the violation of the contract would be the difference between the contract price of the safe, and its market value at the city of Mexico, place of delivery, with any reasonable expense incurred by plaintiff in attempting to comply with the contract.</p> <p>4. -: -: -: MARKET VALUE. If there was no established market for the safe at Mexico, its value at nearest and most convenient market, less freight, would be the market value.</p>

Louis City Circuit Courts — lion. Horatio D. Wood, Judge. (1) “As this offense (adultery) is one of secrecy, in which both of the parties take precaution to prevent discovery, it is rarely susceptible of proof by direct evidence. The evidence is generally circumstantial, and this is all that is required.” 9 Ency. of Law (Divorce), 148; Dunham v. Dunham, 162 111. 589; 35 L. E. A. 10-13.

Louis City Circuit Court. — Eon. Franklin F. Ferris, Judge. It is familiar and elementary doctrine, that after the term bas elapsed at which a final judgment is rendered, tbe court possesses no further control or juridsiction over tbe cause; it bas no power to reinstate tbe cause on tbe docket, or take any further proceedings therein. 1 Eree. on Judg. (4 Ed.), secs. 70 and 96; Danforth v. Lowe, 53 Mo. 217; Mfg. Co. v. Baker, 35 Mo.

— Hon. David Fby, Judge. (1) There is no provision in the policy as to where the premiums should be paid, hence they must be paid at the home •office of the company. Ins. Co. v. Davis, 95 N. S. 425; 2 Bacon on Life Ins., p. 724. In addition plaintiff had direct instructions under the letter of January 16, 1896, which he fully understood and with which he complied up to the defaulted premium.

— Hon. W. N. Evans, Judge. (1) Tbe proper measure of damages for tbe error complained of in tbe transmission of tbe telegram is tbe sum of $5, with legal interest tbereon from July 5, 1898, to tbe date of tbe judgment. Kenyon v. Tel. Co., 100 Cal. 454; Walser v. Tel. Co., 114 N. O. 440; Merrill v. Tel. Co., 78 Me. 97; Mondon v. Tel. Co., 96 Ga. 499; W. TJ. Tel. Co. v. Connelly, 2 Tex. Civ. App. 99; Clay v. Tel. Co., 81 Ga. 287; Baldwin v. Tel.

<p>Appeal from the St. Louis City Circuit Court. — Hon. Pembrook B. Flitcraft, Judge.</p> <p>(1) Where it is sought to charge land with a mechanics’ lien, there must be a contract with the owner, or his agent, trustee or contractor; mere consent or knowledge or subsequent approval is not sufficient. The term “owner” means the person for whose immediate use, enjoyment or benefit any erection is made.- R. S. 1899, sec. 4203; Planing Mill Co. v. Burndidge, 25 Mo. App. 272; Lauer v. Bandow, 43 Wis. 565; Squiers v. Eithian, 27 Mo. 124; Horton v. Railroad, 84 Mo. 602; Eathman v. Christopel, 60 Mo. App. 106. (2) A person furnishing materials for improvements must take notice of the interest of the person with whom he contracts, for the lien only attaches to such interest. Koenig v. Mueller, 39 Mo. 165; Reisse v. Mueller, 39 Mo. 169; McCarthy v. Carter, 49 111..53; Judson v. Stevens, 75 111. 255. (3) A mechanics’ lien arising out of a contract with a lessee will only bind the leasehold estate of the person with whom the contract is made. R. S. 1899, sec. 4206; Cornell v. Barney, 94 N. Y. 394; Knapp v. Brann, 45 N. Y. 207; Roth v. Bellingath, 71 Ala. 55.</p> <p>(1) Plaintiff furnished its work and material under a contract with the Apollo Company, the original contractor with Handlan. (2) The evidence of Handlan’s leasehold interest in the property sufficiently appears from his own admission in the contract for lease. (3) Plaintiff’s lien notice substantially complied witb tbe requirements of tbe statute. Eruin-Bambrick Co. v. Jones, 60 Mo. App. 1; Midland Lumber Co. v. Kreeger, 52 Mo. App. 418.</p>

— Son. Leigh B. Woodside, Judge. (1) The court erred in giving instructions numbers two and three on the part of the interpleader. The second instruction makes the jury find that the sale was to -Butter for the purpose of defrauding their creditors. It should have gone further and said for the purpose of defrauding, hindering, or delaying their creditors.

Louis City Circuit Court. — Mon. John A. Talty, Judge. (1) The averments of the petition constitute a sufficient allegation of acceptance by plaintiff of defendant’s written proposal and communication of plaintiff’s acceptance to defendant. Allen v. Chouteau, 102 Mo. 309, 318; Mfg. Co. v. Broderick, 12 Mo. App. 385; Stotesburg v. Massengale, 13 Mo. App. 221; Bishop on Contracts (En. Ed.), sec. 329; Lancaster v. Elliott, 28 Mo. App. 92.

<p>Appeal from the St. Louis City Circuit Court. — Hon. Pembrooh R. Fliicraft, Judge.</p> <p>(1) The plaintiff’s first instruction is erroneous because it contradicts' and nullifies instructions given for the defendant. The giving of conflicting instructions is error; Frank v. Bailway, 57 Mo. App. 181; Buel v. Transfer Co., 45 Mo. App. 562; Eedpath v. Lawrence, 42 Mo. App. 101; Hickman v. Griffin, 6 Mo. 37. (2) The plaintiff’s first instruction is erroneous because it submitted to the jury as an issue, of fact the whole defense on which defendant relied, and authorized the jury to ignore the rules governing the facts shown in evidence by defendant. It is error to submit as an issue of fact a defense which involves a mixed question of law and fact. Glover v. Duhle, 19 Mo. 360; Hawes v. Stock Yards, 103 Mo. 60; Hickey v. Eyan, 37 Mo. 185; Schaub v. Eailroad, 106 Mo. 74; Leslie v. Eailroad, 88 Mo. 50; Kick v. Doerste, 45 Mo. App. 134; Carder v. Primm, 60 Mo. App. 423. (3) The learned trial court erred in admitting evidence of plaintiff’s loss of profits in his business as .salesman, there being no sufficient allegation in the petition to warrant a recovery for such loss. A party can not recover for loss of earnings in a special business without a distinct claim therefor in his pleading. Mellor v. Eailroad, 105 Mo. 455; Slaughter v. Eailroad, 116 Mo. 269; Ooontz v. Eailroad, 115 Mo. 669; Heiser v. Loomis, 47 Mich. 16. (4) The learned trial court erred in refusing to give the request for instruction marked “A.” A railway company hlas the right to forbid the public from getting on its cars while in motion and to enforce that regulation by the use of “such force as was necessary” (quoting this instruction) to repel from a car one who attempts, as did plaintiff, to defy such a wholesome rule. Baltimore Co. v. Wilkinson, 30 Md. 224; Eailroad v. Zebe, 33 Pa. St. 326; Eailroad v. Winn, 93 Ala. 306; Tel. Co. v. Neel, 86 Tex. 368; Given v. Tel. Co., 24 Fed. Eep. 119.</p> <p>|(1) It is not necessary that the law applicable to the issues raised by the evidence be submitted to the jury in a single instruction, but the same may be done in a series of instructions; and if all the instructions given, in their combination and entirety, are sufficient to advise the jury on the law of the case, there is no error. And the failure of the court to qualify each instruction by an express reference to the others is not error. Scott-Eorce Hat Co. v. Hornbs, 127 Mo. 392; Muehlhausen v. Railroad, 91 Mo. 332; Schroeder v. Michel, 98 Mo. 43; Owens v. Railway, 95 Mo. 169. (2) A “custom,” when relied on as a defense, must be specially pleaded, and can not be proven under a general denial; and, although evidence be introduced thereon under a general denial only, an instruction offered on the issue raised by such evidence is properly refused. Hayden v. Grille’s Adm’r, 42 Mo. App. 1; Safety Eund National Bank v. Westlake, 21 Mo. App. 565. (3) A general allegation of “loss of time” or “loss of earnings” is sufficient. The distinction between “loss of time” and “loss of earnings” “does not exist in law.” “The damages to be awarded in either case is the pecuniary value of the time lost.” They are equivalent expressions. Slaughter v Railroad, 116 Mo. 269; Paul v. Railroad, 3 Mo. App. 144; Gerdes v. Iron, etc., Co., 124 Mo. 360; Guriy v. Railroad, 122 Mo. 151.</p>

Louis City Circuit Court. — Hon. James H. Withrow, Judge. The sole point involved here is whether evidence can be given in support of an“account stated” where the petition docs not contain the items of the account. The decision of this question involves the construction of sections 597 and 630, Revised Statutes 1899.

— Hon. Leigh B. Wooddde, Judge. (1) Tbe court erred in giving instructions numbers two and three on tbe part of tbe interpleader. Tbe second instruction makes tbe jury find that tbe sale was to Butter for tbe purpose of defrauding tbeir creditors. It should have gone further and said for tbe purpose of defrauding, hindering, or delaying tbeir creditors.

— Hon. J. A. Hoclcaday, Judge. (1) The opinions expressed by the witnesses were improper and prejudicial. Muff v. Eailway, 22 Mo. App. 584. (2) The defendant’s evidence was admissible under the first answer — a general denial. Scudder v. Atwood, 55 Mo. App. 512; Madison v. Eailway, 60 Mo. App. 608; Bird v. Sellers, 113 Mo. 580. (3) The court below erred in refusing to permit the pleadings to be amended, before final judgment, to conform to the proof.

it Court. — Non. W. L. Jarrott, Judge. (1) Under the proof made by defendant that the jack had served nine mares, the court should have instructed the jury to find for plaintiff as the only guarantee given by Oolyer was that the jack was “guaranteed to perform only.” Defendant purchased and accepted the jack under this guarantee. Weaver v. Railroad, 60 Mo. App. 207; Bank v. Hainline, 67 Mo. App. 483; Wolff v. Campbell, 110 Mo. 114; Mfg. Oo. v. Lumber & Hardware Oo., 81 Mo.

— Hon. J. P. Butler, Judge. • (1) The issue was one of fact, in the determination of which the jury passed on the credibility of witnesses and the weight of their testimony. As the evidence overwhelmingly supports the verdict it should stand. Edwards v. Railway, 82 Mo. App. 478; Becldey v. Skroh, 19 Mo.

<p>Appeal from the Vernon Circuit Court. — Hon. H. O. Timmonds, Judge.</p> <p>(1) The statement was and is insufficient to confer jurisdiction on the justice. Drug Co. v. Johnson, 80 Mo. App. 428; Nutter v. Houston, 32 Mo. App. 451; Hill v. Steel Co., 90 Mo 103; Leas v. Express Co., 45 Mo. App. 598; Rosenburg v. Boyd, 14 Mo. App. 429; Swartz y. Nicholson, 65 Mo. 508; Brashears v. Strock, 46 Mo. 221; Reinhardt v. Kempf, 72 Mo. App. 646; Doggett v. Blanke, 70 Mo. App. 500. (2) And this question can be raised for the first time in the appellate court. Lilly v. Menke, 126 Mo. 190, 211. And no motion for a new trial or in arrest is necessary. Swaggardv. Hancock, 25 Mo. App. 596; Bagby v. Emberson, 79 Mo. 139; Bauer v. Barnett, 46 Mo. App. 654; State ex rel. y. Thompson, 149 Mo. 444; Childs v. Railroad, 117 Mo. 414.</p> <p>(1) The accounts filed are sufficient. Glenn v. Weary, 66 Mo. App. 75; Eorce y. Squier, 133 Mo. 306; Quinn v. Stout, 31 Mo. 160; Weese v. Brown, 102 Mo. 299; Allen v. McMonagle, 77 Mo. 478; Coughlin v. Lyons, 24 Mo. 533; Lemon v. Lloyd, 46 Mo. App. 452; Ingalls Y. Averitt, 34 Mo. App. 371. (2) No formal pleadings are required in the justice court. E. S. 1899, see. 3852. (3) It is too late to object in court of last resort that no account was filed in tbe justice’s court. Beard v. Parks, 44 Mo. 244; Eisber v. Eailroad, 46 Mo. 304; Phillips v. Eitzpatrick, 34 Mo. 276; Grabbe v. Drayage Co., 42 Mo. App. 522; Bush & Weissman v. Diepenbrock, 20 Mo. 568; Hartford y. Boyes, 56 Mo. App. 139; May v. Xloss, 44 Mo. 300; Eleiscbmann v. Miller, 38 Mo. App. 177; Webb v. Eobertson, 74 Mo. 380.</p>

— Hon. E. P. Gates, Judge. (1) Evidence of profits made by plaintiff was inadmissible. Evidence in that regard should have been confined to his earnings. Profits in business are not earnings. Good-hart v. Railroad, 35 Atl. Rep. 191; Railroad v. O’Reilly, 158 U. S. 334; 8 Am. and Eng. Ency. of Law (2 Ed.), 654; Blate v. Railroad, 51 N. Y. Supp. 590, and cases cited; Silsby v. Oar Co., 54 N. W. Rep. 761; Bierbach v. Rubber Co-., 11 N. W. Rep. 514; 1 Sedg. on Dam., see. 181.

— Hon. J. W. W afford, Judge. Where a specific intent is required to make an act an offense, the mere doing of the act will not raise a presumption that it was done for such prohibited purpose; and there was no evidence of unlawful intent in this case. Mahan v. Brown, 13 Wend. (N. Y.) 261; Pickard v. Collins, 23 Barb. (N. Y.) 444; Letts v. Kessler, 54 Ohio St. 73; Lapere v. Luckey, 23 Kan. 534; Granite & Marble Co. v. Knickerbocker, 103 Cal.

Circuit Court. — Hon. J. P. Butter, Judge. (1) The court erred in holding as a matter of law that plaintiff exacted or received usury. Webb on Usury, sec. 256; Arnold v. Potter, 22 Iowa 194; Townsend v. Riley, 46 N. H. 300; Bank v. Young, 37 Mo. 407; Green v. Kennedy, 6 Mo. App. 577.

— Hon. J. P. Butter, Judge. (1) The loan to plaintiff was not usurious because made to him in strict compliance with the statute of Missouri. R. S. 1889, sec. 2812; Laws 1895, p. 108, secs. 7 and 9; Brown v. Archer, 62 Mo. App. 290; Hughes v. Association (Term.), 46 S. W. Rep. 362; Eng. & Tr. Co. v. Donovan, 147 Mo. 622. The application and written bid and the action of the board of directors show a full compliance with the law. .

— lion. J. A. Hoclcaday, J udge.’ (1) After evidence had been introduced showing that the defendant had a pistol concealed about his person at the Jones party on the twenty-ninth of December, 1899, the court erred in admitting proof of another and distinct carrying of concealed weapons nearly a year before, with which the defendant was not charged in the information and for which he had not been tried before the justice. Columbia v. Johnson, 72 Mo.

— Hon. J. A. Hoclcaday, Judge. The trial court erred, in not sustaining defendant’s motion to dismiss this cause; as the record before that court showed that there was no jurisdiction, and the record before this court .shows that there was no jurisdiction. Nothing will be presumed to be within the jurisdiction of an inferior court except what the record specially shows; and no presumptions are to be indulged in favor of their actions.

— Hon. E. J. Broaddus, Judge. (1) Eespondent was not entitled to recover unless he has shown by a preponderance of the evidence that Halliday, the proposed purchaser, was ready, willing and financially able to buy. He must show that Halliday was solvent and had the means to buy with. This is not shown by proof that some one was able to loan him money. Huggins v. Hearne, 74 Mo.

— Hon. E. J. Broaddus Judge. (1) The court erred in admitting evidence as to the agreements made by the cashier with the directors by which the note in suit and other notes were not to be paid, but were tp be held for another purpose. He had no.power to do so. Morse on Banks and Banking (3 Ed.), sees. 152, 167; Barde v. Hill, 148 Mo. 380, loe. cit. 392. (2) Declaration number 4, refused, should have been given.

— lion. A. M. Woodson, Judge. (1) We think this combination of circumstances clearly establishes that the trustee went beyond the authority conferred by the deed of trust, and in conjunction with said Campbell operated s.aid store in disregard of the power of sale contained in the trust deeds, establishing in law a secret trust, no matter how pure were the intentions of the parties. Hepburn v. Mueller, 10 Mo. App. 87; Mfg.

<p>Appellate and Trial Practice: EXCEPTIONS TO REFEREE’S REPORT: MOTION FOR NEW TRIAL. In order to bring the action of the trial court in overruling exceptions to a referee’s report before the appellate court fer review, the appellant must not only save his exceptions to such action but call attention thereto in his-motion for a new trial.</p>

— Hon. Gallatin Craig, Judge. (1) Although the will directed the sale of the land, and thereby effected an equitable conversion of the land into personalty, yet it is “nevertheless subject to the rules of law governing real estate generally, inasmuch as it is taxable and controllable as such, and can be conveyed only by deed.” 2 Woerner’s Law of Adm’r, p. 728, sec. 342; Wilder v. Eanney, 95 N. T. 7-12.

Circuit Court. — Hon. Gallatin Oraig, Judge. (1) The pleadings admit that the plaintiff was an innocent purchaser for value before maturity, and the court erred in not giving instruction number 1 asked by plaintiff. Cow-gill v. Petifish, 51 Mo. App. 264; Emmert v. Meyer, 65 Mo. App. 609. (a) And where the verdict, as in this case, is absolutely without proof to sustain it, the court should grant a new trial. Spooner v. Railway, 23 Mo. App. 403; Wight v. Railway, 20 Mo.

'Appeal from the Linn Circuit Court. — Hon. J. P. Butter, Judge. (1) Plaintiff’s own testimony shows that he was not the sole owner or in the exclusive possession of the fence torn down, but that he and Mrs. Howard owned the same as tenants in common and had a common possession. In all such cases it is incumbent to make both tenants in common parties plaintiff.

— Hon. Gallatin Oraig, Judge. (1) The proof utterly failed to show that defendant ever agreed to pay for the board of Miss Nies and child, or that he ever entered into any contract with reference to the board with plaintiff; nor did defendant ever authorize any one to make such a contract. The -court should have granted a new trial, for the verdict is absolutely without proof to support it. Spooner v. Bailway,. 23 Mo. App. 403 ; Brewing Co. v. Bodemann, 12 Mo.

— Hon. N. M• Shelton, Judge. Tbe second count of plaintiff’s amended petition does not state facts sufficient to constitute a cause of action. R. S. 1899, sec. 1105; R. S. 1899, sec. 3295. (1) Tbe petition is good if it does state all tbe failures of defendant to fence, etc., in one count. Duncan v. Railway, 91 Mo. 67; Woods v. Railway, 51 Mo. App. 502; Ray v. Railway, 25 Mo. App. 104.

— non. N. M. Shelton, Judge. (1) Where there Í3 any evidence, however slight it may be, and whether direct or inferential, it must go to the jury, who are the exclusive judges of its weight and sufficiency. Charles v. Patch, 87 Mo. 450; Twohey v. Eruin, 96 Mo. 104, 109; Taylor v. Short, 38 Mo. App. 21; McEarland v. Bellows, 49 Mo. 311; Higgins v. Eailway, 43 Mo. App. 547.

— Hon. Otis Hosier, Judge. (1) In this case there was a clear departure between the original petition and the amended petition, so far as James E. Tillery is concerned. Drake v. Railroad, 35 Mo. App. 556; Pruitt v. Warren, 71 Mo. App. 84; Clothing Co. v. Railroad, 71 Mo. App. 243; Lumpkin v. Collier, 69 Mo. 170; Eields v. Maloney, 78 Mo. 172; Scovill v. Glasner, 79 Mo. 449 ; Hill v. Mining Co., 119 Mo. 30; Hernán v. Glann, 129 Mo. 326; Hollmann v. Lange, 143 Mo. 101.

— Son. W. L. Jarrott, Judge. Submitted brief on merits. (1) The record filed in this court by appellant fails to show that any bill of exceptions was filed, and fails to show that any was allowed or signed by the trial court, and for these reasons the record proper, alone, can be considered in the appellate court. Williams v. Williams, -26 Mo. App. 408; Lumber Co. v. Howard,-76 Mo. 517; Linahan v. Barley, 124 Mo. 560; Cramer v. Akin, 49 Mo.

— Hon. T>. W. ■Bhacldeford, Judge. (1) The court erred in p'ermittng the witnesses in behalf of the state to testify as to what they understood the defendant to mean by the use of the words charged to have been used. State v. Boos, 66 Mo. App. 537; Dickson v. State, 30 S. W. Rep. 807. (2) The information charges no offense under the statute.

— Hon. P. O. Stepp, Judge. (1) This last amendment of tbe plaintiff’s cause of action is a complete abandonment of tbe original, both as to tbe form of action and subject-matter, and was improperly allowed. Tbe recovery being bad on an entirely new matter and of a different nature; Sturges v. Botts, 24 Mo. App. 282; Edmonson v. Nile, 43 Mo. 176; Penninger v. Reilley, 44 Mo. App. 255: Price v. Railroad, 40 Mo. App. 189; Bank v. McMenamy, Adm’r, 35 Mo. App. 206.

— Hon. W. W. Bucher, Judge. (1) The indictment in this case does not charge any offense, but is fatally defective in this, that' it fails to state that Nina Dean did not die, as a result of taking the alleged medicine. The proper construction of said section makes the fact that death does not ensue, an essential part of the description of the misdemeanor inhibited thereby.

— Hon. A. M. Woodson, Judge. (1) The execution of the new note and mortgage in 1896 did not purge the transaction of usury. Bank v. Miller, 73 Mo. 187; B. & L. Ass’n v. Lane, 81 Tex. 369; 27 Am. and Eng. Ency. of Law, pp. 964, 965, 966, 967, and cases cited. (2) The original loan was tainted with usury. R. S. 1899, secs. 3706 and 3709. There was no competitive bidding as is required by statute. R. S. 1889, sec. 2812; Moore v. B. & L. Ass’n, 74 Mo.

— Hon. John P. Butter, Judge. Where there is any evidence, however slight it may be, and whether direct or inferential, it must gO' to the jury who are the exclusive judges of its weight and sufficiency, and in such case instructions in the nature of demurrer to the evidence are properly refused. Taylor v. Short, 38 Mo. App. 21; Grant v. Railroad, 25 Mo. App. 227; Matthews v. Railway, 26 Mo.

— Hon. N. M. Shelton, Judge. (1) Plaintiff’s petition does not allege that the danger, if any, which plaintiff incurred by remaining in his room, was unknown to him and was known to the defendant or by the exercise of ordinary care ought to have been known. Railway v. Barber, 5 Ohio St. 568; Roberts v. Smith, 2 Hurl. & Nor. Exchq. Rep. 218; Gibson v. Railway, 46 Mo. 173; Hayden v. Smithfield Co., 29.

— Hon. James Gibson, Judge. (1) . The court committed error in refusing to grant a new trial on the ground that the preponderance of the evidence against the verdict was so strong as to raise the presumption of prejudice or partiality on the part of the jury. Price v. Evans, 49 Mo. 396; Spohn v. Railroad, 87 Mo. 74; Walton v. Railroad, 49 Mo. App. 620; Empey v. Railroad, 45 Mo. App. 422; Garrett v. Greenwell, 92 Mo. 120; State v. Primm, 98 Mo. 368.

— Hon. P. O. Stepp, Judge. (1) The evidence shows that the contract set forth in defendants’ answer, the only contract executed by defendants, is a contract of indemnity; under the law, the sum of $1,700 therein mentioned is a penalty. This being true, there could not be a legal recovery on this contract, under any circumstances, for any sum in excess of the damage sustained by .N. H. Jaynes.

— Hon. P. G. Stepp, ' Judge. (1) Demurrer to the evidence should have been sustained for the reason that plaintiff failed to prove that he was the owner of the cow, or that defendant operated a railroad in either Trenton or Marion townships. Whitesides v. Railroad, 49 Mo. App. 250; Gilbert v. Railroad, 23 Mo. App. 65. (2) There can be no recovery under section 2611 (1105) because the cow was not actually struck by a train. Boggs v. Railroad, 18 Mo.

Louis City Circuit Court. — Hon. Pembrooh B. Flitcraft Judge. ' (1) The contention of the appellant is that Dow-ling, being a member of the board of directors of the, association and having been present at the meeting which adopted the resolution instructing the secretary to prepare a note for $500 as a loan, and having thereafter executed his note for $500 pledging his stock as collateral security, is estopped from denying the validity of that loan and note or that he was…

<p>Evidence: DURESS: PLEADING: PETITION, ALLEGATION OP. Where a petition alleges that over payments on a note were obtained through duress or false representations, it is immaterial whether the evidence is sufficient to support the allegation of duress provided that the latter allegation of obtaining the money by false representations is sustained by a preponderance of the evidence, both as to the number of witnesses and as to credibility.</p>

Louis City Circuit Court. — Hon. Franlclin Ferris, Judge. (1) The statute gives no right to a money judgment. Burt v Mears, 41 Mo. App. 231; Buggy Co. v. Ilord, 65 Mo. App. 38; Barnes v. Rawlings, 74 Mo. App. 531. (2) The statute is in derogation of the common law, and should be strictly construed. Yankee v. Thompson, 51 Mo. 234; Stone v. Kelley, 59 Mo. App. 214; Jackson v. Railroad, 87 Mo. 422.

Louis City Circuit Court. — Son. Franklin Ferris, Judge. (1) The instruction asked at the close of the case of the respondents ought to have been given. There was no evideuce as to the statutory laws of Illinois. Hence the common law rule obtained. At common law there is no liability on the part of appellants to reimburse respondents for cost, paid by them, but which were adjudged 'against appellants.

Louis City Circuit Court. — Hon Jacob Klein, Judge. (1) The evidence as to declarations by the president of the appellant, made after the note had been purchased, was improperly admitted, and its admission was reversible error. The declaration was not made in connection with any business being transacted for the appellant. The president was not the corporation, and his declarations after the purchase were no more binding upon the appellant than those of any other agent.

<p>1. Contract, Construction of: TIME, ESSENCE OE: UNREASONABLE DELAY. Time being tbe essence of the contract, in the ease at bar, to delay shipments for fourteen days, as the plaintiffs- did, was as a matter of law, an unreasonable delay, violative of the contracts and authorized defendant to repudiate it.</p> <p>2. -: CONDITION PRECEDENT: EVIDENCE- In the case at bar, the ability of plaintiff to obtain ears in which to make shipment is nowhere incorporated in the contract as a condition precedent to its obligations to make shipments.</p> <p>3. Contract, Acceptance of: MUTUAL ASSENT: EVIDENCE. In the absence of evidence as to the unconditional acceptance of an order as to shipments on the part of plaintiff, as- demanded by defendant, it can not be said that the minds of the parties to a contract met, or that there was a “mutual assent to the same thing in the same -sense.”</p>

Louis City Circuit Court. — Hon. William Zachritz, Judge. (1) The Central Trust Company was not the agent of defendant to receive payment of the interest or coupon note due December 1, 1893, and therefore the payment made by plaintiff to that company in November, 1893, was not a payment of the coupon or interest note in dispute. Jones on Mortgages (1 Ed.), p. 964; Ferne&u v. Whitford, 39 Mo. App. 311; Sharp v. Knox, 48 Mo.

Louis City Circuit Court. — Hon. William Zachritz, Judge. (1) A lien will mot lie against the land alone for work dome thereon, but is a remedy given against the land and improvements when the work dome is in connection with the erection of a building or improvements placed upon the land, and the lien then attaches both to the interest of the tenant in the land, and to the improvements.

Louis City Circuit Court. — Hon. Franklin Ferris, Judge. There is no evidence in the case that the sale of the stock by father to son upon which the capital stock was not paid was fraudulent. The acts shown and relied upon are as consistent with an honest purpose as with a dishonest one and under such circumstances the law presumes the honest purpose. Paine v. Railroad, 121 Mo. 405; Glover v. Ins. Co., 130 Mo. 173.

<p>Appeal from the St. Louis City Circuit Oourt. — Hon. Horatio D. Wood, Judge.</p> <p>The statement of plaintiff filed before the justice set-out a.good cause of action, and the circuit co-urt so held when, at the opening of the trial, defendant objected to the introduction of any evidence for the reason that the statement alleged no facts constituting a cause of action. The evidence fully supported the allegations contained in the statement of the cause of action. The evidence for plaintiff made out a strong prima facie case, and the trial court, at the close of plaintiff’s case, refused to instruct the jury to find for defendant, and the evidence introduced by defendant strengthened plaintiff’s ease by showing that the -employees of defendant were in discharge of the duties assigned them when they unlocked plaintiff’s room and lodged a stranger in it all night. The night clerk was in charge of the hotel at night and it was his duty and in the line of his employment to receive guests applying for rooms and to assign them their rooms; and by further showing that, except during this night when this stranger had it, the key of this room was always in the keeping of these employees, and that this room was not opened or anyone allowed to enter it except the night this stranger was put in it, thus showing almost conclusively that the missing goods must have been taken on that occasion. In other words, that the plaintiff lost his property as the result of the action of the employees of defendant in unlocking plaintiff’s room.in his absence and lodging a stranger in it all night, with the key left in the door. We respectfully submit that tbe trial court erred in taking tbe case away from the jury and that the judgment should be reversed and the case remanded for a new trial.'</p> <p>(1) Respondent is exclusively a lodging house keeper. There is a wide distinction between innkeepers, hotel keepers, boarding house keepers and lodging house keepers, there being practically no liability on the part of lodging house keepers, and when there is a liability, they are only held as bailees of the lodgers’ baggage delivered into their actual possession by the lodger himself, and then their liability arises by reason of some negligent act resulting in loss to the lodger. In order to make the distinction clear, we will ask the court to observe the following definitions: (2) Innkeepers. — An inn is a public house of entertainment for all who choose to visit it, and an innkeeper is defined to be a person who makes it his business to entertain travelers and passengers and provide lodgings necessary for them and their horses and attendants. 11 Am. and Eng. Ency. of Law, 7. (3) Guests. — A guest is one who has food or diet and lodgings in another’s family for reward. This is the old definition. A more extended definition, is: A guest is a traveler, a wayfarer or transient comer to an inn for lodgings and entertainment. Every one who is thus received into an inn and entertained, for which entertainment the innkeeper receives a reward for his services, is a “guest.” 2 Am. and Eng. Ency. of Law, 437. (4) We think that it is well established that an innkeeper is one who furnishes meals, etc., and that a lodging house keeper has none of the liabilities attaching to the innkeeper. An innkeeper is mads liable in this state by statute for thefts committed upon the guests by him. or his servants. R. S. 1899, secs. 7578 and 7579. (5) We will refer the court also to Revised Statutes 3899, section 4237. This is the statute giving hotel, inn and boarding house keepers a lien upon the goods of the guest for board, etc. But before a lien can attach it must be one of these kind of houses and for board, lodging and necessaries. As for boarders, whether at an inn or a boarding house, also mere lodgers, the common law recognizes no right of lien upon their effects in favor of the keeper of the house. Schouler on Bailments (2 Ed.), sec. 329.</p>

<p>Remarks of Counsel: VERDICT, SETTING ASIDE: NEW TRIAL: PRACTICE, TRIAL: PRACTICE, APPELLATE. A trial court should not hesitate to set aside a verdict in favor of the offending party, when on a trial de novo on appeal from a justice’s court, after a previous warning, the attorney repeats in his argument to the jury that, “the justice who tried the case did not believe him when he said he did not sign it and rendered judgment against him; •the justice found against him.”</p>

<p>Appeal from tbe Ralls Circuit Court. — Hon. David Henry Ely, Judge.</p> <p>(1) The foreman in charge of a gang or crew of men, with power and authority to give order's and command those under him when, where and how they should work, is the vice-principal and not a fellow servant. The fact that he had no power to discharge and employ men does not destroy the situation as the alter ego of’the master. Hall v. The St. Joseph Water Company, 48 Mo. App. 356; Cox v. Granite Company, 39 Mo. App. 424; Moore v. Railway, 35 Mo. 588. (2) The duties which a master owes his servants and employees, may be delegated to subordinates — even to common laborers, etc., and the master will be liable for their negligence. Tire particular servant or employee, by reason of the delegation becomes the alter ego of the master. Jones v. The St. Louis, Naples & Peoria Packet Co., 43 Mo. App. 398; Dayharsh v. Railway, 103 Mo. 510. (3) In the case at bar, Winegar was the foreman or person' representing the master in giving orders and directing the train, its movements and the men handling same-</p> <p>(1) The demurrer to the evidence was properly sustained for several reasons. The only negligence complained of is that the foreman of the crew communicated a wrong signal to the engineer. Plaintiff and Winegar were fellow servants .in the work in which they were engaged at the time plaintiff was hurt. The alleged negligence of Winegar did not occur in the discharge of any duty by him as a vice-principal of the defendant. Ear such negligence the defendant can not be held liable to the plaintiff, and therefore for that reason the demurrer to the evidence was properly sustained. Wood on Master and Servant, sec. 438, p. 860; McKinney, on Eellow-Servant, sec. 42, pp. 109 and 110; 3 Elliott on Railroads, secs. 1318 and 1319; Harper v. Railroad, 47 Mo. 567; Moore v. Railroad, 85 Mo. 588. (2) The service in which the plaintiff was engaged was a hazardous one, the dangers being obvious and known to all persons, and, as the plaintiff testifies, known to him at the time he entered defendant’s employment. Eugler v. Bothe, 117 Mo. 475; s. c., 43 Mo. App. 44; Epperson v. Tel. Oo., 155 Mo. 346. (3) The plaintiff was guilty of contributory negligence. He had received the Bishop safety coupler and had agreed to use it in making couplings, but neglected to do so. Pryor v. Railroad, 90 Ala. 32; 8 Sou. 55; Russell v. Railroad, 47 Eed. Rep. 204.</p>

<p>1. Judgment, Statutory: REPLEVIN: ASSUMPSIT. A simple judgment as if plaintiff had sued in assumpsit is not a sufficient compliance with the requirements of the statute relative to a judgment in replevin.</p> <p>2. -: -: PARTIES. A judgment in replevin is faulty where there is no finding as to all the parties to the issue.</p> <p>3. --: PRACTICE, TRIAL: PRACTICE, APPELLATE: MOTION IN ARREST. It is a rule of practice that a judgment will not be reversed for formal defects, unless advantage has been taken by motion in arrest.</p> <p>4. -: -: RECORD. In the ease at bar the defects in the judgment are prejudicial and fatal, and it is set aside upon an inspection of the record.</p>

<p>1. Contracts, Construction of: USAGE, PROOF OF: USAGE OF MERCHANTS. It is well established that as to doubtful expressions or phrases in contracts, proof of usage is admissible in order to arrive at the meaning of parties.</p> <p>2. -: -: —-: TRAVELING EXPENSES: AMBIGUITY. The phrase “traveling expenses” in a contract may present an ambiguity, that is, it may be understood and used by merchants in a particular and limited sense.</p> <p>3. -: -: QUESTION FOB. JURY. And the construction of a contract containing such a phrase is for the jury, and not for the court, when it depends on eootrvnsia unconceded facts.</p> <p>4. -: -: CONSTRUCTION OF CONTRACT IN CASE AT BAR. The construction of the contract in the ease at bar is that the plaintiff was to receive a fixed annual salary, to be paid in monthly installments, a portion of which he would be compelled to refund unless at the end of the year his sales reached thirty thousand dollars.</p> <p>5. -: -: -: DAMAGES FOR BREACH OF CONTRACT. And if he was not permitted to complete the contract through the wrongful act of the defendant, his damages for the unexpired time ought to be based on the amount which it is supposed he would earn during the year.</p>

<p>Appeal from the St. Louis City Circuit Court. — Hon. Franklin Ferris, Judge.</p> <p>(1) In the trial of the cause in the circuit court, notwithstanding the stipulation, counsel then acting for defendants objected to trying the two cases at one and the same time and before the same jury, and against this objection cases were so tried by the court. After the cases were called for trial and before any evidence was offered, defendants in each case “objected to the introduction of any evidence on the part of plaintiff in either case on the ground that the accounts filed in the two cases were not sufficiently definite and plain to constitute a cause of action, and ashed that plaintiff be excluded from offering evidence, and especially so as a bill of items had been called for before the justice and had not then or was not in tire circuit court furnished.” These objections were overruled. (2) The motions should have been sustained on statutory grounds. R. S., sec. 630, p. 257; Myer v. Chambers, 68 Mo. 626; Dawson v. Quillen, 61 Mo. App. 676. (3) It is respectfully submitted that the defendants have been greatly prejudiced by the instructions and that Studies particularly has been deprived of a fair and impartial hearing through errors of the court in admitting incompetent evidence on the part of the plaintiff, and in the instructions given. Rumsey v. Railway, 3 Mo. App. Rep. 171. (d) The production of an attorney’s license in a suit to collect attorney’s fees is essential. Kersey v. Garton, 77 Mo. 6d5.</p> <p>(1) The first complaint whioh we shall consider is that based on the following portion of the instructions of the court: “If the jury find from the evidence that the plaintiff rendered for and at the instance of the St. Louis Candy Company any legal services in the matters set out or mentioned in the account against said company, which has been read in evidence, and that no payment has been made for on account thereof, then the jury will find for the plaintiff in his suit against said St. Louis Candy Company, and assess as his damages,” etc. (2) The complaint is based on the use of the term, “legal services.” We confess that we do not comprehend how the defendant pretends to have been injured or prejudiced by this instruction. Its only effect is to restrict and limit the claims of the plaintiff, and, if it were incorrect, he alone would be entitled to complain of it. Besides, the instruction of plaintiff’s right of recovery to legal services was made at the instance of the defendant, and this, of itself, would debar the defendant from complaining of it. The very first instruction ashed by the plaintiff declares that the verdict should be for the defendant, unless the plaintiff has established to the satisfaction of the jury “that the services mentioned in evidence were performed by plaintiff, and were of a legal character.” (3) The law is too well settled to justify any more extended reference to this complaint, that the request for this instruction estops the defendant from complaining of it. Haggard v. Ins. Co., 53 Mo. App. 98; Eenwick v. Bowling, 50 Mo. App. 516; Earrell v. Ins. Co., 66 Mo. App. 153; Aultman, etc., Co. v. Smith, 52 Mo'. App. 351.</p>

'Appeal from the St. Louis City Circuit Court. — Hon Pembroolc B. Flitcraft, Judge. (1) Respondent was not the procuring cause of the sale to Lienhop. It will not suffice for his act to be one of the chain of causes; it must be the procuring or inducing cause, or, as has.been said, “it must be the causa causans Ramsay v. West, 31 Mo. App. 676; Pollard v. Banks, 67 Mo. App. 187; Seebold v. Bethlehem Iron Co., 83 N. 3T. 378.

Louis City Circuit Court. — Son. Franklin Ferris, Judge. (1) The city of St. Louis is authorized to acquire and maintain a workhouse. Charter, art. 1, sec. 1; art. 3, sec. 26, clause 3. (2) And to confine therein violators of the city ordinances who may fail or refuse to pay the fines or penalties imposed against them or a breach of such ordinances. Art. 3, sec. 26, clause 10.

<p>Appeal from the St. Louis City Circuit Court. — Hon. J ohn A. Talty, Judge.</p> <p>(1) Whatever view may be taken of the merits of the ease, this court will reverse and remand the case because the verdict is excessive. The court- should have instructed the jury to allow interest only from the bringing of the suit, which the court attempted to do- but fixed the date more than a year before. Instead of that, the instruction of the court required the calculation of interest by the jury, in ease they found for plaintiff, as of March 20, 1894, which prejudiced defendant in that it required the interest to be calculated from a time before the work was done or any order given therefor. Moreover, the jury followed this instruction, as will be observed from the fact that the verdict was for the full amount sued for, with interest from March 20, 1894. This was error. (2) The instructions of the court were erroneous. Defendant excepted to the same when given, and, therefore, the case must be reversed. (8) The instructions of the court were erroneous in that the jury were told thereby in effect, that they might find for plaintiff, even though they find and believe from the evidence that the plans or sketches in question had not been originally ordered by defendants, provided they found that the plans had afterwards been accepted by them. There was no evidence on which to bas'e any such instruction.</p> <p>(1) Judgment should not be reversed and cause remanded for error made by court in directing interest from 1894 instead of 1895. Because (a) the amount is less than cost of retrial. Hudson v. Burke, 48 Mo. App. 314; State ex rel. v. Still, 11 Mo. App. 283. (b) It does not appear that the attention of the court was specifically called to the error. Conway v. City, 9 Mo. App. 488. (c) Plaintiff can enter a remittitur in this court. McCtdlough v. Phoenix Ins. Co., 113 Mo. 606; Myers Tailoring Co. v. Neeley, 58 Mo. App. 491. (2) This court having decided on the former appeal of this cause (80 Mo. App. 592) that there was evidence to submit to the jury concerning acceptance of plans, etc., that question can not be again raised on this appeal. Eeurt v. Ambrose, 34 Mo. App. 360; Hombs v. Corbin, 34 Mo. App. 393; Lancaster v. Elliott, 42 Mo. App. 503; Shoninge.r v. Day, 61 Mo. App. 366; Hickman v. Link, 316 Mo. App. 123. The case having been tried in accordance with the law as settled on former appeal, judgment should be affirmed with damages. Reber v. Mo. Pac., 38 Mo. App. 616.</p>

— Hon. W. N. Evans, Judge. It will be observed that the note sued on by appellant was signed by the defendants and Canoy in the face thereof, and the note stated that “we, or either of us, promise to pay,-” etc. We submit that this note was a joint obligation, and that all of the parties signing the same were maters, and there being no notice whatever to Hardester, either verbal or otherwise, that the defendants signed said not in any other capacity than as maters, the…

Writ of Prohibition issued against Respondent (with directions). (1) Prohibition is the proper remedy in this ease. “The remedy afforded by the writ of prohition shall be granted to prevent usurpation of judicial power, and in all cases where the same is now applicable according to the principles of law.” Sec. 4448, R. S. 1899. It is a direct attack on the action of the court. State ex rel. v. Rombauer, 105 Mo. 103.

Louis City Circuit Court. — Hon. Franklin Ferris, Judge. (1) The petition does not state a cause of action, nor does the evidence show any failure to comply with the conditions named in the deed. The restriction in question is: “No building shall be erected within thirty feet of the north line of Morgan street.” TJie petition and evidence show but a very small part of a building was erected on the restricted ground.

Louis City Circuit Court. — Hon. FranMin Ferris} Judge. (1) The uncontradicted evidence shows that plaintiff was hired by and in the employ of Ered. Laun, an independent contractor, and not in the employ of defendant, at the time he was injured. Eraud will not be presumed, but must be shown by clear evidence, and acts which consist as well with honest and fair dealings as with a fraudulent purpose will be referred to the better motive.

<p>Appeal from the St. Louis City Circuit Court. — Hon. Franklin Ferris, Judge.</p> <p>(1) The fatal errors patent in this record are “Thick as th’ autumnal leaves that strew the bfooks in Valombrosa;” but they may be assigned seriatim, somewhat in the order of their egregiousness as follows: (2) The court erred in holding that, under the facts the case and the law applicable thereto, interpleaders were entitled to any part of the property attached in the hands of the Rumsey & Sikemeier Company. The agreed statement of facts admits that this property was rubber goods sent by the defendant to the garnishee on consignment to be sold on account of defendants, on commission. The power of attorney and the so-called assignment purport, in terms, to include and convey only “all accounts, bills receivable, notes and commercial paper and money in bank.” The notice and demand from the interpleaders to the garnishee, on September 20, was of the “assignment of an account against you.” The personal property, chattels, in this case, rubber goods and their proceeds, held on consignment, is not included within the language or meaning of the power of attorney and assignment, and does not pass thereby. The identical parallel of this case was thus adjudicated by this court in an opinion by Presiding Judge Bland, with the full concurrence of Judges Biggs and Bond. It was this case over again, in all the facts'material to this point. Plaintiff Stieglitz brought attachment against defendant Rosenberg, and garnished the O. J. Lewis Mercantile Company, and Julius Grates interpleaded. Interpleader claimed under a chattel deed of trust conveying a certain stock of goods, fixtures, etc., in St. Louis, and also “all book accounts, bills receivable and evidences of debt for goods sold out of the store.” The garnishee’s answer showed that “it had in its possession property of the defendant, which it had sold for $1,131,” and that after deducting advances, “commissions for selling the property,” etc., there remained $319, which it paid into court and was discharged. The evidence showed that it was defendant’s “custom to send goods (clothing) to the O. J. Lewis Mercantile Co., for sale, and that the company would make advances on his goods, sell them, take out commissions and pay over balances to him.” The court said: “The sole question for review is whether the deed of trust includes the funds attached in the hands of the garnishee.’’Stieglitz v. Mercantile Co., 76 Mo. App. 275; Pest v. Spencer, 90 Mo. 384.</p> <p>(1) “The fatal errors patent in this record” may, in the conception of appellants’ learned counsel, be “thick as th’ autumnal leaves.” His points are, at all events, as lifeless as those leaves and like them, of no value. But, nevertheless, it is our duty and the court’s to wade through his pile of dead leaves. In the ease at bar the account assigned arises out of the contract of bailment and also out of the fiduciary or trust relationship between assignor and garnishee. (2) It must be evident then that as the broad term “account” is used in the case at bar, and not the limited term “book account,” the ruling in the Stieglits case is not adverse to respondents. (3) Appellants try to defeat interpleader’s right by the rule declared by this court in Stieglitz v. Mercantile Co., 76 Mo. App. 275. There is, however, a vast difference between this case and the Stieglitz case. In this case all accounts were assigned. In the Stieglitz case the assignment was expressly restricted to all hook accounts. We contend there is a vast difference between an “account” and a “book account.” In the Stieglitz case your Honors hold that the relationship between Rosenberg (the defendant attached) and the O. J. Lewis Company (the garnishee) being that of bailor and bailee, and not that of debtor and creditor, and the goods delivered by Rosenberg (defendant) to Lewis Mercantile Company (garnishee) not being goods sold outright but goods to be sold by the latter on commission, the relationship of the mercantile company to Rosenberg was one of trust, not that of a debtor, and that the proceeds of the sale of goods was not a sum to be charged to the Lewis Mercantile Company, until after a settlement and deduction of commission, and hence, was not a matter of book account, and did not pass to the interpleader by the use of the term “book account” in the chattel deed of trust. (4) There are a number of definitions of the term “account.” In 1 Am. and Eng. Ency. of Law (2 Ed.), p. 434, the definition is “a detailed statement in the nature of debit and credit arising out of contract or some fiduciary relation.” In McWilliams v. Allen, 45 Mo. 573, an account is defined to be “a detailed statement in the nature of debit and credit arising out of contract or some fiduciary relation.” In Mill Co. v. Allison, 138 Mo. 55, and Ice Oo. v. Tamm, 138 Mo. 390, this language is approved. In Ittner v. Ass’n, 97 Mo. 567, the court uses the same language.</p>

Louis City Circuit Court. — Son. William, Zachritz, Judge. (1) Where one owes another an individual and a partnership account and makes general payments without directing a special application, and the payments amount to more than the individual account, the law upon principles of equity will apply the balance on the partnership account, although the creditor, being without definite knowledge of the Standing of the two accounts, gave the debtor credit for all payments on his…

<p>1. Corporation: NOTICE: CUSTOM: PRESUMPTION.. In the case at bar plaintiff is a corporation and transacts its business through its officers and agents. Its uniform custom was to have delivered to Maclagan, or in his absence to Hartford, all notices of the arrival of shipments consigned to it. No other officer, agent or employee was authorized to receive such notices. Erom this custom in the transaction of its business, the legal and logical presumption is that had a notice of the arrival of the shipment been given to plaintiff, it would have been received either by Maclagan or Hartford.</p> <p>2. -: -: -: EVIDENCE. This presumption in connection with the evidence that no notice was found among the plaintiff’s files, where it should have been, if received, furnishes at least prima facie evidence that no such notice was given, and the plaintiff was not required to enter the field of conjecture and to produce as a witness every person into whose hands the notice might by some possibility have been delivered, to deny that he ■had received it.</p> <p>3. Jury: PRACTICE, TRIAL: EVIDENCE: INSTRUCTION. Where evidence has some inferential potency it should be submitted to the jury with appropriate instructions.</p>

<p>Appeal from the St. Louis City Circuit Court. — Hon. William, Zachritz, Judge.</p> <p>(1) There is no evidence that the trust property, or its proceeds, was ever mingled with the assets of the commission company, qr swelled the assets of the assigned estate, and the motion should, therefore, have been overruled. Smith v. Harrison, 83 Mo. 210; Evangelical Synod v. Schoeneich, 143 Mo. 656; Deming Oo. v. Webb, 76 Mo. App. 329. (2) The presentation of the claim to the assignee as an ordinary debt and its allowance as such, constitute a bar to the present proceeding. Stoller v. Ooates, 88 Mo. 514; Evangelical Synod v. Schoeneich, 143 Mo. 656; Johnson-Brink-man Oo. v. Bank, 126 Mo. 349; Nanson v. Jacob, 93 Mo. 331; Boiler Works v. Haydock, 59 Mo. App. 653; 27 Am. and Eng. Ency. of Law (1 Ed.), p. 261.</p> <p>(1) There was evidence that the trust property, or its-proceeds, increased the assigned assets. National Bank v. Sanford, 62 Mo. App. 397; Harrison v. Smith, 83 Mo. 217. (2) The respondents are not estopped to maintain the present proceedings. Building Ass’n v. Zoll, 83 Mo. 99; Deming v. Webb, 76 Mo. App. 334; Nanson v. Jacob, 93 Mo. 338; Johnson v. Bank, 116 Mo. 574.</p>

Louis City Circuit Court. — Hon. Horatio D. Wood, Judge. Section 59 of the by-laws of the defendant association, whose purpose is to secure equality among borrowing shareholders in respect of the premium paid by them, is invalid: It is in conflict with the provisions of section 2817 of the statute.. Th© ’association had no right nor power to adopt a by-law inconsistent with this statute. The by-law is also obnoxious to section 2812, Revised Statutes 1889.