Volume 86 — Missouri Appeal Reports

Louis City Oircrdt Court. — Hon. Franklin Ferris, Judge. Wbetber or not plaintiff was “employed” by tbe defendants is a question of law, for tbe court, upon conceded or established facts, but if tbe evidence is conflicting it is tbe duty of the court to instruct what facts, if found, constitute an “employment.” Painter v. Ritchey, 43 Mo. App. 113.

— lion. J. P. Butler, Judge. The only question involved in this case is, whether the sending of the money order by plaintiffs on the fourteenth of April, 1892, as shown by the testimony, was a sufficient compliance with the terms of the policy. If so, the instructions ashed by the plaintiffs should have been given. The other questions involved in this case were determined by this court in its former opinion.

— Hon. Samuel Davis, Judge. (1) The Boatmen’s Bank being a. creditor had three days in which to file its objections to the report of sale after the same had been filed in the circuit court. This the bank failed to do and did not file its objections until February 27, twenty-one days after the report of sale had been filed. The circuit court thereafter had no jurisdiction to entertain exceptions to report of sale by assignee, filed after the lapse of three days.

— Hon. W. W. Bucher, Judge. (1) The court erred in sustainng tbe demurrer to plaintiff’s petition herein. E. S. 1889, sec. 2039. (2) Tbe change of venue granted by tbe Cbariton Circuit Court in tbe original forcible entry and detainer suit on tbe application of tbe plaintiff, sending said cause to tbe Howard Circuit Court, was regular and said Howard Circuit Court acquired jurisdiction of said cause.

— Hon. N. M. Shelton, Judge. (1) A letting of the property to another to use and enjoy the benefits is a disposal of it, so as to render the mortgagor immediately liable for the purchase money secured by the mortgage, although by the terms of the mortgage the same has not otherwise become due and payable. 9 Am. and Eng.

— Hon. P. 0. Stepp, Judge. (1) The power of attorney did not authorize the disposal of the Coleman notes, and S. J. Carpenter was liable for the same, and the law made it the duty of defendant, as executor, to use all due diligence to collect this claim due from S. J. Carpenter, and his failure to do so was a sufficient cause for revoking his letters.

— Hon. P. G. Stepp, Judge. (1) The court instructed1 the jury that 'although it was understood between Morris Bros, “and the interpleader that the mortgage should be withheld from record for fear of injuring the credit of Morris Bros.; that said mortgage was so withheld from record; that J. G. Hutchinson & Co. sold goods to Morris Bros, in the belief that their property was unencumbered; that J. G. Hutchison & Co. would not have extended credit to Morris Bros, if they had…

— Hon. P. 0. Btepp, Judge. (1) Plaintiffs’ objection to the introduction of any .evidence in support of defendant’s alleged counterclaim should have been sustained. Barnes v. McMullins, 78 Mb. 260; Vaughan v. Rupple, 69 Mo-. App. 583; Woodward v. Oonder, 33 Mo. App. 147. (2) Plaintiffs’ instruction number 3 in the nature of a demurrer to defendant’s evidence should have been sustained.

— Hon. Gallatin Craig, Judge. (1) Defendant does not plead accord and satisfaction, nor does the answer give any intimation that any other defense than full payment, would be relied on. The defense of accord and satisfaction must be pleaded. Shaw v. Burton, 5 Mb. 478; 'Wilkerson v. Bruce, 37 Mo. App. 156.

— Son. William L. Jarrott, Judge. (1) It is too clear for argument, the court improperly admitted the evidence to- the effect that Dodd paid Wolf $2 for the latter’s damages. The admissions of an agent, however high he may be in authority, are not binding upon the principal, unless made under such circumstances as to' constitute them a part of the res gestae.

— Hon. D. W. Bhaclcleford, Judge. (1) It was the peculiar province of the jury to determine, under proper instructions from the court, whether the evidence established a mere license to use the lane in question, or an adverse user, under claim of right for ten years or more, continuously and uninterruptedly, etc., thus establishing an easement in 'the servient estate over which the way ran.

— Hon. Samuel Davis, Judge. (1) It was competent for tbe testator to crearte a trust against Ms estate or any portion thereof for the benefit of plaintiff, and if he intended to do so, and meant to do so— and such intention and meaning can be gathered from a proper construction of the will — then his intention should be upheld and the trust sustained.

— Hon. John P. Butler, Judge. (1) Ever since tbe revision of 1889, tbe instructions given by the court and returned by tbe jury with their verdict are as statute made a part of tbe record in every case. R. S. 1899, sec. 748. (2) Tbe verdict is erroneous and defective in that it fails to make an affirmative finding on defendant’s counterclaim. R. S. 1899, sec. 726; Hitchcock v. Baughan, 44 Mo. App. 42.

— Hon. F. J. Broaddus, Judge. (1) The record does not show that the bill of exceptions was ever filed, or filed in time, and the judgment should be affirmed. (2) There is no record in this cause in this court, .and the judgment should be affirmed.

— Hon. John P. Butler, Judge. (1) The court erred in giving instructions for plaintiff which authorized a finding against defendants, under the second count of the petition, upon a state of facts which would have authorized a finding under the first count only.

— Hon. John P. Butter, Judge. (1) The loan to plaintiff was not usurious. R. S. 1889, see. 2812; Laws 1896, p. 108, secs. 7 and 9; Brown v. Archer, 62 Mo. App. 290; Hughes v. Ass’n (Tenn.), 46 S. W. Rep. 362; Engine and Thresher Co. v. Donovan, 147 Mo. 622. (2) The debt was not due, and plaintiff was therefore- not entitled to an accounting. Brown v. Archer, 62 Mo. App. 291; Fisher v. Patton, 134 Mo. 32. He was not entitled to an accounting, for his stock had not matured.

— Hon. John A. Hochaday, Judge. (1) The demurrer should have been sustained. The plaintiffs were not shown to have any title to the note in controversy. If, as contended in the lower court, the title was in the wards, Charles and Stanley Palmer, then the suit should have been brought in their name. The action could not be maintained in the name of the curators. Judson v. Walker, 55 S. W. Rep. 1085; Larned v. Renshaw, 37 Mo. •459; Robinson v. Hood, 67 Mo. 660.

— Hon. E. J. Broaddus, Judge. (1) The contract of shipment being in writing, to warrant a recovery the plaintiff should have alleged and proved that it was defendant’s duty to deliver within a “reasonable time” and that it negligently failed to perform that duty. 3 Ency. PI. and Pr. 848-850, 860-861 and cases cited notes. Garrison v. The Babbage Co., 94 Mo. 130, 138.

— Hon. E. J. Broaddus, Judge. (1) Tbe abstract must set forth so much of the record in the cause as is necessary to an understanding of all ques-tions for decision. Craig v. Scudder, 98 Mo. 664; Long v. Long, 96 Mo. 180; Shaw v. Bryan, 39 Mo. App. 623; Bensberg v. Turk, 40 Mo. App. 227. (2) Unless there is a clear and concise statement of the case in the abstract, the appeal will be dismissed. Mills v. McDaniels, 59 Mo. App. 331; Brown v. Murray, 53 Mo.

— Hon. E. J. Broaddus, Judge. (1) Where any of the children of an intestate shall have received in his lifetime any real or personal property, the law presumes it to have been an advancement, and will so tre'at it unless it affirmatively appears, by affirmative evidence that it was not intended as an advancement at the time the gift was made by the intestate.

— Hon. W. K. James,- Judge. The contract made between the parties should control. Jones on Chattel Mortg., sec. 411; Fleming v. Graham, 34 Mo. App. 160; Drug Co. v. Eobinson, 81 Mo. 18. A party can not by parol evidence substitute a different condition from that expressed in mortgage. Yarney v. Hawes, 68 Me. 442; Eesterer v. Carpenter, 124 Ind. 30; Jones on Chattel Mortg., sec. 430; Cline v. Libby, 46 Wis. 123; Bash v. Bash, 9 Pa. St. 260.

— Hon. Alonzo D. . JBurnes, Judge. (1) Tbe petition states no cause of action in favor of Christopher C. J ones. He was neither owner nor possessor of the land. The allegations are that the ownership, as well as the peaceful possession, was in Mary E. J ones, his wife. The only presumption that can be drawn from this is that it was her sole and separate estate, over which he had no control.

— Hon. William 8. Herndon, Judge. Where a covenant of seizin is made and no title passes and no seizin is delivered the covenant is at once broken, and if the covenantee makes a subsequent deed it operates as an assignment of the chose in action unless a contrary intent is clearly expressed and the second grantee acquires title to this chose in action and can maintain suit thereon.

— Hon. P. O. Siepp, Judge. (1) ■ The court committed error in refusing to give the demurrer to the evidence, and in refusing to give the peremptory instruction to find for the defendant. Marshall v. Press Co., 69 Mo. App. 256; Watson v. Coal Co., 52 Mo. App. 366; Wray v. Light Co., 68 Mo. App. 380; Nugent v. Milling Co., 131 Mo. 241; Holloranv.

<p>Appeal from the St. Louis City Circuit Court.' — Hon. Franklin Ferris, Judge.</p> <p>The alleged judgment by confession from Redmond to Sullivan & Miller was a nullity, because' — (a) The defendant did not personally appear before the justice in open court; (b) The confession was not filed with the justice. R. S. 1899, Sec. 4006. The courts vdll scan, with careful eye, judgments by confession, and this section of' the statute has been construed with great strictness. Burr & Go. v. Mathers, 51 Mo. App. 410; Loth v. Eaconesowich, 22 Mo. AjJp. 68.</p> <p>Pleadings before a justice of the peaee should be liberally construed. Mooney v. 'Williams, 15 Mo. 442; Weese v. Brown, 102 Mo. 299. Strictness of averments and technical precision in pleadings before a justice of the peace are not required. Quinn v. Stout, 31 Mo. 160; McCartney v. Auer, 50 Mo. 395.</p>

<p>Witness, Competency of Wife: ADMINISTRATOR.: ASSIGNMENT: INSURANCE POLICY: STATUTORY CONSTRUCTION. Where •insurance policies have been assigned to a wife for an indebtedness to her from her husband, and the administrator of the estate of the husband is made a party defendant, and the administrator of the assured states in open court that he has no objection to the testimony of the wife (plaintiff) and himself examines the wife fully as to the assignment to her and the indebtedness.of the assured; this conduct on the part of the defendant works a removal of the statutory disability of the witness.</p>

<p>Appeal from the St. Louis City Circuit Court. — Hon. Franhlin Ferris, Judge.</p> <p>An appellant’s commissions are not affected by the prices at which respondent sells goods to his customers. Under the contract he is entitled to fifteen per cent on the amount of goods sold by respondent to his customers, whatever price it may see fit to sell at. The provision of the contract quoted above is penal in its nature. It provides and imposes a penalty of ten per cent on appellant when he sells goods at lower rates of discount than those allowed by the contract.</p> <p>We could, with great propriety, rest our case in this court on the very simple proposition that where no instructions have been asked by either party, and where the case is tried by the court without the intervention of a jury, all presumptions are indulged by the appellate court in favor of the correctness of the ruling of the trial court. This is the undoubted law. We have done more than that, however; we have shown that, under the evidence as admitted, the court could have rendered no other judgment than what it did render.</p>

Louis City Circuit Court. — Hon. Franklin Ferris, Judge. (1) The bond and the contract recited in and attached to it must be construed together as forming one instrument. Sexton v. Anderson, 95 Mo. 373; Belch v. Miller, 32 Mo. App. 387; Houck v. Frisbee, 66 Mo. App. 16; Lewis v. Penn. M. .L. Ins. Oo., 3 Mo. App. 372. (2) The bond sued on must be strictly construed.

Louis City Circuit Court. — Hon. J óhn A. Tally, Judge. (1) While plaintiff in open court during the progress of the trial, announced and contended that he was seeking to recover damages for breach of a verbal contract, yet we submit that his petition is based on the theory of seeking to recover damages for breach of a written contract dated May 17, 1897. One can not sue for breach of a verbal contract and recover for breach of a written contract.

<p>1. Pleading and Proof: VARIANCE. There is no variance between the pleading and proof when the petition avers that plaintiff was to receive sixty dollars for his services, if he assisted in selling certain real 'property, and the proof of plaintiff shows that he was to receive two per cent on the amount for which the property should be sold or exchanged, and that it was sold for three thousand dollars.</p> <p>2. Failure of Proof: STATUTORY VARIANCE: STATUTORY CONSTRUCTION: JUDGMENT. Failure of proof applies to a case where the allegations of the petition or answer are unproven in their entire scope or meaning (section 798, R. S. 189-9) and variance (section 655, R. S. 1899), has reference to mere discrepancies between the issues as made by the pleadings and the evidence in support of them.</p> <p>3. -: -: -: MATERIAL VARIANCE: PRACTICE, TRIAL. In the former ease a judgment is not authorized, whereas in the latter the variance will not be material, unless it has misled the adverse party, and that fact can only be established by the affidavit of the aggrieved party showing in what respect he has been misled.</p> <p>4.-: -. In the ease at bar there was not an entire failure of proof.</p>

Louis City Circuit Court. — Son. James E. . ’Withrow, Judge.

Louis City Circuit Court. — Hon. Pembroolc R. Flitcraft, Judge. (1) Account books are admitted, in evidence for the person by whom they are kept, when the entries are made at the time, or nearly so, of doing the principal fact, because entries made under such circumstances constitute a part of the res gestae. An entry thus made is more than a mere declaration of the party. It is a verbal act following the principal fact in the orderly conduct of business.

Louis City Circuit Court. — Hon. PembrooJc B. Flitcraft, Judge. (1) The letter and telegrams of Haueisen & Lang to respondent were clearly hearsay testimony. The letter of respondent to Haueisen & Lang was not admissible as against appellant. All were admitted against the objections of appellant. O’Neil v. Crain, 67 Mo. 251; Eogue v. Burgess, 71 Mo. 389; Hoskins v. Railway, 19 Mo. App. 315; Hess v. Railway, 40 Mo. App. 206; Proffer v. Miller, 69 Mo. App, 507.

Louis City Circuit Court. — Hon, Pembroolc B. Flitcraft, Judge. Under the facts as found by the referee, no intention to ■charge, or to pay by either party, can as a matter of law be inferred. Potter v. Carpenter, 76 N. T. 157. The subsequent attempt to charge in 1890, does not alter the situation. Osier v. Hobbs, 33 Ark. 215; Allen v. Bryson, 67 Iowa 591; Cook v. Beadley, 7 Oonn. 57; Williams v. Hathaway, 19 Pick. 387.

Louis City Circuit Court. — Hon. Jacob Klein, Judge. (1) By virtue of the oral agreement between plaintiff * and defendant in reference to the occupation of these premises, entered into after the execution of the deed of trust to defendant, and by virtue of defendant’s continued occupation and use of the premises for eight months thereafter, with the consent of plaintiff, and of his payment to plaintiff of forty dollars per month as rent therefor, defendant became a tenant…

Louis City Circuit Court. — Hon. Selden P. Spencer, Judge. (1) The plaintiff liad no title to the land; the defendant, Eliza J. Wolff had undisputed title, hence plaintiff can not maintain an action for trespass upon the land against Mrs. Wolff. Davis v. Wood, 7 Mo. 162; Townsend v. Bissell, 5 Thomp. & C. (N. Y.) 583; 3 Hun. N. Y. 556; Muldrow v. Jones, 1 Rice (S. C.-) 64.

<p>1. Witness, Hot Compelled to Testify Against Himself When Charged With a Crime: ADMINISTRATION: CITATION: STATUTORY CONSTRUCTION: CONSTITUTION. Where an administratrix,of an estate of a deceased person files in the probate court an application for a citation to a party, under section 74, R. S. 1S99, and on the appearance of the party propounds the following interrogatory: “Did you not conceal, embezzle or otherwise wrongfully withhold said goods, chattels, money, books papers and evidences of indebtedness from the estate of deceased?” the administratrix can not compel the party to testify as a witness concerning the matter, since it is an attempt on the part of the administratrix to compel the party to disclose the circumstances of an offense of embezzlement, the source from which, or the means by which, evidence of his crime, or his connection with it may be obtained, or made effectual for his conviction.</p> <p>2. -:-:-r: WITNESS: TESTIMONY. A witness has the right to claim his privilege against testifying to facts which may incriminate him, and is not bound to answer, when from the nature of the investigation and the testimony sought, it reasonably appears that his answer may incriminate or tend to convict him.</p> <p>3. Deposition: PUBLIC HOLIDAY: GENERAL ELECTION DAY. Depositions may be taken on a general election day, although it is a public holiday.</p> <p>4. _: COMMISSIONER, ADJOURNMENT OE COURT. When a commissioner to take depositions adjourns overa day on which he might have lawfully taken depositions, without the consent of the defendant he is without authority to proceed further with the taking of depositions.</p> <p>5. Habeas Corpus: CONSTITUTIONAL RIGHT: ATTACHMENT OE WITNESS. In the case at bar when the petitioner refused to be sworn as a witness, he exercised his constitutional right and is entitled to hi's discharge from attachment under the writ of habeas corpus.</p>

<p>Appeal from the St. Louis City Circuit Court. — Hon, Horatio D. Wood, Judge.</p> <p>(1) A husband and wife can not contract with each other; a partnership can not exist between them. McCorHe v. Goldsmith, 60 Mo. App. 475; Lindsay v. Archibald, 65 Mo. App. 117. (2) The property in the possession of the husband and wife, 'or under their control, is presumptively that of the husband, and the burden of proving the contrary is upon the wife. McLean v. Abshire, 63 Mo. App. 333, at 339; Burns v. Bangart, 16 Mo. App. 22; Plummer v. Trost, 81 Mo. 425, at 428. (3) The earnings of the wife which are not the result of her separate labor, are not protected by the staute, but are, as at common law, the property of the husband and subject to his creditors. Plummer v. Trost, 81 Mo. 428; Plummer v. City of Milan, 70 Mo. App. 598; Birbeck v. Ackroyd, 74 N. Y. 356, at 358; Bean v. Kiah, 4 Hun. 171, at 174.</p> <p>(1) In the state of New York, where the contract was made, husband and wife may contract with any person and with each other. Session Acts of New York, 1892 (Yol. 1), page 1139. This law of New York is the law of the case. Ins. Co. v. Simons, 52 Mo. App. 357, and cases there cited; Eisher v. Anchor Line, 15 Mo. App. 576; Eeddeck v. Walsh, 15 Mo. 519 loe. cit. 537. (2) A husband and wife may' jointly contract with another person in the state of Missouri and enforce such contract by proper suit. Niemeyer v. Niemeyer, 70 Mo. App. 609; Dunifer v. Jecko, 87 Mo. .282; E. S. 1899, p. 1041, sec. 4335-4340; State ex rel. v. Brady, 53 Mo. App. 202. (3) The answer of the garnishee was evidence in its favor and is taken as true unless overthrown by evidence on the part, of plaintiff. This was not done, as plaintiff offered no testimony, simply relying on that part of the answer which set up a partnership. Davis v. Knapp, 8 Mo. 657; McEvoy v. Lane, 9 Mo. 47 loe. cit. 48; Quarles v. Porter, 12 Mo. 76; Eonan v. Dewes, 17 Mo. App. 306.</p>

Louis City Circuit Court. — Hon. William Zachritz, Judge. Appellant respectfully submits that the following errors were committed by the court, to-wit: (1) The refusal of the court to sustain appellant’s demurrer to the evidence of plaintiff below, for the reason that “a receiver can not sue in a foreign jurisdiction for property of the debtor:” Ins. Co. ex rel. Bennerson, Receiver, v. E. S. Needles, 52 Mo. 17; Booth v. Clark, 17 Howard (H. S.), 322; 71 Mo. App. 656; 73 Mo.

Louis City Circuit Court. — Ron. Jacob Klein^ Judge. It was error for the judge to conclude as a matter of law that in arranging with the Muckermann Ice Company, or at the direction of the latter with its subcontractor, the Polar Wave Ice Company, the agent of the Big Muddy Company, Mr. Pavey, was acting as the agent of the electric company and was authorized in behalf of that company to employ either the Muckermann Ice Company or the PolarWave Ice Company to haul the coal…

Louis City Circuit Court. — Hon. Franldm Ferris, Judge. It seems almost self-eyident tbat tbe petition states a cause of action for tbe wrongful and malicious suing out of a writ of attachment without probable cause. State v. Thomas, 19 Mo. 613; Alexander v. Harrison, 38 Id. 258; Walser v. Thies, 56 Id. 89.

Louis City Circuit Court. — Hon. James E. Withrow, Judge. (1) There is one judgment entered here on five alleged causes of action, without any specification as to how much is found against defendant on any one count. This is error. St. Louis v. Allen, 53 Mo. 44. (2) The several causes of action are so commingled as not to state a good cause as to any. By the terms of section 4913, Revised Statutes 1889, it is clear that only the person rendering the service can maintain suit.

Original Proceedings by Mandamus. (1) The respondents were without any discretion in the matter. The record establishes the fact of relators’ right to a change of venue. In such case the remedy by mandamus is clear. State ex rel. v. Higgins, 16 Mo. App. 328. The court has exercised its discretion. Gee v. Railway, 140 Mo. 314. It has adjudged the application sufficient; there is nothing to be done but to grant the change.

— Hon. T. B. Robinson, Judge. (1) The execution and foreclosure of the deed of trust can in no wise affect the interest of J. T. Bente,. the tenant of W. A. Bente, or Eugene Smith, the tenant of J. T. Bente. R. S. 1899, sec. 4:355; Laws 1893, p. 210 (approved March 30, 1893). (2) The word “mortgages” in the aforesaid act of 1893, includes deeds of trust which operate as mortgages. Walton v. Fudge, 63 Mo. App. 52.

— Mon. T. B. Robinson, Judge. (1) A party objecting to the introduction of testimony must state the ground of his objection. Shelton v. Durham, 76 Mo. 434; Primm v. Eaboteau, 56 Mo. 407; Baier v. Berberich, 85 Mo. 50. And he will not be permitted to change his ground on appeal. Dickey v. Malechi, 6 Mo. 177, 186; Tooley v. Bacon, 70 N. T. 34; 1 Thompson on Trials, p. 560, sec. 693, and authorities cited. Garner v. State, 5 Lea.

— Hon. W. W. Bucher, Judge. (1) The petition states a cause of action. Lawrence v. Gayetty, 78 Cal. 126; Kimball y. Ins. Co., 9 Allen, 540; Bigelow on Eraud (2 Ed.), 483 et seq. (2) The making of a promise with no intention at the time of performing it constitutes a fraud. The mere failure to perform the covenant does.not relate back to and render the same fraudulent. It is the present intent not to perform it that makes it wrongful. Lawrence v. Gayetty, 12 Am.

— Hon. E. J. Broaddus, Judge. (1) Tbe court erred in overruling plaintiff’s objections to tbe introduction of any evidence in support of defendant’s special pleas. None of said alleged defenses constitutes any defense at law or in equity. Sbaffner & Yeitb v. Jeffries, 18 Mo. 512; Swain v. Hill, 30 Mo, App. 436; Moss v. Green, 41 Mo. 389; Bucliel v. Lott, 15 S. W. Rep. 413; 2 Perry, 878; Edwards v. Welton, 25 Mo. 379.

— Hon H. J. Broaddus, Judge. (1) Any person witb ordinary intelligence and honesty could identify the property, aided by the inquiry which the mortgage suggested. This is all that the law requires. Campbell v. Allen, 38 Mo. App. 31; State ex rel. v. Cabanne, 14 Mo. App. 295; 5 Am. & Eng. Ency. of Law (2 Ed.), p. 956; McNichols v. Ery, 62 Mo. App. 13; Ranney v. Meisenheimer, 61 Mo. App. 434; Williamson v. Bank, 69 Mo. App. 377; Jennings v. Sparkman, 39 Mo.

— Hon. A. M. ■ Woodson, Judge. (1) The certificate is but an obligation to pay and its holder but a creditor of the association is too plain for argument. Cook v. B. & L. Ass’n, 30 S. E. Rep. 911; Grohmann v. Brown, 68 Mo. App. 630; Dickenson v. Trust Co., 52 N. T. S. 672. (2) Upon its face it is but a promissory note. It contains every element of a promissory note. It has not a single element of capital stock of a building and loan association.

— Hon. TP. K. James, Judge. (1) In this case an administratrix is not only party to the suit but is the real party in interest, and defendants, Baker and Shull, under the statute, section 8918, Bevised Statutes 1889, were both incompetent witnesses. ' (2) The deed from Baker and wife to Ivanora Baker Shull is a completed instrument, admitted to have been executed in December, 1895. It can not be itself and at the same time something else.

— Hon. W. K. James, Judge. (1) Plaintiff seeks a recovery of $1.25 per bushel, less one cent per bushel, etc., on the claim that defendant agreed originally that he would sell for that price when plaintiff testifies that he urged sales at $1.15 and $1.20 per bushel.

— Hon. P. G. Stepp, Judge. (1) Although creditors and purchasers may have actual knowledge of a mortgage of personal property, it is void as to them unless it is acknowledged and recorded. Collins v. Wilhoit, 108 Mo. 458; Loeffler v. Damoree Bros., 75 Mo. App. 207; Buggy Co. v. Woodson, 59 Mo. App. 550; Johnson-Brinkman Co. v. Bank, 116 Mo. 571.

— Hon. P. G. Stepp, Judge. (1) The defendant was liable for damages to plaintiff’s property by reason of changing the grade of the street in front of it. Cons, of Mo., art. 2, sec. 21; R. S. 1889, secs. '1815,1821; Householder y. City of Kansas, 83 Mo. 488; Sheehy v. Cable O'o., 94 Mo. 574; Hickman v. City of Kansas, 120 Mo. 110; Markowitz v. Kansas City, 125 Mo. 485; Davis v. Railway, 119 Mo. 180; Smith y. City of St. Joseph, 122 Mo. 643; Gibson v. Zimmerman, 27 Mo.

— Hon. P. G. Stepp, Judge. The court erred in refusing to give the peremptory instruction offered by the plaintiff at the close of the testimony to find for the plaintiff.

— Hon. P. G. Stepp, J udge. (1) The obligation of both parties are reciprocal; the same law that requires the carrier to deliver baggage safely at its destination, requires the passenger to call for it upon its arrival and remove it, and relieve the carrier of the strict and rigorous liability of the carrier, and if the passenger refuses or neglects to do so, the carrier may deposit the baggage in a reasonably safe place and its responsibility as carrier ceases and it is…

— lion. Nat. M. Shelton, Judge. (1) Before the objection to the introduction of evidence could have been sustained by the court, the petition must have wholly failed to state a cause of action. R. S. 1889, sec. 2047. (2) If the petition stated a cause of action imperfect or indefinitely, this general objection will not avail. Spur-lock v. Railway, 93 Mo. 530.

— Hon. H. 0. Timmondsj Judge. (1) Plaintiff’s action is at law and he must show that he complied with conditions of the contract upon which he sues. He can not declare upon one contract and recover damages upon another. If he was in default, and the time was extended by defendant for payment, then he must show a consideration for the extension of time of payment and before he could recover on that ground he must set out the waiver in his statement.

— Hon. John P. Butler, Judge. (1) It was the duty of the lower court to abate the action as to the defendant receivers when it was made to appear that they had been discharged by the court which had appointed them. Ryan v. Hays, 62 Tex. 42; Brown v. Gay, 76 Tex. 444; Fordyce v. Beecher, 2 Tex. Civ.

— Hon. A. M'. ' Woodson, Judge. (1) The ordinance is not obnoxious to tbe objection that it is a delegation by tbe city, of legislative power. Gallaber v. Smith, 55 Mo. App. 116; Tipton v. Norman, 72 Mo. 380; Steffen v. Eox, 124 Mo-. 634; Hitchcock v. Galveston, 96 U. S. 341.

— Hon. Nat. M. Shelton> Judge. (1) An action for money had and received will not lie where the contract has been in part performed. In such a case the plaintiff must sue for a breach of the contract. The benefits which have accrued from the part performance will go in reduction of the damages which the plaintiff will be entitled to recover. Suddoth v. Bryan, 30 Mo. App. 31.

<p>1. Teacher, Salary of in Public School of St.Louis: BOARD OE EDUCATION, POWERS OE: SUPERINTENDENT OE INSTRUCTION, POWERS OE. In the case at bar action is brought by plaintiff to recover the salary of a teacher in the public schools of the city of St. Louis for the scholastic year beginning June 18, 1897, and ending June 18, 1898. The plaintiff was a teacher in the public school for the preceding year, and her right to recover is based on a claim of reappointment by the defendant for the above specified year, and the refusal of the defendant to allow her to perform her contract or to pay her the stipulated salary. Held, that, under defendant’s charter the Board of Education had power to appoint teachers only on the recommendation of the superintend-ant’s report, and that when the superintendent of instruction .had not recommended plaintiff for re-employment in his report to the Board of Education, June 8, 1897, and that plaintiff had been so notified prior to July 1, 1897, plaintiff was never re-appointed for the scholastic year, 1897-1898 and can not recover the amount of her salary for that time.</p> <p>2. -: -. The power to nominate persons for the position of teachers in the public schools of the city of St Louis is vested solely in the superintendent of instruction, and the power to ratify or reject nominations made by him rests with the Board of Education.</p> <p>3. -: -: -: CONTRACTS OE PUBLIC TEACHERS MUST BE IN WRITING: STATUTORY CONSTRUCTION. All contracts for the employment of teachers in the public schools muát he in writing and subscribed by the parties thereto. (2 R. S. 1899, see. 6759.)</p>

<p>Appeal from the St. Louis City Circuit Court. — Hon. James H. Wiihroiv, Judge.</p>

Louis City Circuit Court. — Ron. James E. Withrow, Judge. Tbe court erred in overruling tbe objections of plaintiff to the testimony of the witnesses Hasse, Saunders, Grubbs and Miner. This testimony was offered for the purpose of proving that the Canmann-Voelkers Eish Oo. bought goods fraudulently, and it had that tendency.

<p>Appeal from the St. Louis City Circuit Court. — Hon. Horaiio D. Wood, Judge.</p> <p>(1) The condition in the policy against other insurance, -unless the agreement was indorsed on or attached to the policy, is a valid condition. Rothschild v. Ins. Co., 74 Mo. 41; Dietz v. Ins. Co., 38 Mo. 85; Wolf v. Ins. Co., 75 Mo. App. 337. (2) There must be both knowledge and acquiescence to constitute a waiver. Johnson v. Lowe, 72 Mo. 637; Haysler v. Owen, 61 Mo. 270; Reithmueller v. Ins. Co., 20 Mo. App. 246. (3) There was no notice, but merely an inquiry as to the terms of the policy. This was insufficient. Hayward v. Ins. Co., 52 Mo. 181-195; Gardner v. Ins. Co.,' 58 Mo. App. 611.</p> <p>(1) The defendant can not avail itself of a condition in its policy against other insurance when its agent was also the agent of the other underwriter and as such issued the policy for the other insurance. MeCallum v. L. L. & G. Ins. Co., 67 Mo. App. 66; Hamilton v. Home Ins. Co., 94 Mo. 353; MeCallum v. Hartford Ins. Co., 67 Mo. App. 96; ■ Horwitz v. Ins. Co., 40 Mo. 557. (2) Notice of the additional insurance having been given to the chief clerk of the general agent of defendant, whose duties as such clerk were “to transact all business relating to insuring risks,” “receiving proofs of loss,” “notices, etc.,” constitutes notice to the company. Continental Ins. Co. v. Ruckman, 127 111. 367; Lingenfelter v. Phoenix Ins.Co., 19 Mo. App. 252; Bennett v. Council Bluffs Ins. Co., 70 Iowa 600; James v. Ins. Co., ■148 Mo. 1; May v. "Western Assurance Co., 27 Eed. 261; Baile v. St. Joseph Ins. Co., 73 Mo. 385; Pilkington v. National Ins. Co., 55 Mo. 173. (3) On the question of notice we cite further the following. 2 Wood on Insurance, sec. 382; Hanna v. Insurance Co., 56 Mo. App. 582; Cromwell v. Ins. Co., 47 Id. 109; Trundle v. Ins. Co., 54 Id. 197.</p>

<p>Appeal from the St. Louis City. Circuit Court. — Hon. Pembroolc B. Flitcraft, Judge.</p> <p>(1) The agreement between the parties, that a failure to pay the $16 note at maturity should operate as an effective surrender and cancellation of the policy, was valid and binding. Barnes v. Ins. Co., 30 Mo. App. 539; Dicks v. Ins. Co., 34 Mo. App. 31; Sauner v. Ins. Co., 41 Mo. App. 480; Wallingford v. Ins. Co., 30 Mo. 46. (2) I do not here insist that this policy contained “an unconditional surrender value at least equal to the net single premium for the temporary insurance provided for hereinbefore,” to use the language of the first exception in section 5859, and which was the fact in the Price case ante, but there was evidence tending to show that it was surrendered for an adequate consideration, which would likewise exempt the policy from the provisions of section 5856. Section 5859 was amended in 1895 — Acts, p. 197; but the amendment does not affect this policy. (3) There was nothing illegal in the contract entered into between the parties. There is no statute which makes such a contract void. Voluntarily and of their own free will they agreed that the surrender of the policy, when the note was given, should become'effective and complete if they failed to pay the note at its maturity. There is no doubt they so agreed; there is no doubt they failed to pay the note, and I can find no statute which renders such a contract void or which declares it against public policy. Price v. Ins. Co., 48 Mo. App. 281; Equitable Life v. Clements, 140 U. S. 226. (4) In order to obtain the money it was necessary for the insured to surrender the policy for its full value, and agree that the surrender should be final if the note were not paid at maturity. This is what he did. The status of the parties thereafter was governed by the last clause of section 5859, Eevised Statutes 1889, which provides that when such a surrender is made the policy is not governed by section 5856. If there had been no surrender of the policy and no note given, and the last premium had been paid May 18, 1889, the policy would have been governed by the provisions of section 5856, but the facts here are different, and the judgment of the circuit court was for the wrong party.</p> <p>(1) The note and collateral contract do not constitute a surrender for a consideration adequate in the judgment of the legal holder thereof. E. S. 1889, sec. 5859. Because there was no immediate surrender and cancellation of the policy but, on the contrary, $12.16 was immediately applied to the payment of the premiums due and to become due— both parties contemplating a continuance of the policy in full force and effect. Because it is obvious that the transaction was a loan, evidenced by the note, with the policy as Collateral security. Pitt v. Berkshire Ins. Co., 100 Mass. 500; Franklin Life Ins. Co. v. "Wallace, 93 Ind. 7. (2) Failure to pay the note at maturity did not operate as a forfeiture of the policy and all rights thereunder. Pitt v. Ins. Co., 100 Mass. 500; Eussum v: Ins. Co., 1 Mo. App. 228; Dutcher v. Ins. Co., 95 IT. S. 269 ; Hull v. Ins. Co., 39 Wis. 397. (3) The policy did not contain.a provision for unconditional cash surrender value at least equal to the net single premium for temporary insurance as provided in section 5859, Eevised Statutes 1889. Cravens v. New York Life Ins. Co., 148 Mo. 610.</p>

Louis City Circuit Court. — Mon. Pembrooh B. Flitcraft, Judge. (1) The court was without jurisdiction to try this cause and render the relief prayed for by the plaintiff.

Louis City Circuit Court. — Hon. John A. Tally, Judge. (1) The court was without jurisdiction to try this cause and render the relief prayed for by the plaintiff: (a) It had not jurisdiction to enter an order sequestering the funds of the association which are on deposit in the Merchants-Laclede National Bank, because the members of the grand executive committee, the trustees of the association in whom the legal title to all of its property and funds is vested, have not been…

— Son. John A. Soclcaday, Judge. (1) Tbe court erred in overruling the demurrer to tbe evidence on tbe third'count, and in refusing defendant’s declaration of law number J, because there was no evidence tending to show any notice on its part as to the trust character of the fund in controversy. Thornton v. Bankin, 19 Mo. 193 ; Powell v. Morrison, 35 Mo. 244; Eletcher v. Shaumburg, 41 Mo. 501; Eyerman v. Bank, 13 Mo. App. 289; affirmed in 84 Mo. 408; Clark v. Bank, 57 Mo.

— Hon. William L. Jarrott, Judge. (1) Tbe petition wholly fails to. state that defendant knew that the manner in which the dump boxes were placed on the push car, was negligent, dangerous and unsafe, and shows on its face that the plaintiff knew the manner in which the same were placed and that the danger arising from it was obvious. Epperson v. Tel. Co., 50 S. W. Rep. 795; Berning v. Medart, 56 Mo. App. 443; Wray v. E. L. & W. P. Co., 68 Mo.

— Hon. J. H. Blover, Judge. (1) Under the articles of association, as set forth in the statement, T. W. YanOleave, as one member of the firm of the Martin Lumber Co., had no authority to guarantee the payment of the bill sued on. Lindley on Partnership (2 Am.

— Hon. J. D. Perlcins Judge. (1) The plaintiff Rochester was-a licensee and had no such possession of the land in controversy as would authorize him and his co-plaintiffs to maintain this action. Rules 3 and 4, Mining Rules and Reg.; R. S. 1889, sec. 7034; Desloge v. Pearce, 38 Mo. 588; Lunsford v. Lead Co., 54 Mo. 426;-Boone v. S'tover, 66 Mo. 430; McHose v. Ins. Co., 4 Mo. App. 514; Nelson v. Nelson, 30 Mo.

— lion. Paris O. Stepp, Judge. (1) The plaintiff’s own evidence in this case shows that he was not injured, that he lost none of the property by reason of defendant’s failure to pay off the $600 mortgage as agreed, and therefore he is entitled to no damage. Chinn v. Wagoner, 26 Mo. App. 678; Ewing v. Reilly, 34 Mo. 113; Griswold v. Shelleck, 15 N. W. Rep. 151; Linder v. Lake, 6. Ia. 164; Leonard v. Bishop, 42 Wis. 470; Wilson v. McEvry, 25 Col. 169.

— Hon. A. M. Woodson, Judge. (1) The court erred in giving the declarations of law requiring the jury to find that Mattie Deane, the assured, in her application, made misrepresentations to the defendant, and that the matter so misrepresented actually' contributed to her death; thereby placing the defense upon the ground of misrepresentation of some matter that actually contributed to her death, and confining it to that specific statutory defense (Revised Statutes 1899,…

Appeal- from tbe Clay Circuit Court. — Hon. E. J. Broaddus, J udge. (1) The circuit court of Jackson county, after application for change of venue had been duly presented, had jurisdiction to make no judgments or orders in the ease, except to sustain or overrule defendant’s motion for change of venue. E. S., secs. 4068, 4069. An amended transcript of a justice can not be filed in the circuit court without order of court. Moulder v. Simpson, 63 Mo.

<p>Appeal from the Livingston Circuit Court. — Hon. E. J. Broaddus, Judge.</p> <p>(1) The defendant was guilty of negligence, which caused the injury to plaintiff. Kennayde v. Railroad, 45 Mo. 262; Bauer v. Railroad, 69 Mo. 223; Huckshold v. Railroad, 90 Mo. 548; Baker v. Railroad, 147 Mo. 140; Ernst v. Railroad, 90 Am. Dec. 761; Beopple v. Railroad, 58 S. W. Rep. 231. (2) The question of negligence was for the jury. Bauer v. Railroad, 69 Mo. 219; Petty v. Railroad, 88 Mo. 315; Davis v. Railroad, 46 Mo. App. 180; Hodges v. Railroad, 71 Mo. 50; Baker v. Railroad, 122 Mo. 533; Masterson v. Railroad, 49 Mo. App. 6; Stevens v. Railroad, 67 Mo. App. 363; O’Connor v. Railroad, 94 Mo. 150.</p> <p>(1) A railroad company is not liable for injuries resulting from a horse becoming frightened upon a highway, at the mere sight of its trains, or the noises necessarily incident to the running of its trains in the operation of its road. 3 Elliott on Railroads, sec. 1264; Pavor v. Railroad, 114 Mass. 350; Old Colony Railroad Co., 140 Massi 79; Flint v. Railroad, 110 Mass. 222; Whitney v. Railroad, 69 Me. 208; Hahn v. Railroad, 51 Cal. 605; Burton v. Railroad, 4 Harr. (Del.), 252; Tinst v. Railroad, 167 Pa. St. 438; s. c., 31 Atl. R. 687; Ochiltree v. Railroad (la.), 62 N. W. Rep. 7, 11; Heininger v. Railroad, 59 Minn. 458; s. c., 61 N. W. Rep. 558; Railroad v. Haskett, 10 Ind. 409; Railroad v. Thomas, 60 Ind. 107; Railroad v. Trowbridge, 125 Ind. 391; Railroad v. Schmidt, 134 Ind. 16. (2) Plaintiff must stop, look and listen for approaching trains at a point where by so doing he can see or hear the approaching trains, before passing upon or over a crossing. And if he does not do so he can not recover for the injury received by a collision with the train. If there are obstructions at some points and no obstructions at other points, he must stop at a point where there are no obstructions. He can not be heard to say that he looked and did see, or listened and did not hear what was in sight or hearing. Lane v. Railroad, 132 Mo. 4; Kelsay v. Railroad, 129 Mo. 362; Vogg v. Railroad, 138 Mo. 172, and cases cited on p. 181; Maxey v. Railroad, 113 Mo. 1, and cases cited on p. 11; Payne v. Railroad, 136 Mo. 562; Lynch v. Railroad, 84 Wis.' 348, a leading case. Hayden v. Railroad, 124 Mo. 566. (3) The place where the plaintiff should stop, look and listen must be a place out of danger of injury by train, should one pass over the crossing. “He must stop at a convenient distance from the crossing.” Payne v. Railroad, 136 Mo. 562; Kelsay v. Railroad, 129 Mo. 362. (4) Failure to give the statutory signal will not render the company liable if that is not the proximate cause of the injury. The plaintiff must prove affirmatively that the failure to give the statutory signal was in fact the cause of the injury, before he can recover. 3 Elliott on Railroads, sec. 1264 and cases cited in n. 2; Karle v. Railroad, 55 Mo. 476, 483; Stoneman v. Railroad, 58 Mo. 503; Holman v. Railroad, 62 Mo. 562; Wallace v. Railroad, 74 Mo. 594; Kelley v. Railroad, 75 Mo. 138; Braxton v. Railroad, 77 Mo. 458; Stepp v. Railroad, 85 Mo. 229 ; Moberly v. Railroad, 17 Mo. App. 518, 535; Reed v. Railroad, 50 Mo. App. 504, 506; McDonald v. Railroad, 86 Tex. 1; s. e., 40 Am. St. Rep. 803 and note; Gibson v. Delaware, etc., Co., 65 Vt. 213; s. c., 36 Am. St. Rep. 802 and note; Hudson v. Railroad, 101 Mo. 13; Barkley v. Railroad, 96 Mo. 367. (5) The law very clearly defines what the term “ordinary care under the circumstances” shall mean in these eases. The quantum of care is exactly prescribed as a matter of law. And whether' a given act in the chain of causation is the proximate cause of such injury, is a question of law for the court. Payne v. Railroad, 136 Mo. 562, 1. c. 576 and cases cited; Henry v. Railroad, 76 Mo. 288, 293; Hudson v. Railroad, 101 Mo. 14.</p>

— Son. E. J. Broaddus, Judge. (1) There was no transfer of the notes by Charles Cooper, the owner -and payee, and an indorsement by Hicks of his (Hicks’) name on the back still transferred no title. Dorn v. Parsons, 56 Mo. 601. (2) No transfer could be binding without a consideration. If, as defendant insists, Cooper agreed to the transfer by Hicks, there is no consideration for this transfer and it is void. Howard v. Jones, 10 Mo. App. 85; Tiedeman on Commer.

— Hon. T. B. Robinson, Judge. • (1) In this case relator made claim to property levied on as required by section 492Y, Revised Statutes 1889. Sheriff ignored the claim, failed to give notice to execution creditor or take bond as required. lie did not attempt a compliance with statutes. Relator sues for failure to comply with statute; defendants give no excuse for not doing so.

— Hon. William'L. Jarrott, Judge. - (1) An infant may disaffirm a note and chattel mortgage executed by him to secure same. Stotts v. Leonhard, 40 Mo. App. 336; Miller v. Smith, 26 Minn, 248; s. c., 37 Am. Rep. 407; Corey v. Burton, 32 Mich. 30; Chapin v. Shafer, 49 N. T. 411. (2) An infant may recover a reasonable compensation for work by him, though he has avoided the contract in reference thereto. Lowe v. Sinklear, 27 Mo. 308; Dube v. Beaudry, 150 Mass. 448; s. c., 15 Am.

— Hon. Thomas B. Robinson, Judge. (1) The trial court erred in not granting plaintiff a divorce on the ground of indignities. Wheeler v. Wheeler, 63 Mo. App. 300; Dawson v. Dawson, 23 Mo. App. 175. (2) The court erred in not granting plaintiff a divorce on the ground of adultery. The evidence amply sustained the charge. R. S. 1899, sec. 2927. (3). Plaintiff’s action can not be defeated even if he is guilty of isolated indignities. Mahn v. Mahn, 70 Mo.

— Hon. J ohn P. Butler, Judge.' (1) Tbe motion of tbe Vermont Marble Company to be made a party defendant should have been denied. Boyer v. Hamilton, 21 Mo. App. 520; Kortjohn v. Seimers, 29 Mo. App. 271; Browning v. Hilig, 69 Mo. App. 594; R. S. 1899, sec. 4491. (2) Defendants’ motion to strike out parts of tbe replication should have been denied.

- — Hon. J. D. Perkins, Judge. (1) There is a well-recognized distinction between an offer or proposition of guaranty and a direct promise of guaranty. The former requires notice of acceptance and acting upon it while the latter does not. The bond in this case is a direct promise of guaranty. It creates an original liability. Brandt on Suretyship and Guar., sec. 162, 164, 165, 166, 167 and authorities cited.

— Hon. J. D. Perkins, Judge. (1) Plaintiffs damages were the result of a mere accident. Plaintiff was not expecting to cross defendant’s tracks where the accident happened. He is not in a position therefore to complain, if there was a failure of signals on defendant’s part. Wasson v. McCook, 80 Mo. App. 483, 488; Railroad v. Payne, 29 Kan. 166.

— Hon. H. 0. Timmonds, Judge. (1) Parties who are acting as mere agents of the owners of this land would not be authorized to maintain a suit for the recovery of their principals’ land in their own name. Section 3321, Revised Statutes 1899, says that the complaint shall be made in writing, signed by the party aggrieved, and sworn to. R. W. Taylor is neither the party aggrieved, their agent nor 'attorney.

— Hon. H. 0. Timmonds, Judge. (1) Cities of tbe third class have power to grade streets by enacting ordinances for such purposes. R. S. 1899, see. 5858. (2) There was no ordinance enacted by appellant city authorizing or directing the grading of Washington avenue. Therefore the demurrer to respondent’s evidence should have been sustained. Rives v. City of Columbia, 80 Mo. App. 173; Kolkmeyer & Co. v. City of Jefferson, 75 Mo.

— Hon. W. W. Graves, Judge. (1) At the beginning of the trial of this cause, defendant objected to the introduction of any evidence, because there was no sufficient indictment, which objection was overruled and excepted to. It is sufficient that the indictment charges the offense to have been committed in the county in which it is sought to be prosecuted for the crime. R. S. 1889, sec. 3986; State v. Burns, 48 Mo. 438; State v. Daugherty, 106 Mo. 182.

— Hon. W. W. Graves, Judge. (1) The summons issued in this case by the justice was actually served upon the defendant, and it was the duty of the defendant to appear in answer .thereto, whether served by the right name or not, and if she did not appear in answer thereto she can not be heard to complain of the judgment. Parry v. Woodson, 33 Mo. 34Y; Lumber Co. v. Lumber Co., 39 Mo. App. 1. c. 218; Kronski v. Railroad, YY Mo. 1. c. 3Y0; Penn. Co. v. Sloan, 125 111.

— Hon. N; P. Gates, Judge. (1) It was the duty of the court upon the general request for finding of facts to state its finding upon all the substantive facts in issue. And a general finding that plaintiff was entitled to recover is not enough when objected to at the time by defendants. This action of court was error. Hospital Ass’n v. Williams, 19 Mo. 1. c. 612; Nichols v. Garter, 49 Mo.

— Hon. W. B. Teasdah, Special Judge. (1) Instruction number two, given for respondent, is reversibly erroneous, (a) The first three lines are not only a mere abstraction, but an incorrect one. As applied to this class of actions, there is no such thing as malice in law. Its existence is a fact to be established as any other fact is established. True, in some instances the jury may infer its existence from other established facts, but in no ease is it necessarily inferable.

— Hon. James Gibson, Judge. - (1) Instruction number five, offered by appellants, should have been given. Respondent admits the validity of appellants’ mortgage and defends by saying: “I bought the property from Perry, who says your agent verbally released it from your mortgage.” This is an affirmative defense and the burden was on respondent to establish it by the preponderance of the evidence. Banks v. Wood, 124 Mo. 72; Kent v. Miltenberger, 13 Mo.

Circuit Court. — Hon. James Gibson, Judge. (1) The state statute upon which the petition is based, has absolutely no application to the movement of a steam roller upon the streets of Kansas City.

— Hon. John W. Henry, Judge. (1) Even if this case were the same as the former, the former case could not be pleaded as res adjudícala or as an estoppel to this case, the present having been brought and served within one year from the reversal of judgment in the former case.' Lumber Co. v. Lumber Co., 72 Mo. App. 248; E. S. 1899, sec. 4285.

— Hon. E. P. Gates, Judge. (1) There is at common law no obligation resting upon the owner of abutting property to repair streets and sidewalks. Elliott’s Public Cor., p. 299; Rochester v. Campbell, 123 N. Y. 405; s. c., 20 Am. St. Rep. 760, and note; Dillon on Mun. Cor., sec. 1012. ' The crosswalk are part of the sidewalks. Elliott on Public Cor., p. 300, n. 1; Goodfellow v. New York, 100 N. Y. 15; Hoyt- v. Danbury, 69 Conn. 341; City of Hartford v. Talcott, 48 Conn. 525.

— Hon, E. P. Oates, Judge. (1) Evidence that is not relevant to the issue should never be admitted, especially where it is calculated to induce a verdict that otherwise would probably not be rendered. Eerguson v. Thacher, 19 Mo. 511; Frederick v. Allgaier, 88 Mo. 598; State v. Blunt, 91 Mo. 503; Mathias v. O’Neill, 94 Mo. 520; Bank v. Bank, 64 Mo. App. 253; Weber v. Ins. Co., 5 Mo. App. 51; Jackson v. Smith, I Cowen 119; Thompson v. Bowie, 4 Wallace 463.

<p>1. Insurance: ACTION ON POLICY: NO NEW CONTRACT: NON-SUIT, ERRONEOUS. An ascertainment made by plaintiff and the company’s agent as to the value of the loss caused by fire to plaintiff’s building, does not constitute an abandonment of the provisions of the policy, or amount to a new contract, and a nonsuit directed by the court against plaintiff in a suit on the policy, on the ground that the suit must be brought on the new contract, is erroneous.</p> <p>2. -: -s -: CONDITIONS OR POLICY. The ascertainment as to the amount of the loss sustained by plaintiff was without any consideration and not enforcible, and only indicated a purpose by the company to settle for the loss in compliance with the conditions of the policy, which required the parties to agree among themselves as to the amount of the loss.</p> <p>3. -: --: NOTICE OR LOSS WAIVED. By unconditionally consenting to the adjustment, the agent will be considered to have waived the formal notices of loss and the formal proofs of loss.</p>

<p>1. Damages: NEGLIGENCE: MASTER AND SERVANT: EVIDENCE: DEFINITIONS: “WIPER” OF ENGINES, HIS DUTIES: “ENGINE HOSTLER,” DUTIES OF. To move an engine of defendant railroad company over the side tracks or switches for the convenience of other employees engaged in making up trains, was a service wholly foreign and disconnected with the duties imposed by defendant on the “wiper” of engines, and was specifically entrusted by it to a person having the qualifications of an engineer and termed “engine hostler.”</p> <p>2. -: -: -: -: RECORD. And as there is no substantial evidence in the record that this latter service was ever performed by the wiper of the eftgine in question at any other time, than the occasion of the accident for which this action is brought, it can not be said that on this particular occasion he was acting in the course of his employment by defendant, and as it is not claimed that he then acted under the direction of his immediate superior, the “engine hostler,” or any other person authorized to add to the duties which the defendant had, employed him to perform, it follows that this movement of the engine at the request of two brakemen engaged in making up another train was an act outside and beyond the scope of the agency entrusted to him, and wholly unauthorized by defendant. For mishaps so occurring, causing damage, the principal incurs no liability.</p> <p>3. -: -: FELLOW SERVANTS: STATUTORY CONSTRUCTION OF FELLOW SERVANT ACT: RAILROAD CORPORATIONS. By the language of the Act of February, 1897 (Revised Statutes 1899, section 2873), a railroad corporation operating in this State is made liable to its agents or servants for all damages sustained “while engaged in the work of operating such railroad which are caused by the negligence of any other agent or servant of such railroad.”</p> <p>3. -: -: -: DEFINITIONS OF AGENT OR .SERVANT. And by the use of the words “agent or servant” of such corporation in defining who must be the authors of the injury in order to give a right of action, the Legislature meant co-employees acting in the course of their employment.</p> <p>4. -:-: -: — . And it is not true that one is the servant of another outside of the scope of his authority as such.</p>

Louis City Circuit Court. — Hon. Horatio D. Wood> Judge. Plaintiff revealed no reliance on the theory off arbitration. If such an idea was at work, the pleader failed to carry it out, and left defendants to the mere denial of quantity. Any proof showing that the quántity claimed was not furnished, or that no electricity was furnished, was admissible. Hoffman v. Parry, 23 Mo. App. 20; Scudder v. Atwood, 55 Mo. App. 512; Madison v. Railroad, 60 Mo.

Louis City Circuit Court.. — Hon. Horatio H. Wood, Judge. (1) An oral contract to employ a man for life is not void by reason of the statute of frauds. The man -may die the next' day and hence the contract may be performed within a year.

'Writ of Error to Lawrence Circuit Court. — Hon. Henry G. Pepper, Judge. There is no question but that the information herein is based upon the complaint of Dell Beason. The complaint is not dismissed, but on the contrary accompanies the information into the record and is in terms referred to in the information as the-basis of the charge. The complaint being fatally defective, the information should have been quashed.

<p>Appeal from St. Louis Court of Criminal Correction. — Hon. Willis Glark, Judge.</p> <p>(1) The desire or willingness of the wife to terminate the separation and resume cohabitation with the husband, where such separation occurred with the express or implied consent of the wife, can not convert the act of the husband into an abandonment or desertion with criminal intent, contemplated by the statute, upon the husband’s refusal to maintain or support her. State v. Bruening, 60 Mo. App. 51; State v. Weber, 48 Mo. App. 500. (2) It is a necessity, to establish the cffense of wife abandonment, for the State to show, by the facts and circumstances attending the separation, a desertion or abandonment with criminal intent; to constitute a desertion with criminal intent the husband must desert or abandon his wife without good cause and without her consent to the separation. State v. Euchs, 17 Mo. App. 458; State v. Greenup, 30 Mo. App. 299; State v. Brinkman, 40 Mo. App. 284. (3) Acts and idignities toward the husband, •which if committed at the time would establish good cause for the desertion and abandonment, may be shown to have been previously committed by the wife, especially such acts and indignities which have been continued to the time of separation. State v. Euchs, 17 Mo. App. 458; State v. Satchwell, 68 Mo. App. 39.</p>

<p>Appeal from Butler Circuit Court. — Hon. J. L. Fort, Judge.</p>

<p>Appeal from Audrain Circuit Court. — Hon. E. M. Hughes, Judge.</p> <p>Agreed Statement of Eaots.</p> <p>“The facts herein are agreed to be as follows, to-wit; Mexico is a city of the third class and is located in Audrain county, Missouri, and as such has authority under its charter to prohibit gambling within the corporate limits of the city, and in pursuance of said authority, an ordinance was duly enacted by said city prohibiting gambling and fixing as a punishment for the violation uf said ordinance a fine of not less than $5 nor more than $100 for each offense. It is further agreed that on the seventh day of January, 1900, this defendant with others did, in the city of Mexico, play at a game of chance commonly called poker, with and by means of a deck of ordinary playing cards, a device adapted to playing poker, and other games of chance, and that said game of poker was played by defendant for money, property and gain. It is further agreed that on the eighth day of January, 1900, this defendant was arrested by the marshal of said city, upon a warrant duly issued from the police court of said city, upon a complaint in due form filed in said police court charging this defendant with said offense of gambling, ,and that he was brought before L. N. Bass, the duly elected and acting police judge of said city, and was then and there charged with having violated said ordinance in this: That on the seventh day of January, 1900, he did, within the corporate limits of said city of Mexico, unlawfully play at a game of cards then and there for money, .property and gain. It is further agreed that said L. N. Bass, as police judge of said city of Mexico, had jurisdiction both of the subject-matter and the person of this defendant. That this defendant did plead guilty to the said charge on the eighth day of January, 1900, and was then and there fined by the court the sum of' $5 together with the costs of said prosecution. That this defendant on the said eighth day of January, 1900, did pay said fine of $5, together with" all costs accruing therein, to-wit: $6.10, making a total paid by him and adjudged against him by the court of $11.10. It is further agreed that said ordinance was in full force and effect at all times and dates herein mentioned. It is further agreed that the grand jury of Audrain county for the June term of the Audrain Circuit Court, 1900, returned an indictment against this defendant charging him with the offense of gambling by playing at games of chance commonly called poker with and by means of a deck of ordinary playing cards, a device adapted to playing poker and other games of chance for money, property and gain. It is further agreed that the charge of gambling in the said indictment and upon which this defendant is now placed upon his trial is the same identical offense with which he was charged in the police court of said city of Mexico with having committed on the said seventh day of January, 1900, and to which he pleaded guilty and was fined as hereinbefore set forth. It is further agreed that the two counts in said indictment charged but the one single offense, which offense is the same offense to which this defendant pleaded guilty in said police court. That defendant has been arraigned upon said indictment and entered his plea of not guilty. That he has filed in due form in this court his plea in bar, setting out his former conviction and punishment. And it is admitted by the State that’said plea in bar is in due foim and no point is made by the State on its sufficiency as to the facts pleaded or the manlier of pleading the same. It is further agreed that no point is herein made by the State on any informality or irregularity in the judgment or entry, thereof or any proceeding in said police court.</p> <p>“And it is finally agreed that the foregoing facts be submitted to this court upon the sole issue as to. whether or not said conviction and punishment in said police court is a bar to the prosecution of this defendant by the State of Missouri on the indictment returned herein which said indictment charges identically the same offense with which this defendant was charged in said police court and to which charge and offense he pleaded guilty and was punished by said city of Mexico as hereinbefore stated. R. D. Rogers,</p> <p>“Prosecuting attorney of Audrain county, Missouri.</p> <p>“ E. S. Gantt,</p> <p>“Attorney for Defendant.”</p> <p>The courts of this State have always held that a conviction in a municipal court is a bar to the subsequent prosecution by the State for the same offense. State v. Simonds, 3 Mo. 414; State v. Cowan, 29 Mo. 330; State v. Thornton, 37 Mo. 361; City of Pilot Grove v. McCormick, 56 Mo. App. 530; State v. Ereeman, 56 Mo. App. 579. Prosecutions by a city are not civil cases. They are civil in form only and of a quasi-criminal character. State v. Gordon, 60 Mo. 383; In re Miller, 44 Mo. App. 127; Kansas City v. Clark, 68 Mo. 588; Carrollton v. Rhomberg, 78 Mo. 547; City of St. Louis v. Schoenbusch, 95 Mo. 621. The municipality is the agent of the State and a prosecution by the city is a bar to a prosecution by the State for the same offense. Am. and Eng. Ency. of Law, p. 958; Lynch v. Commonwealth (Ky.), 35 S. W. 264.</p> <p>A proceeding to recover a penalty for the violation of a city ordinance is not a criminal, but a civil proceeding. City ■of St. Louis v. Knox, 74 Mo. 79; City of Kansas v. Clark, 68 Mo. 588; Ex parte Hallwedill, 74 Mo. 401; Piper v. City of Boonville, 32 Mo. App. 145; St. Louis v. Weitzel, 130 Mo. 612. In criminal cases the defendant must be present either in person or by agent or attorney in order that the trial may legally proceed; not so in case when municipal corporation is suing for penalty due for violation of ordinance. In re Miller, 44 Mo. App. 126; City of St. Louis v. Yert, 84 Mo. 209. The action is a civil, rather than a criminal one, for breach of a city ordinance, not a State law, and does not affect and is not affected by the State law against gambling. In criminal eases there can be no valid conviction and punishment unless there has been in arraignment and plea; not so in city case. City of St. Louis v. Knox, 74 Mo. 79. In the case of Coal Company v. City of St. Louis, 130 Mo. 330, the court, in discussing the power to prevent by injunction the enforcement of an invalid and void ordinance of the city of St. Louis, said: “The doctrine that criminal statutes can not be tested, or their enforcement restrained in the civil courts, has no application to this case. Municipal ordinances, though penal, are not criminal statutes. They are quasi criminal in form, but not so regarded in procedure.”</p>

<p>Appeal from St. Louis City Circuit Court. — Hon. Franklin Ferris, Judge,</p> <p>(1) Even if the debt from Wendell Schorle to his brother, Leopold was a valid one, and even if Wendell Schorle transferred the Kurtz notes in payment of, or security for, such debt, yet, if Wendell Schorle further intended, in making the sale to Kurtz, to hinder, delay or defraud his other creditors, and if Kurtz participated in such intent, then the sale as to Kurtz was void, although Leopold Schorle neither knew of nor participated in such fraudulent intent. State ex rel. v. Purcell, 131 Mo. 318; Baker v. Harvey, 133 Mo. 653; Eoss v. Ashton, 73 Mo. App. 251. (2) A bona fide creditor, in securing a preference from his insolvent debtor, ^an not participate in the fraudulent intent of such debtor to hinder, delay or defraud the other creditors. Earwell & Co. v. Meyer & Wolf, 67 Mo. App. 566; Nat. Tube Works v. Machine Co., 118 Mo. 365. (3) Mryfii less can a volunteer purchaser from a fraudulent debtor participate in the fraud and retain the property purchased against the creditor. Esselbruegge Mer. Co. v. Troll, 79 Mo. App. 562; Monarch Eubber Co. v. Bunn, 78 Mo. App. 55.</p> <p>(1) The plaintiff obtained a valid title even though he knew of Wendell Schorle’s fraudulent intent, because the notes paid a bona fide debt to Leopold Schorle, the evidence showing that plaintiff did not know of any participation on the part of Leopold. The instructions properly declared the law. . Sammons v. O’Neill, 60 Mo. App. 536; Dougherty v. Cooper, 77 Mo. 528. (2) There-is no evidence in this case that Kurtz knew of any intention to defraud on the part of Wendell or Leopold Schorle. Knowledge on the part of Kurtz was a question of fact for the jury. Hearn v. Due, 79 Mo. App. '322, 321; Sammons v. O’Neil, 60 Mo. App. 530, 511. (3) Instruction 2 was properly given. The law casts upon the vendee nó duty to inquire into the motives or circumstances of his vendor. There is no evidence of any suspicious circumstances which would have put Kúrtz on inquiry if he were disposed to investigate. Sammons v. O’Neil, 60 Mo. App. 530; Eluegel v. Henschel (N. D.), 74 N. W. 997 and cases cited; State v. Merritt, 70 Mo. 276; Kelly-Goodfellow v. Vail, 3 Mo. App. Rep. 412; State to use v. Mason, 112 Mo. 374.</p>

<p>1. Promissory Note: SUIT AGAINST CO-MAKER: INDORSER BECOMES CO-MAKER, WHEN. On the back of two notes made payable to M were written, “demand, notice and protest waived,” and immediately thereunder in ink the words, “H. May, E. 0. Parker,” and in pencil “818 Security Bldg. Co-Maker.” The evidence shows that Parker wrote his name after May did, and at a different time, and had no knowledge when the words “demand, notice and protest waived” had been written: Seld, that the words “demand, notice and protest waived” contained a contract that bound all who subscribed to them, and by their force he became, in a’ legal sensé, a comaker, and was properly sued as such.</p> <p>2. -: -: -: ALTERATION, NONE. There was no alteration within the meaning of the law, for neither the identity of the contracts expressed by the notes, nor their legal effect, was changed by the words added in pencil.</p>

<p>1. Agency: EVIDENCE OE: AGENT’S AUTHORITY. Agency and the scope of an agent’s authority are facts to be proved like other facts, and they may be proved either by showing the terms of the contract between the alleged principal and agent, or they may be proved by the transactions which have taken place between the principal and agent.</p> <p>2. -:-:-. And evidence of a course of dealing by an agent sanctioned by his principal, is one mode of proving the extent of the agency.</p> <p>3. -: -: -: KNOWLEDGE OP PARTY. And such evidence is admissible, whether the party introducing it knew, at the time of the transaction in controversy, that the dealings had taken place or not.</p> <p>4. --: -: -: POSSESSION OP NOTES: PAYMENT OP NOTES. In the ease at bar, the payment of the notes given by plaintiff to Lisenby, was in effect a payment of the principal, and this is so irrespective of the fact that said agent did not then have actual possession of the notes, or that his authority to receive payment was at the time unknown to plaintiff.</p>

Louis Court of Criminal Correction. — Hon. Willis Glark, Judge. (1) The evidence for the State fails to support the offense alleged in the information, in that it fails to prove beyond reasonable,doubt: Eirst, the 'willful abandonment by the defendant, with criminal intent; and, second, the failure by defendant to make suitable provision for his wife at the time of the alleged abandonment. State v. Doyle, 68 Mo. App. 219; State v. Linck, 68 Mo.

<p>1. Lower: DOWRESS PRECLUDED FROM ASSERTING DOWER BY FRAUDULENT PRACTICE. A dowress may be precluded from asserting her right to dower by fraudulent practices which have been relied on by a purchaser.</p> <p>2. -: -: ESTOPPEL IN PAIS. But in such cases the essential elements of estoppel m pads must exist.</p> <p>3. -: -: -: FALSE REPRESENTATION. And there must have been a false representation of material facts made to the party who did not know them, or a concealment of them, for the purpose of inducing him to act relying upon such representation, or an impression left by the concealment, and he must have acted to his detriment.</p> <p>4. -: -: -. Where a deceased husband’s interest irn land is sold, there is no legal obligation in the widow to inform the purchaser at executor’s sale of her right to dower.</p> <p>5. Principal and Agent: AGENT, SCOPE OF AUTHORITY. For a person to be bound by the acts and representations of his agent, it must appear that they were made within the scope of his authority, or at least, in the apparent scope.</p> <p>6. Administrator’s Sale: CAVEAT EMPTOR. The rule of ernewt emptor applies to administration sales, and the purchaser should investigate the title before buying.</p>

<p>New Trial: NEGLIGENCE: DISCRETION OE TRIAL JUDGE: PRACTICE, TRIAL: PRACTICE, APPELLATE. Where it is apparent from the weight of evidence that a party should recover a greater amount of damages than was awarded him by the verdict of the jury, it is within the discretion of the trial court to grant a new trial, and the appellate court will not interfere with the exercise of. that discretion in so granting a new trial.</p>