Volume 87 — Missouri Appeal Reports

— Hon. Elliott M. Hughes, Judge. (1) The title to that portion of the distributive share of Sarah Wood, deceased, in the estate of Joseph M. Donaldson, deceased, which had not been paid to her at the time of her death, remained in the administrator of Joseph M. Donaldson’s estate. A distributee of an estate acquires no title to his or her distributive share, remaining in the hands of the executor or administrator, prior to the completion of the administration.

— lion. E. B. McKee, Judge. (1) The trial court had no jurisdiction over case or cause of action, because there was no certified transcript of the record and proceedings had in the probate court relating to the case, transmitted to the clerk of the trial court as required by law.

— Hon. J. L. Fort, Judge, (1) The information is bad because it is not based upon the personal knowledge of the presecuting attorney, or the affidavit of any person having personal knowledge of the offense. The letter and spirit of the law requires the information to be predicated upon the personal knowledge of some person, either the prosecuting attorney or an informer. State v. Wilkson, 36 Mo. App. 373; State v. Buck, 43 Mo. App. 443; State v. Hatfield, 40 Mo. App. 358.

— -Hon. Edwin B. McKee, Judge. The mere appointment of a receiver with the usual powers does not relieve the company from liability to suit. Railroad v. Cuppy, 11th Am. and Eng. Railroad cases, 562. Where the railroad is in the hands of trustees, exercising the same functions the corporation is formed to exercise, third persons may sue the corporation in respect to transactions had with such trustees. Railroad v. Ullman, 89 111. 24¡é; Ricketts v. Railroad, 41 Am. and Eng.

<p>Practice, Appellate: BILL OP EXCEPTIONS: RECORD PROPER. Discovering no error in the record proper, and there being no bill of exceptions preserving the evidence and motions, the judgment is affirmed.</p>

<p>Justice’s Court: JUDGMENT: EXECUTION: TRANSCRIPT: REVIVAL OP JUDGMENT: PRACTICE AND PROCEEDINGS: SCIRE PACIAS. After the lapse of three years from the rendition of a judgment in a justice’s court, no execution can be issued upon it, until revived on a scire facias proceeding; and until revived the transcript of such judgment can not be filed in the office of the clerk of the circuit court of the county, by the plaintiff after a lapse of three years.</p>

<p>1. Divorce: AMENDMENT OE PETITION: PRACTICE, TEIAL. Where a petition for divorce did not state a cause of action in the first place, and an amendment of the petition was.allowed before evidence was heard, although defendant saved an exception to the amendment, the objection was without merit where no claim of surprise was shown, and no showing made that the averments prejudiced the defendant in any way.</p> <p>2. -: EVIDENCE: DECREE. In an action of divorce, a plaintiff is as much entitled to a decree when the evidence establishes a statutory ground of relief, as in any other action and a court has no discretionary right to refuse it.</p> <p>3. -: -: -. The only question in a divorce case is whether a cause prescribed by the statutes has been made out.</p> <p>4. -: -: -: -: INDIGNITIES. Indignities contemplated by the divorce law as authorizing a decree of separation, consist of unmerited, contemptuous conduct; any act towards another which manifests contempt for him, contumely, incivility or injury accompanied with insult and amounting to a species of cruelty to the mind.</p> <p>5. -: -: -. In the case at bar, the payment of his wife’s board-bill by the appellant was not the limit of consideration she was entitled to from him, as his testimony indicates was his impression.</p>

<p>Appeal from Audrain Circuit Court. — Hon. Elliott M. Hughes, Judge.</p> <p>(1) The court should have sustained appellant’s motion to strike out a part of defendant’s amended answer, admitting the facts alleged therein to have been true. It was no defense, as the piano was levied upon as the property of the defendant in the attachment and was his property, and no person had the right to take it out of his possession while the attachment was still pending in court. The piano was in the custody of the law, and should remain there unless taken out by due process of law. That point is too clear to require any authorities. (2) Where goods are levied upon by an officer, by virtue of a writ legally issued, the officer acquires a special property in the property so levied upon, and he is authorized to maintain detinue,'replevin, trespass or recover damages for the injury to or loss of the property so levied upon, and the right of action is in his personal and not in his official character. 8 Ency. of PL and Pr., pp. 581, 582, 583.</p> <p>(1) The attaching creditor released the property. A party can at any time dismiss his suit. R. S. 1899, sec. 797. (2) And an attorney can dismiss suit for his client. Davis v. Hall, 90 Mo. 659; Willard v. Siegle, 47 Mo. App. 1. (3) And can release attached property. State ex rel. v. Chaney, 36 Mo. App. 513; Davis v. Hall, supra; 3 Ency. Law, 83; Benson v. Carr, 73 Me. 76. (4) And a eonstable.is not liable when such property is released. State ex rel. v. Chaney, supra. (5) Respondent, herein, as agent and attorney of .the Kimball Piano Company, was the owner and had the right of possession of th'e piano. A mortgagee of chattels, after condition broken, has the absolute title to the property and the right of possession thereof. Jackson v. Cunningham, 28 Mo. App. 354; Pollock v. Douglas, 56 Mo. App. 487; Tobener v. ITassinbush, 56 Mo. App. 591.</p>

— Eon. E. B. McKee, Judge. The evidence showed plaintiff had possession of the note —that it bought the note before maturity — without notice of any fraud or wrong, in the usual course of business; that it is a holder thereof in good faith for a valuable consideration. Upon the pleadings, issues and evidence, plaintiff was entitled to a judgment.

<p>Appeal from Webster Circuit Court. — Hon. James T. Neville, Judge.</p>

<p>Appeal from Einox Circuit Court. — Mon. M. B. McKee, Judge.</p> <p>(1) Appellant’s first contention is that, the court erred in sustaining defendant’s motion to strike out part of plaintiff’s reply. The answer contained new matter. That part of the reply which was stricken out was not inconsistent with the petition, and constituted a defense to the new matter in the answer. R. S. 1899, sec. 607; State to use v. Williams, 48 Mo. 212; Nelson v. Wallace, 48 Mo. App. loe. cit. 197-198; State ex rel. v. Ran, 93 Mo. loe. cit. 130; Rich v. Donovan, 81 Mo. App. 184. (2) Defendant Hunter admitted that he executed the written agreement to purchase the engine which contained the warranty, and that he purchased relying on said writing. The court should have sustained appellant’s objection to the oral testimony of Hunter in regard to the purchase of said engine. It is a general and -well-established rule that parol evidence of a prior or contemporaneous agreement can not be received to vary, add to, or take from an original contract in writing. Newman v. Bank, 70 Mo. App. loe. cit. 141; Kingman v. Schulenberger, 64 Mo. App. loe. cit. 557; State ex rel. v. Jones, 131 Mo. loe. cit. 205; Miller v. E. L. & P. Co., 133 Mo. loe. cit. 220; Tracy v. Union Iron Works, 104 Mo. loe. cit. 198, 199.</p> <p>(1) The case Rich v. Donovan, 81 Mo. App. 184 so confidently cited and quoted, has no application to this case. The “special warranty” clause, if left in the reply, laid no foundation for evidence, or if in evidence, did not tend to show that plaintiff did not deliver an old engine to defendant. Appellant quotes opinion-in Water & Light Co. v. Lamar, 140 Mo. 157, apparently with great confidence. And the very language quoted, “that when an article is furnished pursuant to contract, requiring it to be of a certain quality,” then the rule of that case applies, shows it does not apply. He begs the whole question.' It- is here, whether the engine furnished was the one “contracted” for, and that is the sole question in issue and on trial. If he prevailed on that, he needed no reply much less the special warranty clause to get judgment. This disposes, we think, of all appellant’s objections and assignments. More are itemized on the record, but they are included in these. He does not assign even that the verdict is against the weight of the evidence for the obvious reason it was a hopeless task. He says instruction 1 given defendant does not submit the question of fraud to the jury; and cites authorities to show the instructions should be as broad and no broader than the facts stated in the pleadings. (2) Plaintiff’s attorney seems to have the idea that because the word “fraud” is not used in the instruction, it does not submit that question. The allegation that a party fraudulently did an act, if the act itself does not show it, does not aver it; the allegations of it in a pleading and the proof of it on the trial, is by “facts constituting the fraud.” A pleading and the evidence “must show in what the fraud consists and how it has been affected.” 8 Am. and Eng. Ency. of Law, 653. “The use of epithets, however bountifully, will not supply the place of facts.” Coldfelter v. ITulet, 137 Ind. 137. “If the facts are stated (to constitute fraud) the legal conclusion follows as night follows day, and so no statement of what conclusion the law draws is necessary.” Iloester v. Sammelman, 101 Mo. 619. It is not Complained that all “the facts constituting the fraud” are not predicated in the instruction, but that the word “fraud” is not used. The objection is untenable.</p>

<p>Appeal from St. Charles Circuit Court. — Hon. Elliott M. Hughes, Judge.</p> <p>(1) The court erred in refusing to permit plaintiff to dismiss his action. R. S. 1899, sec. 639; Everett v. Taylor, 32 Mo. 300; Worthington v. White, 42 Mo. 462; Wilson v. Starke, 42 Mo. App. 376. (2) The court should have sustained plaintiff’s motion for a new trial on the ground of misapprehension and mistake of counsel in the trial of the action. R. S. 1899, sec. 800; Powell v. Railroad, 59 Mo. App. 339; Beatty v. O’Connor, 160 Ind. 81.</p> <p>(1) After a cause has been submitted to the jury, or the court sitting as a jury, the plaintiff can not take a nonsuit or dismiss his case. R. S. 1889, sec. 2084; R. S. 1899, sec. 639; Waterworks v. School Dist., 23 Mo. App. 227; McLean v. Stuve, 15 Mo. App. 317. (2) In this case no declarations of law were asked or given on either side, and the case was fully submitted on the evidence and briefs. Lawrence v. Shreve, 26 Mo. 492; Templeton & McKee v. Wolf, 19 Mo. 101. (3) The cause was duly and fully submitted to the court for consideration, finding and judgment and there was nothing left for the court to do but to decide the case. McLean v. Stuve, 15 Mo. App. 317. (4) The court shall not allow any demand against any estate unless the claimant first makes oath in open court or files an affidavit as to payments and offsets. R. S. 1899, sec. 195. (5) A court can not, at 'a subsequent term, change its judgment to one it neither rendered nor intended to render. Eoss v. Eoss, 83 Mo. 100; Peckman v. Meatt, 49 Mo. 345. (6) A judgment regular or irregular, correct or erroneous, can not be set aside after the term has passed at which it was rendered. Ashby v. Glasgow, 7 Mo. 330; Hill v. City of St. Tonis, 20 Mo. 587; Nearns v. Harbert, 25 Mo. 353; Harbor v. Eailroad, 32 Mo. 423; Wilson v. Boughton, 50 Mo. 18.</p>

— Hon. Eliott M. Hughes, ' Judge. (1) The plaintiff’s petition sets out a good cause of action for equitable relief. The plaintiff as a creditor of the St. Joseph Town Mutual Fire Insurance Company (an insolvent corporation), whose debt has been duly allowed, has the standing of a judgment creditor whose debt could not be collected by ordinary process of law. Humphreys v. Milling Co., 98 Mo. 542; Lyon v. Murry, 95 Mo. 23; Merry v. Eremon, 44 Mo. 518.

— Hon. E. M. Hughes, Judge. The court erred in permitting the State to show that the defendant had previously been convicted of a similar offense. Such an offense was not infamous — did not disqualify at common law, and hence can not be shown under our code of procedure. State v. Smith, 125 Mo. 2; State v. Donnelly, 130 Mo. 642; Gardner v. Railroad, 135 Mo. 97; State v. Dyer, 139 Mo. 213; State v. Grant, 144 Mo. 65.

it Court. — Hon. W. N. Evans, Judge. (1) The sale and transfer of the insured property by Johnson, the insured, to plaintiff Watts, without defendants’ knowledge or consent,- avoided the policy. Ins. Co. v. Hauslein, 60 111. 521; Bank v. Ins. Co., 11 Pac. 798; Gibb v. Ins. Co., 61 N. W. 137; Oóttingham v. Ins. Co., 14 S. W. 417. (2) The policy was void as to the insured.

<p>Appeal from Monroe Circuit Court. — Hon. D. H. Fby, Judge. -</p> <p>(1) The plaintiff had a contractual license to stack the hay he had bought of defendant on defendant’s land, to keep it there in the stack for a reasonable time, and within such reasonable time to go upon defendant’s land and remove it. During this reasonable time plaintiff’s rights were absolute, and the license given him by defendant was irrevocable. Wood V. Manley, 11 A. & E. 345; Patrick v. Colerick, 3 M. & W. 483; Gibson v. Agricultural & Mechanical Ass’n, 33 Mo. App. 180; House v. Montgomery, 19 Mo. App. 170; Baker v. Railroad, 57 Mo. 265; Williams v. Eloyd, 63 Mich. 487; Shepherd v. Drake, 61 Mo. App. 134. (2) What would be a reasonable time for plaintiff to have kept his hay on defendant’s land would depend largely on the situation of the parties, and the facts and circumstances attending the transaction. The rule is that “a right under a license, when not specially restricted, is commensurate with the thing of which the license is accessory.” Rerick v. Kern, 14 S. & R. (Ra.) 267.</p>

<p>Appeal from the Lewis Circuit Court. — Hon. E. B. McKee, Judge.</p> <p>'(1) Even admitting, for the sake of argument, that Mrs. Wood, after her marriage with defendant, claimed, used and managed .the property that she had and owned at her marriage with him, these facts would not divest the title out of defendant. Roberts v. Walker, 82 Mo. 208; Woodford et al. v. Stephens et al., 51 Mo. 443; Burns v. Bangert, 16 Mo. App. 22. (2) The petition and evidence showing that said Martha A. Wood and defendant were married March 11, 1875, before the Act of 1875 was passed or took effect, the title to all of the personal property his wife owned at the marriage eo instanti vested in defendant; and there is no evidence showing the same ever became divested. Leete v. State Bank, 115 Mo. 184; Meyer v. McCabe-et al., 73 Mo. 236; Roberts v. Walker, 82 Mo. 200.</p> <p>(1) At common law promissory notes due the wife belong to the husband, provided he reduced them to possession during coverture. Hoop v. Plummer, 14 Ohio St. 448; Tryon v. Sutton, 13 Cal. 490; Little v. Marsh, 2 Ird. (Eq.) N. O. 18; Shuttlesworth v. Noys, 8 Mass. 229. (2) At common law all of the personal property of the woman became that of the husband on marriage. And if he die before he reduce her choses in action to possession, they survive to her. Thus, if the husband had not recovered the amount due on her notes before he died, they again become her absolute property and descended to her heirs and representatives. Banks v. Markesberry, 3 Litt. (Ily.) 282; Dixon v. Dixon, 18 Ohio St. 113; Ryder v. Hulse, 24 N. Y. 372. (3) The reasonable deduction from the common law, in the light of the statute creating a wife’s separate estate unless the husband shall reduce the chose to possession, is that a mere assignment of a chose, it matters not what be the terms of the assignment nor how broad, does not amount to a reduction to possession, but is still a thing in action. Woerner’s Law of Am. Admr., page 638; Picket v. Everett, 11 Mo. 568; Leakey v. Maupin, 10 Mo. 368 loc. cit. 372. (4) Among the wife’s ‘choses in action are notes and securities taken by the husband in his own name for money belonging to the wife. Leland v. Witkins, 23 Mich. 324; Eowler v. Rice, 31 Ind. 258. (5) Before the husband can claim title to tire wife’s property, by reason of his having reduced it to his possession, he must show the necessary written assent of the wife. Otherwise he will be held as a mere trustee. Blair v. Railroad, 89 Mo. 382; McCoy v. Hyatt, 80 Mo. 130; Broughton v. Brand, 94 Mo. 169 loc. cit. 174. (6) When the wife sells her real estate for money, the transaction amounts to a purchase of the money with her separate means within the meaning of those terms used in the Married Woman’s Act of 1875 (Acts of 1875, page 61). If such money comes into possession of the husband he can not dispose of it without her consent in writing.</p>

<p>The court erred in permitting the defendant to testify over the objection of plaintiff, as to conversations had with plaintiff’s agent, concerning the subject-matter of this contract at the time of and prior to the execution of the written contract. All such prior and' contemporaneous agreements were merged into the written contract. 1 Greenleaf omEv., sec. 275 j Hair Co. v. Wolmsley, 32 Mo. App. 115.</p>

— Hon. J. L. Fori, Judge. An open account is barred by the statute of limitations at the end of five years. R. S. 1899, sec. 4273. And where there is no mutual account to keep counterclaim alive, an account, the last time of which is fourteen years old, can not be sued upon or interposed as a defense or setoff. Loeffel v. Hoss, 11 Mo. App. 135; Harrison v. Hall, 8 Mo. App. 169; Thompson v. Brown, 50 Mo. App. 320.

<p>Appeal from Howell Circuit Court. — lion. W. N. Evans, Judge.</p> <p>(1) Whenever any competent evidence shall have been preserved in a bill of exceptions in a cause, the same may be thereafter used in the same manner and with like effect as if such testimony had been preserved in a deposition in said cause, but the party against whom such testimony of a witness may be used, shall be permitted to prove any matters contradictory thereof as though such witness were present and testifying in person. R. S. 1899, sec. 3119; Padley v. Oattelon, 61 Mo. App. 629; Lumber v. Hoss, 67 Mo. App. 261. (2) A proper foundation must be laid before proof of contradictory statements of a witness are admissible. Leahey v. Railway, 97 Mo. 165; Carder v. Primm, 52 Mo. App 102 at 108; 115 U. S. 69. . (3) Declarations are not admissible except by way of impeachment. Eanny v. The State, 6 Mo. 122. (1) Where it is attempted to impeach the credit of a witness by proof of contradictory written statements, the writing, if in existence, must be shown to the witness. Prueitt v. Martin, 59 Mo. 325. (5) If it is intended to impeach a witness by statements out of court, attention must be called to the time, place, etc. Gregory v. Cheatham, 36 Mo. 155; State v. Grant, 79 Mo. 132.</p> <p>(1) The statute under which plaintiffs read in evidence, from the bill of exceptions filed in the cause on former trial, is as follows: “Whenever any competent evidence’shall have been preserved in any bill of exceptions in a cause, the same may thereafter be used in the same manner and with like effect, as if such testimony had been preserved in a deposition in said cause, but the party against whom such testimony of any witness may be used shall be permitted to prove any matters contradictory thereof, as though such witness were present and testifying.” R. S. 1899, sec. 3149. While, as far as we know, this section has received no judicial construction, it is. evident that it was never intended by the Legislature that it should open wide a way to fraud and imposition. If it should receive the construction contended for by appellants such would be its effect. Take this case, and the evil results of such a construction would be apparent. The plaintiffs filed their application for continuance, in which is set out the facts it is alleged the witness would testify to. In order to avoid delay it is admitted that witness, if present, would testify to such facts. This statement is contained in a bill of exceptions, and a new trial is finally granted. But, aside from the statute, no error was committed, and the introduction of the affidavit was proper. Even if Dyer had been present and testified, his affidavit could have been introduced, or if he had testified by deposition or otherwise, because he is a party to the record. Plaintiffs make a witness of him to establish their cause of action against interpleaders (respondents), hence it was not necessary to Jay any foundation to impeach him, because he is a party to the record. All that was necessary was to show that he made the affidavit introduced by respondents, which was done by the witness, Evans, who wrote the affidavit and saw Dyer sign it and make affidavit thereto. Owens v. Eailway Oo., 95 Mo.'169; State v. Young, 99 Mo. 666. (2) But aside from the statute and aside from the fact that Dyer was a party to the record, and a witness, the introduction of his affidavit to contradict him was proper. When it is sought to contradict a witness by a writing, it is notmecessary to call his attention to its contents, but only necessary to show that he signed it. It was once "the law of this State that a witness could not be contradicted by the introduction of his writing without calling his attention to it. Gregory v. Cheatham, 36 Mo. 156.</p>

— lion. Elliott M. Hughes, Judge. (1) The judgment of the lower court should' be reversed, because it erred in overruling defendant’s objection to the admission of any evidence in the case. Plaintiff’s petition does not state facts sufficient to constitute a cause of action. A pond is not a nuisance per se. McDonough v. Robbens, 60 Mo. App. 156.

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

— Son. J. L. Fort, Judge. (1) The court erred in refusing plaintiff’s declaration of law asked herein. Eiley v. Vaughan, 116 Mo. 169; McClain v. Abshire, 63 Mo. App. 333.

— Hon J. L. Fort, Judge. (1) The petition does not state facts sufficient to constitute a cause of action on account of failure to allege or intimate any contractual relations between the parties, or allege any reason why respondent should be re-imbursed by appellant for money paid to third parties to extinguish debts of other third parties, and appellant’s objections to the introduction of any testimony on petition should have been sustained.

— Son. D. S. Eby} Judge. STATEMENT OE THE CASE BY THE COURT. This action was begun on the twenty-sixth of October, 1898, upon an assignee’s allowance of a demand in favor of plaintiffs and against his assignor, the defendant, growing out of a note made by defendant payable to plaintiffs.

— Hon. Elliot M. Hughes, Judge. STATEMENT OF THE CASE BY THE COURT. This action is by the administratrix of the indorsee of a promissory note which, together with the credits on its hack, is to-wit: “$250.00 Eehruary 15, 1886. “Twelve months after date I promise to pay to the order of Hiram Wommaek, two hundred and fifty dollars at 10 per cent interest from date, value received.

<p>Appeal from Wayne Circuit Court. — Hon. F. R. Dearing, Judge.</p> <p>STATEMENT BY THE COURT.</p> <p>Action in the nature of trover for the conversion of a large number of railroad ties charged to have been cut from the timber on certain tracts of land owned by the respondent, jury trial, verdict for $500, and appeal.</p> <p>The contest was over the title to the land on which the timber stood. Both parties claimed to own it. The record is too incomplete to determine from it where the entire estate was vested, but full enough to enable us to pass on the errors assigned. The appellant claims to have acquired the ownership of the timber by purchase from Bernard D. McMenamy. McMenamy bought the land from John S. Guhman, who was the grantee of Joseph Walter in a deed dated February 26, 1896. The respondent likewise claims title from said Joseph Walter by a tax deed dated February 2, 1892. This deed is assailed by the defendant on three grounds: first, that the judgment for taxes was paid before the sale occurred; second, that the sheriff’s deed, on which the respondent r'elies, while purporting on its face to convey the interest of Joseph Walter, as well as of one Lewis Rosenbaum, did not in fact convey said Walter’s interest because his name was fraudulently inserted in the deed after it had been executed by the sheriff and filed for record, and third, that Joseph Walter was not a party to the tax suit nor to the proceedings, judgment, execution and notice of sale. It is not charged that the plaintiff inserted the name of Walter in the deed or that it knew of that act, which is alleged to have been done by some unknown person.</p> <p>It is necessary to state briefly the conveyances of the land shortly preceding the sale for taxes. The judgment in the tax suit was rendered on the seventh day of August, 1891, execution issued the twenty-fifth day of November, 1891, sale occurred the second day of February, 1892, as stated, and the deed was acknowledged by John H. Johnson, the sheriff, on the sixth day of February, 1892. It was filed for record, as appears by an indorsement on the back of it, on the third day of March, 1892, and by another certificate of the recorder appears to have been filed also the first day of March. It was, subsequently, again recorded on the eleventh day of August, 1897. Tbe grantee in this deed was TI. N. Holladay who subsequently conveyed to the plaintiff corporation. Joseph Walter had conveyed the land to Lewis Rosenbaum, December 3, 1889, the deed being put to record the sixth day of December of that year. Said Rosenbaum re-conveyed it to Walter, January 9, 1890, and the deed was filed for record September 19, 1890. It thus appears that Joseph Walter was the owner of the land at the time the judgment for taxes was rendered, but there is no showing as to when the suit leading up to the judgment was begun. All the circuit court records, embracing the files, papers, and judgment in said tax suit, and also the deed records of Wayne county were destroyed by fire the fourteenth day of December, 1892. A copy of the Wayne County Journal of date January 28, 1892, containing the notice of the sheriff’s sale in the case of the collector of the revenue of Wayne county, to recover taxes on said land was identified by the publisher and introduced in evidence. It recites that the action was against Lewis Rosenbaum and that under the special execution the sheriff had levied on all the right, title, claim and interest of said Rosenbaum, and would sell the same the second day of February, 1892. Joseph Walter, who lived in St. Louis, happened to see the notice of sale in said newspaper and wrote to the collector in regard to the matter, sending him $15 to pay the taxes. The collector wrote back on February 3, the day after the sale, saying, $25 more would have to be remitted to pay up all the costs. Walter sent this sum also, but the whole amount was returned to him by the collector on the seventeenth of February in -a letter which stated that the remittance was received too late to have the suit withdrawn and that the printer, after the first money was sent, refused to stop the sale as he did not know whether the balance would be remitted or not. There was also in evidence a letter dated March 2, 1892, written by Johnson the sheriff, to Walter, in which he stated he had sold Walter’s land, that the suit was brought against Lewis Rosenbaum and that J. L. Clarkson bought it. There was testimony by John G. Settle, who owned a set of books containing abstracts of the records of titles in Wayne county, which tended to show that the original record of the sheriff’s deed did not contain the name of Walter.</p> <p>The court gave the following instructions at the request of plaintiff:</p> <p>1. “The court instructs the jury that the sheriff’s deed dated February 2, 1892, read in evidence in the cause, is evidence that Louis Rosenbaum and Joseph Walter were the defendants in the tax suit upon which such deed was based and that said deed can not be defeated as a conveyance by parol testimony to the effect that Joseph Walter had not been made a party defendant in the tax suit.</p> <p>2. “The court instructs the jury that the sheriff’s deed read in evidence, dated February 2, 1892, purports on its face to have been regularly made in the course of judicial proceedings in Wayne county, Missouri, and it purports to convey the interest of Louis Rosenbaum and Joseph Walter, and. you will not be authorized to find for defendant unless you are satisfied from the evidence that the name of Joseph Walter was written and inserted in said deed after the sixth day of February, 1892 (the date of the acknowledgment of said deed), and that said name of Joseph Walter was fraudulently inserted in said deed for the purpose of purporting to convey his interest in the lands described therein.”</p> <p>The following instructions were also given for defendant:</p> <p>“1. The court instructs you, that before you can find for the plaintiff in this case; you must first find, that Joseph Walter, shown by the deeds offered in evidence to be the record owner of the land in dispute, was a party defendant to the suit brought for back taxes, and unless you so find, your verdict should be for defendant.</p> <p>“2. The court instructs .you, that if you find for the plaintiff, you will assess its damages against the defendant at the price per' tie standing in the tree, based on the number of ties found to be taken and converted by the defendant to its own use, together with interest thereon at the rate of six per cent from the date of the taking and conversion thereof, not to exceed two thousand dollars.”</p> <p>The defendant requested and the court refused to instruct as follows:</p> <p>“1. Concerning the sheriff’s deed to Holladay, read in evidence by plaintiff, the court instructs you, that if you find from the evidence that the name of Joseph Walter was inserted in it after its execution, as claimed by defendant, then your verdict must be for the defendant.</p> <p>“2. The court instructs you, that unless you find from the evidence that Joseph Walter was a defendant in the tax suit in which the judgment mentioned in said sheriff’s deed was rendered, your verdict must be for the defendant.”</p> <p>(1) The defendant had a right to object to the introduction of the sheriff’s deed, on the ground that the name of. Joseph Walters had been fraudulently inserted in it after its execution, and to that extent charge -that it was a forgery and by parol evidence prove it, and thereby have it excluded as a muniment of title. 1 Greenlf. on Evid., secs. 284 and 568; Sweet v. Maupin, 65 Mo. 67; State v. Gonce, 79 Mo. 602; State ex rel. v. Maloney, 113 Mo. 371; Wood v. Hilderbrand, 46 Mo. 286; Underhill on Evid., p. 180, note 3; Ohesley v. Erost, 1 N. H. 147-148; Harnick v. Malin, 22 Wend. 393; 3 Taylor on Evid., sec. 1825, p. 1197; Lewis v. Payne, 8 Cowen 73; Withers v. Atkinson (Pa.), 1 Watts 249. (2) The court-, notwithstanding that the name of Joseph Walters was written in a different colored ink and a heavier hand, as will be seen on an inspection of the deed, admitted it, over defendant’s objection, without any explanation, and, in doing so, committed error. Kelly v. Thuey, 113 Mo. 133; Mathews v. Coalter, 9 Mo. 701-711; Paramore v. Lindsey, 63 Mo. 66; 3 Taylor on Evid., sec. 1826, p. 1197; Hutchins v. Scott, 2 M. and W. 815. (3) The recitals in the sheriff’s deed were but prima facie evidence, subject to be overcome by any part of the record in the tax proceeding, to-wit: sale notice; or by- parol evidence. Hutchinson v. Shelly, 133 Mo. 113; Harness v. Cravens, 126 Mo. 233; Blodgett v. Schaffer, 91 Mo. 652; Laney v. Garbee, 105 Mo. 360. (1) One of the recitals in the deed is that the sale of the property was duly advertised, etc., embracing the names of the supposed owners. If the sale notice shows the contrary, the presumption in favor of the recital in the sheriff’s deed, is overcome. McCormick v. Eitzmorris, 39 Mo. 33; Carpenter v. King, 12 Mo. 221; Samuels v. Shelton, 18 Mo. 119; Jordon v. Surghner, 107 Mo. 525. Sale notice, absolutely necessary. Eoth v. Gabbert, 123 Mo. 21; Abbott v. Holing, 19 Mo. 302.</p> <p>(1) The sheriff’s deed to Plolladay was properly admitted in evidence, and the question as to its alteration was then one of fact for the jury. E. S. 1899, sec. 3150; E. S. 1899, sec. 3210; McCormick v. Eitzmorris, 39 Mo. 31; Burnett v. McCluney, 78 Mo. 687; Sweitzer v. Banking Company, 76 Mo. App. 1; Woods v. Hilderbrand, 16 Mo. 286; Jordan v. Surghnor, 107 Mo. 521. (2) There was an entire failure on part of defendant to show an alteration made by any party interested in the deed, and that finding of the jury is amply supported by tbe evidence. Medlin v. Platte County, 8 Mo. 235; McCormick v. Eitzmorris, 39 Mo. 34. (3) Plaintiff, by the introduction of the sheriff’s deed, made a prima facie case of a valid judgment, and the evidence offered on part of defendant was wholly insufficient to avoid such judgment or defeat the deed. R. S. 1899, sec. 3210; R. S. 1899, sec. 3150; Lovitt v. Russell, 138 Mo. 482.</p>

<p>Appeal from Howell Circuit Court. — Hon. W. N. Evans, Judge.</p> <p>(1) The law is well settled that, in the absence of a statute to the contrary, where an execution has been levied by the sheriff on personal property of the defendant, anterior to the return day, that the property so levied upon may be sold after the return day of the writ. And by the provisions of section 3208, Revised Statutes 1899, the same rule applies to levies upon real estate, where the execution is issued from a court of record in one county and sent to the sheriff of any other county in the State of Missouri. 1 Ereeman on Executions (3 Ed.), secs. 58, 106; Hombs v. Corbin, 20 Mo. App. 509, and cases cited; Karnes v. Alexander, 92 Mo. loe. cit. 672; City of Aurora ex rel. v. Lindsay, 146 Mo. loe. cit. 515; Mason v. Bennett, 52 Eed. Rep. loe. cit. 345; Remington v. Lithecomb, 14 Pet. 84. (2) When a case has been decided by an appellate court upon solemn argument, and again comes to such court by appeal or. writ of error, the general rule is, only such questions will be noticed as were not determined in the previous decision, and whatsoever was passed upon must be regarded as res adjudicata. Chambers’ Admr. v. Smith’s Adrar., 30 Mo. 156; Overall v. Ellis, 38 Mo. 209; Metropolitan Co. v. Taylor, 62 Mo. 338; Hamilton v. Marks, 63 Mo. 167; Boon v. Shackelford, 66 Mo. 494.</p> <p>The sole and only question presented to the jury was whether Mr. Livingston gave a forthcoming bond or had any agreement or understanding with the sheriff which caused the latter to not sell during the life of the writ. The jury found for respondent on the uncontradictéd evidence.</p>

— Hon. James T. Neville, Judge. (1) The original statement is sufficient, as it set out the “statements of the account sued on.” R. S. 1899, sec. 3852. Gamer on Sun v. McAnaw, 72 Mo. App. 196; Glenn v. Weary, 66 Mo. App. 75; land v. Busch, 49 Mo. App. 338.

— Hon. James T. Neville, Judge. (1) The first judgment was correct, it was against the interpleader and her sureties, as required by the Revised Statutes, section 3184: “If the judgment shall be for the execution creditor, it shall be against the claimant and his sureties in like manner, and the court shall order the property sold, and a certified copy of such order shall be delivered to the officer, and shall have the force and effect .of and be proceeded upon as special…

— Ron., Nat M. Shelton, Special Judge. STATEMENT OR THE CASE BY THE COURT. This action is for the unlawful ejection of a passenger from a train of defendant, which, the petition alleged was done by the conductor in a rude, angry and violent manner to the great bruising and injury of plaintiff’s body. The petition asked judgment for $1,000 for actual damages occasioned by physical injuries, loss of time and business, and $1,400 as punitive damages.

— Hon. Reuben F. Roy, Judge. STATEMENT OP THE CASE BY THE COURT. This is a statutory action for the partition of the'real estate of George E. Waddell among his thirteen children and the heirs of such as are dead, and for an accounting of the advancement made to the several co-parceners.

— Hon. Reuben F. Roy, Judge. STATEMENT OF TI-IE CASE BY THE COURT. This action is for breach of warranty in the sale by defendant to plaintiffs of an imported jack for the sum of $560 to be paid for by note given on the eleventh of Eebruary, 1897, due in one year with seven per cent interest.

<p>1.. Jurisdiction:'DEMAND AGAINST ESTATE: COURTS OP APPEALS. Courts of appeals have appellate jurisdiction only and can not allow claims against an estate save on appeal -in due course from the trial courts.</p> <p>2. Costs: ATTORNEY’S PEE: BRIEPS. Costs are not recoverable at common law, and can only be allowed by terms of some statute, and section 2253, Revised Statutes 1889, does not include attorney’s fees or briefs of counsel.</p>

— Hon. Nat. M. Shelton, Judge. (1) In the first count plaintiff made a statement of facts “which did not constitute his cause of action.” This count is an action against the defendant for damages for allowing his sheep to run at large and trespass upon plaintiff’s premises contrary to the provisions of the statute restraining stock from running at large. It is a statutory action, and is bottomed upon alleged violation of that statute.

— Hon. Gallatin Graig, Judge. (1) It is a well adjudicated rule of law that security taken by a surety on a note to indemnify himself from loss, is released when the surety is discharged from… Held: 58 Mo. 213; 2 Lead. Cas. in Equi. AYhite & Tudor (4 Am. Ed.), 177; Chilton & Price v. Robbins, 4 Ala. 223; s. c., 37 Am. Dec. 741; Smith v. Estate of Steele, 25 Vermont, 427; s. c., 60 Am. Dec. 276, 278; Stephenson v. Primrose & Porter (Ala.), 155; s. c., 33 Am.

— lion. Samuel Davis, Judge. (1) These acts were separate and independent acts when passed by the Legislature, and still remain so, though collated under chapter 42, article 2, Revised Statutes 1889 (chapter 12, article 2, Revised Statutes 1899). A suit can not be maintained for the penalty or damages provided by one act, for a violation of the provisions of the other act, and vice versa. See authorities to point 2.

Appeal' from Jasper Circuit Court.— Hon. J. D. Perlcins, Judge. (1) Even though the incumbrances upon the Barton county land exceeded the amount represented by Thomas Seal, yet under the circumstances of this case, plaintiff is not entitled to a vendor’s lien for the excess; especially, where, as here, the evidence shows that no portion of such incumbrances has been paid by her. 3 Pomeroy’s Equi. Jurisp., sec. 1250.

— Hon. J. D. Perkins, Judge. (1) As this will only professes to dispose of personal estate, so in express terms it can not be intended that its scope can be enlarged so as to include the real estate in controversy. Redfield on Wills (3 Ed.), p. 308, sec. 2; Earish v. Cook, 78 Mo. 212; Watson v. Watson, 110 Mo. 164; Balliett v. Veal, 140 Mo. 187; Peck v. Shanklin, 43 W. Va. 304; 27.

— Eon. J. D. Perkins, Judge. . (1) By discretion, when applied to the court, is meant sound discretion guided by law. Such discretion must be governed by rule, not by humor; it must not be arbitrary, vague, or fanciful, but legal and regular. 9 Am. and Eng. Ency. of Law .(2 Ed.), p. 473; 6 Ency. P. & P. 819; Bouvier’s Law Die., title Discretion; Dooley v. Barker, 2 Mo. App. 328; Hennesy v. Oarmandy, 50 N. J. Eq. 625; Platt v. Monroe, 34 Barb.

- — Hon. J. D. Perlcins, Judge. (1) Upon suspension of mining operations and failure to remove the mining plant from leased premises within sixty days after notice in writing so to do, the legal effect of the mining lease, under which the Eoberta Mining Company operated, was to invest in plaintiff the entire title to the mining machinery in controversy and the right to immediate possession thereof. Harrington v. Neville, 83 Mo. App. 589.

<p>1. Appeals: JURISDICTION: AFFIDAVIT. Whex-e appellant fails to file an affidavit for appeal, the appellate court acquires no jurisdiction.</p> <p>2. -: AFFIDAVIT: .JURAT. A signed statement without a jurat appended is not such affidavit as the statute requires.</p> <p>3. Appellate Practice: JURISDICTION: OPINION. Where the appellate court is without jurisdiction, it is improper for it to express an opinion on any point in the case.</p>

— Hon. W. W. Graves, Judge. (1) A compliance with the provisions of section 4039, Code 1899, is essential to the issuance of a valid execution. Loth v. Eaconesowich, 22 Mo. App. 68; Huffman v. Sisk, 62 Mo. App. 398. (2) The effect of the stipulation in the original cause that “the same be continued from October 29, 1898, the day set for trial, until the parties agree upon date when the same shall be tried,” was to discontinue cause and to divest justice of jurisdiction.

— Hon. W. W. Graves, Judge. (1) The court should have construed the written or documentary evidence, and declared to the jury what was its legal effect, and should not have submitted that question to the jury for determination. Chapman v. Railroad, 114 Mo. 542; Soap Works v. Sayers, 55 Mo. App. 15; Hunt v. Hunter, 52 Mo. App. 263; Brewing Co. v. Linck, 51 Mo. App. 478; Deutmann v. Kilpatrick, 46 Mo. App. 624, 627; Mfg. Co. v. Jaeger, 81 Mo. App. 139.

— Hon. E. P. Gates, Judge. (1) -The stipulation in said lease under which respondent claims the property in controversy, did not operate as a chattel mortgage upon said property, but gave to respondent only an equitable lien thereon. Jones on Chattel Mort. (3 Ed.), secs. 1, 2'and n. 5, to sec. 13; Vanstone v. Goodwin, 42 Mo. App. 39, 46; Dalton v. Laudahn, 27 Mich. 529; Burgess v. ICattleman, 41 Mo. 480, 483 ; State ex rel. Wright v. Adams, 76 Mo. 605, 612; 2 Pomeroy, Eq.

— Hon. B. P. Gates, Judge. (1) The court erred in refusing to sustain the demurrer of defendants and in overruling their motion for new trial. Deardorf v. Thatcher, 78 Mo. 128; Cayton v. Hardy, 27 Mo. 536; Meyer v. Mithmar, 41 Mo. App. 405 ; Tutt v. Clouey, 62 Mo. 116. (2) The measure or damage, if any, was not the amount of money paid by plaintiff, but the actual loss sustained by the plaintiff.

— Son. J. S. Slover, Judge. (1) The court below, as evidenced by its memorandum filed with the papers on the decision • of the cause, .based its opinion and decree upon the proposition found by the court, that the Sexton Security Company was the agent of defendant Boteler for the loan of moneys, and the court below, in its decision, relied upon the case of Sharp v. Knox, 48 Mo. App. 169 to 176, to support its finding and decree.

- — Hon. J. W. Henry, Judge. Now, as to Hicks v. Hamilton, 144 .Mo. 495, before the decision of that case it had been the law that a third party for whose benefit a promise is made might sue thereon regardless of any previous relation on his part to the transaction. By Hicks v. Hamilton, the Missouri Supreme Court changed that rule and held that before such beneficiary could sue, he must-show some privity or obligation in his favor as against the other parties.

— Hon. Olías. L. Dobson, Judge. (1) No conversion by carrier in transporting for, and delivering to, party wrongfully in possession thereof, cattle or other property, if ignorant of the true ownership. Nanson v. Jacob, 93 Mo. 340. (2) Defendant received cattle from Pier-son as owner in good faith, ignorant of plaintiff’s claim or right, and made contract with him for their transportation and delivery to him.

— Hon. James Gibson, Judge. (1) The Missouri Legislative Acts of 1891 and 1895, (Revised Statutes 1899, sections 8966 to 8970, inclusive) make such agreements unlawful and deny a recovery of the purchase price of the material to any person belonging to any combination to raise or maintain prices therefor. Bailey v. Plumbers of Memphis, 103 Tenn. 99.

— Hon. J. H. Blover, J udge. (1) ■ The ordinance under which the sidewalk in question was constructed is void for the reason that the common council delegated to the'city engineer the sole power to determine the width and location of the sidewalks. Kansas City Charter (1898), sec. -2, p. 137; Ordinance of Kansas City, No. 9002; Buggies v. Collier, 43 Mo. 353, 395; Thomas v. Boonville, 61 Mo. 282; Matthews v. Alexandria, 68 Mo. 115; City of St. Joseph v. Wilshire, 47 Mo.

— Hon. J. H. Slover, Judge. (1) Plaintiff never delivered the onions in controversy where, by the terms of the contract, he was required to deliver them, and what he shipped were not such as called for by the contract, and he is not entitled to recover. Eyerman v. Cemetery, 61 Mo. 489; Marsh v. Richards, 29 Mo. 99; St. Louis v. McDonald, 10 Mo. 609; Eox v. Car Co., 16 Mo. App. 122; Eletcher v. Milburn, 35 Mo. App. 321; Craycroft v. Walker, 26 Mo.

<p>Appeal from Jackson Circuit Court. — Hon. J. II. Slover, Judge.</p> <p>(1) The note sued on is negotiable. It was executed at Kansas City, Missouri, and was payable at Kansas City, Missouri. Christian Co. Bank y. Goode, 44 Mo. App. 129; Bradley v. Bill, 4 Biss, 473 Eed. Gas. No. 1,783; 1 Daniels Neg. Int., sec. 54. (2) The deed to Chandler in express terms states that “This deed is made subject to all incumbrances of record.” Therefore it could not have been in satisfaction of the deed of trust securing the $400 note, which was an “incumbrance of record.” The grantee in a deed “subject to an incumbrance” simply takes the land charged with the incumbrance. Walker y. Goodsill, 54 Mo. App. 631; Wilson v. Van-stone, 112 Mo. 315 ;Ins. Co. v. Irwin, 67 Mo. App. 90; 2 Pomeroy’s Eq. Jur. 792, 793; Johnson v. Zink, 51 N. Y. 333. (3) The conveyance to Chandler “subject to all incumbrances of record” left the respondent still owing the note, but upon payment of the note she is entitled to be subrogated to the rights of the mortgagee as against the mortgaged lot, the lot being the primary fund for the payment of the note. Johnson v. Zink, 51 N. Y. 333; Walker v. Goodsill, 54 Mo. App. 631. (4) There was no evidence that the deed to Chandler, dated February 8, 1896, was in -satisfaction of the deed of trust securing the note sued on.</p> <p>(1) The note sued on provides on its face that it is “payable in New York exchange,” which fluctuates from day to day, is.for an uncertain amount and said note is therefore non-negotiable. Fitzharris v. Leggatt, 10 Mo. App. 527; Bank v. Gay, 63 Mo. 33; Samstag v. Conley, 61 Mo. 176; Bank v. Marlow, 71 Mo. 618; Bank v. Jacobs, 73 Mo. 35; McCoy v. Green, 83 Mo. 633; Hope v. Barker, 112 Mo. 311; Ready v. McNulty, 12 Rich. L. 115; Bank v. Newkirk, 2 Miles, 112; Johnson v. Speer, 81 Pa. St. 107; 1 Parsons on Notes and Bills, 37; Daniel, Neg. Inst., 163. (2) The fraud in the execution of the note being conceded, and the note being non-negotiable, the court could have properly directed a verdict for respondent. The verdict being for the right party the judgment should be affirmed. Milstead v. Mortgage Co., 19 Mo. App. 191. (3) There was abundant evidence to support the verdict of the jury that appellant accepted the deed to the La Veta place lot in satisfaction of the note sued on, and this issue was fairly submitted to the jury, both parties asking and receiving instructions from the court on this issue. (1) Appellant will not be heard to assert that there was not sufficient evidence of a settlement to warrant the submission of that question to the jury, when he himself asked two instructions on that issue. One of which, number two was given, and the other, number four, refused, because covered by defendant’s instruction number four. Fen-wick v. Bowling, 50 Mo. App. 516; Water Co. v. Neosho, 136 Mo. 198; Wilson v. Gibson, 63 Mo. App. 656.</p>

— Hon. John W. Henry, Judge. (1) Divorce is a legal right and where the facts which entitle a plaintiff to a divorce exist, as they do in the case at bar, it is not a discretionary matter for the court, but mandatory, and it is the duty of the court to grant plaintiff a divorce. Deschodt v. Deschodt, 59 Mo. App. 102, 105; Morris v. Morris, 60 Mo. App. 87.

— Hon, J. H. Slover, Judge. STATEMENT BY ELBISON, J. The petition herein was filed July 22, 1898, and less caption and signatures is as follows:… Held: in many cases, that the heirs of a deceased person, if of age, may pay off the debts of the deceased and distribute the effects among themselves as they see fit, and in such a case there should be no administration granted. In such a case the heirs take good and perfect title to the property, both at law and in equity.

— Hon. J. D. Perkins> Judge. (1) “An affidavit is simply a declaration on oath, in writing; sworn to by the declarant before a person who Has authority to administer oaths.” Anderson’s Die. of Law, p. 39; 1 Am. and Eng. Ency. of Plea, and Prac., title “Affidavit;” Barhydt v. Alexander, 59Mo. App. 188; State v. Headrieh, 149 Mo. 396; Gill v.-Ward, 23 Ark. 16; Young v. Young, 18 Minn. 72; Harris v. Lester, 80 111. 307.

— Ron. James Gibson, Judge. (1) Maud Coomer was tbe authorized agent for her mother in making the purchases herein sued for. (2) Such agency was disclosed to plaintiff at the time of the purchase of the goods and credit was solicited for the principal, not for the agent. F. & C. Co. v. Crawford, 127 Mo. 356; Hartzell v. Crumb, 90 Mo. 629; Hodges v. Runyan, 30 Mo. 491; 1 Am. and Eng.

— Hon. J. L. Fort, Judge. (1) The complaint does not state a cause of action under section 3321, Revised Statutes 1899, because it shows upon its face that the tenancy was from month to month, and does not show that plaintiff had terminated that tenancy by the requisite notice. There was no holding over after the expiration of the time for which the premises were demised or let.

— Hon. William, N. Evans, Judge. (1) Our contention is that the contract having been entered into and proceedings regular, and the services performed, and the directors refusing to issue warrants for respondent’s wages, that the action was against the directors by mandamus, as the act would be entirely ministerial, and that the district should not be mulcted in costs for the refusal of the directors to perform their duties.

<p>Appeal from Butler Circuit Court. — Hon. J. L. Fort, Judge.</p> <p>(1) Defendant was a druggist and not a merchant, and could not be prosecuted for tbe sale of whiskey under the merchant’s law. State v. McAnally, 66 Mo. App. 329; State v. Alexander, 13 Mo. App. 606; State v. Williams, 69 Mo. App. 285;.State v. Williams, 69 Mo. App. 286; State v. Piper, 41 Mo. App. 160. (2) Defendant, operating or running a drugstore, having a merchant’s license and keeping constantly employed at such store a registered pharmacist, has a right to sell intoxicating liquors under the prescription of a regularly registered and practicing physician. E. S. 1899, sec. 3047; State v. Steele, Appeal Eeporter, May 20, 1900, p. 429.</p> <p>Appellant was a merchant and not a druggist, and was properly indicted. E. S. 1899, ch. 129; E. S. 1899, sec.' 3040; State v. Suess, 20 Mo. App 423; State v. Goff, 66 Mo. App. 491; State v. Steele, Missouri Appeal Eeporter, May 20, 1900.</p>

Louis City Circuit Court. — Hon. Jacob Klein, Judge. STATEMENT OE THE CASE.

— Hon. Henry O. Riley, Judge. To hold that a simple receipt is conclusive evidence of the payment of money would be to overturn and destroy the ancient and well-founded principles of law which are clear and undisputable.

<p>Appeal from Cape .Girardeau Court of Common Pleas. — Hon. Frank E. Burroughs, Judge.</p> <p>(1) The court erred in giving the instructions asked on the part of relator, and those modified "by the court on its own .motion. Relator’s first instruction is erroneous and misleading ; it is erroneous in that it makes defendants liable notwithstanding relator had, in money and valuable securities, more than the amount of his debt. The State ex rel. Redmond v. Durant, 53 Mo. App. 493; Meyberg v. Jacob, 40 Mo. App. 128; Bispham Equity (3 Ed.), sec. 340, p. 399; 1 Cobbey Chat. Mort., sec. 455, p. 602. It is misleading in that it leaves the jury to “guess at the technical meaning” of the phrases ‘Tona fide” and “good faith” as applied to the facts of this case. Dry Goods Co. v. Schooley, 66 Mo. App. 406. Relator’s second instruction is a mere abstraction, and, besides, is misleading in that it fails to properly submit to the jury the proven elements of fraud in this case. (2) Relator in claiming under the chattel mortgage, has the burden of showing every fact on which its validity depends. State to rise v. O’Neil, 52 S. W. Rep. 240. Relator’s third instruction is too narrow in its scope; it should include every constituent principle of law applicable to the phase of the case attempted to be covered by it. Hagan v. Railway, 51 S. W. Rep. 473; Shelley v. Boothe, 73 Mo. 74. (3) The common pleas court is a court of inferior jurisdiction, of purely statutory creation, and its powers are limited to the words of-the act conferring them. State to use v. Laughlin, 53 Mo. 443; Schell v. Leland, 45 Mo. 289; Ex parte Snyder, 64 Mo. 58.</p> <p>Appellants can’t claim for and against chattel mortgage. They can’t attack it for fraud and at the same time ask it to be marshalled as one of the respondent’s securities. Iron Go. v. McDonald, 61 Mo. App. 559. The instructions are to be considered all together. Meads v. Railroad, 68 Mo. App. 92; McKeon v. Railroad, 43 Mo. 405; Easly v. Railroad, 113 Mo. 236; Crawford v. Doppler, 120 Mo. 362; Farmer v. Farmer, 129 Mo. 530; Warden v. Henry, 117 Mo. 530.</p> <p>(1) The court, at respondent’s request, submitted to the jury the issue of fraud as to whether there was a “collateral agreement between Eiddle and respondent” whereby Eiddle was to sell the goods in the usual course of trade, and the jury found against the appellants on this issue and this court will not review their finding. Hardware Co. v. Randell, 69 Mo. App. 342. (2) The only evidence of fraud given by appellants was to the effect that, by an understanding between Eiddle and respondent, Eiddle was to sell the mortgaged goods in the usual course of trade, and the. jury were told by respondent’s instructions, that, if they found that to be a fact, their verdict should be for appellants. Hntil some court holds that the instructions should present a theory of the case to the jury not supported by substantive evidence, the respondent will insist that his instructions on the question of fraud in this case were proper. (3) Neither chattel mortgage was fraudulent or void upon its face. Shoe Co. v. Wilson, 63 Mo. App. 326; Barton v. Sitlington, 128 Mo. 164.</p>

— Hon. Henry C. Riley, Judge. STATEMENT OE THE CASE. This a question of title to a horse, between certain mortgagees and a purchaser from the vendor of the mortgagor.

<p>Motion for Mew Trial: BILL OF EXCEPTIONS: PRACTICE, APPELLATE: RECORD. It is indispensably necessary that an exception to the overruling of a motion for a new trial should be exhibited by the bill of exceptions, otherwise, nothing can be considered by the appellate court except the record proper.</p>

<p>Appeal from New Madrid Circuit Court. — Hon. Henry O. Rileyj Judge.</p> <p>(1) When, the evidence shows an actual damage, but fails to show with reasonable certainty the extent of such damages, plaintiff is entitled to nominal damages only. When the evidence does not furnish sufficient data by which damages can be estimated only nominal damages can be recovered. Howard v. Taylor, 99 Ala. 450.' In an action for injuries to land and crops, where the jury, from the facts proven, could have established no particular sum as damages, a verdict for other than nominal damages must be set aside. Railroad v. Graham, 55 Ark. 294. In an action for damages for the wrongful use and occupation of land, when the evidence fails to show how long defendant used the land, how many cattle he herded thereon and the value of such use, or any other fact which would enable the jury to estimate the damages, nominal damages only can be recovered. Williams v. Brown, 76 Iowa 643. (2) The only attempt to show damage was in the shape of opinion evidence by plaintiff himself. This is not a case for expert testimony and opinions in such cases are not evidence. Hence there is nothing to sustain the finding of the jury. Sallee v. St. Louis, 152 Mo. 615; State v. Eoly, 144 Mo. 733; Pope v. Ramsey, 78 Mo. App. 157. It may be urged that no objection was made to the opinion of witness. Assuming that to be true, yet this would not lend probative force to that which was not evidence. If it was not competent the failure to object would not make it competent. And still the verdict is left unsupported. The objection was made, however, and the record so shows in case of witness Henry. The objection was overruled and exceptions taken. It is true this witness gave no opinion, but yet the theory and ruling of the court is made to appear.</p> <p>(1) The appellant now complains that the opinions of witnesses were admitted in evidence. If such is true, he should have objected on tbe trial, when it was offered, and failing in tbis be can not now complain. State v. Cunningham, 154 Mo. 174. (2) Tbe admissibility of testimony is addressed to tbe court, and defendant failed to object. He can not now complain. Tbe weight or probative force is a matter entirely for tbe jury, and tbis court is not authorized to interfere with tbe jury’s finding, unless it appears upon the face of tbe record that tbe jury’s verdict was tbe result of gross ignorance or corruption.</p>

<p>1. Criminal Law: CRIMINAL PROCEDURE: SELLING INTOXICATING LIQUORS: DRUGGIST: DRAMSHOP-KEEPER. The law regulating the sale of intoxicating liquors by druggists is confined to persons who occupy that status, and are specified in the statutes (Revised Statutes 1899, section 3047).</p> <p>2. -: -: DRUGGIST, HOW PROSECUTED. And if persons of this class violate this law, they must be prosecuted under the special statutes regulating druggists.</p> <p>3. -: -: PERSONS NOT DRUGGISTS, HOW PROSECUTED. And if persons who are not druggists or pharmacists violate the general laws regulating the sale of liquors, they can not demand to he prosecuted under the druggists’ act simply because in so doing they act at the general request of a licensed druggist who was not present when the sale was made.</p>

<p>1. Dramshop-Keeper: MERCHANT: DRUGGIST: SELLING LIQUORS: PROSECUTION EOR SELLING LIQUORS. The statutes governing the three callings of dramshop-keeper, merchant and druggist, are preclusive, and prosecutions for the violation of the liquor laws must be brought against the offending party under the respective statutes governing his particular calling.</p> <p>2. -: - — : -: TOWN ORDINANCES. One engaged in business as a merchant, and duly licensed as such, is not subject to ■ prosecution under town ordinances purporting to define and regulate the business of a keeper of dramshops.</p>

Louis County Circuit Court. — Hon. Rudolph Hirzelj Judge. STATEMENT OF TIIE CASE. This action is by the contractor against the owner. The first count in the petition alleges the breach of a written contract to construct a main building, which contract by agreement was extended to cover the construction of a boiler house.

— Hon. John Schmoolc, Special Judge. STATEMENT OE THE CASE. This suit was begun before a justice on the following note: “$100.00 Springfield, Mo., March 30, 1891. “On the day of the completion of the opera house, hereinafter mentioned, be it on the first day of December, 1891; or on the first day of March, 1892, at whichever of said days said opera house shall be completed and fitted up, I promise to pay to the order of W. W. Baldwin, one hundred dollars, for value received,…

— Hon. James H. Boon, Special Judge. ■ (1) The petition is not good as a suit for use and occupation. Indeed, appellant understands that plaintiffs do not so contend. Aull Savings Bank v. Aull, 80 Mo. 201; Young, Administrator, v. Downey, 145 Mo. 261; Edmundson v. Kite, 43 Mo. 176.

Louis City Circuit Court. — Hon. Jacob Klein Judge. (1) By section 34, article 6, of the Constitution of this State, probate courts are courts of record, and have jurisdiction over all matters pertaining to probate business; to granting letters testamentary and of administration; the appointment of guardians and curators of minors and persons of unsound mind; settling the accounts of executors, administrators, curators and guardians.

— Hon. James T. Neville, Judge. The plaintiff solicited the order, the defendant signed it, and the plaintiff accepted it and complied with, its terms. This constitutes the written contract in evidence. When parties have put their contracts in writing, in the absence of accident, fraud or mistake, it is conclusively presumed that the whole engagement, and the extent and manner of their undertaking was reduced to writing.

— Eon. Frank Burroughs, Judge. -STATEMENT OF THE CASE. The plaintiff began this action before a justice of the peace to replevy, from the defendant, a horse and trap alleged to be of the value of $100. The judgment being in his favor, the cause was appealed by the defendant to the court of common pleas of Cape Girardeau county and from there he appealed to this court. Tbe defendant is the father of Mary O. Dunlop, the wife of Erank H. Dunlop.

— Hon. James D. Fox, Judge. Plaintiff bases his right to recover on an original verbal promise of defendants. There is no pretense nor claim that they promised in writing; so that feature, introduced by defendants, is eliminated from the case. The evidence of both plaintiff and defendants shows a promise by defendants in their individual capacity, and that plaintiff looked alone to the individuals.

— Hon. Elliot M. Hughes, Judge. (1) If defendant rests on any fact not included in the petition he must plead it specially. E. S. 1899, sec. 604; E. S. 1889, sec. 20-49; Hudson v. Eailroad, 101 Mo. 29; Guinotte v. Eidge, 46 Mo. App. 254; Northrop v. Ins. Co., 47 Mo. 444. (2) The alleged sale from Eammelkamp to Young is within the statute of frauds and must be evidenced by some memorandum in writing.

Circuit Court. — Hem. Henry O. Riley, Judge. (1) The fact of the alleged indorsement of the note before maturity and the order of the court, and the good faith with which it was transferred, was a proper subject for a jury. The jury found that the note was the property of Robert L. Wilson, and not the property of John E. Woody. The instructions given were clear and defined the issues.

<p>1. Muniment of Title: DECREE: ERATJD: JURISDICTION. In the -case at bar, the decree sought to be vacated for fraud in its concoction is a muniment of title, and a determination of the issues herein joined directly involves the title to real estate.</p> <p>2. -: -: -. And the jurisdiction of appeals of such actions is exclusively vested by the Constitution in the Supreme Court.</p> <p>3. -: -: STATUTORY CONSTRUCTION. And in accordance with the statute providing for transfers of cases of appeal to the wrong court (Revised Statutes 1899, section 1657), this case is transferred to the Supreme Court.</p>

<p>1. Attorney at Law, Disbarment of: PRACTICE AND PROCEEDINGS. Proceedings for the disbarment of an attorney at law are required to be instituted by verified information, unless good cause for a different course is shown.</p> <p>2. -: -: ALLEGATIONS. The allegations in an information seeking the disbarment of an attorney must be clear, specific and circumstantial, not general, vague and insufficient.</p> <p>3. -: -: MISCONDUCT OE ATTORNEY PREVIOUS TO ADMISSION TO THE BAR. Misconduct of an attorney previous to his admission to the bar is no ground for his disbarment.</p> <p>4. -: -: COURTS, POWER OE. Courts have an inherent power to disbar attorneys and strike their names from the rolls, independent of any statute on the subject.</p> <p>5. -: -: STATUTORY GROUNDS OE DISBARMENT. Nor does the enumeration of statutory grounds for disbarment deprive them of the power to disbar for other causes.</p> <p>6. -: -: PROCEDURE. If a defendant is charged, in an information against him, to have been convicted of an indictable offense, the court is authorized, on the production of the records of his conviction, to either remove or suspend him for a limited time from practice (Revised Statutes 1899, section 4929).</p> <p>7. -: -: -. And if the charges are other than the kind specified in section 4929, Revised Statutes 1899, that is, if the defendant is not accused of having been convicted of a criminal offense,'the court has the power only to suspend him until the facts are ascertained in the statutory mode.</p> <p>8. -: -: -. In the case at bar, there is no charge against defendant that he had been convicted of an indictable offense, nor was there any record of his conviction produced.</p> <p>9. -: -: -. And the power the court had was to suspend the appellant from practice until the facts in regard to his alleged crimes had been determined.</p> <p>10. -: -: -. The court could suspend him until such a record was made, provided this was done in six months; if it was not, he was entitled to be reinstated in his rights as an attorney, and to hold them until such time as he might be convicted, when he would be subject to fresh proceedings to disbar.</p> <p>11. -: -: -: STATUTORY REGULATION. When an attorney is accused of criminal offenses as a reason why he should be removed from the practice of law-, the statutory regulations concerning the matter are exclusive of other modes of procedure.</p>

<p>Appeal from Butler Circuit Court. — Hon. J. L. Fort, Judge.</p> <p>E. R. Lentz for appellant.</p> <p>(1) The petition in this cause does not state facts sufficient to constitute a cause of action. Connell v. Tel. Co., 108 Mo. 459. (2) The court erred in admitting irrelevant, incompetent and immaterial testimony offered by the plaintiff upon the trial of this cause. 'All testimony relating to the nondelivery of this message was clearly inadmissible. The penalty is imposed for failure to transmit the. message, and not for failure to deliver the same. R. S. 1899, sec. 1255. Connell v. Tel. Co., 108 Mo. 459; Dudley v. Tel. Co., 54 Mo. App. 391; Burnett v. Tel. Co., 39 Mo. App. 599; Brooks v. Tel. Co., 50 Ark. 224.</p> <p>(1) The petition in this cause states facts sufficient to contstitute a cause of action. In the case of Connell v. Tel. Co., 108 Mo. 459, Judge Brace, speaking for the court, says: “Not in that it failed to receive and transmit said message, but that ‘it negligently and carelessly failed to deliver said message, to the said Matt Connell until the twenty-first day of February, 19007 ” This averment will be found in plaintiff’s petition: “Plaintiff avers that the defendant did not transmit the said message, or deliver the same promptly and with impartiality and in good faith, but negligently and carelessly failed to transmit said message until 7 o’clo'ck a. m., of November 24, 1899.” The petition was in two counts; the second count predicating damages for non-delivery of the message, which count was, on motion of the defendant, stricken out. Further on in the opinion above, it is said, “the duty imposed upon the defendant was to receive plaintiff’s message at Sedalia, Missouri, and to transmit it over its line to its point of destination, assuming that its line extended to that point. It is not charged that defendant did not perforin this duty, which it was enjoined by the statute to perforin at Sedalia, but failed to perform another duty, that of delivering it to Mat Connell, at Leavenworth, Kansas.” The statute provides that messages shall be transmitted promptly. The petition states that it was not transmitted promptly. (2) The word “transmit” is defined to be, to send a dispatch from one person or place to another. Cycl. Die., Yol. 9, p. 4794.</p>

— Hon. Henry Clay Pepper j Judge. (1) That the only issue presented upon the allegations of the petition was left undisposed of, as the verdict of the jury and the judgment thereon entered only disposed of the issues raised upon the counterclaim. (2) The verdict is contrary to and against the weight of the evidence.

— Hon. Leigh B. Wood-side, Judge STATEMENT OE THE CASE. ■ This is the second appeal of this case.

<p>1. Administration: PROBATE COURT: JUDGMENT OE, CONCLUSIVE. The judgment entered by the probate court in accordance with a certified copy of judgment by the circuit court rendered against the administrator of the-partnership estate, unappealed from, is final and conclusive, and can not be inquired into by way of defense to this action.</p> <p>2. -: ACTION AGAINST ADMINISTRATOR. AND HIS SURETIES: JUDGMENT. The judgment in favor of the individual estate of Siegel Shipman, deceased, unappealed from, against Thomas A. Shipman, administrator of the partnership estate of Shipman, Witty, Kerr & Noland, is binding on said administrator and his sureties in this action to compel them to pay to the relatrix the sum of $130.20, the amount of such judgment.</p>

<p>1. Criminal Law: MERCHANT’S LICENSE: SALE OF LIQUORS. The giving of a merchant’s license bond, covering the period of the sale, was sufficient evidence of his having a merchant’s license at the time of the sale to authorize the trial court to overrule his demurrer to the evidence, on that score.</p> <p>2. -: -r= -: DRUGGIST. Defendant may have been a druggist and yet have had merchant’s license, and as there was evidence before the jury that he was a druggist, which was passed on by it, his demurrer to the evidence on that theory was properly overruled.</p> <p>3. -: -: INDICTMENT, DEFECTIVE FOR DUPLICITY. The motion to quash indictment failed to point out wherein more than one offense was charged, and the record shows that the prosecuting attorney elected to try defendant on the single charge of violating the law under a merchant’s license, hence there is no merit whatever in this' assignment of error.</p>

<p>1. Criminal Law: SELLING LIQUOR WITHOUT HAVING A DRAM-SHOP LICENSE: VERDICT. The testimony was amply sufficient to support the verdict, and for this court to disturb it, would be judicial usurpation.</p> <p>2. -: -: INSTRUCTION ON A REASONALBE DOUBT. The instruction on a reasonable doubt in cases of this character, was approved in the case of the State v. Wheeler, 87 Mo. App. 582, and a decision in that case, is adopted in this opinion.</p>

<p>Appeal from Howell Circuit Court. — Hon. William N. Evans, Judge.</p> <p>STATEMENT OE THE CASE.</p> <p>Defendant was convicted for the unlawful sale of intoxicating liquor to a minor. On the trial there was evidence tending to show that the minor, in company with his brother who was of age, went into the dramshop of defendant; that the elder brother asked for whiskey for the two, which was set out; that the two brothers partook of the beverage, and the price, twenty cents, was paid by the minor. There was proper proof of the venue and that the transaction had occurred during the time within which an indictment could be found.</p> <p>For defendant, there was evidence tending to show that the sale in question was malt, and not beer or whiskey; that it was made to the elder brother, who in reply to a question as to the non-age of the minor, said “he was all right, he would fix that.”</p> <p>The first instruction given by the court is erroneous for the reason that it fails to define “reasonable doubt.” State v. Christian, 66 Mo. 138, pp. 142 and 143; State v. Blue, Í36 Mo. 41.</p>

<p>1. Ejectment: SUIT FOR IMPROVEMENTS: JUDGMENT,-NATURE OF. The court should have deducted the rents and other damages, if any, recovered in the action of ejectment, and 'have given judgment for balance in favor of plaintiff, and enjoined defendant until he paid such balance, giving him reasonable time to make the payment, with the right to claim a further offset for rents as should accrue up to the time of the payment of the said balance fixed by the order of the court.</p> <p>2. -: .-: NOTICE AND GOOD FAITH: INSTRUCTION: .JURY. As the only issue in this case was the value of .the improvements made on the land by respondent in good faith, the instruction submitting a question of damages to a jury was erroneous.</p> <p>3. -: STATUTORY NOTICE. The statutory provisions for notice in writing (Revised Statutes 1899, section' 3080) is not preclusive, but was intended to suggest an additional method whereby the holder of an adverse title could absolutely conclude the latter, and all persons claiming from and through him upon the issue of notice as affecting subsequent improvements.</p> <p>4. -; -: EQUITABLE NOTICE. The term “equitable notice” as applied in equity to the rights of one who improves real estate under a mistake of title, implies actual knowledge or information of any fact or eireumstanee that would put a prudent man on inquiry, which, if followed, would lead to a discovery of the adverse title to the land in his possession.</p>

— Hon. Henry 'Olay Pepper, Judge. STATEMENT OR THE CASE. ' On tbe second day of July, 1898, the respondent was the holder of two chattel mortgages executed by one W. A. Richardson on thirty-nine… Held: but sometimes were omitted for several months. There is no positive testimony that the board had knowledge of the arrangement made by Berry in regard to the wheat, but it is in evidence that the president knew it.

<p>Appellate Practice: SECTION 863, REVISED STATUTES 1899, AND RULES 15 AND 19 CONSTRUED. Unless there is an honest effort to comply with the statute, and rules of this court, regulating the preparation of eases for hearing, made for the benefit of litigants, appeals will be dismissed.</p>

— Hon. W. K. James, Judge. (1) The defendant was under no duty to inform the plaintiff every time it desired to move the car; under the most favorable aspect of the testimony it can not be said that defendant owed plaintiff any duty except to notify him when it required the doors to be closed before moving the car. Negligence can not be affirmed of failure to do an act which the party sought to be charged is under no duty to perform. Barney v. Railroad, 126 Mo. 372.

— Hon. A. M. Woodson, J udge. (1) Respondent was not a dependent upon his son, Norman J. Brower. Wagner v. Benefit Society, 70 Mo. App. 161. (2) Respondent was not a member of the family of said son, Norman J. Brower, at the time of the latter’s death. Lister v. Lister, 73 Mo. App. 99; Keener v. Grand Lodge, 38 Mo. App. 54:3. (1) Plaintiff was eligible as beneficiary of Ms son. They were members of tbe same family.

— Hon. W. W. Rucleer, Judge. • (1) Plaintiff’s amended petition contained separate inconsistent counts or causes of action and the circuit court erred in overruling defendant’s motion to compel plaintiff to elect upon which count he would proceed to trial. Boberts v. Bail-road, 43 Mo. App. 287, 289; Soap Works V. Sayers, 51 Mo. App. 310, 314; Seiter v. Bischoff, 63 Mo. App. 157, 158; Deering & Co. v. Collins, 38. Mo.

— Hon. O. H. Hoss, Special Judge. (1) When the appellant’s record fails to show that the supposed bill of exceptions was ever filed or that the order extending the time of filing the same was ever entered of record in the trial court, the appellate court will disregard the same as not being properly authenticated. R. S. 1899, sec. 728; Einlay v. Gill, 80 Mo. App. 458; Williams v. Williams, 26 Mo. App. 408; State v. Rolley, 135 Mo. 677; Lafollette v. Thompson, 83 Mo. 199.

— Hon. James Gibson, Judge. (1) The court erred in permitting witnesses Gray, Verney and Súmate to testify to statements made by defendant from three to five years before the alleged slander. Christal v. Craig, 80 Mo. 376; Townshend S. & L., sec. 392; Howard •v. Sexton, 4 Const. (N. T.) 157; Lincoln v. Chrisman, 10 Leigh. (Va.) 338. (2) The court erred in permitting witness Oldham to testify that defendant was hunting for evidence as to plaintiff’s character.

— Hon. James Gibson, Judge. (1) The court erred in permitting plaintiff and his witness, R. J. Morton, to state their opinions and conclusions. Krueger v. Railroad, 84 Mo. App. 358; and authorities there cited; Rutledge v. Railroad, 110 Mo. 312, 321. (2) There was a variance between the allegations of the petition and the proof offered; the former counted on a duty to give plaintiff “information or warning” of the failure to uncouple the cars.

— Hon. E. P. Gates, Judge. (1) Plaintiff can not recover upon the contract of employment for the reason that he has willfully failed to perform it, and for such failure was rightfully discharged by the defendant; nor can he recover upon, a quantum meruit for the reasons, first, that his action is based upon a contract, and second, his services were rendered under a contract, in the performance of which he was guilty throughout of fraudulent misconduct and of a willful…

<p>Appeal from Jackson Circuit Court. — Hon. John W. Henry, Judge.</p> <p>(1) The estate is not bound as a matter of law by unauthorized acts of an assignee. In re Evan, Fed. Oases, No. 12182; State ex rel. v. Hays, 52 Mo. 580; Commonwealth v. Fcnbe, 10 Mass. 30; State to use v. Scott, 42 Mo. App. 203, 205; Eichardson v. Palmer, 24 Mo. App. 488; In Ferrin v. Myrick, 41 N. T. 319; 1 Pars. Bills and Notes, 161; Summer v. Williams, 8 Mass. 199; Bittenhouse v. Aonmerman, 64 Mo. 197; Woodbridge v. Draper, 15 Mo. 327; Estee’s Pldg. 162; Perry v. Cunningham, 40 Ark. 185; Welsh v. Davis, 3 S. C. 110; West v. Wright, 98 Md. 335; Fritz v. McGee, 31 Minn. 536; Brown v. Evans, 15 Nan. 91; Dunlap v. Eobinson, 21 Ohio St. 530; Westfall v. Dungan, 14 Ohio St. 276; Brown v. Miller, 46 Mo. App. 1'; Bartlett v. Eoberts, 66 Mo, App. 125; Dougal v. Fryer, 3 Mo. 40. (2) Where one exercises dominion over property and refuses to deliver same to the owner in disregard of his title, there is a conversion. Campbell v. Railroad, 16 Mo. App. 553; State ex rel. v. Maloney, 113 Mo. 367; Wright v. Butler, 64 Mo. 165; Inglis v. Eloyd, 33 Mo. App. 565, 582; Martin v. Trail, 142 Mo. 85; Rembaugh v. Phipps, 75 Mo. 422, 423; Williams v. Smith, 153 Pa. St. 462; 25 Atl. 1122; Webb’s Pollock on Torts (Enlarged Am. Ed.), 436; Baker v. Beers, 64 N. H. 102; Cooley on Torts, 448; Gordon v. Stockdale, 89 Ind. 240; Wagenblast v. M’Keon, 2 Grant 393; Blon v. Bolton, 3 Phila. 87; Waverly Co. v. Coop Co., 112 Mo. 383, 389; 26 Am. and Eng. Ency. of Law, 724; Williams v. Wall, 60 Mo. 318, 321; Mc-Lachlin v. Barker, 64 Mo. App. 511, 521; Watson v. Coal Co., 52 Mo. App. 366; Sherman v. Printing Co., 29 Mo. App. 38; Glaze v. M’Million, 7 Port. (Ala.) 279; Prid v. Oolcock, 1 Nott. M. (S. Car.) .592; Reynolds v. Shuler, 5 Con. (N. Y.) 323. (3) Where a written contract is clear and free from doubt, parol evidence is not admissible to vary its terms. This is the law as stated in Drug Co. v. Saunders, 70 Mo. App. 221.</p> <p>(1) If there was any evidence to support the defendant’s theory, there must be an affirmance because the order granting a new trial was placed upon the discretionary ground that the verdict was against the weight of the evidence. Millar v. Oar Co., 130 Mo. 517, 529; Hewitt v. Steele, 118 Mo. 474; Bank v. Wood, 124 Mo. 72; Bed Co. v. Railroad, 148 Mo. 478, 486. (2) The true construction of the contract and that adopted by the parties was that Leavell had the right to use the fixtures until November 2, 1896, and properly transferred such right to Wollman. Depot Co. v. Railroad, 131 Mo. 291, 305; Patterson v. Camden, 25 Mo. 22; Gas Light Co. v. St. Louis, 46 Mo. 129; Jones v. DeLassus, 84 Mo. 545; Scott v. Scott, 95 Mo. 318; Rose v. Carbonating Co., 60 Mo. App. 28; Belch v. Miller, 32 Mo. App. 387, 396, 398; Wald’s Pollock on Contr. 403; Chicago v. Sheldon, 9 Wall. 50, 54. “Tell me,” says Lord Chancellor Su&den, “what yon have done under a deed, and I will tell you what that deed means.” Attorney-General v. Drummond, 1 Dr. & W., 353, 366; affirmed on appeal, Drummond v. Attorney-General, 2 H. L. Cases, 837, cited in 2 Wharton on Cont., 653.</p>

Circuit Court. — Ron. E. P. Gates, Judge. (1) It is obvious that there can be no lien for material furnished before the owner has made a contract for an improvement. Range Co. v. Jeffers, 79 Mo. App. 177; Mill Co. v. Brundage, 25 Mo. App. 268; Duross v. Broderick, 78 Mo. App. 260; R. S. 1899, sec. 4203; Phillips on Mechanics’ Liens, sec. 44; Coe v. Ritter, 86 Mo. 278; Brick Co. v. Eng. Co., 180 111. 535; Lumber Co. v. Nelson, 71 Mo. App. 110; Nelson v. Withrow, 14 Mo.

— Hon. J. H. Blover, Judge. (1) If there was any evidence upon which plaintiff was entitled to recover, under the issues joined by the pleadings, however slight the same may have been, the demurrer should have been overruled, and the case should have been submitted to the jury. The court is required to make every inference of fact in favor of the party offering the evidence.