Volume 89 — Missouri Appeal Reports

— Mon. James Gibson, Judge. (1) Tbe court erred in permitting plaintiff to introduce tbe deposition of H. K. Cocbran taken on tbe twenty-first day of April, 1891. R. S. 1899, sec. 2898; State ex rel. v. Withrow, 133 Mo. 500. (2) Tbe court should have permitted defendant to show tbe arrangement which be bad made with tbe Arkadelpbia Lumber Company to take the hay in controversy after notice of its rejection by plaintiff.

—Ron. Nat M. Shelton, Judge. On the merits of said motion, the appellant says that the affidavit filed herein is sufficient. In construing an affidavit the court ought to follow the rule laid down for the construction of the statutes. E. S. 1899, sec. 4158; DeBolt v. Bail-road, 123 Mo. 496 loe. cit. 501, 513; Melcher v. Scruggs, 72 Mo. 406; Eing v. Paint & Glass Co., 46 Mo. App. 374.

— lion, Andrew Ellison, Judge. (1) Plaintiffs’ petition does not state facts sufficient to constitute a cause of action. It does not allege that plaintiffs had a good and sufficient title free from all incumbrances which they were ready and willing to convey. Turner v. Ogden, 1 Black (S. O., U S.), 450; s. c. (Law’s Ed.), Book 1Y, p. 203; Scudder v. Waddingham, Y Mo.

<p>1. Railroads: KILLING STOCK: FENCES: INSTRUCTION. An instruction requiring a railroad to erect and maintain, on its right of way, fences sufficient to prevent horses, cattle, etc., from getting on its railroad, is erroneous since it imposes on the railroad a greater burden than the statute which requires only lawful fences.</p> <p>2. -: -: -: NOTICE. A railroad must have notice of the defective condition of its fences a sufficient time in which to make repairs before the happening of the injury, or it will not be liable therefor.</p> <p>3. -: -: MEASURE OF DAMAGES: EVIDENCE. An instruction fixing the measure of damages for stock injured at the difference in-their value just before and just after the injury, together with reasonable expenses incurred and the value of time spent in a reasonable endeavor to restore them to their former condition, is condemned since there is no evidence as to their value immediately after their injury.</p> <p>4. Damages: DUTY OF INJURED PARTY: REDUCING DAMAGES. It is the duty of a party to protect himself from the injurious consequences of the wrong act of another, if he can do so by ordinary effort and at moderate expense, and he may charge the wrongdoer therewith, but he can not recover for making his loss greater than it reasonably would have been.</p> <p>5. -: MEASURE OF: EVIDENCE. Certain evidence is noted and held as not tending to show the value of the injured stock just after the accident.</p>

— Hon. John A. Hockaday, Judge. (1) The order having been made at Centralia and transmitted to St. Louis for acceptance and there accepted, the contract was not complete until accepted, and St. Louis would be the place of making the contract. “Contract by letter or telegram should be referred to the place whence the acceptance is dispatched.” 1 Am. and Eng. Eney. of Law, (2 Ed.), 136; Perry v. Iron Co., 15 R. I. 380; 2 Am. St. Rep. 902; Hunt v. Jones, 34 Am.

— Hon. P. O. Stepp, Judge. The measure of damages in such cases is the difference in the market price at the time they should have arrived and the market price when they did arrive. Gann v. Railway, 72 Mo. App. 34; Wilson v. Railway, 66 Mo: App. 388; Glascock v. Railroad, 69 Mo. 589; Eaulkner v. Railroad, 51 Mo. 311.

— Hon. John W. Booth, Judge. (1) The court erred in admitting tbe testimony of witnesses as to statements made to Mrs. LeOlare, both before and after her‘marriage to defendant. O’Neil v. Crain, 67 Mo. 250; 1 Phillips on Ev., side p. 517; Coble v. McDaniel, 33 Mo. 363; Eougue v. Burgess, 71 Mo. 389; Gentry v. Eield, 143 Mo. 399; State v. Pruett, 144 Mo. 92; Courtney v. Blackwell, 150 Mo. 245; Dunn v. Altman, 50 Mo. App. 231; Mahner v. Linclc, 70 Mo.

— lion. T. B. Robinson, Judge. (1) The court erred in refusing to sustain the demurrer at the close of the plaintiff’s evidence. Also in refusing to give the peremptory instruction to find for the defendant at the close of all the evidence, because there was no evidence in the case sufficient to justify the conclusion that the plaintiffs mule entered upon the right of way by passing through or over the fence. Walton v. Railroad, 32 Mo. App. 634.

— Hon. T. B. Robinson, Judge. (1) A prior or contemporaneous oral agreement, if after-wards reduced to writing, is fnerged entirely into the written agreement and no evidence of the prior or contemporaneous oral agreement may be admitted to vary the writing. Tracy v. Iron Works, 104 Mo. 193; Evans v. Mfg. Co., 118 Mo. 548: Koerhring v. Muemminghoff, 61 Mo. 403; Bignall v. Mfg. Co., 59 Mo. App. 673; Bank v. Cushman, 66 Mo.

— Hon. T. B. Robinson, Judge. (1) The petition is for money loaned. The replication for money had and received. Evidence was admitted, and the recovery had, upon a special promise made by defendant and one E. S. Meyer, to repay plaintiff money invested by him in the partnership. The law is well settled in this state that plaintiff must recover upon the cause of action stated in his petition or not at all.

— Hon. James H. Hazell, J udge. (1) Ollie Eoberts had the right to contract that she would not claim dower, or the statutory provisions made for her. Public policy did not prevent such a contract. McFarland v. Baze’s Adm’r, 24 Mo. T56; E. S. 1899, sec. 4335; Garbut v. Bowling, 81 Mo. 214. (2) The contract can not under the evidence be said to'be unfair, or unreasonable, and should not be set aside upon that ground. Oarr v. Lackland, 112 Mo. 443.

— Hon. W. W. Wood, Judge. (1) The information should have been quashed. It nowhere charged that the alleged omission of the note was either willful or intentional. 4 Blackstone, pp. 855, 366; State v. Reilly, 4 Mo. App. 392; State v. Pitts, 58 Mo. 556; State v. Johns, 124 Mo. 379; State v. Silva, 130 Mo. 440. (2) This information was based on section 3867, Revised Statutes 1889, now section 2257, Revised Statutes 1899.

— Hon. II. O. Timmonds, Judge. (1) There was no proof of a failure to give'the statutory, signals. The trainmen in charge of the train were presumed to have given the proper signal because it was their duty to do so. Catheart v. Railroad, 19 Mo. App. 113, 118; Jewett v. Railroad, 50 Mo. App. 551; Wyrick v. Railroad, 74 Mo. App. 406, 417; Guest v. Railroad, 77 Mo. App. 258, 261; Lenox v. Harrison, 88 Mo. 491, 496; State ex rel. v. Bank, 120 Mo. 161, 169.

— Hon. H. O. Timmonds, Judge. (1) The policy provides for a magistrate’s certificate. Such provision is reasonable, valid and binding, and when required to do so, insured must furnish such certificate. Noonan v. Ins. Co., 21 Mo. 81; Erwin v. Ins. Co., 24 Mo. App. 145; Eink v. Ins. Co., 60 Mo. App. 673; DeLand v. Ins. Co., 68 Mo. App. 277; McCullough v. Ins. Co., 113 Mo. 606, 613; Johnson v. Ins. Co., 112 Mass. 49; Nelly v. Sun Fire Office, 141 Pa. 10; Langel v. Ins.

— Hon. H. G. Timmonds, Judge. (1) Plaintiff’s petition disclosed on its face a complete remedy at law. Hence, it was error to overrule defendant’s objection to tbe introduction of any evidence. Humphreys v. Milling Co., 98 Mo. 542, App. 551.

— Hon. W. W. Hraves, Judge. (1) There was no evidence, on the part of the inter-pleader, of his taking possession at time of claimed purchase, or in a reasonable time thereafter, or at any time, of the household furniture or cows, as is required by the statute. And the said claimed sale is for that reason void, under the law, as to the creditor in the attachment suit. R. S. 1899, sec. 3410; Cracker & Candy Co. v. Ellis & Co., 45 Mo. App. 588; State ex rel.

— Eon. George F. Longan, Judge. (1) Defendant’s answer charged plaintiff with contributory negligence. There was abundant proof of this charge. It was then gross error to give plaintiff’s instruction numbered five. This instruction took that issue entirely from the jury and should not have been given.

— Now. James Qibson, Judge. - (1) The testimony of witness Hughes, as to the proper manner, order, signals or anything of that kind on the caboose, under the rules and regulations of regular train service, ought to have been excluded. Defendant Belt -company runs no regular trains but does only a switching or transfer business. Greenl. on Ev.

— Hon. John W. Henry, Judge. Submitted an argument. (1) Before tbe appellant can recover it must show that it has complied with its contract, and until this is done no recovery can be had thereon; “Parties are bound by their contracts and can not, after committing a breach justifying an abrogation of the contract, either recover damages for such breach, or enforce the contract.” Sick v. Ins. Oo., 79 Mo. App. 612; Billup v. Daggs, 38 Mo. App. 369.

— Ron. E. P. Gates, Judge. (1) Tbe only reason given by the lower court for granting a new trial was that the verdict was against the weight of the evidence, and we take it in the light of the record in this case and of our recent Appellate and Supreme Court decisions, that no other ground can be considered on this appeal. Bed Co. v. Railroad, 148 Mo. 478; Millar v. Car Co., 130 Mo. 517.

— Hon. J. H. Slover, Judge. (1) The notice required to be filed with the city treasurer (Charter and revised ordinances, Kansas City, sec. 18, art. 9, page 152), is not jurisdictional, but is directory merely, and a substantial compliance with the requirement of the charter in that respect is sufficient. Sears v. Burnham, 17 N. Y. 448; State ex rel.

— Hon. James Gibson, Judge. (1) The rule is, as we understand it, that: “In order to constitute a communion of profits between the parties which will make them partners, the interest in the profits must be mutual; each person must have an interest in the profits as a principal trader, so as to give him a lien on the property for the protection of his interest or profits, and a control over the same.” Eelley v. Gaines, 24 Mo.

— Hon. James Gibson, Judge, (1) The defense was that the contract was not completed within the time fixed. But there was substantial compliance, and that was all that was necessary. Time here was not of the essence of the contract.

— Hon. Nat. M. Shelton, Judge. Submitted brief and argument on merits. (1) Appellants nowhere in their abstract elaim and show that a bill of exceptions was filed. Bank v. Davidson, 40 Mo. App. 421, and cases therein cited; Craig v. Scudder, 98 Mo. 664; Lumber Co. v. Howard, 16 Mo. 511. (2) A bill of exceptions must not only be signed, but it must also be filed, or else it is no part of the record.

— Hon. John A. Hochaday, Judge. (1) The demurrer to defendant’s, evidence admitted all tbe facts disclosed thereby and every reasonable inference in favor of such facts. Sewer Pipe Co. v. Smith, 36 Mo. App. 619, and cases cited; Harris v. Railroad, 89 Mo. 233; Buckley v. Kansas City, 156 Mo. 16; Dorsey v. Railroad, 83 Mo. App. 542.

— Son. E. P. Gates, Judge. (1) The most that was shown by plaintiff’s evidence was, that defendant accepted an offer to pay, as tender for $5,000 and that defendant did not take the money. This was not sufficient. Gelatt v. Ridge, 117 Mo; 560; Toder v. White, 75 Mo. App. 155; Huggins v. Hearne, 74 Mo. App. 86; Comstock v. Lager, 78 Mo. App. 390; Henderson v. Cass Co., 107 Mo. 50; Adams v. Helm, 55 Mo- 468; School Board v. Hull, 72 Mo. App. 403; Perkins v. Headley, 49 Mo.

<p>Chattel Mortgages: ACKNOWLEDGMENTS: PROOF BY TWO WITNESSES: SATISFACTORILY IDENTIFIED. Where the party making the acknowledgment is not known to the notary, he must prove his identity by at least two witnesses whose names and residences must be inserted in the notary’s certificate, and a certificate certifying that the party was satisfactorily identified is fatally defective and the mortgage is invalid as to subsequent purchasers.</p>

— Hon. J. H. Blover, ■ Judge. (1) The appellant showed that Wager, and the commercial agent here, were the proper parties to present this claim. Johnson v. Hurley, 115 Mo. 521; Bank v. Ins. Co., 145 Mo. 139; Pump Co. v. Greene, 31 Mo. App. 269; Sharp v. Knox, 48 Mo. App. 169; Suldarth v. Lime Co., 79 Mo. App. 585; McLachlin v. Barker, 64 Mo. App. 524. (2) The appellant had a right to set up a new defense at the last trial. Sherman v. Rockwood, 26 Mo.

<p>Appeal from Jackson Circuit Court. — Hon. J. H. Llover, Judge.</p> <p>.(1) A receiver can not be sued without leave or authority of court appointing him. Turner v. Railroad, 74 Mo. 602; Smith v. Railroad, 151 Mo. 391; Wiswall v. Sampson, 14 How. 52, 64, 69; Barton v. Barbour, 104 TJ. S. 126, 128, 129; Burk v. Machine Co., 98 Mich. 614; Porter v. Sabin, 149 U. S. 473, 479; Payne v. Baxter, 2 Tenn. Ch. 517; Smith on Receivers, sec.' 83; Beach on Receivers, secs. 229, 650, 653, 661; Neun v. B. & L. Ass’n, 149 Mo. 80. (2) Leave to sue a receiver is a jurisdictional fact. Barton v. Barbour, 104 TJ. S. 164; Peale v. Phipps, 14 How. 376; Davis v. Gray, 16 Wall. 203, 216, 218; Express Co. v. Railroad, 99 H. S. 191, 198; Porter v. Sabin, 149 IT. S. 473 to 479; Smith v. Railroad, 151 Mo. 402. (3) If justice Pursley was without jurisdiction to render judgment herein, the circuit court, on appeal, was without jurisdiction to affirm the judgment of the justice. Mill Co. v. Short, 58 Mo. App. 320; Hansard v. Ins. Co., 62 Mo. App- H8 j Endicott v. Hall, 61 Mo. App. 186.</p> <p>(1) “The taking of an appeal, waives all imperfections, etc., and is equivalent to a general appearance to the merits in the circuit court.” Rice v. Railroad, 30 Mo. App. 110; Berkley v. Kobes, 13 Mo. App. 502; Kelley v. Railroad, 86 Mo. 681; Horton v. Railroad, 26 Mo. App. 349; Cooksey v. Railroad, 17 Mo. App. 132; "Williams v. Sinclair, 11 Mo. App. 593; Holdridge v. Marsh, 28 Mo. App. 283; Riddle v. Gillespie, 67 Mo. 627; Page v. Railroad, 61 Mo. 79. (2) Respondent’s abstract shows the court that an amendment to his statement could have been made in the circuit court setting forth the obtaining of leave to sue from the United States court, which would avoid appellant’s contention altogether. Daniel v. Atkins, 66 Mo. App. 342; Dowdy v. Wamble, 110 Mo. 280; Keltenbaugh v. Railroad, 34 Mo. App. 147; Henry v. Railroad, 44 Mo. App. 100; Eathman-Miller v. Ritter, 33 Mo. App. 404. (3) I claim that appellant has no ground for his contention that respondent’s statement before the justice is fatally defective in that it does not show leave to sue the receiver, and that therefore the justice was deprived of jurisdiction. Daniels v. Atkins, supra. (4) And lastly and finally, I contend that appellant by appealing, from the justice of the peace to the circuit court, thereby put himself within the jurisdiction of that court, and entered his appearance therein, and the fact of his having failed to- prosecute his appeal as stated, being undisputed, he, therefore, is not in a position to raise any question other than the fact of the serving of such notice, and that therefore it was mandatory on the circuit court to sustain respondent’s motion to. affirm the judgment of the justice. I-Iammel v. Weis, 54 Mo. App. 14; Wolff v. Coffin, 46 Mo. App. 190; Crosby v. Clary, 43 Mo. App. 222; Kelley v. Railroad, 86 Mo. 681.</p>

— Hon. George F. Longan> Judge, (1) Tbe court erred in overruling tbe defendant’s demurrer to the plaintiffs’ evidence. There was a total failure of proof to sustain the allegations of plaintiffs’ petition. Turner v. McCook, 77 Mo. App. 196; Chouquette v. Railroad, 152 Mo. 257.

— Mon. B. J. Broaddus Judge. (1) Defendant’s instruction six should have been given and plaintiff’s instruction seven refused. Griese had no authority over the men direct. He did not go to Gilman on business for the defendant, but for himself — to get his dinner. Plaintiff was not working in the line of his employment when running, the handcar and was not engaged about defendant’s business at the time of the accident. Knox v. Coal Go., 90 Tenn. 546 18 S. W. Rep. 255.

— Hon. A. M. Woodson,. Judge. (1) The sureties were released in this case because the owner terminated the contract in a manner other than as provided by the contract. The sureties had the right to insist that they were bound to the extent, in the manner and under the circumstances pointed out in the contract, and no further. Simonson v. Grant, 36 Minn. 442; Warden v. Ryan, 37 Mo. App. 466.

<p>1. Trial and Appellate Practice: ADMISSIONS IN PLEADINGS: INSTRUCTIONS: CHANGE OF THEORY. Plaintiffs by their pleadings and instructions treated a -bond as read in evidence and before the court, and on appeal will not be permitted to retry their case upon a different theory.</p> <p>2. Mechanics’Lien:, CONTRACT: BOND: CONSIDERATION. A contractor to erect a building agreed at the time of the contract to furnish a bond for the faithful discharge of his duties under the contract and for indemnity against liens, etc.; some days after the contract he delivered the bond with plaintiff as liis surety. Held the bond was a part of the contract, and the contract was sufficient consideration for the bond, and this,- whether the bond was given before or after the commencement o| the work.</p>

— Hon. Edward Vinsonhaler} Special Judge. (1) The court erred in permitting the note sued upon to be introduced in evidence. No doctrine has been more strongly adopted in this State than the fact that where plaintiff sued upon an indorsed note the indorsement must be proven before you can recover. A general denial in an action on a promissory note by the alleged indorsee puts in issue the plaintiff’s title to the note, and the genuineness of the indorsement.

— Hon. Argus Qox, Judge STATEMENT OE THE CASE. Mamie Cole was granted a divorce from Sidney Cole during the November, 1898, term of the circuit court of Texas county. The suit was brought by common process and heard on the plaintiff’s petition and the defendant’s answer and cross-bill. The decree awarded the custody of Ethel May Cole, minor daughter of the parties, to her mother. These facts we gather from the pleadings in the present proceeding.

Louis City Circuit Court. — Hon. Franklin Ferris, Judge. ’ (1) A judgment obtained upon a gambling contract is void by the statute, and equity will give no relief, although the defense might have been made at law; nor will it make any difference that the note, on which the judgment is based, passed for value into the hands of an -innocent purchaser. Lucas v. Wane, 12 Sneed. & M. 157; Martin v. Terrel, 12 Sneed. & M. 571; Smither v. Keyes, 30 Miss. 179; 8 Am. and Eng.

— Hon. Frank B. Dearing, Judge. (1) The court erred in refusing instruction No. 1, offered on part of the defendant, as under the evidence in this case, plaintiff was.not entitled to recover. Pearson v. Railroad, 33 Mo. App. 546; Jennings v. Railroad, 37 Mo. App. 652; Ehret v. Railroad, 20 Mo; App. 251; Nance v. Railroad, 79 Mo. 196; Lewis v. Railroad, 59 Mo. 495. (2) There was no evidence that the injury occurred in the township in which the action was instituted.

Louis City Circuit Court. — Ron. John A. Tally, Judge. (1) The circuit court had no jurisdiction after the expiration of the October term, 1898, during which judgment was actually rendered in favor of respondent for $805, and respondent remitted $7 thereof, to render a new judgment for the remainder, $798. After the term of judgment the court loses all control over the cause. Page v. Chapin, 80 Mo. App. 161; Bohm v. Stivers, 75 Mo. App. 295; Head v. Randolph, 3 Mo. App.

Erancois Circuit Court. — Ron. James D. Box, Judge. STATEMENT OK THE CASE.

<p>Appeal from Scott Circuit Court. — Hon. Henry G. Riley, Judge.</p> <p>(1) The law provides that among the qualifications of a school director he must be a resident taxpayer and qualified voter of the district. . R. S. 1889, see. 7988, p. 1857. In this case the instrument relied on by the plaintiff and called a “contract,” was made and entered of record in the month of August, 1899, and the testimony shows that Lilburn Greer, who signed said instrument as president, had removed from the district in the month of July, previous, and therefore his authority as school director had terminated, and no act of his could legally bind the district. (2) The law provides that all meetings of the board of directors “shall be held at some place within the school district; that said meetings shall be ordered or called by the president of the board, and that each member shall have due notice of the time, place and purpose of such meeting, and that the clerk shall keep a correct record of the proceedings;” and further provides that in the absence of the clerk, one of the members of the board shall keep such record. R. S. 1889, sec. 7990. (3) In this case the pretended meeting had not been appointed or ordered. No notice had been given that a meeting would be had, nor of time, place or purpose thereof. Lilburn Greer, the president of the board, met with one of the directors by accident, and not by purpose or intent, and without the knowledge of the other director, in the city of Sikeston, outside of the district and in the absence of the clerk, and without any record book, and in the absence of the plaintiff, and .they two (Greer and the other director whom he met) verbally agreed to employ the plaintiff. This occurred in May. No record or minute was made by the clerk or any member of the board; its only existence was held in the memory of Greer until the latter part of July or some time in August, 1899. After Greer had vacated his office by removing from the district he then signed the pretended contract sued on, and long after Greer signed it, in the month of August, 1899, the plaintiff signed the alleged contract; and then for the first time was the matter made a matter of record, which Hutchason, the district clerk, says was done by him as such clerk by recording the instrument sued on in the defendant’s record upon the verbal order of Lilburn Greer, who was then a non-resident. Not only does Revised Statutes 1889, section 7988, prescribe the qualifications of school directors, but section 7991, Revised Statutes 1889, provides in express terms that the removal of a director from a district vacates such office and renders any subsequent action of his as such officer null and void. No step is necessary to be taken; no action is prescribed to be followed; no remedy is provided that must be appealed to to vacate the office as director; but the simple fact of removal from the district, alone, of itself, operates to annul the authority of the director and leaves him with no power to bind the district or to act for it in any capacity.</p> <p>(1) “Records are made by order of the court and not by order of counsel or by voluntary, action on the part of clerks.” Christy v. Myers, 21 Mo. 112; United States v. Gamble, 10 Mo. 459; Blount v. Zink, 55 Mo. 455; Jefferson City v. Opel, 67 Mo. 394; Ober v. Railroad, 13 Mo. App. 84. As said in Morrison v. Lehew, 17 Mo. App. 635: “One of the very objects of such a bill is to have the court to pass upon the fact as to whether or not it correctly sets out the evidence given upon the trial.” (2) “Any other rule would 'enable the clerks to make up a record at their discretion, and would lead to. interminable confusion.” Roberts v. Bartlett, 26 Mo. App. 620. And again it was said in Tipton v. Renner, 105 Mo. 1: “It is the business of the judge who tried the ease to say what evidence was introduced, and he can not devolve this duty upon the clerk, the reporter or counsel. It is perfectly plain that he can not sign a bill as a true ohe until the parol evidence is written out and made a part thereof. He ought not to sign it until this is done, and, if he does sign the bill before such evidence is written out and inserted, the evidence must he disregarded in this court. It is just as important now that this character of evidence should he written out and inserted in the bill before it is signed as it was in the days when we had no official reporters; for the evidence as written out by the reporters from their notes taken on the trial is generally full of mistakes and errors, and incumbered with a mass of immaterial and useless matter, which has no place in the record and should be eliminated before the bill is signed.”</p>

— Sun. F. B. Fearing, Judge. (1) Can the bank, by denying that it was the agent of the Phoenix Loan Association, avoid the payment to Durham of the full amount it agreed to pay him for his stock certificate ? Concede that' Shields was the loan association’s agent and not the bank, and how can that affect the bank’s liability to Durham ?

— Ron. J. L. Fort, Judge. STATEMENT OE THE CASE. The facts in the record are complicated and must be set out with some fullness to make the controversy clear.

<p>1. Judgment: WHEN PAYMENT OF, VOLUNTARY. Payment of a judgment is voluntary, unless made to procure the release of the goods of the party making payment after seizure, or to prevent their seizure by an officer armed with the authority or apparent authority to seize them.</p> <p>2. -: -. In the case at bar, on the whole record it appears that appellants paid the judgment when there had been no seizure or threat of seizure of their goods, and under these circumstances the payment was voluntary.</p>

<p>Appeal from Barry Circuit Court. — Hon. Henry Glay Pepper, Judge.</p> <p>STATEMENT OE THE CASE.</p> <p>This is the second appeal in this case. Our decision on the former appeal is reported in 71 Mo. xlpp. 179, -where the material facts appearing on the first trial are stated. ’ On the second trial, plaintiff introduced in evidence a conveyance of the goods in dispute by A. W. Brown, the-general owner, to A. Y. Darroch, to secure certain creditors, which authorized a sale for that purpose. This instrument was not recorded, nor was there any evidence on this trial of a sale thereunder. When it was made, the maker, a merchant at Monett, was largely in debt to defendants Milligan & Son for goods, wares and merchandise, and had previously executed to them a mortgage covering on his entire stock and weekly remittances of proceeds of sale thereof. He, however, at once turned over the key to his store to A. Y. Darroch. The latter instructed the salesman to meet him at the store about midnight “when the arc lights were out,” which the evidence shows was done, and the goods were boxed up, distributed and secreted in various dwellings and stores around town. On the next morning the present defendants brought a replevin against the parties in whose possession they found the goods covered by the mortgage to them. Other creditors of Brown brought attachments against such parties. The officers executing these writs found the goods in the possession of the respective parties, and found those on plaintiff’s premises hidden in a cellar, the door to which was covered by a carpet upon which a woman was standing engaged in ironing clothes, the plaintiff having denied to the officer that he had any of the goods when lie was requested to surrender them under the writ in the bands of tbe officer. Thereafter, tbe defendants in tbe suit of replevin, which tbe present defendants bad instituted, disclaimed any interest and that action of replevin was discontinued, whereupon tbe present plaintiff brought this action to recover tbe same goods. At tbe conclusion of tbe trial, developing tbe foregoing facts, tbe court at tbe request of tbe defendants, instructed tbe jury that plaintiff was not entitled to recover. From a verdict and judgment in accordance, plaintiff has prosecuted bis appeal -to this court.</p> <p>(1) Tbe chattel mortgage from Brown to Milligan was void under section 8397, Revised Statutes 1889. Scott v. Riley, 49 Mo. App. 1. c. 253; Stone v. McNealy, 59 Mo. App. 1. c. 399. (2) And tbe burden of proof was on defendants to show that their taking of tbe property under their writs was rightful. Oobbey on Replevin, sec. 84. (3) Tbe rule that where tbe plaintiff’s title is denied, naked possession is not sufficient to maintain tbe action, but tbe plaintiff must prove property, general or special, is not applicable in this case under tbe answer of Milligan & Son, no denial of property either general or specific, having been made, and tbe answer containing no averment of property in a third person. Scott v. Riley, 49 Mo. App. 1. c. 253; Stone v. McNealy, 59 Mo. App. 1. c. 399; Gray v. Parker, 38 Mo. 1. c. 165.</p> <p>(1) To say that a mere possession of this character and thus secured is sufficient to maintain a replevin suit against an unquestioned, honest creditor, will lend color to tbe inference that the possession of a burglar is an honest title. Bayless v. LaEaivre, 37 Mo. 119; Pope v. Cordell, 47 Mo. 251; Wright v. Richmond, 21 Mo. App. 76; Scott v. Riley, 49 Mo. App. 251. (2) Mere possession, without proof of general or special' property, is not superior to the claim of defendants, even if the mortgage of defendant is fraudulent in fact. (3) Although sales were made in the ordinary course of trade, and on remittances made, yet this conduct can only be questioned by a creditor or by a bona fide purchaser, and under the evidence, the plaintiff herein is neither. So far as the record discloses, he is a stranger and wrongdoer. R. S. 1889, sec. 5176; Johnson v. Jeffries, 30 Mo. 423; Drew v. Drum, 44 Mo. App. 25; Bank v. Bank, 50 Mo. App. 96; Mead v. Maberry, 62 Mo. App. 562.</p>

<p>1. Practice, Trial: PBACTICE APPELLATE. In the case at bar, the appellant has brought to the court of appeals only the record proper, and is only entitled to a review of questions presented by it.</p> <p>2. -: -. And an examination of the record proper shows-that plaintiff’s petition stated a cause of action, and that the proper verdict was rendered.</p>

— Hon. John G. Wear, Judge. (1) We understand that it is not customary for the appellate court to consider the evidence when a jury has found the issues for a certain party, but it strikes us that there are times when the court should go into the evidence, and we think this is one of the times and one of the cases. We think the evidence is plain that there was fraud practiced in this case and that it was clearly proven.

<p>Appeal from St. Louis City Circuit Court. — Hon. Penibrook P. PlUcraft, Judge.</p> <p>STATEMENT OE THE CASE.</p> <p>The destroyed household goods, which are the subject-matter of this litigation, were owned at the time the fire occurred, to-wit, December 16, 1897, by tbe appellant. She and Charles L. Yining, her brother, were the unmarried children of Mrs. H. B. Yining, who died June 5, 1897. There were several brothers and sisters who were married. Charles L. Yining was a travelling salesman and supported his mother and sister. Their home which was in Shrewsbury Park, had been furnished by him comfortably and even richly. While he was on the road he was informed by a letter from his mother that several fires had occurred in the neighborhood of their home, whereupon he wrote her to procure insurance upon the furniture and household effects. She called on Messrs. Delafield & Snow, general agents of the defendant company in the city of St. Louis, and took out a policy of insurance in her own name on said property to expire November 30, 1896. This transaction took place in 1895. Upon the expiration of that policy, Mrs. Yining applied to the same agency for another which was written to run from November 30, 1896, for one year. The premium was $15, of which she paid $10 at the time. On the third day of March, 1897, either she or her son Charles, went to the office of Delafield & Snow to pay the balance of the premium. There is a dispute in the evidence, as to who went there for that purpose, which we think unimportant. Whoever it was, a new contract was made by which the one-year policy was taken up and one for three years written in lieu of it, running from November 30, 1896, the date of the surrendered policy. The respondent company was the insurer. The premium was $30, and $20 additional were paid to 'the agents, which with the $10 previously paid, made the full amount. Charles Yining furnished it all. None of the Yinings knew the policy was void because issued to the mother, who did not own the property covered, until Charles and the plaintiff Lotta, were told so by J. L. Herold, an intimate friend of the brother, about June 12,1897, after Mrs. Yining’s death. He was visiting them at their home, and a talk coming up about the furniture and the insurance on it, he learned the latter was in the mother’s name and informed them of the legal flaw in the risk. The conversation arose in reference to a contemplated trip by Charles Vining to the Klondike country in Alaska. In the presence of Mr. Her-old, he made a gift of all the household goods and effects to his sister Lotta on or about the said twelfth day of June, telling her he was going to Klondike and as she had no one to support her, he would make her a present of the property.1 It is not denied that he did this. On the fourteenth day of June, 1897, he and his sister repaired to the agency of Delafield & Snow for the purpose of changing the insurance. The only material conflict in the evidence is about what transpired there, nor do we think that conflict is so material that it should control the decision of the case. George L. Day, a clerk in the office, testified that young Vining said his mother was dead and they wanted to turn this property all over to the sister. That he (Day) knew the mother was dead before they came in, because he had seen it in the newspapers; Charles said they did not want to make any claim to the property but to give it all to the sister, “and of course, in making an assignment of this kind, if the party is dead, they can not make an assignment on the back of the policy and being requested to do so, we made the indorsement on the back.” He further swore, that nothing was said about Charles Vining being the owner of the property, or that he wanted the policy changed to the sister, or a new policy. The witness claimed that Charles Vining spoke in the plural, saying “we want to turn it over.”</p> <p>The testimony of young Vining is that he introduced Mr. Snow to his sister and told him he had given her the property, had brought the policy and as the property now belonged to her, wanted him to write out a new policy of insurance in her name, telling him also, that the policy had been in his mother’s name, but she had never owned the furniture. He said he also showed him a newspaper clipping announcing the death of his mother. Snow replied, according to the testimony of this witness, “All right, Mr. Vining, leave that policy here and we will write you a new one.” He called the next day and Snow delivered him the old one, saying, “We did not write you a new policy, but we have put on this indorsement, which makes it the same as a new policy.” . Toa query by the witness, Snow assured him it was all right. This is denied by Mr. Snow, who testifies he did not see Vining and his sister on that occasion at all; that the business was transacted with Mr. Day. , He admits, however, that he did sign the indorsement, to be set out presently, and it is conceded that the policy was kept in the office of Delafield & Snow until the next day and the indorsement put on it in the absence of the plaintiff and her brother. That indorsement is as follows:</p> <p>“St. Louis, Mo., Jume 14, 1897.</p> <p>“Notice received of the death of Mrs. H. B. Vining. This policy shall hereafter cover and attach in the name of Miss Lotta A. Vining, ceasing to cover as written heretofore.</p> <p>'Delafield & Snow, Agents.”</p> <p>No additional premium was paid by the plaintiff or her brother, nor was any portion of the thirty dollars, which the latter had paid theretofore, returned.</p> <p>After the fire, the loss was adjusted by W. C. Butler, the respondent’s regular adjuster, at the sum of $1,550. There was a dispute between the plaintiff and the company about the amount of the loss, the former claiming it to be much greater than the amount at which it was adjusted, finally agreeing to accept that amount to avoid litigation. The proof of loss was made out by Butler himself in plaintiff’s behalf and forwarded to the company at Philadelphia, on the twenty-first day of December, 1897. Nothing was then said against her right to be paid, but it recited that the adjuster believed “the heirs had suffered a loss without fraud by the fire to the amount of $1,550.” The company did not pay and more or less negotiation took place about the loss afterwards ending in the plaintiff seeking legal advice and notifying the company that she renounced the adjustment. Prior to that time, Butler had notified the plaintiff that some of her married brothers and sisters claimed an interest in the money due for the loss and that the company would not pay it without there was an administrator appointed for the estate of Mrs. H. B. Vining, or receipts given by all of the latter’s heirs. A letter was addressed both to the respondent company at Philadelphia and to its adjuster in St. Louis, asking whether anything further was desired in the way of notice, ascertainment, estimate, proof of loss or other formalities touching the plaintiff’s claim. The letter to the company also advised it that the plaintiff would no longer accept the amount, $1,550, in full settlement. The company replied, under date of January 27, 1898, by letter addressed to the plaintiff’s attorneys at St. Louis, in which receipt of the plaintiff’s communication to it was acknowledged. In answer to the inquiry as to whether anything further was demanded in the way of estimate of the amount of the loss and other matters, the letter said:</p> <p>“The loss has been adjusted at the sum of $1,550 as set forth in the proofs of loss on file here, which sum we are ready to pay to the party or parties who are or may become legally qualified to receive it and discharge the company.</p> <p>“The policy was originally made to Mrs. II. B. Vining: who has since deceased, and we require the signature of a duly appointed administrator or the joint signatures of all the heirs.</p> <p>“Yours very truly,</p> <p>“Robt. H. Wass, Manager.”</p> <p>Thereafter the present action was instituted. The petition declares on a contract of insurance alleged to have been made by tbe defendant and tbe plaintiff on June 14, 1897, on tbe property in question, sets forth tbe destruction of it by fire, and tbe usual averments. The answer, besides a general denial, sets up tbe conditions of tbe original policy of insurance in regard to its being void. That tbe assured was not tbe sole owner of tbe property; further, that a disagreement existed between tbe plaintiff and tbe defendant as to tbe amount of tbe loss which bad never been ascertained, it is stated, by an appraisement as tbe policy required. Tbe third count alleges that- tbe indorsement of June 14,1897, was procured by fraudulent representations made by tbe plaintiff that she bad acquired tbe interest of her mother in tbe insured property. It denies that she bad procured such interest or that Mrs. Vining bad any insurable interest in tbe property. Tbe last count of tbe answer sets up tbe alleged fraudulent representations and acts of the plaintiff and prays for affirmative relief and that tbe indorsement of June 14, be cancelled and for naught held.</p> <p>On tbe trial in tbe circuit court tbe appellant demanded a jury trial, which was refused by tbe court on tbe ground that tbe answer bad converted tbe whole proceeding into one in equity. After tbe evidence bad been bear'd, tbe court found that tbe indorsement was null and void, ordered tbe same can-celled and denied tbe plaintiff a recovery.</p> <p>(1) Defendant’s defense, as evidenced by its answer, could have been urged at law as well as in equity. The answer did not have tbe effect of converting plaintiff’s action into an equitable proceeding because tbe relief to which it is entitled under its answer, if true, is not such as only a court of equity could grant. Tbe court, therefore, erred in depriving plaintiff of her right of trial by jury. Estes v. Ery, 94 Mo. 266, 271. (2) Assuming this, however, to be a proceeding calling for equitable jurisdiction as contended by defendant, plaintiff, under all the evidence, is entitled to recover the full amount sued for. (3) There can be no question, under all the evidence, but that Charles L. Vining paid the $30 consideration for the three year policy issued in the name of Mrs. H. B. Vining, on which the indorsement of June 14, 1897, was made. (4) The policy as issued to Mrs. H. B. Vining, was void for lack of insurable interest in the insured. The fact that said policy was originally void is pleaded by defendant and acquiesced in by plaintiff. (5) While the court erred in holding that the amended answer had the effect of converting the cause into an .equitable proceeding, and in depriving plaintiff of the right of trial by jury, the error was committed at the invitation' of defendant. The cause having been tried on the theory urged by defendant it could not now complain if this court, pursuing defendant’s theory, should hold, exercising equitable jurisdiction, that under the law and the evidence plaintiff was entitled to recover and should proceed to enter such a decree as the lower court should have entered. JohnsonBrinkman v. Central Bank, 116 Mo. 558, 569; State ex rel. v. St. Louis Court of Appeals, 99 Mo. 216, 223; Can-oil v. Campbell, 25 Mo. App. 630-635. (6) The decree which the lower court should have entered was one for the full amount sued for with six per cent interest per annum from April 11, 1898, sixty days after proof of loss was made, with ten per cent damages for vexatious refusals to pay the loss sustained by plaintiff. R. S. 1899, sec. 8012.</p> <p>The court refused plaintiff’s demand for a jury trial because the answer and cross-bill of defendant converted the action into an equitable proceeding. This was not error. The defendant’s third defense, or cross-bill, asserts that the indorsement of June 14, 1897, was procured by false and fraudulent statements and representations, and believed by it to be true and, therefore, the writing was void. The prayer following this cross-bill demanded the cancellation and annulling of the indorsement and other equitable relief. This defense converted the proceeding into an equitable one. McCollum v. Boughton, 132 Mo. 601; Allen v. Logan, 96 Mo. 591; Wendover v. Baker, 121 Mo. 290Freeman v. Wilkerson, 50 Mo. 554; Conran v. Sellew, 28 Mo. 320; Ellis v. Kreutzinger, 31 Mo. 432; Richardson v. Pitts, 71 Mo. 128.</p>

<p>Appeal from Audrain Circuit Court. — Hon. Elliott M. Hughes, Judge.</p> <p>STATEMENT OE THE CASE.</p> <p>In 1899 a street fair was held in the city of Mexico, Missouri. Pom" premiums were offered by the association for the best display of farm products. One of the conditions was that- any commodity entered must have been raised by the exhibitor. Plaintiff and defendant displayed products. Plaintiff was awarded fourth, and defendant second premium. Plaintiff afterwards filed suit against the defendant before B. E. Tomlinson, a justice of the peace, for damages on the ground that the defendant had secured the second premium by falsely representing that her exhibit was raised on her farm when it was not; that thereby she prevented plaintiff from getting said premium, which otherwise he would have received, so that he was damaged to the amount of said premium, to-wit, $20, and $50 besides, on account of the loss of the advantageous advertising of his farm that would have resulted if he .had gotten second prize. This cause of action was stated in a separate count. Tomlinson, the justice of the peace, fell ill so that he could not be in his office on the day the case was set for trial, and to avoid a continuance, the attorneys of the respective parties agreed that A. B. Cluster, a lawyer, might preside in his place. The stipulation was as follows: “We, P. H. Cullen, attorney for defendant, and J. T. Baker, attorney for plaintiff, in the above entitled cause do hereby agree and consent to have A. B. Cluster sit as justice of the peace,, and hear, and preside at said trial in the place of B. E. Tomlinson before whom the papers in the case were filed.</p> <p>“P. H. Cullen, by Coil.</p> <p>“John T. Baker.</p> <p>“A. B. Cluster, acting as J. P.”</p> <p>It is conceded the right to appeal was reserved. The cause then proceeded as if before an actual magistrate. Plaintiff was twice ruled to give security for costs, seventy-five witnesses, or more, were subpoenaed, there were two trials to a jury, the second resulting in a verdict for the plaintiff assessing his damage at one dollar. Defendant appealed to the circuit court. Both parties agreed that they would not raise the question of Cluster’s jurisdiction or authority in the upper court, and while the evidence is perplexing as to just what Happened in that respect, the best we can make of it is that both did raise it and the circuit court dismissed the appeal. The plaintiff afterwards brought this action, setting up all the facts, the judgment of the acting justice, Cluster, in his favor for one dollar, and the costs of the trial amounting to $276.20, for all of which he prays judgment. At the conclusion of the plaintiff’s evidence the court below sustained a demurrer to it, from which judgment the present appeal was prosecuted.</p> <p>(1) The agreement which formed the basis of this suit was a common-law and not a statutory arbitration and is binding on the defendant. A statutory arbitration does not supersede and prevent a common-law arbitration. Williams v. Perkins, 83 Mo. 379; Donnell v. Lee, 58 Mo. App. 288; Hamlin v. Duke, 28 Mo. 166. “At common law, an agreement to submit a matter in controversy is a contract and may be either oral or in writing.” . (2) “When anyone has induced another to accept a particular hypothesis, he shall not afterwards, to the injury of that other,. contradict that hypothesis.” Taylor v. Sangrain, 1 Mo. App. 312. (3) Again, a party can not take advantage of his own wrong. “The rule has long and firmly been established that where one by his words or conduct 'willfully or knowingly causes another to believe in a certain state of things and induces him to act on that belief, the former is precluded from averring against the latter a different state of things as existing at the time.” Taylor v. Zepp, 14 Mo. 482; Acton v. Dooley, 74 Mo. .63; DeBerry v. Wheeler, 128 Mo. 84; Eowler v. Carr, 63 Mo. App. 486. (4) Defendant represented that he would abide by the award and decision of said Cluster. “One who makes representations upon which he expects another to act and upon which such other relies and is induced to act to his detriment, will be estopped to question the truth of what was represented.” Gernhart v. Einney, 40 Mo. 449; Bank v. Frame, 112 Mo. 502.</p> <p>(1) The evidence in the case fails to establish an arbitration and award. The agreement attempted to clothe a nonjudicial person with judicial powers and by consent this agreement was abrogated and the entire proceedings vacated by the judgment of the circuit court striking plaintiff’s cause from the docket. Bishop v. Nelson, 83 111. 601; Hoagland v. Creed, 81 111. 506; Cubb v. The People, 84 111. 511; Cooley Cons. Lim. (6 Ed.), p. Y92. (2) It is well settled that- no action can be maintained on a void judgment. Penny wit v. Kellogg, 1 Cine. Sup. Ct. Rep. 1Y; Needham v. Thayer, 14Y Mass. 536; Ellis v. Ins. Co., 8 Fed. Rep. 81; Hall v. .Williams, 6 Pick (Mass.), 332; Townsend v. Cox, 45 Mo. 401. This action is not based on a judgment, but if it were, no recovery could be had for the reason the judgment is void and was duly appealed from and the cause stricken from the docket in the circuit court, thereby destroying and vacating any action of the lower court. (3) The circuit court had no jurisdiction in this action because the amount in controversy was only one dollar and allegations in the petition of a larger amount were not proved by the evidence and manifestly alleged for the purpose of attempting to give to the circuit court jurisdiction. To an understanding of this point the court must consider the following, viz.: Common-law arbitrators can not subpoena witnesses or administer oaths to them. Am. and Eng. Ency. of Law (1 Ed.), pp. 6Y8, 6Y9. Costs at common law were not recoverable by either party in a suit at law. 5 Ency. of PI. and Pr., 108.</p>

— Hon. James Tilford Neville, Judge. STATEMENT OE THE CASE. Plaintiff liad a contract with the Government of the United States, whereby he was bound to transport all mail matter of the United States on route No. 445006 at Springfield, Missouri, from August 1, 1899, to June 30, 1903, inclusive, at such times and upon such schedules as the postmaster-general might direct.

— Hon. Henry Glay Pepper, Judge. STATEMENT OF THE CASE. In November, 1895, four attachments were run on a stock of merchandise belonging to L. N. and H. C. Holberg, partners, by the firm name of Aurora Grocery Company. The first levy was in the suit of Jacob Ereedman et ah, or Ereedman Brothers, against the said Holbergs. Within a week there were three later levies by other creditors — Headley Grocer Company, Ernest Nathan, and Marionville Eoller Mill Company.

<p>1. Promissory Note. The following instrument 'is held to be a promissoxy note.</p> <p>“$1,500. Upperlake, July 15, 1897.</p> <p>“I, the undersigned, promise to pay to Labom Eugene Maze the sum of fifteen hundi'ed dollars, after my death, out of my estate, he known to be my youngest brother, interest from date till paid five per cent per annum, for value received, July fifteenth day,' 1897.</p> <p>“Lake County, California,</p> <p>“Pleasant Maze,</p> <p>“Prom Missouri, Madison County.”</p> <p>2. -: -: PROMISSORY NOTE, REQUISITES OE. And in •the ease at bar, the promise to pay, in the instrument sued on, is unconditional; the amount is certain and the time of payment made certain, to-wit, on the death of the promisor, an event that would surely come.</p> <p>3- -: -. And the provision that the note should be paid out of the estate of the promisor, stated only what would necessarily be the case at the maturity of the note, and in nowise limits or restricts the unconditional promise to pay.</p> <p>4. Practice, Trial: PRACTICE, APPELLATE: LIMITATION OE ACTIONS. Where the question of limitation was not raised in any manner on the trial, it can not be raised in the appellate court.</p>

<p>1. Negligence: MASTER, LIABILITY OF: SERVANTS: FELLOW SERVANT ACT: STATUTORY CONSTRUCTION. The doctrine that the liability of the master is confined to the acts done within the real or apparent scope of the authority confided to his agents or servants, has not been at all affected by the provisions of section 2873, Revised Statutes 1899, known as the Fellow Servant Act.</p> <p>2. --: -: INTENTION OF LEGISLATION. That legislation was merely intended to put the employees of a railroad company upon the same footing as to recovery for personal injuries, which supports the right of non-employees to such redress.</p> <p>3. -: -: -: SCOPE OF AUTHORITY. And liability can only be fastened upon the railroad company when the injury has been caused by the negligence of someone acting within the real or ostensible authority intrusted to him by such corporation.</p> <p>4. -: -: NEGLIGENCE: PROXIMATE CAUSE: DEFENSE TO FELLOW SERVANT ACT: CONTRIBUTORY NEGLIGENCE: STATUTORY CONSTRUCTION, Where an injury is proximately caused by plaintiff’s negligence he can not recover, and this universal law is in so many words retained as a complete defense in the Fellow Servant Act (Revised Statutes 1899,. section 2873).</p>

Louis City Circuit Court. — Hon. PembrooJe B. Filter aft, Judge. STATEMENT OF THE CASE. Plaintiff is a married woman living apart from her husband. She brings this action to recover two thousand dollars with interest, evidenced by a promissory note given by defendants, who are co-partners, on the twentieth day of November, 1888, payable to her as Charlotte Rankle, which name she then bore, not having then married her present husband.

— Hon. J. L. Fort, Judge. STATEMENT OF THE CASE. The plaintiff, as administrator of Dr. G. T. Bartlett, deceased, sued defendant to recover for professional services rendered by Dr. Bartlett, in his lifetime, to defendant and his family. The account was opened on January 14, Í884, and closed March 27, 1897. The charges aggregate $1,232.35; credit was given for $401.25.

— lion. Henry O. Riley, Judge. STATEMENT OP THE CASE. This is an action for damages for the killing of stock. There was testimony tending to show that the cattle came upon the track near a cattle guard on the defendant’s road, which one witness says, was about two hundred feet from a public road crossing.

— Hon. J. J. Gideon, Judge. STATEMENT OE THE CASE. Appellant is -a city of the third class. It has in force an ordinance approved'December 10, 1900, requiring all foreign life, accident, casualty, plate glass, cyclone and other insurance companies having an agent or representative doing an insurance business in the city, to pay an annual license tax of $15.

— Hon. Henry G. Riley, Judge.’ (1) The special finding of facts, incorporated in the judgment, is part of the record proper. Blount v. Spratt, 113 Mo. 48; Land Co. v. Bretz, 125 Mo. 418. (2) This court will review the record proper and reverse the judgment for error found. Inglis v. Eloyd, 33 Mo. App. 565; Mumma v. Standte, 24 Mo. App. 477; Beck v. Dowell, 40 Mo. App. 71.

Louis City Circuit Court. — Hon. James E. Withrow, Judge. STATEMENT OP THE CASE.

Louis City Circuit Court. — lion. Horatio D. Wood, Judge. STATEMENT OF THE CASE. Held: “If- the defendants relied upon the deed to defeat the plaintiff in a former suit, they are estopped from denying its validity in this suit.” (2) Said item of grading and sodding was not barred by the statute of limitations, although furnished more than five years before the filing of the third amended petition.

— Hon. J. C. Lamson, Judge. STATEMENT OR THE CASE. The petition in this case alleges that on the first day of October, 1894, plaintiff executed a deed of trust, duly recorded in Lawrence county, upon a tract of land of forty acres, to secure his note for one hundred and twenty dollars, which he had borrowed from the firm of Swinney & Brock, making one •of said co-partners (J. Brock) the trustee in said deed of trust, and the other (W. G. Swinney) the payee in said note; that…

Louis City Circuit Court. — Mon. William Zachrilz, Judge. (1) The deed of trust executed by the Grant Quarry Company, to the garnishee on the eighth day of June, 1898, is fraudulent on its face and void as to attaching creditors, because it authorizes the garnishee, as trustee, to carry on the business of the Grant Quarry Company indefinitely, and as to such creditors the property conveyed to the garnishee herein still remained the property of the Grant Quarry Company.

Original Disbarment Proceedings. STATEMENT OP THE CASE. This is a proceeding which was instituted in this court to have the respondent, Z., who is an attorney at law, removed or suspended from practice. The charges were made and verified by one, Thomas O. Wengler. They are in three counts which need not be recited.

Louis City Circuit Court. — Son. Franklin Ferris, Judge. (1) The Government of ■ the United States had, until the payment was made to it, a prior and paramount lien on the goods for the duty which Major Pearce has refused to pay.

Louis City Circuit Court. — Hon. Franklin Ferris, Judge. STATEMENT OE THE CASE. This is a suit by. tbe supervisor of building and loan associations, in charge of tbe Active Building and Loan Association No. 1, against George W. Davis and tbe American Bonding and Trust Company of Baltimore, Maryland.

Louis City Circuit Court. — Hon. John A. Tatty, Judge. STATEMENT OF THE CASE. This is a petition in two counts. The first count alleges a cause of action for divorce from bonds of matrimony, grounded upon unlawful desertion.

— Hon. Henry G. Riley, Judge. STATEMENT OR THE CASE. The Missouri Pacific Railway Company intervened in a suit to foreclose a number of railroad mortgages executed by the St. Louis, Cape Girardeau & Et. Smith Railway Company, formerly known at various stages of its existence as the Cape Girardeau Railway Company, and Cape Girardeau Southwestern Railway Company. ' Five mortgages were foreclosed.

- — Hon. William N. Evans, Judge. STATEMENT OE THE CASE. This is an action for damages for trespass, on land alleged to belong to plaintiff, it seeks also to enjoin further trespass on account of the alleged insolvency of defendants, and to prevent a multiplicity of suits. The answer was a general denial. The cause was tried by the court without the aid of a jury, upon the allegations for equitable relief.

Louis City Circuit Court. — Hon. Selden P. Spencer, Judge. STATEMENT OK THE CASE. This is an action for a breach of contract between defendant and one Irvine as parties of the first part, and plaintiff as party of the second part, whereby the parties of the first part agreed to sell to plaintiff one hundred shares of the common stock of a certain corporation at ten cents on the dollar; one-half payable in cash, the other half on December 1, 1893.

— Eon. Henry G. Riley, Judge. STATEMENT OB' THE CASE. The Cape Girardeau Railway Company, although a corporation, has been known by two other slightly variant names, to-wit: Cape Girardeau Southwestern Railway Company, and St. Louis, Cape Girardeau & Et. Smith Railway Company. It made two mortgages of its property to Leo Doyle, trustee, of dates September 1, 1880, and January 18, 1881, and known respectively as first and second divisional mortgages.

Writ of Error from Hannibal Court of Common Pleas. — Hon. David II. Dby, Judge. STATEMENT OE THE CASE.

— Hon. Henry O' Riley, Judge. STATEMENT OE THE CASE. Thfe plaintiff is a married woman and sues the defendant, which' is a co-partnership engaged in the banking business, for the conversion of two thousand dollars, which the petition alleges was the proceeds of the undivided one-half interest in a tract of land owned by plaintiff to her sole and separate use, which she and her husband by joint deed had conveyed to one M. J. Conran.

— Hon. James Tilford Neville, Judge. STATEMENT OE THE CASE. Omitting caption, the petition is as follows: “Comes now the plaintiff, the city of Springfield, and for its second amended petition herein, avers that the city of Springfield is a municipal corporation organized and existing under the laws of the State of Missouri as a city of the third class. “Plaintiff states that the defendant, Cooper Bros., is a co-partnership, composed of George Cooper and Harry Cooper, doing…

Louis City Circuit Court. — Hon. William Zachritz, Judge. (1) The court erred in overruling tbe peremptory instruction offered by defendant and in submitting the case to tbe jury. Tbe evidence of plaintiff showed clearly that the driver in charge of plaintiff’s wagon was guilty of contributory negligence in driving on to defendant’s tracks immediately in front of an approaching ear. Weaver v. Eailroad, 60 Mo. App. 207; Eusili v. Eailroad, 45 Mo.

Louis City Circuit Court. — Hon. Daniel D. Fisher, Judge. (1) Tbe position of Mrs. Redard is that of a surety, and this is so because she did not sign any of the old notes or any of the new notes; in other words, all of the notes mentioned in the testimony were the notes of Erancis W. Bedard, her husband. (2) Asa surety for the husband, the wife stands in exactly the same position before the law as any other surety.

— Son. J. L. Fort, Judge. STATEMENT OF THE CASE. This is the second appeal in this case. Mercantile Co. v. Chapman, Y8 Mo. App. 616. When it was here before, the question presented was the propriety of the ruling of the trial court constraining the plaintiff to take a nonsuit.

— Hon. F. E. Bearing, Judge. STATEMENT OE THE CASE. Plaintiff avers tlaat since December 2, 1895, it bas been the owner in fee of certain land described in its petition, and that it required on that date an assignment in writing from the prior owners or all their rights in actions for trespass or damages committed on said land before its acquisition by plaintiff; that on January 1, 1894, and divers days since, the defendant by its servants and by a conspiring with divers…

— Eon. Ec¡,wvn R. Mc-ATee, Judge. STATEMENT OF THE CASE. The suit is on two promissory notes for $166.65 each, payable to plaintiffs, made by defendant J. V. Falkinburg, • and indorsed by ■ Weber & Snuffling. The answer of Ealkinburg admitted the execution of the notes, alleged they were given as the purchase price of an upright portable engine and that for reasons alleged the consideration had failed. The new matter set forth in the answer was put in issue by a reply.

— Hon. Henry C .Riley, Judge. STATEMENT OE THE CASE. This is an appeal from tbe order of tbe court affirming tbe allowance by a referee of tbe amount of two bills of exchange accepted by tbe defendant railway company and payable before it became tbe subject of foreclosure proceedings. The aggregate amount of the evidences of debt is two hundred and seventy-two dollars.

Original Proceeding' by Prohibition. (1) The affidavit and orders in question were insufficient as a prayer for or allowance of an appeal. There must be a prayer or application for an appeal to a designated court, or the order allowing the appeal must designate the appellate court to which the appeal is allowed. Ins. Oo. v. Bernard, 39 111. App. 267, 268; Gage v. Arndt, 114 111. 318; Smith v. Ohitraus, 152 111. 664, 670; McGowan v. Duff, 41 111.

— Hon. J. H. Slover, Judge. (1) We contend that only -one petition of property-owners is contemplated in the law, whether the issue is raised under section 299Y, or under section 2993. State ex rel. v. Meyers, 80 Mo. 601, 608, 609. (2) The expression “property-owners,” as used in section 299Y, means real estate owners. State ex rel. v. Howard County, 90 Mo. 59Y; R. S. 1899, sec. 2993; State ex rel. v. Meyers, 80 Mo. 609, 610.

— Ron. E. J. Broaddus, Judge. (1) It was the duty of the court, in a divorce suit, to review the whole of the evidence. (2) The finding of the court should state the description of acts which constitute the indignities complained of, particularly when third persons are introduced as actors in the domestic difficulties of man and wife. The finding of the court in this case fails to set out any particular indignity offered to appellee- Bowers v. Bowers, 19 Mo. 351.

— Hon. E. P. Gates, Judge. (1) “A multitude of authorities declare the salutary rule, that statutes of amendment are remedial and must be construed and applied liberally in favor of the privilege of amending.” 1 Enc- PI. and Prac., p. 57; Pomeroy v. Brown, 19 Mo. 302; Dozier v. Jerman, 30 Mo. 216; Goddard v. Williamson, 72 Mo. 131; Hixon v. Selders, 46 Mo. App. 275.

— Hon. E. P. Gates, Judge. (1) The physicians who treated Mrs. Webb were competent witnesses. She had divulged the confidential communications and thereby had waived the privilege to object to their competency to testify in relation thereto. At common law a physician is competent to testify against his patient; it is only by statute that his incompetency to do so exists. Revised Statutes 1899, sec. 4659.

— Hon. E. P. Oates, Judge. (1) The statements made by the court in the presence and hearing of the jury, during the trial of the cause, defining the issues in the cause, were, in effect, oral instructions, prejudicial to the plaintiff and reversible error. Wright v. Richmond, 21 Mo. App. 76; City of Oape Girardeau v. Eisher, 61 Mo. App. 509; McCombs v. Eoster, 64 Mo. App. 613; McPeak v. Railroad, 128 Mo. 617; Mallison v. The State, 6 Mo. 399.

— Hon. E. P. Gates, Judge. (1) That the undertaking of a surety is stridissimi juris and a surety is not to be held beyond tbe precise terms of his contract, and no liability extended by implication, is equally well settled. Blair v. Ins. Oo., 10 Mo. 560; Bauer v. Cabanne, 105 Mo. 110; Bricker v. Stone, 47 Mo.-App. 530; Eratb v. Allen, 55 Mo. App. 107.

— Hon. J. H. Blover, Judge. (1) It is the settled law that a beneficiary association may prescribe a method by which a new designation may be made, and if so made, it is valid. (2) The grand lodge having issued a new certificate and brought the fund into court, the claimant under the old certificate can not question the regularity of the new direction. Benefit Ass’n v. Bunch, 109 Mo. 560, and cases cited; Coleman v. Sup. Lodge, 18 Mo. App. 189; Grand Lodge A. O. U. W., 15 Mo.

— Hon. E. P. Gates, Judge. (1) Before respondent could recover herein she must have shown that a debt existed between decedent, Martha Elanery, and said respondent. A debt is a sum of money due by certain and express contract. 8 Am. and Eng. Ency. of Law (2 Ed.), p. 986. (2) It is claimed .that the note was given in payment of a debt. To constitute payment of a debt by note or check, there must be a positive agreement to that effect.

— Hon. John W. Henry, Judge. (1) So that the crucial question is: Can a lot-owner accept and use a sewer and then defeat a recovery on the tax-bill because the sewer was not completed within the contract period? Hill v. St. Louis, 159 Mo. 159, s. c., 60 S. W. Rep. 116; State v. Herman, 84 Mo. App. 1.

— Eon. Samuel Davis, Judge. (1) The court should have sustained the defendant’s demurrer to plaintiff’s petition, and failing in this, should have sustained its objection to the introduction of any evidence. The petition wholly fails to state any facts that constituted a ground of recovery against the defendant. It does not allege that the work which is charged to have caused the damage was authorized by ordinance, resolution or otherwise in a manner to bind the defendant.

— 7Hon. H. O. Timmonds, Judge. (1) Tbe court erred in submitting tbe case to tbe jury as against tbe St. Louis & San Erancisco Railroad Company. This company, on the plaintiff’s own showing, bad completed its contract, and tbe court, on tbe plaintiff’s evidence, Ought to have so declared. McCarty v. Railroad, 9 Mo. App. 159; Goldsmith v. Railroad, 12 Mo. App. 483; Bennitt v. Railroad, 46 Mo. App. 656; Minter v. Railroad, 56 Mo. App. 282; Hance v. Railroad, 56 Mo.

— Hon. H. O. Timmonds, Judge. (1) The execution and return sought to be quashed was certainly admissible in evidence. There was no other way by which appellant could show that the property claimed bj him to be exempt from levy and sale, had in fact been levied upon by the sheriff. Catron v. Lafayette Co., 125- Mo. 61. (2) The interest .of the appellant in his wife’s real estate was levied on by the sheriff for the purpose of paying his sole debt.

— Hon. J. D. Perkins, Judge. (1) The petition did not state a cause of action. To state a cause of action it was necessary that the petition show that the plaintiff had such a right. “A man can not grant that which he hath not actually or potentially at the time of the grant.” Wilson v. Wilson, 11 Am. Rep. 522; Benj. on Sales, sec. 50; Bishop on Cont., sec. 587; Hatten v. Randall, 48 Mo. App. 203; Schlanker v. Smith, 27 Mo. App. 522; Morris v. White, 83 Mo.

— Hon. J. D. Perkins, Judge. (1) The rules should have been admitted in evidence. Plaintiffs admitted their claims were under the rules and registrations, and therefore the rules bore directly on the issue of plaintiffs’ possession, for they showed plaintiffs to be mere licensees, not holding possession, and therefore not able to maintaih any action based upon their possession of the lots. Bochester v. Mining Co., 86 Mo. App.