Volume 90 — Missouri Appeal Reports

— Hon. William L. Jarrott, Judge. (1) The only judgment rendered by the court as shown by the record was the judgment actually written up by the clerk. Railroad Co- v. Holseklag, 144 Mo. 253; Bohm Bros. & Co. v. Stivers, 75 Mo. App. 291; Belkin v. Rhodes, 76 Mo. 643; Evans v. Fisher, 26 Mo. App. 541, loe. cit. 547; Jones v. Hart, 60 Mo. 351; Woolridge v. Quinn, 70 Mo. 370.

— Hon. Samuel Davis, Judge. (1) We understand the rule to be that it is not necessary that the property be so closely described as to be capable of being identified by the written recitals, but if the instrument suggests enough so that by the description and inquiries it suggests, the property may be identified, it will be sufficient. Jones on Chat. Mortg. (2 Ed.), sec. 55; State ex rel. Blake v. Cabanne, 14 Mo. App. 294; Bank of Odessa v. Jennings, 18 Mo.

— Hon. John P. Butler, Judge. (1) The prosecution in this case is bottomed on section 3047, Revised Statutes 1899. We submit, that the evidence is too indefinite and is wholly insufficient to support the verdict. It is necessary to allege in the indictment and prove the person to whom the sale was made. State v. Martin, 108 Mo. 117.

— Hon. Jno. A. Hockaday, Judge. (1) The circuit court committed error in entering judgment for all accrued costs in this cause against the petitioners. They were not parties to the controversy, between the county and the exceptors on the question of. damages. This court said, “It thus appears that in no event were the petitioners for the establishment of the road interested in the result of the contest between the county and the exceptor on the question of the damages.

— Hon. John A. Hockaday, Judge. (1) Upon the undisputed facts in this case the plaintiff is not entitled to recover. Ellis v. Eailroad, 11 Mo. App. 126; Brown v. Eailroad, 20 Mo. App. 222. (2) The verdict is clearly excessive. Spolm v. Eailroad, 87 Mo. 84. (1) The negligent act complained of in this case is that defendant permitted its barbed-wire fence to remain on the ground and out in the public road.

— Hon. E. J. Broaddus, Judge. (1) The statements relied upon by tbe respondent to make out his case being merely opinions, statements of value and mere puffing of tbe subject of tbe contract are insufficient to make out cause of action in action for deceit. Bank v. Hunt, 76 Mo. 439; Anderson v. McPike, 86 Mo. 1. c. 300; Gordon v. Parmalee, 2 Allen 213; Langdon v. Green, 49 Mo. 363; Cornwall v. Real Estate Co., 150 Mo. 377.

— Hon. A. M. Woodson, Judge. (1) The petition in this instance neither alleges a knowledge by the defendant of any danger attending the carrying of the level-board underneath the platform of the handcar in the manner therein stated nor does it allege a corresponding ignorance of such danger on the part of the plaintiff.

— Hon. D. P. Stratton, Judge. (1) Unless the power is given by a later act of the Legislature, cities such as Lamar have no power to levy anything in the nature of a tax against insurance companies. Sess. Acts 1895, p. 198, sees. 2, 8. (2) The same Legislature gave to cities, such as Lamar, the right to impose what is called a “license tax” on insurance companies. Sess. Acts 1895, p. 65, sec. 84.

— Hon. E. P. Gates, Judge. (1) On the record proper it appears that the verdict Í3 contrary to the express provisions of section 595, Revised Statutes 1899, which is material error. Where such errors appear on the face of the record proper as here the court will reverse the judgment though no motion for a new trial and in arrest are filed. Mclntire v. Mclntire, 80 Mo. 473; Childs v. Railroad, 117 Mo. 427.

— Hon. James Gibson, Judge. (1) It appears that the respondent gave in no assessment list of her ward’s property and that the city assessor made the assessment on his own motion and it was his duty to. charge the right party. City Charter, chap. 5, sec. 12. (2) The judgment of the probate court of Jackson county, Missouri, on final settlement absolutely released the respondent from any claim or liability as curator.

— Hon. J. H. Slover, Judge. (1) According to the answer of the defendant, taken in connection with the evidence of R. L. Gregory, the contract set up by defendant, in its answer, was a verbal contract which could not be performed in one year, and, in fact, ran ad infinitum. This, according to the Revised Statutes of 1899, section 5186, is within the statute of frauds. Pitcher v. Wilson, 5 Mo. 46; Briar v. Robertson, 19 Mo. App. 66; Schultz v. Tatum, 35 Mo. App. 136.

— Hon. E. P. Gates, Judge. (1) Our statute expressly provides that all contracts, which by the common law are joint only, shall be construed to be joint and several. R. S. 1889, sec. 2384, p. 607. (2) The statutes further provide that any creditor of joint or several debtors may compound with any one or more of them on such terms as he sees fit and release any one from liability, without impairing his rights against the balance.

— Hon. Edwin A. Krauthoff, Special Judge. (1) The plaintiff was not entitled to recover. This action was for the conversion of tbe corn, whilst tbe recovery was for the failure “to stop at El Eeno to shell.” (2) The measure of plaintiff’s damages if any, was the difference, if any, in value in the condition in which the com arrived and that in which it in fact did arrive at Leander, Texas.

— Hon. John. W. Henry, Judge. (1) Where mirrors are annexed to a building during the process of erection, as a part of that process, they form a part of the inside wall and become a part of the building. Loan v. Gregg, 55 Mo. App. 581; Cooke v. McNeil, 49 Mo. App. 81; Ward v. Kilpatrick, 85 N. Y. 413; Carlin v. Eitter, 68 Md. 478.

— Hon. George F. Longan, Judge. (1) The court erred in giving plaintiffs instruction number two. 1 Greenl. Ev., sec. 52; Smith v. Griffin, 5 Hill. 336; Scott v. Blood, 16 Me. 196. (2) The court erred in giving plaintiffs third instruction. 1 Lindsay, on Partnership, p. 1; Campbell v. Dent, 54 Mo. 325, 330, 331; Thurman v. James, 48 Mo. 234; Clifton v. Howard, 89 Mo. 192; Donnell v. Harshe, 67 Mo. 170.

Quantum Meruit: SERVICES: IMPLIED PROMISE: UNCLE AND NIECE: CONSTRUCTION. Where a niece, on the death of her husband, resides with her uncle as a member of his family till his death,, the law presumes her services to be gratuitous and she must show an agreement expressed or implied to pay her for her services; and on the evidence in this cause it was error to refuse an instruction to the above effect. Sprague v. Sea, 152 Mo. 327.

— Hon. John A. Hockaday, Judge. (1) The liability of defendant in this case is confined to a failure on the part of the engineer to use ordinary care to' avoid the injury, after having discovered the animal in peril. And the burden of proving want of such care rests on the plaintiff. Hoffman v. Railroad, 24 Mo. App. 546; Brooks v. Railroad, 27 Mo. App. 573; Jewett v. Railroad, 38 Mo. App. 48; s. c. 50 Mo.

Louis City Circuit Court. — Hon. Horatio D. Wood, Judge. (1) The petition is based on a stated account. It was necessary for plaintiff to prove defendant’s assent to the settlement. Railroad v. Kimmel, 58 Mo. 83. (2) The parts of the 'answer stricken out were proper as a defense: Eirst. Because it set out a payment of all claims and the manner of paying plaintiff. Second. It negatives the account stated as of May 1, 1898.

Louis City Circuit Court. — Hon. Franklin Ferris, Judge. (1) This being an appeal from an order sustaining a motion for a new trial, the question is as to the sufficiency of the reasons stated in the order as a basis for the action of the court. Miller v. Madison Car. Co., 130 Mo. 517; Bradley v. Reppel, 133 Mo. 545; Folding Bed Co. v. Railroad, 148 Mo. 478.

Louis City Circuit Court. — Hon. Pembrook R. Flitcraft, Judge. “Time is, therefore, of the very essence of the ordinance and contract made in conformity to it. The rule is, that when a statute provides for doing work by contract, and a time is fixed for a completion of the work, it is of the essence of the contract that the work be completed within such time. A failure to complete the work within the required time renders all further or subsequent proceedings invalid.

Louis City Circuit Court. — Hon. Franklin Ferris, Judge. (1) The pledgee is, in effect, a trustee for the pledgor. No matter to what extent the power of the pledgee to sell may be enlarged by contract, still his duty to act in good faith and to treat the pledge in his hands as trust property in which the pledgor has an interest, continues and is imposed upon him by the law throughout his dealings with the pledge.

Louis City Circuit Court. — Hon. John A. Talty, Judge. STATEMENT OF THE CASE.

<p>Appeal from St. Louis Court of Criminal Correction. — Hon. Willis H. Clark, Judge.</p>

Louis City Circuit Court. — Hon. Franklin Ferris, Judge. STATEMENT OE THE CASE. This suit arose on account of Charles H. Young, deceased, making two sales of a share of stock which he owned in. the Globe Printing Company as heir of Joseph B. Mc-Cullagh.

Louis City Circuit Court. — Hon. Selden P. Spencer, Judge. STATEMENT OE THE CASE.

<p>1. Writ of Certiorari: WHEN ISSUED: JURISDICTION OE COURT OE APPEALS. The writ of certiorari may be issued by the Court of Appeals as part of its supervisory jurisdiction over inferior courts as well as in the exercise of its original jurisdiction.</p> <p>2. -: WHIT OE CERTIORARI, WHEN DENIED. The appellate courts, as a general rule, should deny applications for extraordinary writs where the circuit court has concurrent jurisdiction, unless unusual facts give the case a large public interest, or peculiar circumstances raise the case above the plane of a mere local contention.</p> <p>3. Jurisdiction of Circuit Courts. The circuit' court has jurisdiction to hear and determine proceedings in certiorari.</p>

<p>1. Beer Inspection Act: STATUTORY CONSTRUCTION: CRIMINAL LAW: 'STATE BEER INSPECTOR. Section 10 of the Beer Inspection Act, approved May 4, 1899, creates three distinct and separate offenses. The first may he committed by a brewer or producer of malt liquors who sells the same within the State without causing it to he first inspected by the State inspector; second, by a person selling any beer, in this State contained in packages which do not ■have upon them the certificate of the State inspector, certifying that the beer contained in the package has been inspected; third, by any person who, after having disposed of the contents of a package upon which a State inspector’s certificate has been placed, shall fail to destroy such certificate.</p> <p>2. -: -: MANUFACTURER OF BEER: DUTIES OF. And by section 3 of said act it is made the duty of a manufacturer or brewer of beer to cause the same to be inspected by the State inspector before selling it in this State.</p> <p>3. -:-: INFORMATION, ALLEGATIONS OF. In the ease at bar, the information does not allege that the defendant was a brewer, or that he produced the beer contained in the package which he is alleged to have sold. It alleges that the package did hot then and there “at the time and place of sale” have upon it the label and certificate of the State inspector of beer, certifying that said beer had then and there been inspected. These allegations are not sufficient as they do not negative, in direct terms, the fact that the package did not have upon it the official certificate of the State inspector.</p> <p>4. -: -: INFORMATION, SUFFICIENCY OF. An information must bring the accused strictly and certainly within the terms of the offense described in the statutes, and should leave nothing to conjecture or inference.</p> <p>5. -: -: SURPLUSAGE. “Then and there” are descriptive words in an information. In the ease at bar, the words “then and there” at the conclusion of the charging clause in the information can not be rejected as surplusage for the reason that they are descriptive of both time and place when and where it is alleged the beer should have been inspected and labeled, and go to the substance of the offense.</p> <p>6. -: -. In the ease at bar it was not necessary that the information should negative the fact that the beer was sold for exportation.</p> <p>7. -: CRIMINAL PROCEDURE: AMENDMENT OF INFORMATION: STATUTORY CONSTRUCTION: STATUTE OF JEOFAILS. Under the provisions of section 2481, Revised Statutes 1899', the right to amend an information can not be restricted to such defects as would be cured by the statute of jeofails, after verdict, but exists even if the information failed to state any offense, if it can be clearly gathered from what has been stated in the information that the prosecuting attorney intended to charge a particular offense or the violation of a specific statute.</p>

<p>Appeal from Montgomery Circuit Court. — Hon. Elliott M. Hughes, Judge.</p>

Louis City Circuit Court. — Hon. Selden P. Spencer, Judge STATEMENT OF THE CASE. The suit was ou the following bond executed by defendants, to-wit: “Know all men by these presents: That we, The Jefferson Stone Company, as principal, and Jno.

— Hon. Henry C. Pepper, Judge. (1) The trial court should have sustained the objection of defendant to the introduction of any evidence under the pleadings in this cause, for the reason assigned; the petition was insufficient in law; every fact which had to be proven by relator should have been pleaded, and simply stating that “he had and now has all the qualifications required, by law for said office of city treasurer” does not meet the requirements and rules of pleading.

<p>1. Contract: REASONABLE DILIGENCE: DAMAGES. A party to a contract is required to use reasonable diligence to mitigate the damages caused by his obligor’s breach.</p> <p>2. -: -: -. And if the vendor of a merchantable commodity fails to furnish the goods according to promise, it is incumbent on the vendee to provide himself, as cheaply as he conveniently can from the most accessible sources, and thus lighten the loss, and his recovery will be curtailed by the sum which thus might have been saved.</p> <p>3. Damages: REMITTITUR: PRACTICE, TRIAL: EVIDENCE. The right exists in this State for the trial courts to either direet or receive a release of excessive damages given by a jury as a condition of refusing a new trial, in cases where the amount of excess is exactly calculable from the evidence.</p>

<p>Appeal from St. Louis City Circuit Court. — Hon. Daniel D. Fisher, Judge.</p> <p>(1) There was no evidence to sustain the judgment, and upon the plaintiff’s own evidence defendant was entitled to judgment. (2) The court, admitted illegal and incompetent evidence for plaintiff in attempting to settle and adjust the rights between Walter, Lyons and Steinlage in an action between plaintiff and defendant without either of the men mentioned being made parties in this action. (3) There was no evidence tending to show that the check sued upon was ever delivered to payee Lyons, or accepted by him, or that he ever authorized any one to write his name upon it, and plaintiff acquired no title .to same, and can maintain no action thereon. (4) Under the pleadings and all the evidence, plaintiff could not recover. The admitted evidence as to any right Steinlage had to sign Lyons’s name on the check, at best was his own evidence, nothing else. Mitchum v. Dunlap, 98 Mo. 418; Timber & Iron Co. v. St. Louis C. Co., 112 Mo. 383; Bank v. Leyser, 116 Mo. 51; Bank v. Morris, 125 Mo. 343; Mechem on Agency, sec. 100.</p> <p>(1) The evidence of Steinlage, showing direct authority from Lyons to indorse the latter’s name upon the cashier’s check, was perfectly competent. All the cases cited by appellant bear upon the question of admitting unsworn statements to prove agency. Any witness may prove his own agency. Leete v. Bank, 115 Mo. 204. (2) On cross-examination of Steinlage he testified that Lyons expressly told him to indorse the check. That created a direct agency. But even if he had merely told him to pay certain notes “out of that check,” such direction, by necessary implication, authorized such indorsement, because there was no other known or legal method for any one to draw money on that check, except by the indorsement of the payee’s name thereon. Willison v. Smith, 52 Mo. App. 133; Wharton on Agency, secs. 31, 32.</p>

<p>Appeal from St Louis City Circuit Court. — Hon. John A. Talty, Judge.</p> <p>(1) ' Appellant’s husband was not a member of the police force at the time of his death. As the constitution (article Y, section 5) makes provision for death benefit to beneficiaries of members who were members of the police force at the time of their death only, appellant can not recover. Appellant’s husband received his last appointment on the police force on the eighth day of September, 1885 ; subsequent to that date he was never recommissioned nor reappointed, nor was his grade or rank changed; from the eighth day of September, 1899, therefore, he was a mere locum tenens, a holdover, subject to be discharged at the pleasure of the board. His discharge, therefore, on September 15,1894, was legal, and he was not at the time of his death a member of the police force. State ex rel. v. Stone-street, 99 Mo. 361; State ex rel. v. Walbridge, 153 Mo. 194. (2) Appellant’s cause of action is based upon the statement that the $1,000 she claims was payable to beneficiaries of mem-' bers who died while members of the police force, and that her husband was a member of the police force at the time of his death. She must recover on her petition or not at all. (3) Appellant’s husband was not a member of the association at the time of his death, and as the death benefit provided by the constitution is payable only to the beneficiaries of those who died while members of the association, appellant has no claim.</p>

<p>1. School District: NOTICE OF CHANGE OF BOUNDARY: REQUISITES OF: STATUTORY CONSTRUCTION. Notice of an election to change the boundary of a school district, under the provisions of section 9742, Revised Statutes 1899, must be as comprehensive as the petition for the change. It must inform the voters what change it is proposed to make in the boundaries of the district affected.</p> <p>2. -: -: COUNTY SCHOOL COMMISSIONER, JURISDICTION OF: BOARD OF ARBITRATORS. Under the provisions of section 9742, Revised Statutes 1899, a valid election in each of the two districts is a necessary prerequisite to give the county school commissioner jurisdiction to proceed to form his board of arbitrators to consider and determine the necessity of the proposed change.</p> <p>3. Injunction: QUO WARRANTO. Where it is desired to attack the legality of the organization of a school district, quo warranto, not injunction, is the appropriate remedy.</p> <p>4. Injunction: COUNTY CLERK: SCHOOL DISTRICT: PARTIES TO ACTION: DEMURRER. Where an action is brought against a county clerk to restrain him from changing the boundary line of a school district, and from transferring the school tax of any taxpayer from one school district to another, and from changing the' enumeration of children of school age in any district, upon the ground that the proceedings upon which his actions are based are null and void, a final injunction would not be granted until the school district directly interested is made a party.</p>

Louis City Circuit Court. — Daniel D. Fisher, Judge. (1) Our contention in this case is that the court erred when it held that the respondents had the right,- on-April 20, 1898, under the terms of the contract, to accept twenty tons of hominy feed and to reject one hundred tons, tendered on the same day by appellant.

Louis City Circuit Court. — Hon. O’Neill Ryan, Judge. STATEMENT OR THE CASE.

Louis Court of Criminal Correction.- — Hon. Willis H. Clark, Judge. (1) The State failed to prove the venue. The only evidence on this point is that John Eoach, who says in answer to the question, “Are those the Missouri Pacific tracks at Tesson avenue and Mississippi avenue ?” Answer: “Yes, sir.” Tesson and Mississippi avenues may be in the county of St. Louis or in Jefferson county, Missouri.

<p>1. Wife Abandonment: CRIMINAL LAW: CRIMINAL PRACTICE: INFORMATION FOR WIFE ABANDONMENT, SUFFICIENCY OF. Where an information for wife abandonment avers that the defendant was lawfully married to and with this affiant, instead of inserting the name of the wife who had verified the information, it is not such a defect in pleading as would authorize a reversal of the judgment, particularly as the information was only attacked after verdict, by a motion in arrest.</p> <p>2. -: -: -. Nor is it necessary, in an information charging wife abandonment, to state that defendant separated from his wife against her will.</p>

Louis City Circuit Court. — Hon. Pembrook R. Flitcraft, Judge. STATEMENT OE THE CASE. A lucid aud comprehensive statement of the facts out of which this litigation arose, may be found in the report of the opinion of the Supreme Court of Missouri in the case of Pullis et al. v. Pullis et al., 157 Mo. 565.

Louis City Circuit Court. — Hon. Jacob Klein, Judge. STATEMENT OE THE CASE. The respondent was heretofore adjudged of unsound mind and sues by her duly appointed guardian, the Mississippi Valley Trust Company. Erancis L. Iiaydel, deceased, was given a power of attorney by her on the eighth day of February, 1896, to collect her loans and interest, dividends on stocks and other money, and lend and reinvest it for her.

Louis City Circuit Court. — Hon. Selden P. Spencer, Judge. STATEMENT OE THE CASE. One Jobe, in January or February, 1901, did some carpenter work on tbe home of Denis O’Leary, situated on-South Broadway in tbe city of St. Louis, and in tbis way became acquainted with the fact that tbe property belonged toO’Leary.

<p>1. Usury, Statutes Against: CONTRACT, CONSTRUCTION OB’: USURIOUS LOAN: VOID CONTRACT. In the ease at bar the contract is examined and held to be one executed for the purpose of making and securing a usurious loan, and was void from the first.</p> <p>2. -: -: -. And the contract is nothing more than a shift or ruse to evade the statutes against usury.</p> <p>3. Mortgage of Wages: ASSIGNMENT IN NATURE OE MORTGAGES. Wages can be mortgaged, and assignments of wages in the nature of mortgages can be made where there is a present subsisting contract out of which the wages are expected to arise.</p>

Louis City Circuit Court. — Hon. William Zachritz, Judge. (1) That “the principal constable is liable for the acts of his deputy done under color of his authority,” is elementary. State ex rel. v. Claudius, 1 Mo. App. 551; State v. Vasel, 47 Mo. 416.

<p>Partnership: DISSOLUTION OF AT DEATH OF MEMBER: CONTRACT, CONSTRUCTION OF. Ordinarily, the dissolution of a partnership by the death of a member, does not, ipso facto, terminate a contract, like the one in the case at bar; but the present agreement expressly provided that it should terminate without notice if the business of the copartnership should cease or be interrupted by death. This contingency 'happened and the employment under the contract ended.</p>

<p>Appeal from St. Louis City Circuit Court. — Hon. Selden. P. Spencer, Judge.</p> <p>STATEMENT OE THE CASE.</p> <p>Plaintiffs and' their predecessors, Baer, "Seasongood & Company, to whose rights and liabilities in regard to the transactions which are the subject-matter of this action plaintiffs succeeded, bought spool silk thread in large quantities from defendants for many years, and this action is to recover damages for alleged deficiencies in the weights of thread.</p> <p>The petition is in four counts. The first, for overpayment on account of underweights in the thread sold and delivered between September, 1894, and February, 1898; the second, for similar shortages between February, 1898, and March, 1899. Both of these counts related to thread called “black silk short.” The third count was for overpayment by reason of underweights in colored silks, bought between August, 1894, and January, 1899. Count four was for discounts to which plaintiffs claimed they were entitled on purchases of thread. The total amount claimed aggregated one thousand five hundred and sixty-nine dollars and thirteen cents.</p> <p>The answer admitted plaintiffs’ claim of three hundred and ten dollars for shortage in weights of colored silk thread, and averred that matter had been adjusted between the parties and it was agreed plaintiffs should be credited with it on defendants’ account against them. The answer then sets up a counterclaim on an unpaid account for goods sold and delivered to plaintiffs amounting to four hundred and twenty dollars and fifty cents.</p> <p>Judgment was prayed by defendants against plaintiffs for one hundred and ten dollars and fifty-three cents, being the excess of the counterclaim over the rebate which -defendants admitted plaintiffs were entitled to be credited with.</p> <p>It should be remarked that this admitted rebate was claimed by respondents to have grown out of a mistake made by one of their employees and to have no connection with the litigated issues. The controversy arose from the spools of thread which were sold by defendants to plaintiffs holding only ten ounces of thread to the pound, instead of twelve, defendants claiming this was authorized by a custom of trade which was general, and of which plaintiffs had full knowledge during all the transactions between them. Plaintiffs, however, denied knowledge of the usage or that it was binding on them. It seems, one kind of black thread, which is the subject of controversy, was put up on spools called “1-4 ounce,” packed in boxes holding twenty-four spools each, two of which boxes contained ten ounces of silk and were known in trade as a “pound of 1-4 ounce.” Another kind of thread called “full ounce” was packed twelve spools in each box, each spool containing five-sixths of an ounce of thread, and a box ten ounces. Each of these spools had stamped on the end “5-6 ounce” and the package was called in trade a “pound of full ounce.” The price for full ounce and 1-4 ounce was identical, the weight being the same — ten ounces to the pound.</p> <p>This is all we think necessary to state about the thread except to say that, although it was sold ten ounces to the pound, as a matter of fact, the buyer was only charged for ten ounces and not for twelve. There were brands of silk thread put up twelve ounces to the pound and the price the buyer paid depended on whether he bought twelve-ounce-to-the-pound thread or ten-ounce-to-the-pound. In other words, the buyer only paid for the quantity he got.</p> <p>Plaintiffs’ claim for a discount on purchases which had not been allowed, was also based on an alleged trade usage that a purchaser was entitled to a discount if he paid for the goods within a certain time.</p> <p>The ease was referred by the trial court to a referee, who, after taking voluminous testimony, reported in favor of the defendants, both as to their counterclaim and as to all the claims of plaintiffs against them, except as to the rebate which they admitted was due plaintiffs. We .think it unnecessary to set out his report in full. It is quite long. The important facts, in addition to those above stated, were the existence of a general trade usage or custom among dealers in silk thread, in packing and selling certain grades of thread ten ounces to the pound instead of twelve, that the plaintiffs all through the transactions in controversy had actual knowledge of the existence of such usage and bought thread with reference to it; and that there was no regular, uniform and general custom among dealers in regard to an allowance of discount on silk thread to local buyers. Further, that the matter of discount was mentioned between plaintiffs and defendants at one or more times during their dealings, and whenever it was mentioned, defendants stated to plaintiffs they could not and would not allow any discount, but that their prices were net.</p> <p>The lower court adopted the findings and report of the referee and entered judgment for defendants in accordance therewith.</p> <p>(1) Contracts may be made between parties by correspondence or by telegrams. Statesberry v. Massengale, 13 Mo. App. 221; Whaley v. Hinchman, 22 Mo. App. 483; Can-gas v. Mfg. Co., 37 Mo. App. 297; Lancaster v. Elliot, 42 Mo. App. 503; Eagle Mill Co. v. Caven, 76 Mo. App. 458; Lungstras v. German Ins. Co., 48 Mo. 201; Robinson v. Railroad, 75 Mo. 494; Egger v. Nesbit, 122 Mo. 667. (2) The meeting of the minds of the parties to such a contract is accomplished, in contemplation of law, so soon as the offer of the one is accepted by the other, although the former may not have yet received the notice of acceptance. Lancaster v. Elliot, 42 Mo. App. 503; Lungstras v. German Ins. Co., 48 Mo. 201. And whether or not the minds have met is determined by the courts, not by what the parties may have secretly intended, but by their conduct, acts and express declarations. Haubelt v. Rea & Page Mill Co., 77 Mo. App. 672; Brewington v. Mesker, 51 Mo. App. 348; Machine Co. v. Cresswell, 58 Mo. App. 471. (3) The referee and trial court having committed error in giving effect to the illegal practice, usage or custom, the judgment must be reversed. The extent to which this error was prejudicial to appellants can not be determined by the appellate court in this case, and can not be met by an assertion that it was harmless and that the judgment was for the right party. Linz v. Mass. Mut. Life Ins. Co., 8 Mo. App. 363; Cravens v. Gilliam, 63 Mo. 28; Berryman v. Cox, 73 Mo. App. 67; E'airchild v. Cress-well, 109 Mo. 29.</p> <p>(1) Where a contract is made as to a matter about which there is a custom which is so general, uniform and notorious that knowledge of it may be presumed to be or is directly known to the parties, such custom is to be understood as forming a part of the contract. Soutier v. Kellerman, 18 Mo. 509; Evans v. Western Brass Mfg. Co., 118 Mo. 549; Price v. Van Stone, 40 Mo. App. 207; Connable v. Clark, 26 Mo. App. 162; Kimball v. Bremer, 47 Mo. '399; Fitzsimmons v. Academy of Christian Brothers, 10 Mo. App. 595, 81 Mo. 37; Martin v. Ashland Mill Co., 49 Mo. App. 23; Cole v. Skrainka, 37 Mo. App. 427. (2) The trade term used in ordering silks was for so many pounds “full ounce,” or, so many pounds “1-4 ounce.” At no time was there an order given for a given number of pounds of silk unless the word “pounds” was qualified by the trade term “1-4 ounce” or “full ounce.” The terms, “pound of 1-4 ounce” and “pound of full ounce” by the custom in the silk trade, meant ten ounces of silk put up either in forty-eight spools or in twelve spools to the “trade pound.” In Price v. Van Stone, 40 Mo. App. 207, an action for damages for a breach of contract to deliver a given number of carloads of wheat, evidence was admitted of what is customary to consider a “carload of wheat.”</p>

Writ of Error to the St. Louis City Circuit Court. — Hon. William Zachritz, Judge. Held: he would be disbarred by the court of its own motion.” In re O’Grady, 4 Wikly. Note Oases, 199. “License to practice law will be revoked when not obtained according to law.” People v. Betts, I Colo. 453.

<p>1. Indemnity Bond: STATUTORY CONSTRUCTION. In the ease at bar, the following bond given under the provisions of section 2. article 20, Revised Code 1829, page 2550, contains all and more than the statute requires, and fills all the statutory requirements of an indemnity bond: “Now, if the aforesaid plaintiff shall indemnify said constable against all damage and costs which he may sustain in consequence of the seizure and sale of the property aforesaid, under said writ, and moreover, shall pay to and satisfy said claimant or any person or persons, claiming title to said property and damages which said person or persons may sustain in consequence of said seizure and sale, tlien this obligation shall be null and void, otherwise in full force and effect.”</p> <p>2. Payment: WHEN INVOLUNTARY. A payment can be considered involuntary when it is made to procure the release of the person or property from detention, as where the other party is armed with apparent authority to seize upon either, and payment is made to prevent it.</p> <p>3. -: -: -: DURESS: DEMAND. In the case at bar, the demand was made by the respondent, “pay or we will sell your goods;” and this was certainly obtaining money by duress.</p>

Louis City Circuit Court. — Hon. John A. Talty, Judge. statement oe the case. George Herbert- was a boy eighteen years old at the time the accident occurred which forms the basis of this action. He was employed by the appellant in a shoe factory, his duty being the operation of a machine known as a heel compressor. This machine was used for pressing heels and was run by steam power.

<p> Habeas Oorpiis. </p>

— Hon. W. L. Jarrott, Judge. (1) The defendant’s motion to stay these proceedings until the costs of the former trial had been either paid or secured, should have prevailed under the peculiar circumstances disclosed by this record. Hewitt v. Steele, 136 Mo. 332; Jones v. Barnard, 63 Mo. App. 501; Buckles v. Railroad, 47 Eed. Rep. 424. (2) The defendant' was entitled to judgment on pleadings in this case. Section 746, R. S. 1899.

<p>Appeal from Moniteau Circuit Court. — Hon. Geo. F. Longan, Special Judge.</p>

— Hon. James E. Hazell, Judge. (1) There is no substantial evidence upon which the court could base a finding that the land belongs to district No. 1. Under, the law the burden is upon relator, to show that the land belongs to it. R. S. 1899, Sec. 4304; State ex rel. v. Einley, 74 Mo. App. 213; City of Carondelet v. City of St. Louis, 29 Mo. 527; State ex rel. v. Town of Westport, 116 Mo. 592; Black v. Town of Brinkley, 15 S. W. 1030.

— Hon. James H. Hazell, Judge. (1) The finding is against the evidence, against the weight of the evidence, and against the law under the evidence. (2) The court erred in admitting A. J. Curtis, the husband of plaintiff, to testify over the objections of the defendant. R. S. 1899, sec. 4656; Reno v. Kingsbury, 39 Mo. App. 240; Joice v. Branson, 73 Mo. 28. (3) Because the court erred in overruling defendant’s motion to dismiss plaintiff’s appeal.

<p>1. Insurance: SOLE OWNERSHIP: SYNDICATE. Reversed under authority of Bradley v. German-American Company, 90 Mo. App. 369.</p> <p>2. Appellate Practice: JURISDICTION: MANDATE. Where the Court of Appeals decides a cause and then transfers it to the Supreme Court, and that court re-transfers it for the want of jurisdiction, the decision of the Court of Appeals stands, and the only remaining jurisdiction of that court is to enforce the judgment by proper mandate.</p>

— Hon. T. B. Robinson, Judge. (1) Error was committed in awarding plaintiff exemplary damages. Badostain v. Grazide (Col.), 47 Pac. Rep. 118; Niff v. Youman, 86 N. Y. 324; Lee v. Woolsey, 19 Johns 321; Carson v. Smith, 133 Mo. 617. (2) There was no evidence of the age of plaintiff, and it was error for the trial court to direct the jury to “take into consideration the age_of plaintiff” in assessing the damages.

<p>1. Insurance: SOLE OWNERSHIP: TRUSTEE EOR SYNDICATE: Plaintiff took tlie title to certain lots in trust for himself and five others with the agreement that he was to manage and sell the property and divide the proceeds and convey to each one his part of any remaining portion of the property. Held, he was not a sole owner within the meaning of that term in an insurance policy.</p> <p>2. -: KNOWLEDGE: BROKER. An insurer is not bound by the knowledge of the broker who takes out the insurance for the insured. So where a member of a syndicate takes out insurance in the name of the trustee, the insurer will not be affected with his knowledge of the respective rights of the trustee and the syndicate.</p> <p>3. Appellate Practice: JURISDICTION: MANDATE. On the authority of Bradley v. Milwaukee Insurance Company, a mandate in this cause is ordered. '</p>

<p>1. Insurance: PLEADING: VALUE: OWNERSHIP: CURED BY VERDICT. Although a petition on an insurance policy defectively states the value and the ownership of the property, and is demurrable therefor, yet, such defect is cured by verdict. Cases examined and criticised.</p> <p>2. --■: EVIDENCE: LOCATION OF PROPERTY BURNED. The evidence is reviewed and held sufficient to send to the jury the question whether the property that burned was at the time of the fire in the building in which the policy sued on located it.</p> <p>3. Appellate Practice: CONFLICT OF DECISIONS. 'The decision reached being in conflict with Coleman v. Insurance Company, 69 Mo. App. 566, the ease is transferred to the Supreme Court.</p>

— Hon. E. J. Broaddus, Judge. (1) The court erred in admitting illegal, irrelevant' and incompetent evidence on the part of the plaintiff and in excluding legal, relevant and competent evidence on the part of the defendant. Underhill on Evidence, pp. 500 and 501; Brown v. Wood, 19 Mo. 415; Grocer Co. v. Frick, 13 Mo. App. 133; Dunn v. Dunnaker, 81 Mo. 600; State v. Burks, 132 Mo. 313; Drug Co. v. McMahan, 50 Mo.

J. W. Alexander, Judge. (1) The forms of pleading in civil actions in all courts of record in Missouri, and the rules by which the sufficiency of pleadings are to be determined, are, except as otherwise specially provided by law, prescribed by the code of civil procedure. This includes the chapter on “Replevin,” for in that chapter there is no special provision in regard to the pleadings, except as to the petition.

— Hon. W. K. James, Judge. (1) There is no evidence of any character tending to show that the witness, E. B. Barnes, was the agent of the defendant, St. Joseph Stock Yards Bank, or that he had any authority to contract or assume any indebtedness on its behalf. According to his own testimony he was the agent of Gordon Jones, individually, and of the J. C. Bohart Commission Company.

— Hon. A. D. Burnes, Judge. (1) A tender must be accepted as made and, if accepted, is an agreement to abide by the tenor and condition of the tender even though the party accepting the tender at the time protests against the conditions. Adams v. Helm, 55 Mo. 468; Lee v. Dodd, 20 Mo. App. 271; Deutmann v. Kilpatrick, 46 Mo. App. 624; St. Joseph School B’d v. Hull, 72 Mo. App. 403; Eowelee v. Healy, 39 Vt. 522; Potter v. Douglass, 44 Conn. 541.

— Hon. Chas. F. Booher, Special Judge. (1) The instruction for the defendant is clearly erroneous as a definition of domicile under the rulings of this court on former appeal and all other authorities. Lankford v. Gebhart, 130 Mo. 621; State ex rel. v. Einn, 38 Mo. App. 504; State ex rel. v. Banta, 11 Mo. App. 32. (2) Is not defendant forever debarred from making any defense against this note and are not plaintiff’s refused instructions the law ?

— Hon. Paris C. Stepp, Judge. (1) The lienor must stand or fall by the lien which he files, and the dates and items and amounts which he specifies in the lien; and a variance between the lien and the pleading and proof offered in the case will be fatal. Poppert & Son v. Wright, 52 Mo. App. 576; Coe v. Eitter, 86 Mo. 278; Bruns v. Braun, 35 Mo. App. 337.

— Hon. P. C. Stepp, Judge. (1) A juror who is not indifferent as to the result of the trial between the State and the defendant has such an interest as to disqualify him to sit upon the case. State v. Pauerle, 145 Mo. 1. Objections to competency of a juror are not confined to causes enumerated in statute. Copper-smith v. Railroad, 51 Mo. App. 357; Thompson and Merriam on Juries, sec. 175.

— Hon. P. C. Stepp, Judge. (1) Tbe court erred in admitting in evidence the pretended order of the county court, attempting to incorporate the town of Spickardsville, and the record of the pretended council of said town, attempting to reorganize as a city of the fourth class, and the ordinances of said town, for the reasons that said i*eeords and orders fail to describe the territory intended to be embraced within the limits of said pretended corporation, as required by law,…

— Hon. Nat M. Shelton, Judge. (1) The court should have excluded all the testimony in regard to the reputation of Mrs. Blanchard at the time she lived in Schuyler county, Missouri. She left in 1895. Since that time the witnesses knew nothing about her. All was incompetent. Wood v. Matthews, 73 Mo. 482; State v. Summar, 143 Mo. 220.

— Hon. Nat M. Shelton, Judge. (1) If a statute is so uncertain or so muddy as not to be of any judicial certainty, it will be held void. State v. Railroad, 146 Mo. 155. (2) Tbe clerk’s “amplified” bill of exceptions is of no force — does not help tbe appellant. Tbe clerk can not act outside of tbe statute. (3) Tbe record shows that neither appellant nor respondent offered tbe application, and that appellant voluntarily erased such offer from his bill.

— Hon. Andrew Ellison, Judge. (1) Defendant’s motion to compel plaintiff to elect on which of the several causes of action, mingled in the same count, he would go to trial, should have been sustained. Bliss on Pleading, see. 125. Pike v. Van Wormer, 5 How. 171. R. S. 1889, Sec. 2040; Christal v. Craig, 80 Mo. 367.

— Hon. John W. Wofford, Judge. (1) Tax in controversy is triple taxation. The laundry company in question pays an ad valorem tax upon all its property, real and personal, including the wagon in question ; second, it pays a license on its occupation as a laundryman; third, the ordinance requires it to pay a license tax on each one of its vehicles. (2) License tax is usually on an occupation. This is a tax 'on property, not on an occupation.

<p>1. Pleading: CONTRACT: QUANTUM MERUIT: INSTRUCTIONS. Where the contract has been performed, a party thereto may sue in quantum, meruit, or may join in one petition counts on express contract and in quantum, meruit; but when the count is on the contract the instructions can not warrant a recovery on a quantum meruit.</p> <p>■2. Instructions: JURY QUESTION: CONTRACTS: QUANTUM MERUIT. An attempted distinction between contracts which the law implies, and agreements which the law implies from the acts of the parties, is held without merit and in no event can a jury be permitted to make such distinction, and an instruction submitting such distinction is error.</p> <p>3. Landlord and Tenant: VERBAL LEASE: TENANCY. An oral lease of a building in a city constitutes a tenancy from month to month.</p> <p>4. -: RECEIVING RENT: FORMER TENANCY: INSTRUCTIONS. When a landlord permits a person to occupy the premises and accepts rent from him, and gives him receipts therefor, he thereby makes him his tenant and repudiates a former tenant, and no specified contract of tenancy is necessary, and an instruction requiring such a contract is error.</p>

— Hon. Gallatin Craig, Judge. (1) The court erred in overruling defendants’ motion to dismiss the suit on account of the insufficiency of the statement filed before the justice. This statement did not state in what case, nor on what account or in whose favor the cost and judgment had been given, nor that the judgment had been duly made and given.

— Hon. Jas. E. Hazell, Judge. (1) The contract between the plaintiff and defendant is that of principal and surety, and the surety is entitled to a strict construction of said contract in all of its parts; and , wherever there is a condition precedent such condition must be performed by the plaintiff, before there can be any recovery upon the bond in this action.' 24 Am. and Eng. Encyclopedia of Law, sec. 749, and cases cited.

— Hon. Ed. L. Scarritt, Judge. (1) There is nothing to show that plaintiffs are the executors of the estate of John P. Knoche. Plaintiffs allege that they are such executors, and that they are entitled to the property “as such executors.” (2) There is nothing to show that the property had not been seized under any process, execution or attachment against the 'property of plaintiffs, or the estate of John H. Knoche. Madkins v. Trice, 65 Mo. 656.

— Hon. Geo. F. Longan, Judge. (1) Defendant’s liability in this case is bottomed entirely upon tbe allegation, “that tbe defendant and its officers, and servants managing said train, knew that it was not a safe place, and knew that tbe place where said train stopped, and that part of said city through which plaintiff would have to pass in reaching said passenger station, and in reaching a safe place, was infested by footpads, thieves, robbers and thugs and where people were…

— Hon. H. C. Timmonds, Judge. (1) Proof of the scienter is essential in a defense based on fraudulent representations. Peers v. Davis, Admrs., 29 Mo. 1S4. Fenwick v. Bowling, 50 Mo. App. 516; Bank v. Byers, 139 Mo. 627. (2) It was therefore error to refuse instruction asked by plaintiff and error was committed in giving instruction No. 4 asked by defendant, and No. 1 given of the court’s own motion.

— Hon. Samuel Davis, Judge. (1) The judgment in the Lafayette Circuit Court, on the first action, was upon the merits and was res adjudicata, and was an estoppel to any further action. A judgment upon demurrer which goes to the merits is as effectual as a trial. Ins. Co. v. Smith, 117 Mo. 261; Wells v. Moore, 49 Mo. 229; Eulton Iron Works v. Riggin, 14 Mo.

<p>Bes Adjudicata. The questions now presented, in the case at bar, are identical with those once determined by this court (Lawson v. Spencer, 81 Mo. App. 169) save that the respondent, on account of the ruling of this court, omitted proof of the improvements made and taxes paid by him. The former opinion became the law of this ease.</p>

<p>Appeal from St. Louis City Circuit Court. — Hon. Daniel D. Fisher, Judge.</p>

Louis City Circuit Court. — Hon. Selden P. Spencer, Judge. STATEMENT OE THE CASE. Eespondent was the tenant of appellant in the occupation of premises in St. Louis used as a ticket broker’s office. In said premises plaintiff had a large amount of tickets, counters, chairs, partitions and other property used in conducting his business.

Louis City Circuit Court. — Hon. James E. Withrow, Judge. (1) On appeal, the whole record is before the court for review; and the appellate court will not sustain the order granting plaintiff a new trial, though errors may have been committed by the trial court, when it appears from the whole record that he can not recover on a retrial of the case. (2) A contract partly written and partly oral is an oral contract. Miller v. Banking Go., 53 Mo.

Louis City Circuit Court. — Hon, John A. Talty, Judge. STATEMENT OF THE CASE. The suit is to recover on an itemized account of eleven hundred and forty dollars for rent of office rooms, janitor service, fuel and light, from February 1, 1895, to February 1, 1900, which the appellant alleges he, as assistant superintendent of respondent’s branch office in the city of St. Louis, paid out and expended at the instance and request of the respondent.

Louis Court of Criminal Correction. — Hon. Willis H. Clark, Judge. STATEMENT OF THE CASE. The defendant was tried and convicted of petit larceny in the St. Louis Court of Criminal Correction. After an unavailing motion for new trial defendant duly appealed. The errors assigned are that the evidence is insufficient to warrant the conviction and that the court erred in excluding competent evidence offered by the defendant.

Louis City Circuit Court. — Hon. Franklin Ferris, Judge. (1) In Tycon v. Booth (verdict $5,875), the court, after stating that there was no legal justification for defendant’s acts, that the murderous assault was “palpably and grossly out of all proportion to the exigency,” said: “If the plaintiff became subject to fits after the shooting, and if they were a part of the result of the injury, the plaintiff was entitled to recover for such damage, without specially alleging…

Louis City Circuit Court. — Hon. William Zachritz, Judge. (1) The respondent should be required to give security for the faithful performance of his trust duties in the management of the estate and to secure the ultimate disposition of the property according to the provisions of the will. E. S. 1899, sec. 4582; Gartside v. Gartside, 113 Mo. 354; Thieband v. Dufour, 54 Ind. 328.

Louis City Circuit Court. — Hon. Selden P. Spencer, Judge. STATEMENT OH THE CASE. This is a creditor’s bill against certain stockholders of an insolvent corporation. In the year 1887, the Paducah Land, Coal & Iron Company was organized under the laws of Kentucky with an authorized capital stock of three million dollars, of which ten per cent was paid.

Louis City Circuit Court. — Hon. James E. Withrow, Judge. (1) The trial court erred in refusing to give defendant’s instruction in a nature of a demurrer to the evidence. The testimony showed conclusively that the premises in question were under a lease at the time the accident occurred. They had been under lease to Garvey & Company for several years and their lease did not expire until April 1, some three weeks after the accident.

Louis City Circuit Court. — Hon. Warwick Hough, Judge. STATEMENT OP THE CASE. On May 21, 1899, and prior thereto, defendant maintained poles for carrying electric wires in the public alley between Clark avenue and Atlantic street in the city of St. Douis. From one and one-half to two feet from the top of these poles cross-arms Were fastened projecting about two feet each way from the pole.

Louis City Circuit Court. — Hon. Selden P. Spencer, Judge. STATEMENT OE THE CASE. Held: authorizing her to vote for Voelkers, ever since the business had been running, because he was out of the city and could not attend meetings. L. P. Canmann likewise testifies he telegraphed Voelkers, or wrote him, on the eleventh day of August, that he contemplated executing a deed of trust and an assignment.

Louis City Circuit Court. — Hon. Selden P. Spencer, Judge. STATEMENT OR THE CASE. This is an action in the nature of a suit in equity. Its purpose is to enjoin the appellants from filing with the Wabash Railway Company certain assignments of salary executed by the respondent. The record is voluminous. There are several lengthy exhibits, and we can not burden the statement with a copious recital of the testimony, or with copies of said exhibits.

Louis City Circuit Court. — Hon. Daniel D. Fisher, Judge. (1) A tenant who willfully, repeatedly and flagrantly violates the terms and conditions of his tenancy, forfeits his rights thereunder, and may lawfully be evicted by his landlord. 11 Am. and Eng. Ency. of Law (2 Ed.), p. 468; Smith v. Thurston, 19 Mo. App. 48. (2) Where a tenant has been unlawfully evicted, the measure of his damages is the difference between the value of the unexpired term and the rent reserved.

Louis City Circuit Court. — Hon. John O'Neill Ryan, Judge. STATEMENT OF THE CASE. A summary of the evidence is that the plaintiff, as trustee of creditors, held a lot of secondhand machinery of the Taylor Manufacturing Company, that had gone out of business. Among this machinery was a secondhand steam pump.

Louis City Circuit Court. — Hon. Warwick Hough, Judge. STATEMENT OF THE CASE. Plaintiffs are loan brokers doing business in tbe city of St. Louis. They sue to recover a commission of one thousand dollars which they allege they earned in the performance, on their part, of the following contract made by and between them and the defendants: “April, 1898. “We hereby appoint Messrs.

Louis City Circuit Court. — Hon. Warwick Hough, Judge. (1) The writ of -fieri facias was legally and properly made returnable to the December term. R. S. 1899, sec. 3154. (2) Where the law fixes a day for the return of an execution, such return should not be made before that day. Marks v. Hardy, 86 Mo. 232, and cases cited. (3) Garnishment is a mere notice issued as an incident or auxiliary to the writs of attachment and execution.

<p>Appeal from St. Louis Court of Criminal Correction. — Hon. Willis R. Clark, Judg</p>

Louis City Circuit Court. — Hon. John A. Talty, Judge. STATEMENT OF THE CASE.

Louis City Circuit Court. — Hon. John O'Neill Ryan, Judge. STATEMENT OF THE CASE. The petition is in the usual form and is for the recovery of a special taxbill for the reconstruction of a portion of Wash street in th'e city of St. Louis. The answer set up the following special defenses. “1.

<p>Appeal from St. Louis City Circuit Court. — Hon. William Zachritz, Judge.</p> <p>(1) The instructions are inconsistent and conflicting. Those given for plaintiff' are erroneous. 2 Patt. Compl. Dig.; p. 1755, sec. 330, and numerous cases cited. (2) The motion for a new trial should, have been sustained on the ground of newly-discovered evidence. Longdon v. Kelly, 51 App. 573. (3) The court erred in ruling upon the admission and exclusion of evidence.</p> <p>(1) The instructions for plaintiff are properly based on section 5849, Revised Statutes 1889 • (sec. 7890, R. S. 1899), and conforms to the construction given to that section in Ashford v. Life Ins. Co., 80 Mo. App. 638; Van Cleve v. Union Cas. & S. Co., 82 Mo. App. 668; Dean v. Life Ass’n, 86 Mo. App. 459; Christian v. Ins. Co., 143 Mo. 460. (2) The instructions given on behalf of defendant did not properly state the law under the pleadings and proof. This is self-invited error of which defendant can not complain. Elowers v. ITelm, 29 Mo. 324; Baker v. Railroad, 122 Mo. 533; Christian v. Ins. Co., 143 Mo. 460. (3) The motion for a new trial on the ground of newly-discovered evidence was properly overruled because it was not evidence —the alleged evidence newly-discovered was hearsay and, therefore, incompetent. Goodwin v. Life Assur. Soc., 97 Iowa 226; Life Ass’n v. Winn, 96 Tenn. 224; Schwarzbaeh v. Protective Union, 25 W. Va. 622; Edington v. Life Ins. Co., 5 Hun. 1; Life Ass’n Co. v. Cheiver, 36 Ohio St. 201. The alleged evidence was not newly-discovered evidence, i. e., “since the trial.” “Since the trial” means after the close of the trial. Abbott’s Trial Brief, p. 405; 21 Enc. PI. & Pr., p. 957; Hill v. State, 41 Tex. 253. The affidavit did not disclose any diligence. It is not shown that the court did not exercise a sound discretion. Longdon v. Nelly, 51 Mo. App. 573.</p>