Volume 91 — Missouri Appeal Reports

<p>1. Practice, Appellate: DIVORCE. Appellate courts in Missouri are authorized to review issues of fact in 'suits for divorce as in suits in equity.</p> <p>2. Divorce: INDIGNITIES. What acts amount to statutory “indignities” depend on the facts of each ease. The court reviews the evidence ani holds that plaintiff in this ease i's entitled to a divorce on the ground of indignities.</p> <p>3. -: -. Pacts constituting indignities may he made the basis of a decree of divorce, even although they might also warrant graver charges under the divorce law.</p>

Louis City Circuit Court. — Hon. Walter B. Douglass, Judge. (1) The instruction asked by defendant at the close of plaintiff’s case that plaintiff could not recover, should have been given. Defendant inflicted no physical injury on plaintiff. She can not recover for fright or mental pain and anguish, or the effects of either unless accompanied with physical injury. Strange v. Eailroad, 61 Mo. App. 586; Connell v. Tel.

Louis City Circuit Court. — Hon. Selden P. Spencer, Judge. (1) While the matter of granting new trials rests largely in the discretion of the trial court, particularly where its action is based upon the ground that the verdict is against the weight of the evidence, yet, even where that is the ground alleged, the court will not be permitted to exercise its discretion arbitrarily or unreasonably. Knenzel v. Stevens, 13 Mo. App. 16, 155 Mo. 285; Powell v. Eailway, 59 Mo.

— Hon. P. 0. Stepp, Judge. STATEMENT BY BROADDUS, J. In July, 1900, S. H. Bagley bought a stock of goods consisting of harness, saddles, whips, laprobes, bridles, and other articles of like character, tools and machinery used in the manufacture of harness, and other property contained in a building in Gilman City, Harrison county, Missouri. He purchased said stock of goods, tools, machinery, etc., from the then owner, one Wm.

— Hon. Geo. F. Longan, Judge. (1) The statute under which the work was done, requires that the special tax be levied by an ordinance, passed after the completion of the work. The failure of the council, to levy and assess the special tax by the passage of an ordinance describing each piece of property, giving the name of the owner thereof and the amount with which each lot is charged, renders the taxbills invalid.

— Hon. N. M. Shelton, Judge. (1) The court erred in overruling appellant’s motion to strike out that part of appellant’s answer that set up as a defense the usury paid by Bates. It is settled by a multitude of decisions that the right to plead usury is a privilege personal to the debtor. 27 Am. Ency. of Law, page 949, and cases there cited. The only exception to the rule laid down as above is as to sureties, guarantors, heirs, devisees, executors and administrators.

— Hon. John P. Butter, Judge. (1) A rational interpretation of the contract of insurance must necessarily lead to a different construction than that placed thereon by the trial court. 2 Parsons on Contracts (6 Ed.), secs. 500, 501. (2) The term “children” as used in the contract of insurance embraces the children of insured by a former wife as well as those of the widow here interpleading.

<p>Contract: COMPLIANCE WITH: APPELLATE PRACTICE: PRESUMPTION. The appellate court can not presume error in the trial court, and where appellant complains of the refusal of an instruction that he had complied with the terms of his contract, which he is 'seeking to enforce, his abstract must show such compliance on his part.</p>

<p>Appeal .from Buchanan. Circuit Court. — Hon. A. M. Woodson, Judge.</p> <p>(1) The demurrer to plaintiff’s case should have been sustained: (a) Because of his own negligence. Buesching v. Gaslight Co., 73 Mo. 233; Sindlinger v. Kansas City, 126 Mo. 315; Poindexter v. Paper Co., 84 App. 357; King v. Colton Tp., 84 N. W. 1077; Benton v. Philadelphia, 48 At. 267; McLaury v. McGregor, 54 Iowa 717; Fulliam v. Mus-catine, 70 Iowa 436; Zelle v. Atlanta, 66 Ga. 195; Messenger v. Denny, 137 Mass. 197; Alline v. LeMars, 71 la. 654; Hartman v. Muscatine, 70 Iowa 511; Dwyer v. Railroad, 47 N. J. Law 9; Ramsy v. Eddy, 82 N. W. 127; Bessey v. Newich-awanick Co., 46 Atl. 807; Osborne v. Water Co., 95 Ya. 16; Casey v. Molden, 163 Mass. 507; 2 Dillon Mun. Corp., sec. 1026; Cohn v. Kansas City, 108 Mo. 392. (b) Because defendants were not negligent. Staples v. Canton, 69 Mo. 592; Young v. Kansas City, 45 Mo. App. 602; Campbell v. Stanberry, 85 Mo. App. 164; Calhoun v. Milan, 64 Mo. App. 402; 2 Dillon Munic. Corp. (4 Ed.), 1019 (quoted 61 Mo. App. 580); Dale v. Webster County, 76 Iowa 370; Day v. Mt. Pleasant, 70 Iowa 193; Beardsley v. Hartford, 50 Conn, 529; Lansing v. Toolan, 37 Mich. 132; Keys v. Marcellus, 50 Mich. 439; Hnbbell v. Yonkers, 104 N. Y. 434; Oliver v. Denver, 57 Pac. 729; 13 Col. App. 345; Dougherty v= Horsheads,. 159 N. Y. 154. (2) There is a fatal variance between the allegation and proof, in that, the petition describes an unguarded excavation in the traveled way into which plain-tiff fell while traveling the street; while the proof shows a stairway at another point outside the traveled way guarded by posts and rails, except at the entrance, and that plaintiff was not a traveler. O’Brien v. Loomis, 43 Mo. App. 37; Harty v. Eailroad, 95 Mo. 368; Jacquin v. Cable Co., 57 Mo. App. 331; Price v. Eailroad, 72 Mo. 414; Bohn v. Eailroad, 106 Mo. 429; Gurley v. Eailroad, 93 Mo. 445; Current v. Eail-road, 86 Mo. 62; Buffington v. Eailroad, 64 Mo. 246; Wald-heir v. Eailroad, 71 Mo. 514; DeBolt v. Eailroad, 123 Mo. 496; O’Brien v. Steel Co., 100 Mo. 182; Calhoun v. Milan, 64 Mo. App. 400; Chitty v. Eailroad, 148 Mo. 450; Huston v. Tyler, 140 Mo. 252; Hohan v. Eailroad, 150 Mo. 36; Martinowsky v. Hannibal, 35 Mo. App. 78 ; Little v. Holyoke, 58 N. E. 170; Haynes v. Trenton, 108 Mo. 123. (3) No cause of action is stated. Petition counts upon mere negligence (plaintiff by his proof and instructions sought recovery for a nuisance) and negligence is not predicable of the omission alleged. Conclusions of law, not facts, are stated. 2 Dillon Mun. Corp., sec. 1019; Smith v. Brunswick, 61 Mo. App. 578; Weirs v. Jones County, 86 la. 625 ; Oliver v. Denver, .supra; Dougherty v. Horsheads, supra; Staples v. Canton, 69 Mo. 592; Carvin v. St. Louis, 151 Mo. 48 ; Guffey v. Eail-road, 53 Jilo. App. 469. It is not even charged that the fall was caused by the defect alleged. (4) The plaintiff’s first instruction is erroneous. It authorizes recovery on other grounds than those alleged. Its test of defendant’s duty is severer than the law’s. Wallis v. Westport, 82 Mo. App. 526; Salmon v. Trenton, 21 Mo. App. 186; Parmenter v. Marion, 85 N. W. 91; 2 Dillon Mnn. Corp., secs. 1005, 1015; Stern v. Bensieck, 61 S. W. (Mo.) 595; Norristown v. Moyer, 67 Pa. St. 355; Stickney v. Salem, 3 Allen 377; Sykes v. Paw-lett, 43 Vt. 448. Read with No. 2 it is comment; and read with No. 3 it prescribes an improper rule as to contributory negligence. Plummer v. Kansas City, 48 Mo. App. 484; Bradley v. Railroad, 138 Mo. 293; Hill v. Drug Co., 140 Mo. 433; Cohn v. Kansas City, 108 Mo. 392. (5) The instructions taken as a whole are erroneous. Redpath v. Lawrence, 42 Mo. App. 101-112; Gregory v. Sitlington, 54 Mo. App. 65; Welch v. Railroad, 20 Mo. App. 477; McNiehols v. Nelson, 45 Mo. App. 454; Brown v. L. & L. Co., 65 Mo. App. 166; Elynn v. Bridge Co., 42 Mo. App. 536; Voegeli v. M. & G. Co., 49 Mo. App. 649; Spillane v. Railroad, 111 Mo. 555; Orscheln v. Scott, 79 App. 541; Linn v. Bridge Co., 78 App. 118; 2 Ell. Gen. Pr., sec. 904. (6) The foregoing also shows that instructions asked by defendants and refused should have been given, B and H especially. Chicago v. Spaar, 91 Ill. App. 472. (7) Objection of defendant city to admission of any evidence should have been sustained. 1 Sher. & Red. Neg., sec. 373; Parsons v. Et. Worth, 63 S. W. 889; R. S. 1899, sec. 5724. (8) Evidence offered by defendants of existence of other similar stairways should have been admitted. 1 Sher. &Red. Neg., sec. 60b; 2 Dillon Mun. Corp., 1005; Lafflin v. Railroad, 127 N. T. 136; Brady v. Railroad, 127 N. Y. 46; Golden v. Clinton, 54 Mo. App. 114. (9) The rule given as to damages is erroneous. It allows recovery for sums paid or contracted for medicines and medical attendance, whether reasonable or not. The damages are excessive. Plaintiff speculated with them, before the' ink which recorded the verdict was dry. His conduct weighs heavily against the merits of his claim to this large sum. Haynes v. Trenton, 108 Mo. 123. (10) New trial should have been granted because of the perjury of witness Kelly. Rickroad v. Martin, 43 App. 597.</p> <p>(1) The several demurrers to tbe evidence offered by defendants at tire close of plaintiff’s case were waived by defendants by reason of their introducing evidence to sustain the issues on their part. Ins. Co. v. Frederick, 58 Eed. Eep. 144; Elliott App. Prac., secs. 685, 686; Eailroad v. Hawthorne, 144 IJ. S. 202; Alexandria v. Stabler, 50 Fed. 689. (2) Defendants, by failing to demur to the evidence at the end of the whole case, admitted that there was not. a total failure of proof. James v. Hicks, 76 Mo. App. 108; Alexandria v. Stabler, 50 Eed. Eep. 689; Eailroad v. Hawthorne, 144 H. S. 202. (8) The petition sufficiently alleged that notice was given by plaintiff, as required by law. The charter of the city, i. e., the general statutes relating to cities of the second class, required that certain notice should be given to its mayor before it could be held liable for such damages as those sued for herein. (4) Nature of cause of action is alleged in petition. Buckley v. Kansas City, 156 Mo. 16; Whitty v. City of Oshkosh, 81 N. W. 992; Vogelgesang v. St. Louis, 139 Mo. 127. (5) If the areaway rendered Edmond street not reasonably safe for travel by pedestrians, and if plaintiff, while in the exercise of ordinary care, fell into said areaway by reason of said dangerous condition, then he was entitled to a verdict against all defendants. (6) Anything that renders a public street unsafe for use as a street is a nuisance. Wood on Nuisances (3 Ed.), secs. 248, 250, 252, 267, 271, 289, 277, 324, 268; Jones Neg. Mun. Corp., sec. 88-97; Elliott on Eoads and Streets (2 Ed.), secs. 645, 650; Bedford v. Woburn, 57 N. E. 1008; Shiften v. Cedartown, 36 S. E. 221; McKissiclc v. St. Louis, 154 Mo. 588; Buckley v. Kansas City, 156 Mo. 16; City of Henderson v. Eeed, 62 S. W. 1039; Culverson v. Maryville, 67 Mo. App. 343; Jegglin v. Boeder, 79 Mo. App. 428; Memphis v. Miller, 78 Mo. App. 67; State v. Campbell, 80 Mo. App. 110; Corby v. Eailroad, 150 Mo. 457. (7) The court could not hold as a. matter of law that the areaway was reasonably safe. Jones on Neg. of Mun. Cor. sec. 95; Eranklin v. Harter, 26 N. E. 882; Jegglin v. Roeder, 79 Mo. App. 434; Redford v. Woburn, 57 N. E. 100. The fact that the shut-off box was the usual contrivance used in cities for the purpose for which it was placed in the sidewalk would not justify the defendant in maintaining it in such a condition as to render the highway defective and unsafe. City of Henderson v. Reed, 62 S. W. 1039; Lombar v. East Tanas, 48 N. W. 947; Kansas City v. Bradbury, 25 Pac. 889; Moon v. Ionia, 46 N. W. 25;-Mitchell v. Plattsburg, 33 Mo. App. 555; G-oodfellow v. New York, 100 N. T. 15; Clemence v. Auburn, 66 N. T. 334; Grossenback v. Milwaukee, 65 Wis. 31; Schroth v. Prescott, 63 Wis. 652; Whitney v. Milwaukee, 57 Wis. 538; Stilkng v. Thorp, 54 Wis. 538; Flynn v. Canton, 40 Md. 312; Culverson v. Maryville, 67 Mo. App. 343; Jones on Neg. Mun. Corp., 153; New York v. Sheffield, 4 Hall. 189; Newport v. Miller, 93 Ky. 22; Tilton v. Wenham, 172 Mass. 407; Phelps v. Mankato, 23 Minn. 276; Ward v. Jefferson, 24 Wis. 342; Boltz v. Sullivan, 101 Wis. 608; Kinldey v. Rosendale, 90 Wis. 271; Strieker v. Reedsburg, 101 Wis. 457; Pleasant Grove Tp. v. Ware, 7 Kan. App. 648; 15 Ency. of Law (2 Ed.), 444; Scranton v. Catteron, 94 Pa. St. 202; Michigan City v. Boeckling, 122 Ind. 39; Bigelow v. Weston, 3 Pick. 267; Naylor v. Salt Lake City, 9 Utah 491; Hazard v. Council Bluffs, 87 Iowa 51. (8) The instructions given by the trial court were noticeably and pre-eminently fair.</p>

<p>1. Dee: PRACTICE, TRIAL: APPEAL. Neglect to pay the filing fee required in St. Louis by Revised Statutes 1899, page 2563, section 17, on appeal to the circuit court from a justice’s judgment, is a failure to prosecute the appeal.</p> <p>2. Judgment: DEFAULT: DISCRETION: PRACTICE, TRIAL. The power to set aside an affirmance of a justice’s judgment, as well as the power to vacate other judgments based on some default of the adverse party, rests in the sound discretion of the trial court.</p> <p>3. -: JUDICIAL DISCRETION: REVIEW. Judicial discretion does not import mere whim or caprice. It is not an unlimited power, and is subject to review.</p> <p>4. -: MISTAKE: DISCRETION. Mistakes of attorneys or their clerks may sometimes be held excusable and to warrant the exercise of discretion in vacating judgments resulting therefrom.</p> <p>5. -: DISCRETION: PRACTICE, TRIAL. It is not necessarily an abuse of discretion for the trial court to open up a judgment without a full showing of facts constituting the meritorious defense alleged by the party applying for 'such an order.</p>

<p>Original Proceeding.</p> <p>(1) There was no authority, express or implied, in the constitution or by-laws of the St Louis Medical Society (the respondent) to suspend or expel relator without a trial. ' See art. 1, sec. 14, p. 7; art 11, secs. 1-8, p. 12, and art 22, sec. 1, p. 15, Constitution and by-laws of St Louis Medical Society. State ex rel. v. Adams, 44 Mo. 570, and cases cited on p. 586; Albers v. Mer. Ex., 39 Mo. App. 583. (2) The authority to suspend or expel, given by the by-laws of the society (sec. 14, art. 1, and sec. 1, art. 22), is a delegated power from the State, whose creature the society is, and this power must be exercised directly by the society itself, as was the evident purpose of the by-laws, and not delegated to a subordinate agency such as the committee on ethics, as was attempted in the case at bar. It is not within the power of corporations to create judicial tribunals. 1 Bacon, Benefit Soc., sec. 100; Comm. v. German Soc., 15 Pa. St. 251; State ex rel. v. Chamber Com., 20 Wis. 63; Med. Soc. v. Weatherly, 75 Ala. 248; Austin v. Searing, 12 N. T. 112. (3) The determination of relator’s right to membership in the society was judicial in its nature and character, and proceedings to suspend or expel should have been so conducted after notice to relator, as to afford him an opportunity to be heard in his defense. High, Extra Legal Rem., sec. 294; Sibley v. Cartaret Club, 11 Yroom 295; Zeliff v. Knights of Pythias, 24 Vroom 536; State ex rel. v. Passaic LIosp. Assn., 59 N. J. Law 142; Bartlett v. Med. Society, 32 N. Y. 187. (4) A reasonable time should have been given relator to answer the charges and produce testimony, and he was entitled to be represented by< counsel, to cross-examine witnesses, and to except to the proofs against him. Comm. v. German Society, 15 Pa. St. 251; State ex rel. v. Chamber Commerce, 20 Wis. 63 ; State ex rel. v. Liverpool, 2 Burr, 734; Murdoch v. Phil. Acad., 12 Pick. 244; Rex v. Chalke, 1 Ld. Ray. 226. (5) In Murdock v. Phillips Academy, 12 Pick. 244, the court holds the following essential to render proceedings valid against á member of a society of the character of respondent: (a) A'citation or notice to appear must have been served on relator, (b) . Charges must be given him to answer, (c) A reasonable time must be given for answer, and the introduction of evidence in his defense, (d) He must be allowed the liberty of counsel to defend his cause and except to proofs and witnesses, (e) Sentence must be pronounced after a hearing and finding of guilty. The following cases are to the same effect: Bartlett v. Med. Soc., 32 N. T. 187; Erd v. Bavarian Assn., 67 Mich. 233. (6) Relator had a property right in the society which clearly entitled him to a hearing. Each’ individual member of such an organization as this is the owner of the corporate franchise, and his privilege of membership is subject to the protection of the courts although it may have no market value. 2 Black, Com., 37; Moses on Maud., 184; Dartmouth College Case, 4 Wheat 518; Med. Soc. v. Weatherby, 75 Ala. 253; Slater v. Sup. Lodge, 76 Mo. App. 387; Mulroy v. Knights of Honor, 28 Mo. App. 471; Ludowiski v. Benev. Society, 29 Mo. App. 337. /</p> <p>(1) Relator had no property rights in respondent, and from a legal standpoint respondent shopld be regarded as a voluntary association. State ex rel. v. Jefferson Club, — Mo. App. —; Manning v. San Antonio Club, 63 Tex. 166; People v. Board of Trade, 80 Ill. 134. (2) Persons who associate themselves with a society having certain social and ethical objects, and subject thus to a common discipline, have voluntarily submitted ■ themselves to the disciplinary power of the society and it is for that society to know its own. State ex rel. v. Odd Eellows, 8 Mo. App. 148; People v. Board of Trade, 80 Ill. 134. (3) Relator having been expelled in accordance with the rules and regulations to which he had assented, the action of respondent will not be reviewed by the courts. Levy v. Magnolia Lodge, 110 Cal. 297; State ex rel. v. Odd Eellows, 8 Mo. App. 148. Eelator was offered a fair trial upon due notice, with opportunity to produce witnesses before the committee charged by the by-laws with such duty, and by his refusal to appear before such committee, relator waived all his rights, if any, to such trial. Lewis v. Wilson, 121 N. T. 284. (4) Eelator was not denied counsel before the committee on ethics. The society had the right to exclude counsel, not a member, from its meeting. Loubát v. LeBoy, 15 Abbott’s N. G. 35. (5) Belatoffs admission of the truth of the charges made a trial unnecessary in any event. State ex rel. v. Temperance Assn., 42 Mo. App. 485.</p>

Louis City Circuit Court — Hon. Selden P. Spencer, Judge. STATEMENT OE THE CASE. Respondent was superintendent of Pullis Bros. Iron Company, which made an assignment on the twenty-fifth day of March, 1896, to Henry Boemler, for the benefit of its creditors. It owed respondent, at the time, five hundred and sixteen dollars and five cents for salary or wages, which sum was allowed by the assignee in May, 1896, as a general demand.

Louis City Circuit Court. — Hon. 8olden P. Spencer, Judge. (1) The two leasehold estates became merged in a single estate in Ohio Building Company, as lessee, and the contract between it and contractor Kelly was one indivisible contract, as was also the contract between Kelly and respondent, and all tbe parties treated and executed the contract upon that understanding; respondent opened one account with contractor Kelly for all the ironwork furnished under the contract, and…

<p>1. Master and Servant: SEASONABLY SAFE APPLIANCES. The rule that a master is bound to provide his servant with reasonably safe appliances with which to work has no application, when the servant is himself employed by the master to repair the defect and had theretofore repaired it.</p> <p>2. -: -. When the risk assumed by a servant is not only known to him, but is obvious to him, he can not recover for an injury caused under such circumstances.</p>

Louis City Circuit Court.' — Hon. Warwick ' Hough, Judge. (1) The following facts stand undisputed in the ease: (a) That a proper iron step was provided by the defendant for ascending and descending the pole, (b) That the plaintiff used such step in ascending the pole, but through inadvertence or choice used in descending, instead of the step, the block of wood placed there for a wholly different purpose.

Louis City Circuit Court. — Ron. John A. Talty, Judge. (1) There is no valid or legal judgment in the case, as the order made by the court intended to be a judgment, possesses none of the attributes of a judgment. Black Judg., sec. 14; lb., sec. 115; Freeman Judg., sec. 1.

Louis City Circuit Court. — Hon. William Zachñtz, Judge. STATEMENT OE THE CASE. Tbe suit is to recover damages for an alleged breach of contract of employment. The petition was in two counts.

Louis City Circuit Court. — Hon. John A. Tatty, Judge. STATEMENT OP THE CASE. The nature of tbe controversy, its history, its facts, and the authorities that control the decision of the circuit court, are with great lucidity and clearness stated in the report of Ered E. Wislizenus, Esq., to whom the case was referred.

Louis City Circuit Court — Ron. William, Zacliritz, Judge. There was no substantial evidence offered in the case upon which the verdict and judgment can be supported, and, hence, the finding of the court below can be reviewed in this court. Western Brass Co. v. Metham, 64 Mo.

<p>Ap>peal from St. Louis City Circuit Court. — Hon. William Zachritz, Judge.</p> <p>STATEMENT OF THE OASE.</p> <p>In tbe suit for divorce, brought by the plaintiff against the defendant in the St. Louis City Circuit Court, plaintiff, on July 17, 1896, obtained the following decree of divorce:</p> <p>“The cofirt having heretofore to-wit, on June 19, 1896, taken this cause under advisement and being now sufficiently advised of and concerning the premises, after hearing the evidence herein being satisfied that the plaintiff is an innocent and injured party and entitled to the relief prayed for in her petition, doth order, adjudge and decree, that she be absolutely and forever divorced from the bonds of matrimony existing between plaintiff and said defendant and that she be restored to all .the rights and privileges of an unmarried person. And that until the further order of this court, she shall have the care, custody and control of the minor children, viz.: George W., Mary Jane, Sophia W., Charlotte B., and Henry S., mentioned in the amended petition.</p> <p>“And it is further ordered adjudged and decreed by the court, that defendant pay to plaintiff alimony as follows: Eifty dollars for legal expenses, to be paid at once; one hundred dollars for repairs to house, to be paid at once, and thirty dollars per month to be paid on the fifteenth day of each month, beginning July 15, 1896, until the further order of this court.”</p> <p>At the October term, 1900, of tbe St. Louis City Circuit Court, the plaintiff filed her motion for an increase of monthly alimony, stating that the defendant had recently and since the decree in the divorce suit, come into possession of about twenty-five thousand dollars as a legatee under the will of John C. Vogel; and that plaintiff was unable to support herself and the minor children on thirty dollars per month. The evidence is that the allowance of alimony, as entered in the decree of divorce, was made by the court in pursuance of an agreement touching the same made by the parties after the court had announced that it would grant a divorce to the wife and would award her the custody of the minor children, then five in number.</p> <p>The court also took evidence in respect to the property of defendant by which the fact was brought out that the defendant was a residuary legatee of the estate of John Vogel, deceased, then estimated at from one hundred and twenty-five thousand to one hundred and fifty thousand dollars, one-eighth of which defendant would be entitled to under the will of John Vogel, after the death of his widow, then seventy-three years of age. The alimony in kind, awarded to the plaintiff, divested defendant of more than two-tliirds of all the visible property he then owned.</p> <p>On hearing of the motion for additional alimony, it was shown that Mrs. Vogel died in the spring of 1900, and that defendant as a legatee under the will of John Vogel has, since the death of Mrs. Vogel, come into possession of ten thousand four hundred and eighty-five dollars and twenty-seven cents cash, and real estate in Eindlay, Ohio, that yields a rent of from fifteen to twenty dollars per month; and that he receives a pension of fifty dollars per month from the insurance department of the Fireman’s Association of the city of St. Louis; that he has remarried and has one child by his last wife; that two of the children of the plaintiff and defendant have become of age since the granting of the divorce; of the remaining minors, one is a girl of sixteen years of age, in poor health and is a care rather than a help to her mother. The other two are twins, fourteen years of age, one of which is a boy, and the mother testified she was compelled to take him out of school and put him to work because she could not get along without his wages; that he earns two dollars and sixty cents a week and pays sixty cents of that for car fare.</p> <p>After bearing the evidence, the court overruled the motion, and after an unsuccessful motion in review plaintiff appealed.</p> <p>The court below erred in overruling plaintiff’s application for an increase of alimony. K. S. 1899, secs. 2926, 2927, 2932; Schmidt v. Schmidt, 26 Mo. 232; Burnside v. Wand, 77 Mo. App. 382; Campbell v. Campbell, 87 Wis. 211; Bishop on M. & D., sec. 372.</p> <p>(1) Upon the facts of this case we submit that the trial court properly overruled plaintiff’s motion for increased alimony, and that its decision was inevitable. (2) The parties to the suit having agreed upon the provision to be made to plaintiff upon the divorce, the agreement being just and fair, and the court having adopted it, they are bound by their agreement, and the decree is not subject to change. 2 Nelson on Divorce, sec. 915; Martin v. Martin, 65 Iowa 257; Buck v. Buck, 60 Ill. 242; Caíame v. Caíame, 25 N. J. Eq. 548; 2 Bishop Mar. & Div., sec. 235; Caíame v. Caíame, 9 C. E. Green 440; Crews v. Mooney, 74 Mo. 30. (3) Under the authorities, it seems to be settled that people who are being divorced are not deprived of their right to contract with each other. If a contract is made between them for alimony and a division of their property the court will, in the absence of fraud or imposition, adopt the agreement, and like any other contract, it will become binding upon the parties. 2 Nelson on Divorce, sec. 915: “An agreement of the parties with reference to the permanent allowance is valid, and it will generally be approved by the court, and a decree may be entered in conformity with it.”</p>

Louis City Circuit Court. — Hon. John A. Tally, Judge. STATEMENT OE THE CASE. This suit was brought to the October term, 1900, of the St. Louis City Circuit Court against John E. Christian, who, on June 18, 1901, died. Afterwards the cause was revived against his executrix, Eliza P. Christian.

<p>1. Evidence: CERTIFIED COPY OF ORDER ADJUDGING A PERSON A BANKRUPT IS COMPETENT EVIDENCE: FEDERAL COURT: STATUTORY CONSTRUCTION. Under the provisions of section 3135, Revised Statutes 1899, a certified copy of an order of the Federal court adjudicating a corporation a bankrupt, is a copy of a judgment of a Federal court and is competent evidence.</p> <p>2. -: VOLUMINOUS BOOK ACCOUNTS, HOW PROVED: TESTIMONY OF ACCOUNTANT. It is competent for an accountant, who has made an examination of the books of a corporation in respect to the amount of stock the books showed the company to have in hand, to testify as to the result of his examination, under an appropriate issue raised by the pleadings.</p> <p>3. -: WITNESS: TRANSCRIPT OP STENOGRAPHIC NOTES, WHEN COMPETENT. In the ease at bar, the evidence of the witness, Tolies, consisting of a transcript from his stenographic notes of the evidence given by defendant in his deposition before the referee in bankruptcy (defendant waiving the right to insist on the witness testifying from the notes), is admissible as admissions by defendant against his interests, and no preliminary steps were necessary to qualify the witness to testify in respect thereto, other than to produce the witness and put him under oath.</p> <p>4. -: INSTRUCTION: BANKRUPTCY LAW: GOOD PAITH: CONSIDERATION: CONSTRUCTION OP BANKRUPTCY LAW. In the ease at bar, the following instruction properly states the law under the Bankruptcy Act of 1899. “The court instructs the jury that under the national bankruptcy law, all conveyances and transfers of property made or given by a person or corporation adjudged a bankrupt, within four months prior to the filing of the petition in bankruptcy, with the intent and purpose on the part of the bankrupt to hinder, delay or defraud its creditors or any of them, are null and void, as against the creditors of such debtor, except as to purchasers in good faith and for a present fair consideration; and all property of the debtor so conveyed or transferred shall be and remain a part of the assets and estate of the bankrupt, and shall pass to his trustee, whose duty it shall be to recover and reclaim the same, by legal proceedings, or otherwise, for the benefit of the creditors. The court further instructs you that the petition in bankruptcy against the Mechanics’ Clothing Manufacturing Company was filed on the first day of May, 1899, and that said company was thereafter duly declared and adjudged to be a bankrupt, and that the plaintiff in this case is the duly qualified trustee in bankruptcy of said company. If, therefore, you believe from the evidence that at any time within four months prior to the first day of May, 1899, the Mechanics’ Clothing Manufacturing Company transferred or conveyed to the defendant a lot of clothing, with the intention on its part of hindering, delaying or defrauding its creditors,-or any of them, you will find in favor of the plaintiff, provided you also find from the evidence that the defendant at the time of the transfer to him did not pay a present fair consideration for such clothing.”</p> <p>5. Bankrupt Law: CONELICT OE LAW. Rights and liabilities of the parties in a court of bankruptcy are controlled by the bankrupt act and when the state law comes in conflict with it, it must yield.</p> <p>6. Jury: VERDICT: DAMAGES: REMITTITUR: MISTAKE OF JURY, HOW CURED. Where the amount of the verdict of a jury is largely in excess of the damages proven under either count of a petition, and there is a general verdict on two counts, and no.exceptions were made or saved thereto, this mistake of the jury is cured by a remittitur.</p>

<p>Appeal from St. Louis City Circuit Court. — Hon. Selden P. Spencer, Judge.</p> <p>(1) A suit by attachment instituted upon a claim not due must be dismissed where the issue on the plea in abatement is found for defendant. Grier v. Eox, 4 Mo. App. 522: E. S. 1899, sec. 3850, p. 936. A suit is commenced when the papers are placed in the bands of the constable. McGrath v. Railroad, 128 Mo. 2. A recovery can not be had in an action prematurely brought. Heard v. Ritchie, 112 Mo. 516. It is elementary law that a plaintiff must recover, if at all, on his right of action as it existed at the institution of the suit Tobin v. McCann, 17 Mo. App. 483. (2) The 'suit was on an account filed, and recovery was had on a lease. The lease was not filed when the action was instituted, or at any time thereafter. The courts have always held that you can not state one cause of action, and recover upon another. This is elementary law. R. S. 1899, sec. 591 and 592; Beck v. Eerrara, 19 Mo. 30; Link v. Vaughn, 11 Mo. 585; Eyermann v. Cemetery Association, 61 Mo. 489; McManamee v. Railroad, 135 Mo. 440; Hite v. Railroad, 130 Mo. 132; McCormick v. Railroad, 154 Mo. 191; Cole v. Armour, 154 Mo. 333; Whipple v. B. & L. Association, 55 Mo. App. 554. The cause of action filed must be sufficiently definite to bar another action and advise the defendant of what he is required to defend against. City of St- Louis v. Babcock, 156 Mo. 154; Huston v. Tyler, 140 Mo. 252. The lodging with the justice of the paper which is the foundation of the action is a requisite to jurisdiction, and it must by some means be made affirmatively to appear by the record, if not by a docket entry, then by the paper itself being among the original papers in the cause. Barney Olin v. Erank Zeiger, 46 Mo. App. 193.</p> <p>This was a suit commenced by respondent against the appellant, by attachment before Jas. J. Spaulding, a justice of the peace of the city of St. Louis, to recover the sum of three hundred and thirty dollars for rent of premises of storeroom knowm as No. 2424 North Sarah street, in the city of St. Louis. The account filed with the justice was for rent from November 1, 1899, to September, 1900, inclusive, and the suit was instituted on the thirty-first day of October, 1899, and was based upon section .4123 of the Revised Statutes of 1899.</p>

Louis Oitj Circuit Court. — Hon. John O'Neill Ryan, Judge. STATEMENT OE THE CASE.

Louis City Circuit Court. — Hon. Horatio D. Wood, Judge. The court bas no authority to sequestrate the money found in the treasury of the Peoples Railway Company prior to and at the date of the appointment of the receiver for any purpose whatever, inasmuch as it was not covered by the deed of trust foreclosed, or by any lien. In re Life Assn, of America, 96 Mo. 632; Eontaine v. Schulenberg & B. L. Co., 109 Mo. 64; White v. Wear, 4 Mo.

Louis City Circuit Court. — Hon. John A. Talty, Judge. STATEMENT OE THE CASE. Tbe Crunden-Martin Woodenware Company was garnished the nineteenth day of February, 1900, on an execution against Frank E. Gottseelig, the execution being returnable to the first Monday of the following June term of the circuit court, to which time the garnishee was summoned.

Louis City Circuit Court. — Hon. Selcten P. Spencer, Judge. Judgment should have been rendered against the Marion-Sims Dental College. Held: “That the sale by a corporation of all its property to another corporation, composed mostly, if not wholly, of the same persons, was fraudulent and void as to all creditors of the former company not assenting thereto.Equity can not permit the owners of one corporation to organize another and transfer from the former to the latter all…

— Hon. Walter B. Douglass, Judge. STATEMENT OF THE CASE. Tbe suit is for a personal judgment against Joseph O’Shea and to foreclose and enforce a mechanic’s lien on real estate situated in the city of St. Lo-uis, alleged to be the property of Edward S. Robert.

Louis City Circuit Court. — Hon. James E. Withrow, Judge. (1) Tbe respondents mistook their remedy, and should have proceeded against the estate of H. N. Holladay, who was the director of the H. N. Holladay Lumber and Mercantile Company, who appropriated the property of that concern. R. S. 1899, sec. 1338; Hickman v. City of Kansas, 120 Mo. 110.

Louis City Circuit Court. — Hon. John A. Tally, Judge. (1) After the interest of the parties has been determined from the instrument itself, or from the instrument and the surrounding circumstances, the rule of strict construction applies, and a guarantor can not be beld beyond the precise terms of his contract. Blair v. Ins. Co., 10 Mo. 559; Shine v. Bank, 70 Mo. 524.

<p>1. Contract: PLEADING AND PRACTICE. Plaintiff suing on a contract must substantially prove it as alleged.</p> <p>2. Practice, Appellate. Where no objection or exception is interposed in the trial court to a want of conformity of the proof to the pleading, that point can not be made ground for a reversal (Chouquette v. Railway, 152 Mo. 257, followed).</p> <p>3. Damages: WHEN AWARDED ON APPEAL: STATUTORY CONSTRUCTION. Where the errors assigned on appeal do not present any fairly debatable or unsettled question of law or fact, an award of damages is just and proper under section 867, Revised Statutes 1899.</p>

— Ho'n. Wm. L. Jarrott, Judge. (1) The Revised' Statutes of Missouri 1899, section 4065, provides the remedy to be pursued when the justice fails to allow the appeal. This remedy is by rule and attachment to he issued by the circuit court to compel the justice to allow the appeal; and mandamus can not be resorted to. Wheeler v. McAuliffe, 48 Mo. 112; Railroad v. Erank, 55 Mo. 325.

— Ron. Jos'. E. Hazell, Judge. (1) The defendants made no appearance, although duly summoned to appear at the October term, 1895, the term of court to which said cause was returnable for trial. The court dismissed said cause for want of prosecution on account of the fact that for some reason not disclosed by the record, the plaintiff failed to reach the court on the third day of the term.

— Hon. D. W. Shackleford, Judge. (1) The first instruction given for the defendants is erroneous. The contract, it will thus be seen, required the defendants, not the plaintiffs, to keep the mill property insured, and the instruction is therefore directly in the face of the written agreement of the parties and should not have been given. Authorities pasma.

— Hon. Jas. H. Hazell, Judge. Eiled brief on merits. It is too well settled in this State that nothing but the pleadings and judgment form the record proper, and that motions, exceptions, instructions and evidence, can only become a part of the record by duly authenticated bill of exceptions, to require citation of authorities to support this proposition. Halstead y. Stone, 147 Mo. 649; Walser v. Wear, 128 Mo. 652.

— Hon. Jno. P. Butler, Judge. (1) A party can not sue upon one cause of action and recover upon another — can not sue in tort and recover in contract. Link v. Vaughn, 11 Mo. 585; Clements v. Yeates, 69 Mo. 628; Sumner v. Rogers, 90 Mo. 324; Murphy v. Bedford, 18 Mo. App. 283; Phillips v. Mastbrook, 24 Mo. App. 133; Robbins v. Railroad, 34 Mo. App. 612'; Rippee v. Railroad, 11 Mo.

- — Hon. John P. Butler■, J udge. (1) The defendants were acting as agents for II. M. Henlev, which fact they disclosed to plaintiff, and are not personally liable. Anson on Contracts (2 Am. Ed.), star page 345; Parsons on Contracts (5 Ed.), pp. 64 and 66; Clark on Contracts (Hornbook Series), page 732; Hamlin et ah v. Abell, 120 Mo. 188; Michael v. Jones Adm., 84 Mo. 578; Western Cement Co. v. Robt. L. Jones et al., 8 Mo. App. 373.

— lion. John P..Butler, Judge. (1) Tbe court erred in permitting the introduction of cross-examination by plaintiff of witness Weldon. Plaintiff had a right to introduce the deposition of Weldon if he desired, but it should have been introduced as a whole. It was error in the court to permit detached portions to be read to the jury. Defendants are not required to cure this error by introducing the rest of the deposition.

— Hon. Jóhn A. Hockaday, Judge. (1) The petition does not state facts sufficient to constitute a cause of action. Where necessary averments are omitted, the judgment will be arrested. The averment of such facts is an essential requisite which defendant does not waive, either by failing to demur, by pleading over or by going to trial. Erazer v. Roberts, 32 Mo. 457; State v. Bacon, 24 Mo. App. 403; Biddle v. Boyce, 13 Mo. 532; Bank v. Eisher, 55 Mo. App. 51.

— Hon. John A. Hoclcaday, Judge. Cl) The court erred in sustaining the demurrer to pare of the defendant’s answer. Domestic animals, among which dogs are classed, have certain well-recognized propensities. Dogs will scent dead animals and go to their carcasses. Gillum v. Sisson, 53 Mo. App. 516. Courts will take judicial notice of such characteristics. 17 Am. and Eng. Ency. of law (2 Ed.), 900; Dudley v. Love, 60 Mo. App. 420.

' Appeal from Daviess Circuit Court. — Hon. J. W. Alexander, Judge. (1) It was shown without contradiction that the animal came upon the railroad within the limits of the town, and also that at the points where her tracks were first observed upon the railroad and where she was injured the road was fenced on both sides. Swearingen v. Railroad, 64 Mo. 73; Vanderworker v. Railroad, 51 Mo. App. 166; Crenshaw v. Railroad, 54 Mo. App. 233; Wright v. Railroad, 56 Mo. App. 367.

— Hon. A. M. Woodson, Judge. (1) Tbe only defense made to this clear right is estoppel — that plaintiff, by something he has done in some way by some representation, has caused the city to change its position to its detriment and that to permit a recovery would work a fraud upon the city.

— Hon. A. D. Bumes, Judge. (1) Instruction No. 9, asked for by defendants, should have l}éen given. The width of road so established is determined and fixed by the actual travel and use by the public. Ehret v. Railroad, 20 Mo-. App. 251. (2) The report of the commissioners admitted over the objection of defendants should not have been allowed to intrude into this case. It was simply an isolated report.

— Hon. A. D. Burnes, Judge. (1) A conveyance may be fraudulent though made to secure a bona fide debt. Nat. Tube Works Co. v. Machine Co., 118 Mo. 1. c. 875. (2) In suit by attachment grounded on conveyance so as to hinder and delay creditors, plaintiff is not burdened with the necessity of showing an intent to hinder or delay. Noyes, Norman & Co. v. Cunningham, 51 Mo. App. 1. c. 196. Gens & Tiede v. Hargadine & Co., 56 Mo. App. 1. c. 249.

— Hon. Gallatin Graig, Judge. (1) Tbe answer of defendant pleaded tbe payment of one thousand dollars to Eunice Graves, assignor of plaintiffs, and beneficiary in tbe insurance policy sued upon, and set up her receipt and release for said amount as a completely executed contract, knowingly, voluntarily and understandingly entered into by said Eunice Graves and as constituting an absolute legal bar to any further demand upon her part or upon the part of her alleged assignees.

— Hon. Gallatin Gmig, Judge. (1) Tbe court erred in overruling tbe demurrer to plaintiff’s petition. Said petition does not contain facts sufficient to constitute a cause of action against defendant.

— Hon. N. M. Shelton, Judge. (1) Private citizens can not contract for tbe paving of that part of ¿ street adjacent to tbeir lot frontage. (2) There is absolutely no proof of tbe contract sued on. (3) Tbe remedy given by law is an action on tbe taxbills to enforce tbe lien on tbe lots. E. S. 1899, sec. 5892.

— Hon. Nat M. Shelton,. Judge. Eiled brief on merits. (1) Appellant complains of tbe action of tbe court in admitting testimony of damages on tbe statement and that tbe court did not sustain bis demurrer to tbe evidence of plaintiff, and yet in bis abstract be utterly fails to set out the statement or any part thereof; be only prints and produces to this court excerpts of tbe evidence. This complaint can not be beard.

— Hon- J. D. Perkins, Judge. Filed brief on merits. (1) Tbe burden is on appellant to fumisb an bonest abstract or abridgment of tbe record. He must set out the portions of the record relied upon. He will not be permitted to shift the burden to respondent by filing a wholly insufficient and garbled abstract Bank v. Davidson, 40 Mo. App. 421; Cuomo v. City of St. Joseph, 24 Mo.

W. K. James, Judge. (1) It is the duty of a father to watch over a child and guard it from danger and provide for its safety and welfare, and it is the duty of the child to submit to the government and control of its father.

— Eon. A. D. Burnes, Judge. (1) Defendant Hoar makes the defense in bis separate answer, that be signed tbe note sued on, without any consideration therefor, long after it had been signed, executed and delivered by John and C. L. Hobson, to plaintiff and while plaintiff was the owner and in the possession thereof. One who becomes a party to a note under such circumstances incurs no liability. J. C. Hartman et al. v. L. H. Eedman, 21 Mo. App. 124; Messenger v. Vaughan, 45 Mo.

— Hon. James Gibson, J udge. (1) Tbe refusal of instruction No. 3 asked by plaintiff and tbe giving of instructions Nos. 2 and 6 for defendants was error. Sbeeban v. Owen, 82 -Mo. 458; Cole v. Skrainka, 105 Mo. 303; Steffen v. Eox, 124 Mo. 630; Rose v. Trestrail, 62 Mo. App. 352; McQuiddy v. Brannock, 10 Mo. App. 535; Saxton Nat. Bank v. Landis, 54 Mo. App. 315; McEvilly v. Knott, 49 Mo. App. 612; City of Springfield v. Eavis, 80 Mo. App. 5Y4.

— Hon. A. D. Bumes, Judge. (1J The alternative writ and auxiliary restraining order were properly granted and should have been made permanent, for the reason that when defendant in the justice court-filed his answer and affidavit setting up an equitable defense and putting a land title in issue, the justice lost jurisdiction of the cause and should have been prohibited from proceeding further therewith.

— Hon. James E. Hazell, Judge. (1) Tbe petition and evidence introduced by plaintiff establishes the fact that the written contract set out in the petition and introduced in evidence by her was voluntarily entered into; that each party fully understood its contents; that it was written and signed on November 2, 1898; that defendant refused to sign any other; that the money and note were given to defendant to pay for goods on 3d and 4th, and upon the final payment possession…

— Hon. W. K. James, Judge. (1) The parties, respectively, claimed a right of possession. Defendants’ answers were cross-replevins. If they were not entitled to recover possession, they could not recover the value of the property or damages for its detention. 3 Suth, Dam., p. 532; Lewis v. Train, 4 Pick. 168; Deal v. Osborne, 42 Minn. 102; Bashroom v. Massy, 5 Iredell 192; Ingusham v. Martin, 15 Me. 373.

— Hon. E. J. Broaddus, Judge. Plaintiffs made out a prima facie case, and the giving of the demurrer to the evidence was error.

Court. — Hon. A. D. Bur nos, Judge. (1) The vendee must take the actual possession and the possession must be open, notorious and unequivocal, such as to apprise the community or those who are accustomed to deal with the party that the property has changed hands, and that the title has passed out of the vendor and into the vendee.

<p>Appeal from Linn Circuit Court. — Hon. Jno. P. Butler, Judge.</p> <p>Submitted brief on merits.</p> <p>Submitted brief on merits.</p>

— Hon. Jno. A. Hoclcaday., Judge. (1) Defendant having been personally served before justice of the peace, the court erred in allowing any evidence to be introduced on behalf of the defendant — the defendant having failed to file a setoff or counterclaim. Stephens v. Barber Supply Co., 67 Mo. App. 587; West v. Ereeman, 76 Mo. App. 96; Qantt v. Duffy, 71 Mo. App. 91; Comfort v. Lynam, 67 Mo. App. 668. (2) The plaintiff was also entitled to notice of any offset or counterclaim.

— Hon. W. E. James, Judge. (1) The decree of Klingelhoefer v. Ziemendorf, admitted in evidence, had the same force it would have had if the pleading had not been stricken out Offut v. John, 8 Mo. 120. (2) It was as conclusive upon plaintiff as though he had been a formal party. 1 Herm. Estop, and Res. Adj., sec. 148; State v. St. Louis, 145 Mo. 567; Koontz v. Kaufman, 31 Mo. App. 410. (3) Plaintiff was privy to the suit and decree.

— Son-. A. D. Bumes, Judge. (1) Tbe title to tbe property in question is distinctly put in issue both by tbe pleadings and by tbe evidence. 20 Am. and Eng. Ency. of Law (1 Ed.), p. 1046; Morris on Replevin'(3 Ed.), p. 191. (2) There were facts and circumstances in evidence tending to show that tbe sale of tbe twenty-five bead of heifers (of which tbe nine in question are claimed by defendants to be a part) was fraudulent and void as to plaintiff.

— Hon. E. P. Gates, ’ Judge. (1) Our Constitution gives a definition of an office wlien in article 2, section 18, it says: “That no person elected or appointed to any office or employment of trust or profit under the laws of this State or any ordinance of any municipality in this State shall hold such office without personally devoting his time to the performance of the duties to the same belonging.” Beyond all peradventure of doubt the words “office” and “employment of…

Louis City Circuit Court. — Hon. Selden P. Spencer, Judge. (1) No judgment should have been given upon the amounts of the two notes signed by Abbey and A. McAllister, jointly. No reference having been made to them in the pleadings, nor were the same filed before or since the institution of the cause, no jurisdiction maintained, so far as those two items were concerned. G. S., secs. 642, 643, page 260; Olin v. Zeigler, 46 Mo. App. 196.

Louis City Circuit Court-. — Hon. John A. Tatty, Judge. STATEMENT OR THE CASE.

Louis City Circuit Court. — lion. John A. Tatty, Judge STATEMENT OF THE CASE.

— Hon. N. M. Shelton, Judge. (1) Defendant in justice court is not required to plead unless counterclaim is relied on. Sec. 3852, R. S. 1899. (2) A counterclaim is a cause of action and must allege facts which would be legally sufficient to entitle defendant to recover in an action instituted by him against the plaintiff. 19 Am.' and Eng. Ency. Pled, and Prac., 753, 754; McPherson v. Meek, 30 Mo. 345; 22 Am. and Eng. Ency. Law (1 Ed.), 371.

— Hon. P. C. Stepp, Judge. (1) The transcript of a justice of the peace must show affirmatively all jurisdictional facts. No presumptions or intendments exist in their favor as in courts of record. Allen v. Scharringhausen, 8 Mo. App. 229; Gideon v. Hughes, 21 Mo. App. 528; Porter v. Railroad, 66 Mo. App. 623; Hansberger v. Railroad, 43 Mo. 196; McCloon v. Beattie, 46 Mo. 391.

— Hon. P. 0. Stepp, Judge. (1) Both, plaintiff and defendant were residents of Harrison county, and the land of plaintiff, which he sought to drain, and which constituted a part of the subject matter of the action, was situated in Harrison county. It follows that a justice of the peace of Grundy county would have no jurisdiction of the action, both because of the residence of the parties, and because of the fact that part of the land involved was without his jurisdiction.

— Hon. A. M. Woodson. Judge. (1) To give tbe city tbe right to have a eo-defendant joined with it under section 5723, sucb co-defendant must be liable to an action by tbe party injured. (2) Tbe city having absolute control of its streets, was alone responsible for tbe condition of tbe work, and whatever may have been tbe rights of the city with reference to requiring tbe water company to make a change, the plaintiff bad no interest in them.

— Hon. A. M. Wood-son., Judge. (1) Before a court is authorized to give a peremptory instruction to the jury, it must appear, that conceding the truth of all the evidence admitted or wrongly excluded favoring the contention of the party demanding submission of the ease to the jury and giving such party the benefit of every seasonable inference to be deduced therefrom, still all fair minds would find that the fact necessary to be shown is not established.

<p>Appeal from Caldwell Oircuit Court. — Son. E. J. Broaddus, Judge.</p>

— Hon. E. J. Broaddus, Judge. (1) The court should have given defendant’s refused' instructions numbered 1, 2, 3, 4 and 6, as submitting defendants’ theory of the case to the jury, i. e., that there was no warranty and that nothing more than a mere expression of opinion was intended or is shown by the testimony. May v. Crawford, 150 Mo. 504; Anthony v. Potts, 63 Mo. App. 517; Ransberger v. Ing, 55 Mo.

— Mon. E. J. BroadduSj Judge. (1) By tbe Bankruptcy Act of 1898, section 70, it is provided that tbe title to all of tbe bankrupt’s estate, botb real, personal and mixed, of every kind and nature, shall vest in tbe trustee of tbe bankrupt, by operation of law, except tbe property exempt by tbe statutes of tbe State. Section 70 of tbe Bankruptcy Laws of 1898.

— Hon. E. J. Broaddus, Judge. (1) The application, policy, constitution .and by-laws thereto attached, make the contract between the parties. ByLaws, sec. 10; Joyce on Insurance sec. 146, P. 204; Schwartz v. Ins. Co., 18 Minn. 448; Baldwin v. Ins. Co., 56 Mo. 151; State v. Farmers Ass’n, 18 Neb. 276. (2) The acceptance and approval of the application by the secretary of defendant made a contract of insurance.

Error from Livingston Circuit Court. — Hon. E. J. Broaddus, Judge. (1) Grady was a general agent with full powers, and yet with secret instructions, and therefore was fully authorized to waive forfeiture. Hamilton v. Ins. Co., 94 Mo. 354; Burnham v. Ins. Co., 56 Mo. App. 582; Ins. Co. v. Ins. Co., 62 Mo. 293.

— Hon. Jno. A. Hoclcaday, Judge. (1) The jurisdiction and power of courts of equity-to reform and correct written instruments on the grounds of fraud, mistake, or the omission of material facts, is unquestioned. Parker v. Vanhoozer, 142 Mo. 627; 15 American and English Encyclopedia of Law, 626, and cases there cited.

— Hon. Jno. A. Hoclcaday/ Judge. (1) W. A. Hume was incompetent to' testify to any contract or agreement made between Lafayette Hume and Ruben Warfield; as… Held: in cases deciding an analogous question, that where no other evidence is obtainable and her silence would give the other side an unconscionable advantage, the wife may testify for her husband on the ground of necessity. Henry v. Sneed, 99 Mo. 407; Moeckel v. Heim, 134 Mo. 576; Mathias v. O’Neill, 94 Mo. 520.

— Hon. H. Lander, Special Judge. (1) “The three-dollar monthly payments [made to the St. Louis Loan and Investment Co., and to the Aetna Loan Oo.] were not payments on the loan. They were payments on the stock, but the value of the stock held by the borrower may be applied in satisfaction of the sum loaned.” The above is a quotation from the opinion rendered by this court in this case on the former appeal.

James E. Hazel\ Judge. (1) Tbe court erred in overruling defendant’s motion to dismiss tbis cause, and in permitting tbe plaintiff to file an amended affidavit for an appeal after defendant’s motion to dismiss bad been by tbe court determined. Sec. 4062, R. S. 1899; Sec. 4072, R. S. 1899; Spencer v. Beasley, 48 Mo. App. 97; Wbitebead v. Cole & Rodgers, 49 Mo. App. 428; Devore v. StaecMer, 49 Mo. App. 547; Kelm v. HunHer, 49 Mo.

T. B. Robinson, J udge. (1) No notice given to the parties in interest that an order of distribution would be made and none of the parties in interest applied for such distribution. Parties interested must be notified before final order of distribution is made. Sec. 243 and 244, R. S. 1899; Woemer on Administration, p. 1229.

— Hon. Wm. L. Jarrott, Judge. (1) When anything remains to be done, no title passes, and replevin will not lie. Lingham v. Eggleston, 27 Mich. 329; 1 Benjamin on Sales, see. 417, p. 391; Tiffany on Sales, pp. 83, 87 and 88; Tiedeman on Sales, secs. 87, 207 and 208; Locke v. Express Co., 71 Mich. 263; Lovelace v. Stewart, 23 Mo. 386; Kirby v. Johnson, 22 Mo. 361; 21 Am. and Eng.

<p>Attachment: SHERIFF TURNING OVER PROCEEDS OF SALE TO SUCCESSOR: NOTICE: RECEIVER: STATUTE. Under the statute, a sheriff who has sold the attached goods may, under order of the judge in vacation, turn over the money to his successor in office and a second attaching creditor is not entitled to notice of the application for Such order, and the provisions of the statute relating to the appointment of a receiver and the sheriff acting as receiver, etc., have no application to such proceeding.</p>

— Eon. J. D. Perkins, Judge. (1) Plaintiff’s instruction No. 1 is erroneous, in that it requires defendant to make the mouth of its shaft reasonably safe, when its duty was only to exercise ordinary and reasonable care to do this. Bradley v. Railroad, 138- Mo. 293; Higgins v. Railroad, 43 Mo. App. 547; Blanton v. Dold, 109 Mo. 64; Eriel v. Railroad, 115 Mo. 503; Bohn v. Railroad, 106 Mo. 429; Beming v. Medart, 56 Mo. App. 443; Gormully & Jeffrey Mfg. Co. v. Olson, 72 Ill.

H. 0. Timmonds, Judge. (1) The service of the offer of judgment in this case was sufficient to entitle the defendant to have the costs adjudged against the plaintiff. It was sufficient to serve it upon plaintiff’s attorney in charge of the case who communicated the offer to the plaintiff himself, thus enabling him to determine whether be would accept or not. E. S. 1899, secs. 751, 586, 590; Mann v. Warner, 22 Mo.

— Hon. H. P. Oates, Judge. (1) Defendant’s refused instructions, Nos. 11 and 14, ought to have been given, and all the instructions given on behalf of plaintiff, which permitted the jury to allow her damages for the loss of her limb, ought to have been refused.

— FI on. IE. J. Broaddus, Judge. (1) To entitle plaintiff to a money judgment, it is necessary to allege that plaintiff demanded of defendant company to lay an assessment and that defendant company refused, or-that assessment had been levied and defendant refused to pay over the same or that the money was on hand and defendant refused to pay. Por want of such allegation plaintiff did not state a cause of action. Taylor v. Nat. Temp.

— Him P. 0. Stepp, Judge. (1) An agister had no lien at common law, and the statute creating it (sec. 4228, R. S. 1899) being in derogation of common law, must be strictly construed. Stone v. Kelley, 59 Mo. App. 214; Baskin v. Wayne, 62 Mo. App. 515; Miller v. Crabbe, 66 Mo. App. 660. Liens, therefore, created by statute, can not be extended by estoppel. Gile v. Atkins, 14 Am. St. Rep. 341.

— Son: E. P. Gates, Judge. (1) It was the duty of the master to furnish what was reasonably required. Whether he failed in this was for the jury to say. Herdler v. Buck Stove Co., 136 Mo. 15; Bencler v. Railroad, 137 Mo. 244; Stoddard v. Railroad, 65 Mo. 520; Conroy v. Iron Works, 62 Mo. 35 ; Warner v. Railroad, 62 Mo. App. 188.

— Hon. Devoid H. Fby, Judge. If A is surety for B on a note for $1,000, and pays $100 on the note he has an immediate right of action against B to recover the $100, even though the common creditor may still hold his note against both for a balance of $900. It would not be necessary for A, in order to entitle him to recover the $100 from B, to do more than to prove that he paid as B’s surety, $100 on a note.

— Hon. E. B. McKee, Judge. (1) It is the contract of sale which passes the title, and not the payment of the purchase price or the delivery of the goods. Penn v. Hess, 17 L. R. A. 176; Connable v. Clark, 26 Mo. App. 162. (2) The title to unspecified goods sold, passes at the very instant the goods are designated under the terms of the contract. Andrews v. Cheney, 62 N. IT. 404; Bank v. Bangs, 102 Mass. 291; Black on Sales, 122, 127; Benjamin on Sales, p. 358.

— Hon. D. H. Bby, Judge. (1) The evidence indubitably proves that Willis M. Baxter was a citizen of Hannibal, Missouri, the head of a family, that he had… Held: under the present practice act, that where the court trying the issues of fact sits as a jury and gives a general verdict, the only way in which errors can be corrected if the court decides erroneously, or makes, a misapplication of the facts under the law, is to ask instructions. Riffe v. Railroad, 72 Mo. App. 222.

— lion. Elliott M. Hughes, Judge. The application for new trial on the ground of newly-discovered evidence should have been sustained. To sustain such application it should appear that the evidence is newly discovered, not cumulative, such as to render a different result probable on a re-trial. .Haynes New Trials, sec. 88; Graham & Waterman, New Trials, 462.

— Hon. Edwin R. McKee, Judge. (1) Tbe cause of action stated in plaintiff’s second amended petition is a departure from tbe cause of action stated in the original petition, and the court erred in overruling defendant’s motion to strike out such amended pleading. A petition can not be amended, over the objection of defendant, by the substitution of a different cause of action from that stated in the original petition.

- — Hon. Bdwin B. McKee, Judge. (1) The courts of this State have, from the beginning, repeatedly decided that an owner of land can not collect surface water into an artificial channel, and then cast it upon the land of his neighbor. Benson v. Railroad, 18 Mo. 5Ó4; Rychlicki v. St. Louis, 98 Mo. 497; Paddock v. Somes, 102 Mo. 226; Byrne v. Railroad, 47 Mo. App. 383; Payne v. Railroad, 112 Mo. 6; McCormick v. Railroad, 70 Mo. 359.

— Hon. David H. Hbyt. Judge. ' (1) Where the plaintiff has an adequate, available and complete remedy at law, a court of equity will not entertain jurisdiction, unless the matter in controversy comes peculiarly under some head of equitable cognizance. Cabanana v. Lisa, 1 Mo. 682; Janey v. Spedden, 38 Mo. 395; Pratt v. Clark, 57 Mo. 189; Mingle v. Pollack, 49 Mo. App. 479.

— Hon. Elliott M. Hughes, Judge. (1) Tbe account filed with tbe justice W. B. Mclntire in tbe case of Reid, Murdock & Co. v. E. Mercurio, was not sufficient to give said justice jurisdiction, and tbe judgment rendered tbereon was and is void. Swartz v. Nicholson, 65 Mo. 508; Brasbears v. Strocb et al., 46 Mo. 221; Pattison v. Lutz, 1 Mo. App. 133 ; Nutter v. Houston, 32 Mo. App. 451; Butts v. Pbelps, 19 Mo. 302; Rosenburg v. Boyd, 14 Mo. App. 429.