Volume 93 — Missouri Appeal Reports

— Son. David S. Dby, Judge. (1) The first count of the petition alleges the cause of the frightening of the horses, the escape of steam. The second count alleges as the cause of the injury the failure to blow the whistle or ring the bell. Proof of one would disprove the other. These counts are, therefore, fatally inconsistent and it was error to enter a general judgment as it is impossible to tell which count the court found to be true.

Louis City Circuit Court. — Hon. Walter B. Douglas, Judge. (1) It is error on the part of the trial court to submit to the jury an issue of fact, concerning which no allegation was made in the pleadings; the trial issues must be within the paper issues. Ferguson v. Thornton, 68 Mo. 468; Kennedy v. Railroad, 70 Mo. 252; Melvin v. Railroad, 89 Mo. 106. No damages can be allowed for future suffering, except such as are shown by the proof to be certain.

— Hon. Henry 0. Pepper, Judge. (1) If the defendants had filed a general denial, supported by affidavit, instead of admitting the execution of the contract, they could not have given-evidence of its subsequent alteration because not pleaded.

<p>1. Police Judge: RECOGNIZANCE: APPEAL. In all cases before a police judge arising under the ordinances of a qity, when an appeal is taken from the judgment of the police judge to the court having criminal jurisdiction, the only recognizance the police judge is authorized to take is one to the effect that the defendant shall appear in the appellate court, obey every order that shall be made in the premises, and not depart without leave of court. And the conditions in a recognizance that defendant should pay any judgment that might be rendered against him, enlarges the conditions of the recognizance beyond those required by the statute, and should be -treated as mere surplusage. They are not binding on the sureties, and a judgment rendered on them is absolutely void.</p> <p>2. Injunction: VOID JUDGMENT: EXECUTION. An injunction will not lie to enjoin an execution issued on a void judgment.</p>

<p>1. Pleading and Practice: PETITION: ANSWER. ■ The filing of an answer is a waiver of all former objections to a petition which have been raised by demurrer.</p> <p>2. Petition: EIRE INSURANCE POLICY, ALLEGATIONS OE. Where a petition on a fire insurance policy described the house insured and destroyed by fire as his (plaintiff’s) house the only rational inference that, can be drawn from this allegation is that respondent was the owner of the house and claimed title to it.</p> <p>3. -: -: DEFINITION. The plain and ordinary meaning of the expression “his house” is that the one referred to is the owner of the house.</p> <p>4. Pleading: PRACTICE TRIAL. In the interest of substantial justice, the settled rule of practice, is to give a petition every reasonable inference that can be drawn in support of the judgment after verdict.</p>

— lion. H. G. Pepper, Judge. .(1) Defendant’s motion to set aside plaintiffs’ original judgment procured in August, 1896, was passed on at the next term,-the substance of said motion was that service was not had on defendant thirty days before the first day of the said August term of said court, and that plaintiffs’ action was not such an action as was triable on fifteen days’ notice, and, therefore, plaintiffs were not entitled to final judgment until the February term,…

— Hon. J ames T. Neville, Judge. (1) The petition sufficiently sets out an itemized account of plaintiffs claims fully showing the character of work, time employed, when the work was done, the contract price per day, together with all credits and amount due. Girl’s Industrial Home v. Eritchey, 10 Mo. App. 344; McDermott v. Claas, 104 Mo. 14. (2) The petition fully alleges all that is necessary to enforce a mechanic’s lien against defendant L. S. Bus-sell’s land.

— Eon. W. N. Evans, Judge. The- deed from John A. Rice and wife to “Ames Iron Works” was void for 'uncertainty and indefiniteness of tbe .grantee and was not admissible in evidence. Its admission ■was error. In this connection we refer to tbe opinion of this ■ court in this case on the former appeal. Riffel v. Ozark Land & Lumber Company, 81 Mo. App. 111. See, also, tbe following authorities: Arthur v. Weston, 22 Mo. 378; Lumber Company v. Oliver, 65 Mo.

Louis City Circuit Court. — Hon. Franklin ' Ferris, Judge. (1) There was no evidence whatever of any negligence on the part of the defendants. The law-is well settled that where a master is engaged in erecting a structure of any kind the law does not impose upon him the duty of keeping the structure in a safe condition at every moment of the work, so far as its safety depends upon the due performance of that work by his employees.

— Hon. L. B. Woodside, Judge. (1) There can be no interplea in case of a garnishment under execution. Wimer v. Pritchartt, 16 Mo. 252; Straus v. Eothan, 41 Mo. App. 610. The defendant in an execution can not interplead for property or money • garnished thereunder. He must make his claim to the officer serving the execution. E. S. 1899, sec. 3163; State ex rel. v. Barada, 57 Mo. 567; Link v. Troll, 84 Mo. App. 56; State ex rel. v. O’Neill, 78 Mo. App. 20.

— Hon. James J. Gideon, Judge. (1) The city of Springfield, as a city of the third class, has the power under its charter to enact and enforce the ordinance in question in this suit. See. 5834, R. S. 1899. St. Louis v. Sehoenbusch, 95 Mo. 618; St. Joseph v. Levin, 128 Mo. 588; Coal Co. v. City of St. Louis, 130 Mo. 323. (2) The provision in said ordinance requiring the payment of a reasonable fee to the inspector by persons having weights and measures inspected, is lawful.

— Hon. Henry 0. Riley, Judge. (1) This case turns upon the terms and character of the contract, which the court erroneously submitted to the jury. Contracts must be construed by the court.- Gas Light Co. v. Ins. Co., 33 Mo. App. 348. (2) Suicide is no defense to a. straight, life policy. R. S. 1899, sec. 7896. (3) Suicide is no defense to an assessment policy, since the amendment of 1897, page 129. Logan v. Fidelity Co., 146 Mo. 114; Toomey v. K. P., 147 Mo. 129.

Louis City Circuit Court. — Hon. Wm. Zachritz, Judge. (1) The motion for new trial does not complain of the verdict on the ground of “erroneous instructions.” Therefore, the act of the trial court in setting aside the verdict and granting a new trial, while actually predicated on plaintiff’s motion, can be justified only in the exercise of that power vested in the judge by section 801 of the Revised Statutes of 1899, in case where the jury “shall have erred in matters of…

Louis City Circuit Court. — Hon. John A. Talty, Judge. (1) There should have been a decree for the plaintiff, and the court erred in dismissing the bill of plaintiff for a divorce. (2) The plaintiff fulfilled the requirements of the law, having shown a cessation of cohabitation for one year, and defendant’s intention to leave plaintiff.

— Hon. J. L. Fori, Judge. The third instruction in the following language should have been given: “The jury are instructed that if they find from the evidence in this case, that plaintiff agreed to dig a well for defendant, and that plaintiff was to dig until said well furnished water reasonably sufficient for all ordinary use and purposes, satisfactory to defendant, and that plaintiff refused to perform his agreement, and abandoned said contract, then your verdict must be…

— Hon. W. N. Fvanst Judge. (1) The court erred in giving plaintiff’s first instruction. It ignores entirely all the defenses raised by the answer. The question whether or not insured overvalued the house in the application, was for the jury; and if he did, plaintiffs can not recover. School District v. Ins. Co., 61 Mo. App. 597; Catron v. Ins. Co., 6 Humphreys 176;' 2 Bennett Eire Ins. Cases, 427.

— Hon. J. D. Perkms Judge. Neither Patton, by virtue of his position as manager, nor Dodge by virtue of his position as vice-president of the company, were authorized tjo employ brokers to sell the mine which was the entire property of the corporation. Hyde v. Larkin, 35 Mo. App. 365; Winsor v. Bank, 18 Mo. App. 665; Barcus v. Railroad, 26 Mo. 102; State ex rel. v. Lockett, 54 Mo. App. 202; Hill v. Mining Co., 119 Mo. 9; State ex rel. v. Wray, 55 Mo. App. 646.

— Hon. J. H. Slover, Judge. (1) The mortgage does not sufficiently or truly describe or locate the cattle appellant is sued for. (2) The note and the mortgage on which plaintiff relies are non-negotiable. (3) The mortgage authorized Noble to sell the mortgaged property, and it makes him the mortgagee’s agent to do so, and the proof shows that it was his habit, known to the mortgagee, to do so.

— Hon. E. P. Qaies, Judge. (1) The petition does not state facts sufficient to constitute a cause of action. Bank v. Milling & Land Company, 152 Mo. 157. (2) The petition must state ownership at time of conversion. 31 Minn. 119; 3 Barber 304. (3) The petition does not state that plaintiff was entitled to the immediate possession. 4 Howard Practice 117; 8 Oregon 35. (4) The value of the debt converted should be alleged, giving the specific amount. 31 Arkansas 286.

— Hon. E. P. Gates, Judge. There can be no question that the plaintiff is entitled to recover at least the amount of the judgment and costs which it paid with interest. Eobbins v. Chicago, 4 Wall 657, 663; *0. & O. 0. Co. v. Com’rs of Allegany Co., 57 Md. 201, 206; District of Columbia v. Eailroad, 1 Mackey 314, 329; West-field v. Mayo, 122 Mass. 100, 102: Veazie v. Eailroad, 49 .Me. 119, 127.

— Hon. Jno. W. Henry, Judge. (1) It has been held, and the correctness of the -rule can not be controverted, that a verdict should not be reached by mere guesswork or conjecture. Held: and the correctness of the -rule can not be controverted, that a verdict should not be reached by mere guesswork or conjecture. Moore v. Railroad, 28 Mo. App. 622; Railroad v. Shertle, 97 Pa. St. 450.

— Hon. Edward Scarriit, Judge. Instruction No. 9 asked for by defendant was proper and the modification thereof error.

— Hon. Jas. H. Blover, Judge. STATEMENT OE THE CASE. Plaintiff was employed by defendants in t-beir rock quarry. He began work two or three weeks prior to August 11, 1898. On the day that he began work, he noticed that the handles of the mauls were splintered and defective, one of them being split some eight or ten inches from the eye of the sledge towards the end of the handle. He called the attention of the foreman to their condition.

— lion. Jno. W. Henry, J udge. (1) “The rule is well settled that-where counsel have attempted to make a case in their argument, which the law would not allow them to make in their tenders of evidence, such conduct, if objected to and allowed to go unrebuked, constitutes a valid ground for the reversal of the judgment.” Churchman v. Kansas City, 49 Mo. App: 366; Gibson v. Zeibig, 24 Mo. App. 65; Evans v. Town of Trenton, 112 Mo. 390.

— Hon. Jas. H. Blover, Judge. (1) Plaintiffs’ damages, if any, should have been confined to injuries to the land. Davis v. Railroad, 119 Mo. 188; Clinkenbeard v. St. Joseph, 122 Mo. 613; Hulett v. Railroad, 80 Mo'. App. 87. (2) It is the duty of one sustaining damages by reason of the act of another to use all reasonable exertion to protect himself and avert as far as practicable the injurious consequences of such acts.

— Son. J. S. Slover, Judge. (1) The language of the paragraph in the statute defining the fourteenth ground of attachment is specific in its terms and can not be enlarged beyond its terms. It is “where the debt sued for was fraudulently contracted on the part of the debtor.” Three elements are essential: 1. There must be a debt. 2. It must have been contracted. 3.

— Hon. J. H. Slower, Judge. (1) The motion of defendant to strike out the last amended petition of plaintiff should have been sustained. Burnham v. Tilley, 85 Mo. App. 457; Scovill v. Glasner, 79 Mo. 449; Hernán v. Glann, 129 Mo. 325, 335; Liese v. Meyer, 143 Mo. 547, 556; Griswold v. Walker, 66 Mo.

<p>Appeal from Jackson Circuit Court. — Hon. Jas. H. Blover, Judge.</p> <p>(1) Tbe alleged contract is within the provisions of section 3418, Revised Statutes 1899. 8 American and Eng. Ency. of Law, p. 675, and cases cited. Kirkham v. Master, 2 Barn. & Aid. 613 ; Turner v. Hubbell, 2 Day (Conn.) 457; Musick v. Musick, 7 Mo. 495; Ackley v. Parmenter, 98 N. T. 425; Rintoul v. White, 15 N. E. R. 321; 1 Reed Statute of Frauds, sec. 38;, Watson v. Randal, 20 Wend. 201; Nelson v. Boynton, 3 Met. 396; Robinson v. Gilman, 43 N. H. 491, and cases cited; Mallory v. Gillert, 21 N. T. 412; Gump v. Halberstadt, 15 Pac. 467; Stewart v. Campbell, 58 Me. 439; Hilton v. Dinsmore, 21 Me. 410; Martin v. Black, 20 Ala. 309; Harrington v. Rich, 6 Vt. 666; Smith et al. v. Easton, 54 Md. 139. (2) The contract set forth in the petition was ultra vires the corporation, because beyond the charter powers of the defendant. 4 Thompson’s Commentaries on Law of Corporations, sec. 5721; Bigelow on Estoppel (5 Ed.), 466 and 467; State ex rel. v. Murphy, 134 Mo. 567; Railroad v. Railroad, 101 U. S. 86; Central Transp. Co. v. Pullman Palace Car Co., 139 H. S. 24; Lucas Cashier v. Transfer Co., 70 Iowa 341; Rees Ultra Vires, secs. 46-72; Nat’l Home Bldg. Assn. v. Home Savings Bank, 49 Cent. Law Journal, 365; Bowen v. Bank, 94 Eed. Rep. 925. (3) There was no evidence showing authority in J. K. Johnson to make such a contract. There was no authority unless there was an implied authority from his position as superintendent of defendant. This is not sufficient. Brick Co. v. Schoeneich, 65 Mo; App. 228; 1 Morawetz on Private Corporations, secs. 423 and 499; Jones v. Morrison, 31 Minn. 140; Martin v. Black, supra; Pickering v. Stephenson, L. R. 14 Eq. 322; Lucas v. Transfer Co., supra; Bank v. Bank, 17 Mass. 28; Bank v. Johnson, 24 Me. 499; St. James Church v. Church, 45 Barb; 356; Hazard v. Durant, 11 R. I. 196; Hall v. Auburn Turnpike Co., 27 Calif. 256; Downing v. Railroad, 40 N. H. 235 ; McLellan v. Detroit Pile Works, 56 Mich. 579; Dodson v. Moore, 164 111. 110. (4) There was no consideration for the alleged contract: Eirst. Because the undisputed testimony showed he never had a cause of action to release,- and the court in effect so instructed the jury. 6 Am. and Eng. Ency. Law (.2 Ed.), 742, and cases cited; Smith v. Easton, 54 Md., supra; 1 Parsons on Contracts (7 Ed.), p. 441 at top, and’p. 470 at bottom; Chitty on Contracts (7 Ed.), 35-46; Hursh v. Byers, 29 Mo. 469; Paltrey v. Railroad, 4 Allen (Mass.) 55; Long v. Towl, 42 Mo. 548; Rintoul v. White, 108 N. V. 222; Clapp v. Webb, 52 Wis. 638, 9 N. W. R. 796; Ruppe v. Peterson, 67 Mich. 437, 35 N. W. R. 82; Curtis v. Brown, 5 Cush. 491; Eulon v. Adams, 37 Vt. 401; Lawson on Contracts, see. 39, and cases cited note 3; Appeal of Lukens (Pa.), 13 L. R. A. 581, 22 Atl. R. 892; Gould v. Armstrong, 2 Hall 266; Moon v. Martin, 122 Ind. 211, 23 N. E. R. 668; Gumming' v. Royal, 59 Miss. 45; Bank v. ■Concord, 15 N. H. 124; Cline v. Templeton, 78 Ky. 550; Smith v. Easton, supra; Palfrey v. Railroad, 4 Allen (Mass.) 55; O. etc. Ty. Co. v. Potter, 5 Ore. 228-232; Railroad v. Morley, 45 Mo. App. 304.</p> <p>(1) The statute of frauds is no defense whatever. Marks v. Davis, 72 Mo. App. 577; Bless v. Jenkins, 129 Mo. '647; Nowack v. Berger, 133 Mo. 24, 42; Self v. Cordell, 45 Mo. 345; Carney v. Carney, 95 Mo. 355. (2) The point that the plaintiff can not recover because the contract was ultra vires the corporation, can -not be sustained, and it is unnecessary to go out of the State of Missouri on this proposition also. Farmers Bank v. McCabe, 73 Mo. App. 551; Smith v. Richardson, 77 Mo. App. 422; City v. Bank, 74 Mo. App. 365; Insurance v. Meese, 49 Neb. 861; Hill v. Coal Co., 119 Mo. 31; Drug Co. v. Robinson, 81 Mo. 18, 26; Welch v. Brewing Co., 47 Mo. App. 608; Glass v. Brewing Co., 47 Mo. App. 039; Belcher v. Elevator Co., 101 Mo. 192; St. Louis v. Gas Co., 70 Mo. 69; Smith v. Bank, 45 Neb. 444; Ehrhardt v. Robertson Bros., 78 Mo. App. 404; Gorder v. Plattsmouth, 36 Neb. 548. (3) The statute disposes of the question of implied authority. R. S. 1899, sec. 974. But the authorities in this State amply sustain the proposition that Johnson, under the evidence, had authority to make the contract in question. State ex rel. v. Railroad, 149 Mo. 104; Bank v. Hill',-148 Mo. 389 ; Preston v. Lead Co., 51 Mo. 43; Holmes v. Board of Trade, 81 Mo. 137; Winsor v. Bank, 18 Mo. App. 665; Bank v. Coal Co., 86 Mo. 138; 52 Mo. 492; Sparks v. Transfer Co., 104 Mo. 539, 540. (4) On the question of the consideration it is sufficient if the plaintiff has accepted it and relied upon it and did not bring his action against the Missouri Pacific Railway Co., in pursuance of the contract made with the defendant, and it is enough that relying upon it, he should have lost his right to maintain an action against the Missouri Pacific Eailway Co., and he did lose it and the statute of limitations has now run against his right to maintain any action against them. This alone is sufficient consideration. Adams v. Huggins, 78 Mo. App. 219; Mascólo v. Montesanto, 61 Conn. 50; Hammond v. Cook, 25 Vermont 295; Cross v. Eiehardson, 30 Vermont 641; Lemaster v. Burkhardt, 5 By. 30; Han-somber y. Mulphren, '90 Hun. 589; Mulanphy v. Eiley, 10 Mo. 489; Eussell v. Daniels, 37 Pac. 726; Doan y. Dow, 35 N. O. 709; Dry Goods Co. v. Goss, 65 Mo. App. 55; Magoffin v. Eailroad, 102 Mo. 540; Mellor v. Eailroad, 105 Mo. 455; Jones y. Eailroad, 125 Mo. 666; Hipsley v. Eailroad, 88 Mo. 348.</p>

— Son. E. L. Scarritt, Judge. (1) Instructiqn No. 4, asked by appellant, should have been given, because the testimony clearly showed that as between appellant and respondent’s assignor, appellant was always the owner of the notes, and therefore had the right to apply the proceeds of the collateral to the payment of the balance due her from the assignor on account.

— Hon. Jno. W. Henry, . Judge. (1) Plaintiff contends that when tbe trial court set-aside the verdict of the jury, because “the evidence adduced in the case did not support the verdict,” the court in effect said: “A demurrer to the evidence should have been sustained.” In that event it is the proper practice for this court to pas* upon the propriety of said ruling. Eránk Lee v. Kansas City Gas Company, 91 Mo. App. 612.

— Hon. Jno. W. Wofford, Judge. (1) Plaintiff contends that under its charter, subdivision 10, article 3, page 15, it has specific authority to tax the wagon in question. (2) This tax may be upheld either as an occupation tax or street usage tax. St. Louis v. Weitzel, 130 Mo. 619; St. Louis v. Bowler, 94 Mo. 630; St. Louis v. Green, 7 Mo. App. 498.

— Hon. Jno. W. Henry, Judge. (1) The verdict is so opposed to the great preponderance of the evidence, and so against the manifest truth of the matter, as to make it perfectly apparent that it was the result of sympathy for the plaintiff and prejudice against the defendant, and not the result of a reasonable and fair consideration of the evidence in the ease, and, therefore, the judgment of the trial court should be reversed. Eriesz v. Eallon, 24 Mo.

— Eon. J. D. Perkins, Judge. (1) Tbe ore was the absolute property of Erank J. Mackay, the owner of the land. B. S. 1899, sec. 8770; Empire Zinc Co. v. Ereeman, 75 Mo. App. 524.

— Son. J. D. Perkins, Judge. (1) “Eive hundred dollars out of first six months’ profits of this lease,” means out of profits for first six months. This is the plain and ordinary meaning of the words, and the court should give the words such meaning. Rubey v. Mining Co., 21 Mo. App. 159; Weil v. Schwartz, 21 Mo. App. 372; Lovelace v. Traveler’s & Co., 126 Mo. 101; Goode v. City, 113 Mo. 257.

— Hon. H. C. Timmonds, Judge. (1) The court committed error in permitting defendant’s witness Bid Evans to testify to the contents of the note or letter, mentioned in the abstract of the testimony, for the reasons that it is not shown by the evidence: Eirst. That the pretended note was in Zollman’s handwriting. Second. That Zollman signed, authorized, or in any manner executed any such note at any time. Third. That Zollman ever at any time delivered any such note to any one.

— Hon. H. 0. Timmonds, Judge. (1) Evidence of the statements, admissions and declarations of a party regarding his own agency, or authority, made out of the presence of the person for whom he assumes to act, is incompetent for the purpose of showing agency, or the scope of an agent’s authority: Murphey v. Ins. Co., 83 Mo. App. 481; Bank v. Morris, 125 Mo. 343; Bank v. Leyser, 116 Mo. 51; Mitchum v. Dunlap, 98 Mo. 418; St. Joe Iron Co. v. Halverson & Co., 48 Mo.

— Hon. W. W. Graves, Judge. (1) This controversy over the proceeds of the sale of the thirty-three cattle sold to Duke & Lennon, plaintiffs, is between the defendants, W. H. H. Duke and E. M. Woods on the one side; and the Boston-Kansas City Cattle Loan Company on the other side. Duke and Woods base their title solely on a sale under the proceedings to enforce an agister’s lien. The action to enforce this lien was against H. G. Cherry, only.

— Hon. W. W. Heaves, Judge. (1) The plaintiff and defendant could not make any contract binding upon the defendant by which plaintiff should be employed to teach, unless at the time said contract was made plaintiff held a certificate which authorized her to teach in defendant’s school at the time of the opening thereof. E. S. 1889, secs. 8021 and 8022.

— Hon. B. P. Gates, Judge. Coombs and White signed their names upon the back of the note after it had been executed and delivered by the maker to the payee; by reason of these facts the defendants were not co-makers as alleged by plaintiff, but guarantors, and they could not be sued in the same suit with the maker or indorsers. This is the- law. Stagg v. Linnenfelser, 59 Mo. 336; Burnham v. Gosnell, 47 Mo. App. 637; Adams v. Huggins, 73 Mo.

— Ron. W. W. Graves, Judge. (1) It is respectfully submitted that even if plaintiff was a regular passenger, and not simply riding upon a free pass, that defendant’s servants were not guilty of the slightest negligence, but rendered her greater assistance than that required by the law under such circumstances. Yarnell v. Railroad, 113 Mo. 576, and cases cited; Hurt v. Railroad, 94 Mo. 262; Deming v. Railroad, 80 Mo. App. 156, and cases cited; Holt v. Railroad, 84 Mo.

<p>1. Deeds: CONTINGENT REMAINDER: WASTE: LAW: EQUITY. A deed conveyed lands to the grantee for her natural life with remainder to such of her children or grandchildren as by her will she should appoint. Held, the power of appointment did not enlarge her life estate and her children can not recover of her alienee damages for waste during her life, though in equity they might prevent future waste.</p> <p>2. -: CONSTRUCTION: CONTINGENT REMAINDER. An estate which is limited to take effect either to a dubious and uncertain person or upon a dubious and uncertain event, is contingent and a contingent remainder is not an estate in land since it is merely the chance of having such estate.</p>

— Hon. John P. Butter, Judge. (1) The court erred in permitting plaintiff White to testify to conversations between himself and Cunning, and to his understanding from what Cunning said, and that it was a mistake on his part, and that it was not his intention to deceive defendant.

<p>Appeal from Barton Circuit Court. — Son. W. W. Graves, Special Judge.</p> <p>(1) . Return of process is part of record. Estes v. Cook, 12 R. I. 6. (2) Amendments should not be allowed when injustice is more likely to be done. Thompson v. McHenry, 18 Ark. 53Y; Elint v. Phipps, 20 Oreg. 340; Williams v. Sharp, YO N. C. 582; See v. Bobst, 9 Mo. 28. Or takes away a defense. Henderson v. Graham, 84* N. C. 496; Phillips v. Holland, Y8 N. C. 31. (3) The court certainly abused its discretion in permitting the ex-sheriff to make a return of substituted service in place of his return of personal service, when such change is based upon the memory only of the ex-sheriff. Scruggs v. Scruggs, 46 Mo. 2Y3; Grocer Co. v. Carlson, 67 Mo. App. 179; Brecht v. Corby, 7 Mo. App. 300; Eogg v. Bowman, 5 Mo. App. 579; Hovey v. Wait, 17 Pick. 196; Haven v. Snow, 14 Pick. 28; Corthell v. Egery, 74 Me. 44; Currier v. Bartlett, 122 Mass. 133; Thatcher v. Miller, 13 Mass. 270; Dobyns v. United States, 3 Cranch Supt. Ct. United States, 242. (4) An officer’s return being a part of record, any amendment thereof partakes of the nature of a nunc pro tunc entry and should be made only on similar proof. Nunc pro tunc entries can only be made when the record shows the facts authorizing them — never upon parol testimony. Saxton v. Smith, 50 Mo. 490; Priest v. McMaster, 52 Mo. 60; Dunn v. Raley, 58 Mo. 136; Mc-Gonigle v. Bresnen, 44 Mo. App. 425; Railroad v. Holschlag, 144 Mo. 253; Williams v. Walton, 84 Mo. App. 436; Page v. Chapin, 80 Mo. App. 159.</p> <p>(1) The amendment of a sheriff’s return is not governed by the same character of evidence that nunc pro1 tunc entries of courts are governed. The rule applicable to entry of nunc pro tunc judgments has no application to returns made by ministerial officers. Bohm Bros. v. Stivers, 75 Mo. App. 291; Webb v. Elliott, 75 Mo. App. 557; Railroad v. Holschlag et ah, 144 Mo. 253. (2) A sheriff may amend his return at any time before or after judgment, by express provision of our statute which has received the sanction of our courts from the earliest decisions down to the present time; and there is no limitation as to time or the character of the testimony except that it be reasonably sufficient to satisfy the court in which the amendment is sought to be made that when the amended return is made it will speak the truth. R. S. 1899, sec. 670; Muldrow v. Bates, 5 Mo. 214; Blaisdell v. Steamboat, 19 Mo. 158; Corby v. Burns, 36 Mo. 194; Webster v. Blount, 39 Mo. 500; Magrew v. Foster, 54 Mo., 258; Phillips et al., v. Evans et al., 64 Mo. 17; Transier v. Eailroad, 54 Mo. 189; Turner v. Eailroad, 78 Mo. 578; Malone v. Samuel, 13 Am. Dec. 172, note 172-181; Allison v. Thomas, 72 Col. 362; Eailroad v. Ashby, 86 Va. 232; Ereeman on Ex., secs. 63, 358, 359; Kitchen v. Keinsky, 42 Mo. 1. c. 436; Jeffries v. Kudloff, 73 Iowa 60. (3) It is not the rule in any state in the Union to-day that the evidence that will warrant an amendment of the return to original process must be evidenced by written memoranda. The generally accepted rule is that any evidence that will satisfy the court that the proposed amendment will accord with the facts, will warrant the amendment. Earlow v. Sanford, 82 111. 298; Eecards v. Ladd, 4 Pacific O. L. J. 52; Kirkwood v. Eeedy, 10 Kan. 453. Cases cited under fourth point.' Sec. 670, E. S. 1899.</p>

— Hon. J. D. Perldns, Judge. By the defendant’s answer admitting the debt, no proof was reqúired to be introduced by plaintiff, and as the defendant declined to introduce any proof to substantiate his claim that the debt was paid, the court should have rendered judgment in favor of the plaintiff on the pleadings.

— Hon. Geo. F. Longan> Judge. (1) There is no legal force to the contention, made by the receiver, that the stock could not he legally cancelled, except by the payment of cash, and that the association had no power to issue tbe notes in lieu of tbe cash.

— Hon. J. II. Slover, Judge. (1) Respondents are estopped to claim there was usury in the Missouri Mutual loan by reason of the settlement and readjustment in 1897, and the credit for the profits earned by their Missouri Mutual stock, which profits arose from the premium paid by them and from like premiums paid by other members. State ex rel. v. Stockton, 85 Mo.

— Hon. Nat M. Shelton, Judge. (1 The filing of an amended petition or statement is an abandonment of tbe former. ' The case was tried upon the amended statement. The amended ■ statement does not state a cause of action under the gambling act. Secs. 3430, 3431 and 3432, R. S. 1899.

— Hon. N. M. Shelton, Judge. (1) An instrument. purporting to be the bond of a corporation, to be operative as such, must be signed by the ■corporation, or by an agent whose authority is under seal, and the corporate seal must be affixed. Nichols v. St. Louis Circuit Court, 1 Mo. 357; St. Louis Dairy Co. v. Sauer, 16 Mo. App. 1; Corbin v. Laswell, 48 Mo. App. 626; Perry v. Price, 1 Mo. 664; South Mo. Land Co. v. Jeffries, 40 Mo-. App. 360; Sandford v. Tremlett, 42 Mo. 384.

— lion. Geo. W. Thomberry, Judge. (1) The true meaning and spirit of section 2334, Revised Statutes 1899, is to make it a crime for a public officer to be so intoxicated as to incapacitate him for the performance of his public duties, (a) By being so intoxicated while discharging or attempting to discharge his public duties; or (b) by becoming so intoxicated while in the discharge of his public duties. The gist of the offense is the incapacity to discharge his public duties.

Louis City Circuit Court. — Son. Walter B. Douglas, Judge (1) Rights, arising out of contract, coupled with liabilities, are not assignable; nor are contracts assignable that involve tbe relation of personal confidence, such that the party whose agreement conferred those rights must have intended them to be exercised only by him in whom he actually confided.

St. Louis City Circuit Court. — Hon. William Zachritz, Judge. (1) Tbe defendant is a common carrier as to its private ’phones as well as to its public ’phones and is governed by the law applicable to common carriers and is bound to serve all alike without discrimination. State ex rel. Tel. Co. v. Tel. Co., 23 Eed. Rep. 539: State ex rel. Cable Co. v. Telegraph & Telephone Co., 47 Eed. Rep. 633; State ex rel.

Louis City Circuit Court. — Hon. William Zachriiz, Judge. (1) Mandamus is the appropriate remedy for the wrong complained of herein. State v. County Court, 41 Mo. 545; State y. Walbridge, 153 Mo. 494. (2) Under the-facts of this case and the law applicable thereto, a peremptory writ of mandamus should have been issued as prayed for. State v. St. Louis, 90 Mo. 19; State v. Brown, 57 Mo. App. 199; St. Louis v. Laughlin, 49 Mo. 559; Ex parte Neet,. 157 Mo. 527.

<p>1. Partition: MORTGAGE LIEN: PARTIES TO ACTION. In a partition suit, all mortgage liens in favor of parties to the cause must be respected and for that purpose the statutes' require such lien holders to be made parties.</p> <p>2. -: STATUTORY REMEDY OP PARTITION. The object of the statutory remedy to partition land is to definitely ascertain the respective interests, whether in enjoyment or expectancy, or by lien or ownership, the different parties possess in the property, to set those interests apart to them in kind, if possible, or in lieu thereof to have the land sold and its proceeds justly distributed.</p> <p>3. -:-. And statutes conferring the legal remedy of partition contemplate the settlement of collateral controversies by a subsequent action.</p> <p>4. Res Ad judicata. The rule in regard to former adjudications is that when the very cause of action once decided is again brought forward in a subsequent suit between the parties, the judgment in' the first action is conclusive and constitutes a perfect bar to the prosecution of the second, as to all matters which might have been litigated therein, whether in point of fact they were or not.</p> <p>5. -: -. But the judgment in the first case enjoys no such prerogative if the second case is for a different cause of action from that contested in the first.</p> <p>6. -: -; — . And in tbe case at bar, the claim of respondents was neither passed on in tbe partition suit, nor necessarily involved therein, nor required to be brought forward, nor was even an appropriate matter for consideration in that suit, and the plea of res adjudicaba should not have been sustained.</p> <p>7. "Written. Opinion of Trial Judge. Judges of trial courts are not bound to state the reasons which lead their minds to the conclusions embodied in their rulings, much less to deliver written opinion, although'it is highly proper and commendable in them to do so.</p> <p>7. Practice, Appellate: WRITTEN OPINION OE TRIAL JUDGE. And appellate courts have found the written opinions of trial judges helpful, and in some instances they have been adopted as the opinions of appellate tribunals.</p>

Louis City Circuit Court. — Hon. Selden P. Spencer, Judge. Tbe position of the respondent is fatally inconsistent. He denies the right of -his fellow-members, with or without by-law therefor, to make him aid them in strikes; but still he would enjoy the benefits derived from strikes and similar tactics. He invokes the aid of a court of equity on the only possible ground, that of a property right; which he claims under by-laws providing for sick and mortuary benefits.

Lonis City Circuit Court. — Hon. Walter B. Douglas, Judge. (1) The first proposition upon which we rely is that a father can not be charged with necessaries furnished to his minor children unless it is shown that they were furnished after a refusal, or conduct which is equivalent to a refusal, on the part of the father to furnish them. Eogers v. Turner, 59 Mo. 116. In the present casé nothing of the sort was shown.

Louis City Circuit Court. — Hon. Walter B. Douglas, Judge. (1) After the assignment of the lease by the conveyance of the decedent, Wm. A. Meagher, to M. A. Wolff, the latter became the sole, principal obligor for compliance with the covenants of the lease including the payment of rent, and Meagher became his surety, and this condition existed as to all subsequent assignees: 1 Wood on Landlord and' Tenant (2 Ed.), p. 750, sec. 345; Nelson v. Brown, 14Ó Mo. 580.

<p>Garnishment: DISCRETION OE COURT IN OVERRULING MOTION TO REINSTATE CAUSE: AFFIDAVITS: PRACTICE, APPELLATE: PRACTICE, TRIAL. In the case at bar, in view of the affidavits and counter-affidavits which were before the circuit court, the appellate court will not say that the circuit court acted unjudicially or unjustly in overruling appellant’s motion to re-instata the garnishment proceedings.</p>

— Hon. Henry G. Riley, Judge. STATEMENT OR THE CASE. This case has been remanded to this court by the Supreme Court, to which it was first transferred as lying outside our pecuniary jurisdiction. The controversy is over one of many intervening demands which were filed in a suit to foreclose certain mortgages on the roadbed, franchises, rolling-stock and other property of the St. Louis, Cape Girardeau & Et.

— Hon. D. H. Hby, Judge. STATEMENT OF THE CASE. By this action appellant seeks to recover damages from fifteen parties, impleaded as defendants, on tfie ground that they were members of a co-partnership engaged in the banking business at the time of the occurrences stated in the petition.

— Hon. David H. Eby, J udge. The lawful rate of interest agreed in the bond to be paid on the loan was six per eent per annum, payable monthly; and for all monthly payments made by appellant, she was entitled, as was testified by the secretary of respondent, to have credited for the average time with the interest thereon at the agreed rate on the loan by the respondent, a solvent, going concern, and title thereto, could only be acquired by such application and the excess…

— Hon. Elliott M. Hughes, Judge. (1) Tbe mere fact of an accident and injury raises no presumption of negligence. Tbe negligence alleged must be proved. Beacb, Contributory Negligence (.last Ed.), p. 30; Black’s Ac. Cases, 8 and 181; Elliott on Railroads, pp. 1297 and 1697; Maxwell v. Railroad, 85 Mo. 95; Current v. Railroad, 86 Mo. 62; Davis v. Eailroad, 89 Mo. 340.

Louis City Circuit Court. — Hon. Daniel D. Fisher, Judge. (1) The petition charges an agreement “in writing between the said defendant and the said I. M. Spitz and the plaintiff,” and hence its execution did not have to be denied under oath in order to require evidence of its execution before its introduction in evidence. Kelly v. Ihney, 143 Mo. 436.

Louis City Circuit Court. — Tim. Selden P. Spencer, Judge. (1) Tbe retirement of one partner from a firm operates a dissolution of that firm, even though tbe business may be continued by tbe successors under tbe same name. Spaunborst v. Link & Bibb, 46 lío. 191; Allen v. Logan, 96 Mo. 600; Parsons on Partnership, star p. 406.

— Hon. Edwin B. McKee, Judge. There was no arraignment, and this is sufficient cause for reversal. State v. Williams, 117 Mo. 379; State v.- Walker, 119 Mo. 467; State v. Hubbell, 55 Mo. App. 262; State v. Hull, 73 Mo. App. 30; State v. Grassle, 74 Mo. App. 313. The indictment does not charge nor does the evidence prove an •assault. State v. Sears, 86 Mo. 169.

— Hon. Dwvid H. Eby, J udge. (1) All of the indignities alleged in plaintiff’s petition, in the ease at bar, except the charge of poisoning, were trivial, ancient, and had been condoned, if indeed they ever constituted offenses which would justify a severance of the marital ties.

Louis City Circuit Court. — Hon. Warwick Hough, Judge. (1) The administrator of John C. Cogswell, although appointed and qualified subsequent to the judgment of the probate court, when thus qualified became the owner of the asset, and was properly a party to the appeal, with the heirs of John C. Cogswell. R. S. sec. 278, p. 181.

— Mon. James T. Neville, Judge. STATEMENT. Plaintiff is tbe administrator de boms non of the estate of Margaret Stumm, deceased. Defendant is the executor of the last will of P. J. Stumm. P. J. and Margaret Stumm were husband and wife. They were married in 1818. Margaret died May 7, 1897, and P. J. died in the month of September of the same year.

Louis City Circuit Court. — lion. Walter B. Douglas, Judge. ' (1) The reply of plaintiff was in legal effect a general denial only, the remainder being surplusage. Plaintiff could demur to one part of defendant’s answer, and reply to another part, but he could not both reply and demur at the same time to defendant’s counterclaim and in the same pleading. This rule applies to replies as well as answers. E. S. 1899, sec. 600; E. S. 1899, sec. 609; White v. Eailroad, 34 Mo.

— Hon. Ylliott M. Hughes, Judge. (1) A personal exemption of $300 can be claimed by tbe head of a family only. E. S. 1899, sec. 3162. (2) The homestead .exemption is given only to a housekeeper or head of a family, and in land which is or shall be used by such housekeeper or head of a family as such homestead. E. S. 1899, see. 3616. (3) A family is a collective body of persons who live in one house under one head or manager. Eidenour-Baker Oro. Co. v. Monroe, 142 Mo. 165.

Appeal ■ from Lincoln Circuit Court. — Hon. Elliott M. Hughes, Judge. (1) An application or petition for writ of certiorari is an extraordinary remedy, and tbe writ is not issued as a matter of right. State ex rel. v. Valliant, 123 Mo. 524-; State ex rél. v. Orrick, 106 Mo. 111. (2) The writ should not issue when there is an adequate remedy at law. State ex rel. y. Woodson, 161 Mo. 444.

— Honb Elilioti M. Hughes, Judge. (1) It was the duty of the court to so declare the law to the jury in proper instructions, and the failure of the court to do so was and is reversible error, and this is true whether the defendant requested the court to give such instructions or not. Sec. 2627, R. S. 1899, as amended by an act approved March 20, 1901 (Session Acts 1901, p. 140); State v. Stonum, 67 Mo. 596; State v. Jones, 61 Mo. 232.

. Appeal from St. Louis City Circuit Court. — Hon.-, Judge. (1) If the clause “this lease may’be terminated any time after June 15, 1898, by either party giving sis months’ notice in 'writing” (June 15, 1898, being the last day of the term), could be held to have the effect to keep alive the written lease, so that the writing would constitute an “agreement” between the parties, within the meaning of sections 3414, 3418 and 4110 of the Revised Statutes, still the writing…

<p>Appeal from Harrison Circuit Court. — Hon. P. 0. Stepp, Judge.</p>

— Hon. E. J. Broaddus, Judge. (1) The agreement lacks in mutuality. Brown v. Rice, 29 Mo. 322; Glass v. Rowe, 103 Mo. 539; Jones v. Durgin, 16 Mo. App. 370; Gann v. Railroad, 65 Mo. App. 672. (2) MeCully had the right to recall his proposition and not be further bound, independent of the feature of his want of knowledge of obligations on his covenants at the time he agreed to pay not to exceed $50.

— Hon. Jno. A. Hodcaday, Judge. (1) The court erred in refusing to give plaintiff’s instruction No. 2; it is an exact copy of one that has been approved by our Supreme Court in case of Brown v. Railroad, 50 Mo. 4-61; White v. Railroad, 34 Mo. App, 78. (2) Plaintiff’s instruction No. 5 should also have been given.

— Hon. Samuel Dmis, Judge. (1) Under the evidence offered, the court should have found for plaintiff, and granted the injunction and relief prayed for, and the proposed remedy of plaintiff is by injunction. Gamble v. Stephenson, 10 Mo. App. 581; Liggett & Meyer Tob. Co. v. Ried Tob. Co., 104 Mo. 33; Drummond Tob. Co. v. Tinsley Tob. Co., 52 Mo. App. 10; Am. Brewing Co v. St. Louis Brewing Co., 47 Mo. App. 14; Plant Seed Co. v. Michel Seed Co., 37 Mo.

— Mon. B. B. Dysart, Special Judge. (1) The demurrer offered by defendant at the close of plaintiff’s evidence should have been sustained; because plaintiff had wholly failed to prove that Charles D. Bozarth had complied with the terms of his contract with defendant. The answer specifically denied performance, and plaintiff must prove a performance of its terms in every essential particular before a recovery can be sustained.

— Hon. P. 0. Stepp, Judge. (1) The claims sued upon, alleged to constitute a breach of the bond, are barred by the statute of limitations. This being a suit upon an open account is barred by the five-year statute of limitations. R. S. 1899, sec. 4273; R. S. 1889, sec. 6775. (2) If, as between the plaintiffs and the defendant L. W. Howard, the claims sued on are barred, then upon what theory can the sureties on defendant’s bond be held ?

— Non. A. D. Burn.es, Judge. (1) Plaintiff must have established his right by an action at law, before invoking the equity powers of the court by this proceeding. Welton v. Martin, 7 Mo. 307; Arnold v. Klepper, 24 Mo. 273. (2) Before the equity powers of the court to grant an injunction can be successfully invoked there must be a strong and mischievous case of pressing necessity. No such case is made by the evidence here. Tanner v. Wallbrunn, 77 Mo.

— Hon. Jas. E. Hazelly Judge. (1) In the absence of fraud, the written contract specifically providing for the thirty per cent advance dividends as an advance against the policy until extinguished by actual earnings or was otherwise paid, swallows up and supersedes all previous parol negotiations on the subject. Kellerman v. Railroad, 136 Mo. 188; State ex rel. v. Hoshaw, 98 Mo. 358; Ins. Co. v. Nieberger, 74'Mo. 161.

— Hon. H. G. Timmondsi Judge. (1) Tbe conveyance being from tbe corporation to one of tbe members of its board of directors, is prima facie fraudulent. State ex rel. v. Rubber Co., 149 Mo. 181.

— I[on. P. 0. Stepp, Judge. Our contention is that under the undisputed facts and the plain terms and conditions of the contract, the policy became void September 1, 1900, for non-payment of the note given for part of the premium. Dircks v. Ins. Co., 34 Mo. App. 81; Mooney v. Ins. Co., 72 Mo. App. 92; Mooney v. Ins. Co., 80 Mo. App. 192.

— Son. N. M. Shelton, Judge. (1) The only question before this court is: Did the trial court err in giving defendant’s instruction in nature of a demurrer to plaintiff’s evidence ? Held: entitled to recover. Perry v. Eailroad, 89 Mo. App. 49.

— Hon. J. W. Alexander, ' Judge. (1) The imperative duty of the judge of the probate court, under and by virtue of said statute, was to appoint a special curator and guardian to take charge of the person and estate of the said Meme J. D. Rutledge and to have required said guardian and curator to give a good and sufficient bond. Sec. 5299, eh. 76, R. S. 1899.

— Hon. Not M. Shelton, Judge. (1) The court erred in giving the jury a peremptory instruction to find for plaintiff at the close of all the evidence in the case. Eollins v. Marsh, 128 Mass. 116; Windham v. Doles, 59 Ga. 265; Perkins v. Hoyt, 35 Mich. 506; Munroe v. Perkins, 9 Pick. 298; Cooke v. Murphy, 70 111. 96; Perkins v. Headley, 49 Mo. App. 556; Truax y. Miller, 48 Minn. 62; Gates v. Steele, 58 Conn. 316; s. c., 20 Atl. Eep. 474; Clark on Contracts, p. 193.

— Hon. A. D. Bumes,. Judge. (1) The action for the enforcement of a mechanic’s lien was to enforce a different demand and upon another form, of relief; therefore, it is not a bar to this action. Wells on Res Adjudicata and Stare Decisis, sec. 282; 1 Herman on' Estoppel and Res Adjudicata, p. 299; State ex rel. v. James, 82 Mo. 509; Winham v. Kline, 11 Mo. App. 47; Baker v. Lane, 137 Mo. 682; 21 Am. and Eng. Ency. of Law, p. 227. Davis v. Barber, 51 Eed. 148.

— Hon. Benj. J. Oasteel, Judge. (1) It is well understood that a municipal corporation can exercise only such powers of legislation as are given it by the lawmaking power of the State. 1 Dillon on Municipal Corporations (4 Ed.), sec. 89; Trenton v. Clayton, 50 Mo. App. 539; Ruggles v. Collier, 43 Mo. 375. (2) Expressio iinius est exclusio alierius. St. Louis v. Laughlin, 49 Mo. 559; St. Joseph v. Porter, 29 Mo. App. 605, and cases there cited.

<p>Error to Buchanan Circuit Court. — Hon. A. M. Woodson, Judge.</p>

— Hon. W. K. Jcumes, .Judge. (1) The demurrer to the evidence should have been given, first because there was no delivery; second, because there was no acceptance. Cunningham v. Ashbroot, 20 Mo. 553; Emmel v. Hayes, 102 Mo. 186; Wainscott v. Kellogg, 84 Mo. App. 621; Vincent v. Veitlis, 60 Mo. App. 9. (2) The contract, not having been in writing, was void, because of the statute of frauds. Growing crops are within the above rule. State v. Durant, 69 Mo.

J. W. Alexander, Judge. (1) Plaintiff being the grantee in a chattel, mortgage,' ■after condition broken, with a right to possession, can maintain this action. State to use v. MeKellop, 40 Mo. 184; •State to use v. Koch, 47 Mo. 582. (2) Plaintiff was absolute owner of the property described in the chattel mortgage, after condition broken, subject only to the right to redeem in equity and could have maintained replevin for it. Bank v. Abernathy, 32 Mo.

— Hon. Jno. A. Hocicay day, Judge. (1) The plaintiff waived the notice of appeal by appearing at the first term after the November term) 1900, and therefore the court erred in sustaining the motion to affirm the judgment of the justice of the peace at the April term, 1901. Bates v. Scott, 26 Mo. App. 428; Brewing Co'. v. Hauessler, 11 Mo. App. 381; Talbot v. llore, II Mo. App. 115; Deatley v. Potter, 29 Mo.

— Hon. Jno. A. Hockaday, Judge. (1) Tbe petition does not state facts sufficient to constitute a cause of action against the defendant in error, Rowena A. Woods, and the last proviso of section 4340, Revised Statutes 1899, which proviso was passed by way of amendment in 1895, is itself a complete answer to the contention of plaintiff in error to the effect that the purpose of the section is merely to require the court to determine whether separate personal property of the…

— Hon. Jtyo. A. Hocltaday, Judge. (1) Declarations of a party against his interests, at the time they are made, are admissible against him. Wynn v. Cory, 48 Mo. 346; Stewart v. Glenn, 58 Mo. 481; Diel v. Stegner, 50 Mo. App. 535.

— Hon. Jno. A. HocTcaday, Judge. (1) The authorities of the city of Moberly have the right and power to levy and collect a license tax on peddlers without any restrictions upon the common and ordinary meaning of the word “peddler.” They had this power given them by the Legislature in 1887; it was continued under the Revised Statutes of 1889; and they still have the same power under the Revised Statutes of 1899. Peddlers of books are nowhere excepted.

— Son. Jno. P. Butler, Judge. • (1) The defective and dangerous condition of the handcar were patent and such as the plaintiff would have discovered if he had been ordinarily observant, in using it, and he was therefore chargeable with knowledge of its condition and he can not recover for injuries caused thereby. Marshall v. Hay Press Co., 69 Mo. App. '256.

— Hon. Jno. P. Butler, Judge. (1) The contracts introduced in evidence established prima facie that there were two rates for the shipment and that the shipper voluntarily chose the lower, and in consideration thereof the liability of the company was limited in accordance with the terms of the contracts. Wyrick v. Eailroad, 74 Mo. App. 406; Bowring v. Eailroad, 77 Mo.

<p>Appeal from Cooper Circuit Court. — Hon. Jas. JH. Hazelly J udge.</p>

— Hon. Samuel Davis, J udge. (1) Respondent admitted that if the president and secretary of the company were present in court as witnesses they would testify that for some months after the fire, which occurred December 29, and for some months after February 15, the time when the proof of loss was filed, the company was able to and did pay claims; that the claim had never been presented to the assignee, and that if it had been presented to him within a reasonable time after…