Volume 94 — Missouri Appeal Reports

— Hon. Samuel Davis, Judge. (1) In this case, the cattle may have come into defendant’s fields from the commons. In order to make the defense of adjoining proprietors under a common inclosure, with agreed division fence, it must appear that the cattle escaped through the division fence without the party’s fault. If they escaped in any other manner than through the fence, then it matters not, the defense can not be made. O’Riley v. Diss, 41 Mo. App. 184; Hopkins v. Ott, 57 Mo.

— Hon. W. B. Teasdale, Judge. (1) The certificate of title sued on is not a policy of insurance but is merely a certificate of title, the correctness of which is guaranteed, (a) Insurance is a contract whereby one for a consideration undertakes to compensate another if he suffer loss. May on Insurance, p. 1.

— Hon. Jas. P. Hazell, Judge. (1) A judgment or decree of a court of this State can not be attached collaterally, except on the ground of want of jurisdiction. Rosenheim v. Hartsock, 90 Mo. 357; Black on Judgments, sec. 803; Winningham v. Trueblood, 149 Mo. 572. (2) Absence of jurisdiction over the subject-matter or person can only be shown from the record, and can not be shown by matter in pais.

- — Hon. P. O. Stepp, Judge. (1) By constitutional provision the right of trial by jury with all its substantial incidents and consequences, is placed as at common law and beyond the reach of legislative or judicial interference. Foster v. Kirby, 31 Mo. 496; Henning v. Railroad, 35 Mo. 408; State ex rel. v. Withrow, 133 Mo. 500; O’Day v. Conn, 131 Mo. 321; State v. Bockstruck, 136 Mo. 335.

— Hon. James L. Fort, Judge. (1) The matter to which the attention of the court' is called in this case is: What is the effect of unlawful and unwarranted intermeddling with the records of the court ? We say unlawful, for the statute in positive terms recites “that no process, pleading or record shall be amended or impaired by the clerk or other officer without the order of such court.

— Hon. E. M. Hughes, Judge. (1) It was the duty of respondent to stop, look and listen, before driving on the tracks on which he saw a train rapidly approaching. His testimony shows he looked once when fifty yards from the track on which train was, and did not look again until the train was nearly on him, because, not seeing the flagman, he assumed that it was safe. In Schneider v. Eailroad, 9 Amer. Neg.

— Hon. Henry C. Pepper, Judge. (1) This judgment was the result of the giving of the following instruction for defendant, being the only instruction asked or given on behalf of defendant, viz.: “The court instructs the jury, as a matter of law, that the burden of proof is on the plaintiff, and it is for him to prove his case by a preponderance of the evidence; if you find that the evidence bearing upon plaintiff’s case evenly balances, or that it preponderates in favor of…

<p>Gambling: EVIDENCE: Erom the evidence in the case at bar, it is perfectly manifest the witness was ignorant of whether the game played by defendant was for money, and a conviction on such evidence would not stand.</p>

— Hon. J. L. Fort, Judge. (1) Unauthorized additions or subtractions of matter to a record do not change the record; it still remains record as first made and parol testimony may be taken to show what the record really is (not to change it). R. S. 1899, sec. 674; State _ex rel. v. St, Louis, 67 Mo. 113; 3 Rice on Evidence, p. 62, sec. 36. (2) At the time informations were filed no jurisdiction attached to try defendant because unverified. State v. Bragg, 63 Mo.

— Hon. James T. Neville, Judge. The verdict of the jury was a minority verdict, and void for the reason that the constitutional amendment was never properly submitted, and, in fact, is not an amendment to the Constitution of this State. The notice provided for in the Constitution, in case of submitting a proposition to amend the same, was not given, as is clearly shown by this record.

— Hon. William N. Evans, Judge. (1) Tbe admission of the deposition of J. M. Hoover, taken in another and distinct cause of action and between different parties, was clearly error, and no authority can be found supporting the action of the court. Borders v. Barber, 81 Alo. 636; Leslie v. Rich Hill, 110 Mo. 31; Cass Plow Works v. Ross, 74 Mo. App. 437.

<p>Appeal from Audrain Circuit Court-. — Hon. Elliott M.. Hughes, Judge.</p> <p>The verdict of the jury was against the evidence. The-evidence shows beyond any and all doubt that the punishment so inflicted was not only excessive but that it was most cruel and barbarous. Tbe verdict was evidently tbe result of mistake, sympathy, prejudice, bias or passion on the part of the jury, and in such cases the court will not permit such a-verdict and judgment to stand, as the appellate courts in this State have repeatedly set aside verdicts and judgments in like cases. Ohitty v. Eailroad, 148 Mo. 64; Og'lesby v. Eailroad, 150 Mo. 137.</p> <p>The entire law of this case was settled on the former appeal. Hayeraft v. Griggsby, 88 Mo. App. 354. On that appeal this court declared the law as follows: “The law in regard to a teacher’s right to punish a pupil is well settled in this State. The teacher has a right to inflict reasonable punishment for misconduct by whipping, but has no right to inflict unreasonable and excessive corporal punishment in that mode or any other. Nor can punishment in any degree be inflicted maliciously, namely, without just provocation. There is no such thing as reasonable punishment from a malicious motive. It must be administered for a salutary purpose — to maintain the discipline and efficiency of the school.” State v. Boyer, 70 Mo. App. 156; State ex rel. v. Eandall, 79 Mo. App. 226; Hritt v. Snodgrass, 66 Mo. 286. The instruction of the court fairly and fully presented the law on the subject.</p>

<p>Appeal from Howell Circuit Court. — Horn William AC , Evans, Judge.</p> <p>STATEMENT OE THE CASE.</p> <p>The plaintiff is a domestic corporation engaged in the business of selling garden seeds at wholesale and brought this action to recover from the defendant the price of twenty-five boxes of seeds.</p> <p>The action is based on the following contract:</p> <p>“Order for package garden seeds from Springfield Seed Store, . Ricketts & Walker, Props., Springfield, Mo.</p> <p>“Please ship in due time for season of 1901, 25 boxes, 500 each of assorted garden seeds in lithographed packages, at $15 per 1,000 packages. No additional charge for seed cases.</p> <p>“Terms: Net June 1, 1901, five per cent spot cash on receipt of invoice, $187.50. Our packet seeds are not sold on commission. The sale is outright, and bill is due and payable on the above terms. But to protect you against loss, and at the same time to protect our own reputation, our agent, when he calls next season, will take up and destroy all 5-cent packets you may have on hand that vitality expires on, and that will be unfit for next year’s sale, and allow you to select the value of the seed so destroyed in any seed you may desire for the following season’s trade.</p> <p>“K. O. Produce Co.,</p> <p>“West Plains, Mo.</p> <p>“Ship Jan. 1, 1901 without fail.</p> <p>“Exclusive sale.”</p> <p>The defendant admitted the execution of the contract and delivery of the seeds to the amount of one hundred and eighty-seven dollars and fifty cents. The answer then stated that the defendant bought the seeds under a contract- and understanding with the plaintiff that he was to have the exclusive sale of seeds in West Plains, and to his customers, country merchants, outside the city of West Plains; that the defendant had violated the contract by selling seeds of the same variety to dealers in West Plains and to defendant’s customers throughout the country. The answer further alleged that defendant used his best efforts to sell the seeds; that he sold all he could, to-wit, thirteen boxes; that if plaintiff had carried out its contract he could have sold all the rest of the seeds, to-wit, twelve boxes, thereby realizing a profit of five dollars on a box; but on account of the plaintiff’s breach of the contract, defendant was prevented from selling the same; that the amount realized by the sales he made was ninety-seven dollars and fifty cents, which sum he tendered to plaintiff in open court, and also twelve boxes remaining unsold.</p> <p>Plaintiff’s replication denied the allegations of new matter contained in the answer and averred that the contract between the parties gave the defendant the exclusive right to sell in the city of West Plains and at no other point, and that by the contract plaintiff was not excluded from selling seeds at places other than West Plains. The sale of one box for seven dollars and fifty cents to a firm by, the style of Boty & Woodrel, in the city of West Plains, was admitted in connection with an averment that the defendant was notified of that sale at the time he gave the order to plaintiff and assented to it, and the replication offered to deduct the value of the seeds so sold to Boty & Woodrel from its account against the defendant.</p> <p>A stipulation was made between the parties and introduced on the trial, admitting that after the contract was made between plaintiff and defendant, plaintiff sold boxes of seeds of the same kind and variety sold to defendant, to four firms of merchants doing business at different points in Ozark county, Missouri, and to one firm in Eulton county, Arkansas.</p> <p>It is proper to state somewhat fully the testimony of defendant Walt, as the defense rests on it entirely. He swore that Eichard Eicketts, a member of the plaintiff company and its agent, visited him at his place of business in West Plains in September, 1900, saying he wanted to place plaintiff’s seeds with one man in West Plains and would like to make arrangements with the defendant as he was a large dealer; that Eicketts further said:</p> <p>"I will give you the exclusive sale of these seeds; you will get the exclusive sale.” Walt said: “I studied a few minutes and I says, 'I will do it.’ At first he omitted 'exclusive sale,’ and I called his attention to it and he added it to it right on the bill there and urging them to ship January first. The seeds came, I think, on January, second.”</p> <p>He further testified that several merchants came in and got goods and he tried to sell them seeds. Some of them had seeds in their wagons. Walt further testified as follows: .</p> <p>''Q. What was the inducement for you to buy so many seeds ?</p> <p>“A.. That I' could sell them to the country merchants and men here in town; that I could job' them.</p> <p>“Q. That was discussed by you and Ricketts ?</p> <p>“A. Yes, sir; any one knows that twenty-five boxes of garden seeds are too many for a man to retail, he couldn’t possibly retail them.”</p> <p>On cross-examination he testified:</p> <p>“Q. You say you had the right to sell at other points to country merchants ?</p> <p>“A. Yes, sir.</p> <p>"Q. What points were mentioned in your conversation between you and him ?</p> <p>“A. No points.</p> <p>“Q. IIow was he to know where you wanted to sell these seeds unless he knew the points you traded ?</p> <p>“A. I sold every place over this country.</p> <p>“Q. How did he know -unless you told him?</p> <p>“A. He didn’t know where I sold, I guess.</p> <p>“Q. You took the privilege of twenty-five boxes here to cut them out of sales in all southern Missouri ?</p> <p>“A. No, sir; I didn’t.</p> <p>“Q. What places did you include in this term, 'exclusive sale’ ?</p> <p>“A. I expected those that traded with me, my customers.</p> <p>“Q. You never informed them who you traded with ?</p> <p>“A. No, sir; I didn’t.</p> <p>“Q. They never knew until this term of court who you claimed traded with you ?</p> <p>“A. No, sir, they didn’t; what should a man do if he . is a jobber ?”</p> <p>Further along occurred the following:</p> <p>,. “Q. Did you tell these people that Wiles & Company were customers of yours?</p> <p>“A. Certainly not; do I tell my business to the whole world ?</p> <p>“Q. Did you think your twenty-five boxes of seeds gave you the exclusive right to southern Missouri ?</p> <p>“Q. No, sir, I expected to sell to anybody who came in to buy goods; I would show him and try to sell to him.</p> <p>“Q. E. N. Eand, Wild Cherry, Eulton county, Arkansas ?</p> <p>“A. Yes, sir.</p> <p>“Q. They are customers of yours ?</p> <p>“A. Yes, sir.</p> <p>“Q. Do you claim exclusive right to sell to them ?</p> <p>“A. No, sir, I don’t; I claimed the exclusive right to sell to anybody that wanted them.</p> <p>“Q. You claimed the exclusive right just as the wholesale company at Springfield sells seeds to you?</p> <p>“A. Yes, sir.”</p> <p>It appears that the sales of seeds made to outside merchants in southern Missouri and northern Arkansas by the plaintiff, occurred during the spring months and that the defendant made no complaint of those sales, although he knew about them, until he was pressed to pay his account in June, when he wrote the following letter:</p> <p>“West Plains, Mo., June 12, 1901.</p> <p>“Springfield Seed Store,</p> <p>“Springfield, Mo.</p> <p>“Gents: Your statement to hand and in reply we will say we are ready to pay you for what seeds we have sold, brit will not pay for those unsold. We have written contract to have exclusive sale here and instead almost every one has them and you had a drummer to sell every little store around West Plains. As a consequence we decline to pay for only what we have used. Any time you come down we will check up with you.</p> <p>“Yours truly,</p> <p>“Kansas City Produce Co."</p> <p>' Prior to that he said he had written a notation on a statement of an account sent him by the plaintiff in which he raised no question about the outside sales. His testimony on the point is as follows:</p> <p>“A. The first one was written on one of their statements, a little notation like this other one.</p> <p>“Q. What did you state in that letter?</p> <p>“A. I said the account wasn’t correct and I wouldn’t pay it.</p> <p>.“Q. .In that statement you said nothing about those outside sales?</p> <p>“A. No, sir, I didn’t.</p> <p>“Q. Although you had known of them since early in the spring?</p> <p>“A. Yes, sir.”</p> <p>No proof was offered of any damage sustained by the defendant, by reason of plaintiff’s alleged breaches of the contract. The testimony introduced on behalf of the defendant tended to show the understanding between the parties was that Walt should have the exclusive sale of seeds in the town of West Plains, but nowhere else, and that he was notified when the contract was made that plaintiff had a salesman then working towns in southern Missouri and selling to merchants in the interior; further, that plaintiff’s business in northern Arkansas and southern Missouri was quite large and it would have been absurd to give the defendant the exclusive right to that trade. ,</p> <p>The court of its own motion gave the following instruction:</p> <p>“The court instructs the jury that under the contract read in evidence, defendant had the exclusive right to handle and sell the seeds of plaintiffs company in the city of West Plains and in the territory in the adjacent country to any merchants, if any, specially agreed upon at the time the contract was made; and although you may believe plaintiff sold and .delivered seeds to Doty & Woodrel, if they notified defendant at the time this contract was made, or had defendant’s consent thereto, then such sale to Doty & Woodrel would not be a violation of such contract and it devolves upon the defendant to prove by the greater weight of the evidence that such contract' embraced merchants and territory outside of West Plains, and that plaintiff violated such contract.”</p> <p>An instruction was asked by the plaintiff to the effect that the burden was on the defendant to prove the words “exclusive sale” covered other places or parties than West Plains, which was covered by the one quoted; another that it meant only West Plains and that the sale to Doty & Woodrel should be deducted from the amount of plaintiff’s recovery, and also the following:</p> <p>“The court instructs the jury that the term ‘exclusive sale,’ contained in the contract in evidence, gave the defendant the exclusive right to sell the seeds in the city of West Plains and to dealers and merchants at points other than West Plains, if any, whose names were mentioned and agreed upon at the time, and that you will find for plaintiff unless you. find from the evidence that plaintiff sold seeds to such other parties, to whom plaintiff agreed not to sell.</p> <p>“The court instructs the jury that although the jury might believe from the evidence that the defendant had the right to the exclusive sales at other places than the city of West Plains, yet it was his duty, as soon as he had ascertained that plaintiff had sold seeds at such other points, to notify plaintiff and refuse to carry out his contract; and unless he did so inform plaintiff, he is presumed in law to have adopted and ratified the contract as claimed by plaintiff, and you should find for the plaintiff.”</p> <p>All plaintiff’s requests were refused.</p> <p>These instructions asked by the defendant were given.</p> <p>“The court instructs the jury that the defendant had the exclusive right to sell the seeds of plaintiff in West Plains, Missouri, and- sales made to -any other person or persons, or any shipment of seeds to any other person or persons doing business in West Plains, Missouri, after the contract was entered into between plaintiff and defendant, without the permission of defendant would be a violation of the contract, and if you find such has been done then you should return a verdict for the defendant</p> <p>“The court instructs the jury that it devolves on the plaintiff to show by a preponderance of the evidence, which means the greater weight of the evidence, that the defendant consented to or gave his permission to sell seed to Doty & Woodrel in West Plains, Missouri, or that defendant knew at the time of the contract of such sale to Doty & Woodrel.”</p> <p>Exceptions were duly saved by the plaintiff to the rulings on the instructions, and the jury having returned a verdict •in defendant’s favor, a motion for a new trial was filed in due time and overruled, an exception saved to that ruling and the cause appealed.</p> <p>Perhaps the most palpable error in the whole record was the giving, by the court, of instruction numbered 1 on the part of respondent. That instruction told the jury that the sale to Doty & Woodrel, if done after the contract was made and without respondent’s permission, would be a violation of the contract and they should find for respondent. This instruction was given, though appellant had by its pleadings given respondent credit for the amount of the sale. It declares the law to be tliat a breach of contract will operate an absolute rescission of the same. We candidly submit that such is not the law. Certainly the rule does not apply in cases of this kind. The only remedy would be in damages for the breach.</p>

— Eon. J ames L. Fori, Judge. Appellant calls tlie attention of the court to the record in this ease and bill of exceptions, which will disclose the fact that exceptions were taken to the court’s ruling-, both on the motion for a new trial and in arrest of judgment. You will find from the record that many objections were made to the evidence and exceptions saved throughout the entire record.

— lion. Elliott M. Hughes, Judge. (1) The appointment of an administrator ad litem is proper in a suit against an estate whenever from any cause the legally appointed administrator can not properly represent the estate. Woe'rner’s Adm. Law. (2 Ed.), 406 and 401; 2 Am. and Eng. Ency; of Law (2 Ed.), 804, and cases cited. And it is the duty of'the court in which the suit is pending to make the appointment in a proper ease upon tbe applicar tion of an interested party.

Louis City Circuit Court. — Hon. Wm. H. Biggs, Special Judge. (3) Mr. Jones, defendant’s paying teller, had undoubtedly, by virtue of his position, an inherent implied authority to certify checks and bind the defendant thereby. 2 Daniels ■on Neg. Instruments, p. 637, sec. 1610; Morse on Banking (3 Ed.)} sec. 413, p. 673; Bank v. Bank, 16 N. Y. 125; Meads v. Merchants’ Bank, 25 N. Y. 143; Clews v. Bank, 114 N. Y. 70.

— Horn Elliott M. Hughes, Judge. We shall not waste our own time or delay the court by making an extended brief and argument in, this case. The decision of the lower -court in dismissing- the appeal is in direct conflict with the doctrine of the Court of Appeals in the case of Self v. Gowin, 80 Mo. App. 398.

— lion. J. L. Fort, Judge. (1) Tbe information as filed by tbe prosecuting attorney was a nullity; being without verification it would not even warrant' tbe arrest of tbe defendant. State v. Bragg, 63 Mo. App. 27; State v. Kircbner, 23 Mo. App. 349; State v. O’Connor, 58 Mo. App. 457; State v. Pruett, 61 Mo. App. 156. (2) The placing of the verification on the information by the prosecuting attorney in vacation, and without notice to defendant was prejudicial error.

— Son. J. L. Fort, Judge. (1) Instruction No. 1, given for the State, was error, because not based upon tbe theory of tbe case. This prosecution being for tbe violation of section 2243, Revised Statutes 1899' (Sunday law), ignoring entirely the fact that that section is directed to the continuation of tbe business of tbe week. State-v. Crabtree, 21 Mo. 232.

— Pon. Frank B. Dearing, Judge. (1) If sucb permanent injuries consist in a trespass upon land, i. e., “tbe cutting and removal of timber,” tbe beneficiary, after entry or foreclosure, may sue for trespass under section 8675, Revised Statutes 1889, now section 4572, Revised Statutes 1899. Life Ins. Oo. v. Mangold, 83 Mo. App. 281, and cases cited.

— Hon. Henry G. Riley, Judge. (1) Where common carrier delivers goods to wrong party it is guilty of conversion. Wolf v. Railroad, 97 Mo. 173; Cole v. Railroad, 21 Mo., App. 443. (2) Carrier insures delivery of goods to consignee, hence when it delivers goods to wrong person it is guilty of conversion and is liable. Thomas on Common Carriers, p. 181; Story on Bailments, sec. 245; McE'tee v. Steamboat Co., 45 N. J. 34; Schen v. Railway, 10 Hun 498.

Appc.al from Butler Circuit Court. — Hon. J. L. Fort, Judge. (1) Since the case of the State v. Crabtree, 21 Mo. 232, it has been understood that the design of this statute (R. S. 1899, sec. 2243) was to prohibit the continuation of busi-. ness on'Sunday that was conducted during the week; certainly' the court in that case said so-.

Francois Circuit Court. — Hon. Frank B. Bearing, Judge. The court erred in refusing instructions offered on the part of defendant, as under the evidence in this case plaintiff was not entitled to recover. Pearson v. Railroad, 33 Mo. App. 546; Jennings v. Railroad, 37 Mo. App. 652; Cos v. Railroad, 128 Mo. 362; Spooner v. Railroad, 66 Mo. App. 32; Crenshaw v. Railroad, 54 Mo. App. 233; Lloyd v. Railroad, 49 Mo. 199; Ellis v. Railroad, 89 Mo.

<p>Appeal from Laclede Circuit Court. — Hon. L. B. Woodside, Judge.</p> <p>STATEMENT OE THE OASE.</p> <p>Tbe petition is on a policy insuring tbe plaintiff against loss by fire of certain personal property described in tbe petition and in tbe policy. It is alleged that on tbe . . . day of January, 1900, while the policy was in force, all of the property insured was destroyed by fire and was a. total loss to plaintiff; that plaintiff complied with all the conditions of the policy and had repeatedly demanded a settlement and payment of the loss, which had been refused by the defendant.</p> <p>■ The answer admitted the issuance of the policy. As a special defense it is alleged in the answer that the policy provided that within sixty days after the fire, unless the time was extended in writing by the defendant, the plaintiff should render a statement to the defendant, signed and sworn to by him, stating his knowledge and belief as to the time and origin of the fire, his interest and the interest of all others in the property, the cash value of each item thereof and the amount of loss thereon; by whom and for what purpose the building described in the policy or any paid thereof was occupied at the time of the fire and, if required, furnish a certificate of a magistrate or notary public (not interested in the claim as a creditor or otherwise, nor related to the insured) living nearest the place of fire, stating that he had examined the circumstances and believes the insured has honestly sustained the loss to the amount as such magistrate or notary shall certify; that the loss should not become payable until sixty days after the notice containing an estimate and satisfactory proof of the loss provided for in the policy had been received by the company; that the defendant in accordance with the law had provided and furnished plaintiff with blank proofs of loss but that the plaintiff had wholly failed and refused to furnish any proofs of loss required by the policy. The answer denied all other allegations of the petition.</p> <p>The reply was, first, a general denial.</p> <p>Second, a plea of waiver by defendant of the conditions and requirements set out in the answer in respect to proofs of loss. , .</p> <p>The issues were submitted to a jury. Plaintiff introduced the policy which insured the plaintiff against loss by fire as follows: One hundred and twenty dollars on surgical instruments, etc., thirty dollars on instruments cases, book case, sofa and tables; one hundred and fifty dollars on books and library, sofa and chairs, in the office. The policy contained the stipulations set out in the answer in respect to furnishing proofs of loss and further provided “that no suit or action on the policy shall be sustainable in any court of law or equity until after full compliance by the insured with the requirements in respect to furnishing proofs of loss.” The policy contains a three-fourths value clause whereby it is provided and agreed to be a condition of the insurance, “that in the event of loss or damage by fire to the property covered by this policy this company shall not be liable for an amount greater than three-fourths of the actual market value of each item of said property (not exceeding the amount insured on each such item) at the time immediately preceding such loss or damage.”</p> <p>Plaintiff introduced testimony tending to prove that the building, in which his office was situated, and most of the articles insured, were destroyed by fire on the nineteenth day of January, 1900, which fire originated in a building four doors removed from his office, and that the value of the property covered by the insurance, over and above what was saved, was of the value of from four hundred and ten to' four hundred and fifteen dollars.</p> <p>L. R. Phillips, the local agent of the defendant at Conway, Missouri, where the fire occurred, testified that he signed the policy and delivered it, as agent, to the plaintiff and that he was acquainted with D. R. Davenport, the adjuster of the company; that he notified Mr. Davenport of the fire; that the company had several other policies besides the plaintiff’s on other property that was destroyed in the same fire and that he wrote Mr. Davenport about all of them and Mr. Davenport came to Conway about the last of January or the first of February to adjust the losses and that he did adjust some of them and took up the loss of the plaintiff but that he and the plaintiff failed to agree. When Mr. Davenport was going away he said to him, “You had better leave proofs of loss for these men as they will likely want to make their proof of loss,” and Mr. Davenport replied, “that proof of loss would not be necessary, that he only had one and that he was going to St.-Louis and his being there would waive the proof of loss of these parties” (referring to the parties with whom he had failed to make settlement). That the plaintiff after-wards asked him (the witness) about making the proof of loss and that he “told plaintiff what Mr. Davenport had told him;” that he said to Eoberts that he had asked Mr. Davenport for the blank proofs of loss for him and Davenport said his being there would waive the proofs of loss. That at the time of these conversations with Davenport and the plaintiff, and úp to the middle of June of the same year, he was the agent of the defendant and attended to its local business at Conway, Missouri.</p> <p>The plaintiff testified that Phillips, the agent of the defendant company, told him that he would not have to make out proofs of loss that the general agent coming there would waive that and that he (plaintiff) would not be put to the necessity of making out proofs of loss.</p> <p>On cross-examination of Phillips and plaintiff it was shown that after Mr. Davenport had been to- Conway and after plaintiff had been informed it would not be necessary for him to make out proofs of loss, Mr. Davenport furnished to plaintiff, through the mail, blank proofs of loss and informed him by letters that it would be necessary for him to make these proofs before his claim could be adjusted and settled by the defendant; that plaintiff, with the assistance of Phillips, did undertake to make out the proofs of loss which proofs were introduced in evidence by the defendant and were shown to be inadequate and incomplete and failed in material parts to fulfill the requirements of the policy in respect to proofs of loss.</p> <p>Defendant also introduced and read in evidence letters from Mr. Davenport to the plaintiff; one dated March 10, 1900, another April 16, 1900, another April 27, 1900, all of which notified the plaintiff that proofs of loss, in compliance with the requirements of the policy were absolutely necessary to enable the company to adjust the loss and that those furnished were not sufficient. In the letter dated April 27, 1900, Mr. Davenport pointed out specifically wherein the proofs of loss were defective and gave instructions to plaintiff how the proofs of loss should be made and furnished him with additional blanks.</p> <p>In rebuttal plaintiff testified that, he was willing to do almost anything to get a settlement of the loss and that he thought when he made the proofs that he had done all that was called for; that he did not undertake to make out second proofs of loss.</p> <p>For the plaintiff the court gave the following instructions :</p> <p>“No. 1. The court instructs the jury that if they believe and find from the evidence that the defendant issued to the plaintiff the insurance policy sued on, by which the said insurance company insured the property destroyed by fire for a period of one year, and that while said policy was in full force and effect, and without any fault on the part of the plaintiff, the property was burned up and destroyed, they will find the issue for the plaintiff. And in arriving at the amount of plaintiff’s damages the jury will ascertain the value of the property named as the first item of insurance, and if the property so destroyed was, at the time of the fire, of the value of one hundred and twenty dollars they will find for the plaintiff the sum of $120 on the first item. And they will ascertain the value of the property so insured as the second item of insurance, and if .the property destroyed was of the value of thirty dollars at the time of the fire, the jury will find for the plaintiff the sum of thirty dollars on the second item. And they will ascertain the value of the property so insured under the third item of insurance, and if the property so destroyed was, at the time of the fire, of the value of one hundred and fifty dollars, they will find for the plaintiff the sum of $150 on the third item of insurance.”</p> <p>“No. 3. The court instructs the jury that if they believe and find from the evidence that R. S. Phillips, the agent of the defendant company, about the first day of February informed the plaintiff that he need not furnish proofs of loss for the reason that the adjuster of defendant stated to him that his coming to adjust the loss waived the said proof, then the requirement of said policy for such proofs was waived by the said company.”</p> <p>And refused number five asked by defendant which is as follows:</p> <p>“No. 5. The court instructs the jury that the valuations placed upon the property insured, in his application by the insured, is conclusive upon plaintiff and he is bound thereby; so that if you find for plaintiff in this .cause, .you will take the value of the property as fixed by him in his application and add thereto the value of such goods as he may have added to the property insured in his office and deduct from the aggregate of said amounts the value of the property saved from the fire, and three-fourths of the remainder will give the plaintiff the amount which he is entitled to recover if you find for him.”</p> <p>The jury returned the following verdict:</p> <p>“We, the jury, find the issue for plaintiff .as follows: On first item $120. On second item $30. .On third item $150. We further find for vexatious refusal'to settle loss a penalty of ten per cent of $30, to-wit, and attorney’s fee of $ — .’’</p> <p>Defendant in due time filed its motion for a new trial which was by the court overruled, whereupon defendant appealed.</p> <p>The penalty of thirty dollars assessed by the jury has been remitted by the plaintiff.</p> <p>(1) The court erred in giving plaintiff’s instruction No. 1. It ignores the issues raised by the answer. The evidence shows very clearly that plaintiff failed to make proofs of loss, as required. Unless proofs were waived he could not recover. The burden of establishing a waiver was on plaintiff, so that even if the evidence on that proposition was competent, and tended to prove a waiver, it was not for the court to say that it had been established. (2) There is no pretense that plaintiff complied with the requirement that he furnish a magistrate’s certificate. Neither is there any pretense that the same was waived. The magistrate’s certificate is no part of the proofs of loss, and a waiver of proofs of loss would not necessarily waive the certificate. Hence, it was not enough to entitle plaintiff to. recover, for the jury to find “that the defendant issued to plaintiff the insurance policy sued on . . . and that while said policy was in full force and effect, and without any fault on the part of plaintiff, the property was burned up and destroyed.” Noonan v. Ins. Co., 21 Mo. 81; Erwin v. Ins. Co., 24 Mo. App. 145; Eink v. Ins. Co., 60 Mo. App. 613; DeLand v. Ins. Co., 68 Mo. App. 211; McCullough v. Ins. Co., 113 Mo. 606; Johnson v. Ins. Co., 112 Mass. 49; Kelly v. Ins. Co., 141 Pa. 10; Lane v. Ins. Co., 52 N. W. R. (Minn.) 649; Logan v. Ins. Co., 13 Duval 210; Badger v. Ins. Co., 49 Wis. 389 ; Williams v. Ins. Co., 39 Eed. 161; Camwell v. Ins. Co., 39 Up. Can. Q. B. 1. Defendant’s instruction No. 6, therefore, should have been given. (3) The measure of damages fixed by the instruction is wrong. Under the terms of the policy defendant, if liable at all, is liable for three-fourths the value of each item of the property destroyed and no more. Singleton v. Ins. Co., 45 Mo. 250; Blim v.. Ins. Co., 85 Maine 389; 2 May on Ins. (3 Ed.), p. 981, sec. 425. Defendant’s instrucv tion No. 5, therefore, should have been given. (4) The statute (sec. 1919, E. S. 1899), which provides, “No company shall take a risk on any property in this State at a ratio greater than three-fourths of the value of the property insured, and when taken its value shall not be questioned in any proceeding” does not mean that the measure of damage shall be the amount for which the property is insured (sec. 1969, E. S. 1901), because it does not say so. Neither is there anything in the statute which can be construed to prevent the insurer from limiting its liability to three-fourths the value of the property destroyed. The sole effect of this statute is to fix the value of the property when insured.</p> <p>(1) “It is the general rule in such cases that to constitute waiver of proofs of loss, the insurer must have said something, or committed some act during the time stipulated for making proofs whereby the assured, acting as a reasonably prudent man, was induced to believe that such proofs would, not be required.” Cohn v. Orient Ins. Co., 62 Mo. App^. 211; Tittsworth v. Ins. Co., 62 Mo. App. 310; Porter v. Ins. Co., 62 Mo. App. 520; Loeb v. Ins. Co., 99 Mo. 50. (2) Appellant says, “There is no pretense that plaintiff complied with the requirement that he furnish a magistrate’s certificate.” The evidence shows that when Davenport, the adjuster, visited the place of loss to adjust the losses, that he stated to Phillips, the agent of the company, that “him and Eoberts could not agree.” Phillips, the agent of the company, testified that they could not settle. (3) “When the negotiations .of the parties leave as the only issue between them the value of the destroyed property, it may be fairly inferred that defects in proof have been waived.” Porter v. Ins. Co., 62 Mo. App. 520.</p>

— Hon. L. B. Woodside, Judge. (1) Instruction No. 3, given for the State, is erroneous for two reasons: (a) Because it makes the pharmacist who filled the prescription liable for the act of the physician who issued the same, (b) Because it presents an issue to the jury not warranted by the evidence, i. e., that the prescription introduced in evidence was written by the defendant after .the sale was made.

Louis Court of Criminal Correction. — Hon. Willis H. Glarhj Judge. (1) The court erred in sustaining tbe State’s alleged •demurrer to tbe defendant’s plea of former conviction. Tbe plea presented an issue of fact upon which tbe defendant was entitled to a trial by a jury, unless be waived it. State v. Huffman, 136 Mo. 58; State v. Hatcher, 136 Mo. 641; State v. Wiseback, 139 Mo. 214.

— Hon. Franlc B. Bearing, Judge. (1) In an appeal from the judgment of a justice of the peace to a circuit court, if the transcript of the justice contains recitals of fact that give the circuit court jurisdiction of the cause so appealed, it is the statutory duty of the circuit court to hear and determine said cause de novo regardless of the claims or admissions of the parties regarding alleged defects in the service of process or trial had before the justice.

<p>Appeal from Barry Circuit Court. — lion. Henry O. Peyyer, Judge.</p> <p>STATEMENT OE THE CASE.</p> <p>This action originated before a justice of the peace and was brought to enforce a lien for labor and material against a house and lot in the town of Monett, owned .by the Commercial Bank. Brinnell was the original contractor and he let the contract for the plumbing and heating apparatus to Mahan. The statement filed in the magistrate’s court contained two counts, one for the plumbing and the other for the heating material and work.</p> <p>The first count which related to the plumbing, was as follows:</p> <p>“Plaintiff for cause of action states that on the . . . day of August, 1899, he entered into a contract with defendant C. J. Brinnell, to furnish all material for and do all the plumbing work in the building hereinafter described, according to plans and specifications for the price and sum of two hundred and eighty-five dollars. That plaintiff performed said contract on his part and furnished material consisting of three water-closet outfits, throe marble slab washbasins, one white enameled sink, and also all faucets, drainpipes and all other necessary pipes and fixtures, necessary to complete said contract to the amount of $215.68 worth, and performed work and labor on said contract to the amount of $69.52. That defendant C. J. Brinnell had paid on said contract the sum of $129.44 cash, and by note in Commercial Bank $86.24, leaving a balance due plaintiff on said contract of $69.32. That said materials were furnished for and used in, and said work and labor was furnished for and done on and used in the construction of a certain three-story stone and brick building, situated on the following described lot of ground, to-wit: Lot No. 1 in block No. 10 in the Monett Town Company’s town-site of Monett, Missouri, now city of Monett, in Barry county, Missouri. That said property w'as at the dates of furnishing of said materials and doing of said work, and now is the property of the defendant, the Commercial Bank of Monett, a corporation, and that said C. J. Brinnell was the original contractor with the said Commercial Bank of Monett for the erection of said building. That said demand became due on the fifteenth day of January, 1900, and within four months thereafter, to-wit: on the tenth day of April, 1900, plaintiff 'filed said account in tire office of the clerk of the circuit court within and for the county of Barry, duly verified by affidavit, giving a description of the property to be charged with the lien, stating the amount due after all just credits had been given and describing the said Commercial Bank and C. J. Brinnell as owner and contractor, respectively. That more than ten days prior to the filing of said account, to-wit: on the twentieth day of March, 1900, plaintiff gave the said Commercial Bank notice in writing that he held a claim against said building, stating therein the amount claimed, and that the same was due from said C. J. Brinnell. That on the eleventh day of April, 1900, plaintiff filed a notice with the clerk of the circuit court of said county, stating that oh the twelfth day of April, 1900, this action would be instituted before Walt Williams, a justice of the peace, of Monett township, Barry county, for the recovery of the above indebtedness and the enforcement of the same as a lien against the property hereinbefore described.</p> <p>“Wherefore plaintiff demands judgment for the sum of sixty-nine and thirty-two one-hundredths dollars, with interest thereon from the fifteenth day of January aforesaid, and that the same may be declared a lien against the property above described and for costs.”</p> <p>To the foregoing count the bank filed the following answer:</p> <p>“The defendant, the Commercial Bank of Monett, for answer to first count of plaintiff’s petition, admits all tire allegations as to contract with Brinnell for plumbing and price of same; also admits that plaintiff was subcontractor to do the work; defendant further answering says that the credits, as allowed, are correct, except as hereinafter mentioned. Eirst. This defendant has given a credit of $28.50 on said note of $86.24, which credit taken from said note leaves a balance of $62.72, which amount should be allowed on account of this defendant with plaintiff. Second. This plaintiff, on the - day of-gave to one George Cope an order for $27 on C. J. Brinnell, co-defendant in this cause; that no part of this order has been paid and is still outstanding’ against these defendants, therefore should be allowed on defendant’s account with plaintiff. , Which, with other credits makes a total of $219.18 leaving a balance due plaintiff on plumbing contract of $65.84.”</p> <p>(1) In order to give the justice of the peace jurisdiction of the subject-matter of the suit, it was necessary to file withffhe petition an itemized statement of the account. Bailey v. Cook, 8 Mo. App. 565. (2) The lien account is not sufficiently itemized, and is fatally defective. Cahill, Collins & Co. v. Orphan School, G3 Mo. App. 28. Reed v. Mitchell, 97 Mo. 373; Grace v. Nesbitt, 109 Mo. 9; Planing Mill Co. v. Allison, 71 Mo. App. 251. (3) It was incumbent on plaintiff to prove the reasonable value of the materials and labor for which a lien is sought in this action.</p> <p>(1) The justice of the peace had jurisdiction of the ■subject-matter of the suit. The statement filed declared,on a special contract and stated every fact necessary and under the facts could not have been more specific. See. 3893, E. S. 1899; McDemott v. Claas, 104 Mo. 19; Sanderson v. Fleming, 37 Mo. App. 595. (2) The lien account being for a ■specific contract and for a specific amount under the facts, could not be more definite and no other price could be named; and the lien account is therefore sufficient although it embraces two separate contracts. Grace v. Nesbitt, 109 Mo. 9; Planing Mill Co. v. Allison, 138 Mo. 50. ' The last named case overrules 71 Mo. App. 251, cited by appellant. Hilliker v. Francisco, 65 Mo. 599 ; Busso v. Fette, 55 Mo. App; 453; Abbott v. Blood, 60 Mo. App. 196. (3) The answer of appellants to first count of plaintiff’s petition was properly .admitted by the court as an admission that plaintiff did the work, that appellant knew he was doing it, and that the price •charged was reasonable. Bailey v. O’Bannon, 28 Mo. App. '39; Anderson v. McPike, 86 Mo. 293; Corley v. McKeag, ■'57 Mo. App; 415.</p>

Louis City Circuit Court. — Son. Setden P. Spencer, Judge, (1) The court below erred in holding that the opinion of this court compelled him to fix the alimony at $150 per month, and that the appellate court had relieved the judge of any necessity of fixing the alimony except for the time subsequent to that covered by their decision. (2) Court below erred in confining defendant’s evidence to any financial change in defendant’s condition from what it was at former hearing.

— Hon. James L. Fort, Judge. (1) It may be that this court will feel bound to adhere to the rulings it made on this petition when the cause was here before (78 Mo.

— Hon. Elliott M. Hughes, Judge. (1) And a part of the mortgage indebtedness being thus void so 'far as the security was concerned, the entire mortgage was vitiated. State to use v. Hope, 102 Mo. 410; Boland v. Eoss, 120 Mo. 208; Gregory v. Sitlington, 54 Mo. App. 60; Ball v. O’Neill, 64 Mo. App. 388; Lumber Co. v. Mining Co., 78 Mo. App. 676.

<p>Appeal from Texas Circuit Court. — Hon. Leigh B. Woodside, J udge.</p>

— lion. Leigh B. Woodside, Judge. We do not think it would be contended for a minute that a manufacturer would have to make and file two bonds and two affidavits; when the manufacturer complies with section 2290, Eevised Statutes 1899, that is all he is required to do. Of course, he sells the product as a manufacturer, already having sworn not to adulterate, etc. Why should he be required to take another and separate oath ? Criminal statutes should be strictly construed.

Louis City Circuit Court. — Hon. Selden P. . Spencer, Judge. (1) In this State, a writ of error always issues after final judgment in the trial court, and so at common law. Secs. 835, 837, R. S. 1899; Coke Lit-t., 288b. (2) A writ of error is a constitutional method of review, side by side with appeal.

— Hon. Henry C. Pepper, Judge. (1) The court should have sustained defendant’s demurrer to the evidence, (a) because the negligence, if any, causing plaintiff’s injuries was the negligence of a fellow-servant, for which, in the State of Arkansas, defendant is not liable; (b) because there was not sufficient proof of any negligence on defendant’s part to warrant the submission of the case to the jury. Sandels & Hill’s Digest, Laws of Ark.

— Mon. Edwin B. McKee, Judge. (1) To constitute a common-law marriage between defendant and the woman Nell St. John — properly “Nell Pollett,” it devolved upon the State to prove the following facts: first, that defendant and said Mrs. Pollett lived and abided together as husband and wife; second, that they cohabited together as husband and wife; thii’d, that they held each other out, as husband and wife, among the people where they lived; fourth, that there was a general…

<p>1. Assignment of Claim: A PRIMA FACIE ASSIGNMENT BY A CORPORATION. The fact that the assignment of the claim was executed by the president and by the secretary attested by the seal of the company, furnished prima facie evidence that the assignment was the act of the corporation.</p> <p>■2. - ABSOLUTE ON ITS FACE BINDING: QUESTION OF CONSIDERATION IMMATERIAL TO THIRD PARTY. The assignment being absolute on its face, it was immaterial so far as appellant was concerned, whether the assignment was for a valid consideration or for no consideration, and was sufficient to authorize action by the assignee, though the Practice Act requires actions to be instituted by the real party in interest.</p> <p>S. Sale: DELIVERY, CONSTRUCTIVE, SUFFICIENT: PROOF OF SAME ADMISSIBLE. When both parties understood that certain machinery was ready for actual delivery, and the only reason why an actual delivery of it had not been made was because the purchaser had not signified that he was ready to receive it, it is proper to show, in an action for the purchase price, that constructive delivery had been made within the period fixed by the contract.</p> <p>4. Evidence: DECLARATIONS: DEPOSITIONS. Declarations of a witness with respect to the subject-matter of a suit, may be admissible as original evidence in the case, and the fact that they contradict a deposition afterwards given by such witness, will not destroy their admissibility as evidence.</p> <p>5. Referee’s Report: FINDINGS OF REFEREE: TRIAL AND APPELLATE COURT’S ACTION THEREON. In a compulsory reference ease at law, the trial court may review the 'findings of the referee and make findings of its own, and in equity cases the appellate court may also review the evidence and make its own findings, and is not bound by the findings of either the referee or of the chancellor.</p> <p>6. -: COMPULSORY REFERENCE: APPELLATE PRACTICE. In cases of compulsory reference, where all the testimony is before the court, with the findings of the referee, and the trial court’s action thereon, the appellate court may approve, reverse or modify such findings of the referee, hnt to authorize such action, the evidence should be clear and convincing that the findings were the result of mistake or clearly against the weight of the evidence.</p> <p>7. Sale of Machines: SUIT FOR PURCHASE PRICE: WARRANTY,. BREACH OF: BURDEN OF PROOF ON SELLER. Where the contract requires the machines sold to be as good or better, and work as well or better, than the sample machine, and defendants plead a breach of such warranty, that the machines furnished were-not as good and would not work as well as the sample machine, the burden is on the party suing for the purchase price of machines sold, to show that they were as good as the sample.</p> <p>8. -: -: PRIMA FACIE CASE MADE BY THE PROOF. In a suit for the purchase price of machines sold by sample, evidence showing that the machines sold were made according to the same pattern, from the same materials, in the same shop, and by the same men, makes a prima facie case, that the machines correspond to the sample. .</p> <p>9. -: -: DEFENSE, BREACH OF WARRANTY:. BURDEN OF PROOF ON PURCHASER. If the purchaser defends a suit for the purchase price for certain machines sold by sample, that they were not as warranted, the burden of proof is on the party buying to prove that the machines were not as good and did not work as well as the sample.</p> <p>10. '--: -: BREACH OF WARRANTY PROVED: DAMAGES. Machines sold by sample, with the promise that they would be as good and do as good work, and the purchaser was satisfied when they were delivered that they were as near like the sample machine as ordinary cáre and skill could make them, yet, nevertheless, it being clear from the evidence, that the machines utterly failed to perform the work which the sample machine had performed, there was a breach of the tool company’s warranty, and damages therefor should have been allowed by the referee.</p> <p>11. -: --: MEASURE OF DAMAGES. If the machines were of no value for making nails, as the evidence tends to show, then the appellant is entitled to recoup the difference between the contract price and the value of the machines .for some other purnose.</p>

<p>Appeal from Montgomery Circuit Court. — Hon. Elliott M. Hughes, Judge.</p> <p>(1) This is a common-law action, and, hence, should not have been tried, as it was, upon the theory that there had been a technical violation of the statute. Nall v. Bailroad, 97 Mo. 68. (2) The demurrer to the evidence should have been sustained. Tarnell v. Bailroad, 113 Mo. 580; Moss v. Bailroad, 86 Mo. 89; Henry v. Bailroad, 76 Mo. 293; Hanlon v. Bailroad, 104 Mo. 387; Cohn v. City of Kansas, 108 Mq. 393; Bay v. Poplar Bluffs, 70 Mo. App. 261. (3) The court gave improper instructions at the plaintiff’s request. Obert v. Dunn, 140 Mo. 485; Carder v. Primen, 60 Mo. App. 427; Corcoran v. Bailroad, 105 Mo. 406; McGowan v. Bail-road, 109 Mo. 534; Linn v. Bridge, 78 Mo. App. 118; Hoh«tacit v. Daggs, 50 Mo. App. 252. (4) Tbe court gave erroneous instructions of its own motion. Hopper v. Hotel Co., 14-2 Mo. 378. (5) The verdict is so grossly excessive as to imply misconduct on. tbe part of tbe jury. Chitty v. Bailroad, 148 Mo. 64.</p> <p>(1) Appellant first complains of tbe sufficiency of plaintiff’s petition. The point is not well taken. Tbe allegations of the petition are sufficient to support tbe action as tried. Nixon v. Bailroad, 141 Mo. 425. (2) Tbe law of Missouri is well settled that under a common-law count of negligence, statutory negligence may be shown. Hence, tbe court committed no error in admitting testimony to show appellant failed to construct a crossing as required by statute, and instruction No. 1 as prayed for by respondent correctly declared the law. Calvert v. Bailroad, 34 Mo. 467; Iba v. Bailroad, 45 Mo. 469; Minter v. Bailroad, 82 Mo. 128; Boone v. Bail-road, 20 M'o. App. 232. (3) The question of contributory negligence i^ one of mixed law and fact and should be determined by tbe jury, under the guide of proper instructions in tbe light of all attending circumstances. Bulks v. Bailroad, Ill Mo. 335. (4) Wliat an ordinarily prudent man would do under given circumstances must be left for tbe jury. It can not properly be declared, as a matter of law, that plaintiff failed to exercise care unless tbe facts exclude any other fair and reasonable inference. Jones v. Bond, 63 Mo. 501; Maus v. City of Springfield, 101 Mo. 613. (5) Plaintiff’s instructions placed tbe case fairly before the jury and are undoubtedly the law, and well supported by the decisions of the appellate courts of the State. B. S. 1899, sec. 1103; Browning v. Bailroad, 124 Mo. 55; Tetherow v. Bailroad, 98 Mo. 74; Nixon v. Bailroad, 141 Mo. 425; Himes v. Bailroad, 85 Mo. 611; Moberly v. Bailroad, 17 Mo. App. 578. (6) Tbe estimation of damages is the province of the juryy and where their verdict - is supported by substantial evidence, and it has met the approval of the trial judge, the appellate court will not interfere on the ground that it is excessive. George v. Railroad, 115 Mo. 38; Dammann v. St. Louis, 150 Mo. 186; Heart Pence v. Rodgers, 113 Mo. 623; Hollandbaek v. Railroad, Ill Mo. 97; Cobb v. Railroad, 119 Mo. 609.</p>

<p>Constitutional Question: CONSTITUTIONAL AMENDMENT: VERDICT OE NINE JURORS: JURISDICTION: SUPREME COURT: TRANSFER TO SUPREME COURT. A constitutional question, which will authorize a case to be transferred to the Supreme Court, • is raised when the validity of the adoption of the amendment to the Constitution authorizing nine jurors to find a verdict in a civil suit, is challenged by the appellant in the trial court and a ruling adverse to his contention is made, the verdict having been rendered by nine jurors.</p>

— Hon. Williamv N. Evans, Judge. (1) A demurrer to a petition admits all the material facts alleged therein. Dodson v. Lomax, 113 Mo. 555; Verden v. St. Louis, 131 Mo. 26. (2) A demurrer admits the truth of the averments of the petition, and the demurrant can not afterwards claim that the facts stated are improbable. Plant Seed Co. v. Seed Co., 23 Mo. App. 5Y9. (3) Every presumption is in favor of the action of the trial court. Evans-Snyder-Buell Co. v. Turner, 143 Mo. 646.

— Hon. William N. Evans, Judge. (1) The court erred in overruling defendant’s demurrer to the evidence interposed at the close of the testimony offered by the plaintiff, and again presented at the close of all the evidence. Wait v. Railway, 65 S. W. 1028; Guffey v. Railway, 53 Mo. App. 462; Reichenbach v. Ellerbe, 115 Mo. 588; Long v. Moon, 107 Mo. 334; Jackson v. Hardin, 83 Mo. 175; Powell v. Railroad, 76 Mo. 80.

— Mon. Jolm A. Snider, Judge. (1) To say, that the appellants were not entitled to anything from the estate, seems absurd. The courts of this State recognize the propriety of an allowance against the estate, even where an executor might pay without allowance and receive credit for the expenditure on his settlement. So that the theory of a claim against the estate was the proper one for the appellants to have pursued. State ex rel, v. Walsh, 67 Mo.

— Hon. Henry G. Riley, Judge. (1) Declarations made by a vendor of goods before the transfer, which is attached as fraudulent, are competent as bearing upon the question of his intent in making the transfer. It was therefore error to exclude the evidence sought to be elicited from witness Nunn relative to statements made by Trawiek.

— Hon. Edwin R. McKee, Judge. (1) The peremptory declaration should have been given. There was no evidence of negligence. The. law required the company to burn off the grass. There is nothing to show that the men performing this statutory duty did SO' in a careless or negligent manner. (2) Destruction of grass by fire is an injury to the realty and there is no competent 'evidence in this case that the realty was injured. Shannon v. Railroad, 54 Mo. App. 223.

— Hon. John A. Snider, Judge. (1) Tenants, nor their creditors, can defeat the landlord’s lien. Knox v. Hunt and Porter, 18 Mo. 244; Sanders v. Ohlhausen, 51 Mo. 163; Selecman v. Kinnard, 55 Mo. App. 635; Holt v. Colyer, 71 Mo. App. 280. (2) It was not necessary that any demand should be made for rent. The service of the summons shall be deemed and stand instead of a demand for rent in arrears. R. S. 1899, sec. 4118.

<p>1. Covenant Against Biens: DUTY 01? COVENANTOR. An express covenant against a particular lien or incumbrance which the covenantor agrees to remove, gives a grantee in a deed a higher right than the mere indemnity against loss on account of a lien which is incident to the usual covenant against incumbrances generally.</p> <p>2. -: -. And where there is a covenant to remove a particular lien, the right is to have it removed, and the covenantee is not deprived of a cause of action for more than nominal damages, until he himself discharges the incumbrance or is evicted.</p> <p>3. -: -: TIME IN WHICH TO REMOVE INCUMBRANCE. And the obligee may insist on performance of the contract in the time stipulated, regardless of injury suffered.</p>

Francois Circuit Court. — lion. James D. Fox, Judge. STATEMENT OE THE CASE. The city of Farmington is a city of the fourth class. Its charter confers upon the mayor and common council power to levy and collect a license tax on insurance companies and insurance agents doing business in the city. See section 5918, Revised Statutes 1899. In the exercise of this authority the mayor and common council passed the following ordinance: “Section 1.

<p>Appeal from Monroe Circuit Court. — Hon. David H. Bby, Judge.</p> <p>(1) The statute relied upon (sec. 1111, R. S. 1899) imposes a liability, without regard to negligence, against “each railroad corporation owning or operating a railroad in this State,” for damages occasioned “by fire communicated directly or indirectly by locomotive engines in use upon the railroad owned or operated by such railroad corporation.” This statute makes each company liable for damages caused by it. (2) The statute makes the railroad company using engines on a road operated by it an insurer of property destroyed by fire set out by it. Ins. Co. v. Railroad, 74 Mo. App. 106; Ordelheide v. Railroad, 80 Mo. App. 507; Walker v. Railroad, 68 Mo. App. 465. (3) Section 1060, Revised Statutes 1899 (sec. 2568, R. S. 1889), authorizes one railroad company to contract with another, for leasing the whole or part of its road, or licensing or permitting another company, under a running arrangement to run engines and cars upon its road —making the owning company liable as if it operated the road itself when the contract is with a corporation of another State —but not imposing such liability when the contract is with a corporation of this State. Brown v. Railroad, 27 Mo. App. 400; Mahoney v. Railroad, 63 Me. 68; Railroad v. Eridell, 79 Ga. 489. “The lessor of a railroad is not liable for the negligence 'or torts of the lessee.” Miller v. Railroad, 125 N. T. 123; 2 Wood on Railways, sec. 325, p. 1338; Hoff v. Railroad, 14 Eed. 558. (4) So distinct are two railway-companies under such conditions, that the servants of one company are not fellow-servants with those of the other company. Nugent v. Railroad, 80 Me. 62; Merrill v. Railroad, 54 Yt. 200; Railroad v. Carroll, 6 Heisk. 347; Farrell v. Railroad, 4 Metef. 61; Snow v. Railroad, 8 Allen 441; Carroll v. Railroad, 13 Minn. 30; Railroad v. Armstrong, 49 Pa. St. 186; Smith v. Railroad, 1 Pearson (Pa.) 243; Smith v. Railroad, 6 Duer 225; Smith v. Railroad, 85 Mo. 418; Crity v. Railroad, 3 Thompson & C. (N. Y.) 244. (5) Each compapy, under such circumstances, is liable for injuries to its own passengers occasioned by the other company, but not for such injuries to employees and others. McElroy v. Railroad, 4 Cush. 400; Barron v. Railroad, 5 Wall. 90; Railroad v. Culberson, 72 Texas 375 ; Railroad v. Watts, 63 Texas 549 ; Nelson v. Railroad, 26 Yt. 717; Abbott v. Railroad, 80 N. Y. 27; Railroad v. Whipple, 22 Ill. 105; Railroad v. Dunbar, 20 Ill. 623; Railroad v. McCarthy, 20 Ill. 385; Ayles v. Railroad, L; R. 3 Exch. 146.</p> <p>(1) Section 1060, Revised Statutes 1899, is the same (on the subject of one railroad leasing to another) as section 790, Revised Statutes 1879, while section Ill. was first enacted in 1887, and if the two statutes can not stand together, then the subsequently-enacted statute must prevail, as by implication repealing the former statute; but respondent contends that the statutes are consistent and both may stand together. Section Ill. is limited to fire damages, while section 1060 is general in its provisions, and makes the lessor liable for all damages committed by a foreign r-ailroad operating-trains on a domestic railroad (being the lessor). "The appellant, in its answer, sets up a contract with the Wabash railroad, wherein the Wabash contracts to pay all damages occasioned by its train service over defendant’s road, but this does not relieve the defendant for liability, if force and effect is given to section 1111, but does give the lessor a right of action against the lessee under the contract. (2) In discussing the question of the validity, of a contract between the lessor and lessee to indemnify lessor against liability under section Ill. (section 2615, R. S. 1889) for damages committed by the lessee railroad, the Kansas Oity Court of Appeals, in case of Walker Bros. v. Railroad, in 68 Mo. App. é71, and following, say: “Assuming, however, the validity of this stipulation in the contract entered into between Wolfe & Company and the defendant railway company, to the effect that the company should not be held to pay Wolfe & Company for any losses by fire communicated by passing locomotives, I yet fail to understand how plaintiff can be bound thereby or precluded from the recovery of such losses as they may sustain. Plaintiffs are entire strangers to any such contract. They were not even privies in- any sense of the word.”</p>

— Hon. J. L. Fort> Judge. At tbe first term after the appeal the company filed application for change of venue, which was in proper form, sworn to by its president, alleging that the then judge of the court was so prejudiced against defendant that it could not have a fair and impartial trial, and that the opposite party had an undue influence over his mind.

— Hon. fflliott M. Hughes, Judge. Everything done, said or printed in this litigation by defendant shows beyond the question of doubt that the defense has never been in the interest of DickmeyerVestate, but always adverse and opposed to it. At no stage of the litigation did the defendant represent Dickmeyer’s estate only in name, but from the beginning to tbe end claimed the fund in dispute as belonging to Dickmeyer’s children against the estate.

Louis City Circuit Court. — Son. Walter B. Douglas, Judge. All of these assignments of error will be discussed together, for they are all based upon the same proposition. “Where an insurance company, after a loss, has adjusted the claim therefor, and has agreed to pay a certain sum in liquidation of the claim, it can not, in an action setting forth such facts, object that the action was not brought within the time limited in the policy.

Louis City Circuit Court. — Hon. Daniel D. Fisher, Judge. (1) The agreement under which this plaintiff was employed was made by Joel, as trustee, and in the interest of the trust estate. It was not a personal contract with Joel, nor was it an agreement binding upon the Greengard & Ehrlich Manufacturing Company. Mechem on Agency, sec. 446.

..Appeal from Dunklin Circuit Court. — Hon. James L. Fori, Judge. (1) The court erred in rejecting the offer of guardian and curator to prove that he made the'repairs on the ward’s •estate and that the repairs and fencing were necessary ■ and beneficial to the estate of his ward; even though there had been no previous order of court allowing such expenditure.

— Hon. W. W. Graves, Judge. (1) Tbe particular thing that caused the plaintiff’s injury could not, and would not reasonably be anticipated as the result of making the hitch to the car, either in the manner claimed by plaintiff, or as described by defendant’s witnesses.

— Hon. Jas. E. Hazell, Judge. (1) Plaintiff, under the pleadings and the undisputed evidence, was entitled to judgment upon the note. He still retains the land. He can not be permitted to keep the land and refuse to pay the eight hundred dollars which, confessedly, was to be paid to the plaintiff in that event. Smith v. Busby, 15 Mo. 392; Pershing v. Canfield, 70 Mo. 140; Erink v. Thomas, 12 L. R. A. 239.

— Hon. E. P. Gates, Judge. (1) The petition in this case did not authorize a recovery of a money judgment against the defendant, for the reason that no judgment was asked for the recovery of any sum of money, the only prayer being for a dissolution of a partnership, etc. Nor are such facts stated in the petition as to enable the defendant or the court to ascertain the amount demanded. E. S. 1899, sec. 592; Carter v. Shotwell, 42 Mo.

— Hon. J. A. Hockaday, Judge. (1) Tbe defendant was not required to construct a crossing to connect the lands mentioned in the petition, nor was the plaintiff entitled to any such crossing, and, therefore, was not entitled to recover. See. -2611, E. S. 1889; Stumpe v. Railroad, 61 Mo. App. 357; Miller v. Railroad. 56 Mo.

— Hon. James Gibson, Judge. (1) Tbe court erred in overruling the request of appellant society for a charge to the jury peremptorily directing a verdict in its hehalf. Harvey v. A. O. U. W., 50 Mo. App. 472; Borgraefe v. Supreme Lodge, '22 Mo.

— Hon. J. II. Slover, Judge. (1) Instruction No. 5 is erroneous. First, there is no evidence upon which to predicate it — none whatever. The only evidence upon the cause of the fall is that of plaintiff, which is to the effect that she stepped off the sidewalk without knowing that the board was gone from the crossing. She was thereby hurled forward, stumbled against one of the crosspieces and was thrown down.

— Hon. J. H. Blover, Judge. (1) The demurrer to the evidence should have been sustained. There is not a particle of evidence tending to show negligence on the part of the defendant.

— Hon. John P. Butler, Judge. (1) The eleventh refused instruction asked by defendant “that under the Constitution of the Hnited States and the State of Missouri,” if the jury finds a verdict it must be by twelve of your number, raises a constitutional question ■which requires this case to be certified to the Supreme Court of Missouri.

— Hon. Jno. P. Butler, J udge. (1) The court admitted illegal and incompetent testimony for defendant.

— Son. John A. Sochaday, Judge. (1) This cause of action is based upon section 4340 of our statutes and seeks the relief afforded by same, and does not state any cause of action against the appellant personally. (2) Since this case was tried upon, the theory that it was based on section 4340 of our statutes, that theory can not now be changed and the case reviewed in this court upon a different theory. Tomlinson v. Ellison, 104 Mo. 105; Jennings v. Dunham, '60 Mo.

— Hon. John P. Butler, • Judge. (1) Every member of a beneficiary order is presumed to linow tbe provisions of tbe by-laws of tbe order. Harvey v. Grand Lodge, 50 Mo. App. 472. (2) Officials and members of subordinate lodges have no right to waive any of tbe requirements of tbe by-laws of tbe order in so far as tbey affect tbe rights of tbe parent corporation.

— Hon. W. K. James, Judge. (1) In the interpretation of insurance policies with reference to ambiguous and uncertain language, the court will interpret it most favorably to the holder, see Norman v. Ins. Co., 14 Mo. App., near bottom of page 461; Brown v.’Ins. Co., 45 Mo. 221; Burnett v. Ins. Co., 68 Mo. App. 343; Hoffman v. Accident Indemnity Co., 56 Mo. App. 301.

— Hon. E. P. Gates, J udge. (1) The court erred in overruling the defendant’s demurrer to the evidence at the close of plaintiff’s case. Plaintiff failed to establish a prima facie ease of authority on the part of defendant’s brakeman, Marshall, to remove or eject plaintiff from the train on which he was riding as a mere trespasser. Krueger v. Railroad, 84 Mo. App. 366; Earber v. Railroad, 116 Mo. 81.

— Hon. W. B. Teasdale, Judge. (1) The court erred in modifying and giving in a modified form defendant’s instruction number five.

— Hon. H. G. Timmoncts, Judge. (1) In view of the agreement made by plaintiff, this defendant can be treated as having wrongfully entered upon the strip of land in question. And if plaintiff’s deed to Medlin did not convey this strip, then he would only be entitled to recover damages of the same nature and to the same extent as compensation might be awarded in a condemnation proceeding.

— Hon. J. D. Perkins, Judge. (1) The right parties were sued. ,(a) Because the trustees under the deed had a fee simple title. “A trust with a power to sell confers a fee simple title.” 27 Am. and Eng. Ency. Law (1 Ed.), notes on pages 112,113, 114. Preacher's Aid Society v. England, 106 Ill. 125; Stockbridge v. Stock-bridge, 99 Mass. 244; United Brethren Church v. Eirst M. E. Church, 138 Ill. 608; Jackson v. Robin, 16 Johns.

— Hon. J. D. Perkins, Judge. (1) The court erred in excluding the evidence of Dr. J. R. Ereed, as to the character and extent of plaintiff’s injuries. Plaintiff having voluntarily offered herself as a witness, testified fully as to the character and extent of her injuries and the treatment received from the various physicians. She waived the right to object to Dr. Ereed testifying. Cramer v. Hurt, 154 Mo. 120; Lane v. Boieourt, 25 Am. St. 442; Webb v. Railway, 89 Mo.

— Son. S. O. Timmonds, Judge. (1) An interpleading suit involves two successive litigations, the one between the plaintiffs (in the bill) and the defendants upon the question, whether the defendant shall inter-plead; the other between the different defendants, i. e., the interpleader itself. The subject of these two litigations are wholly separate and distinct. Story Eq. PL, sec. 291; Langsdell on Eq. PL, sec. 162; Roselle v. Bank, 119 Mo. 84.

— Hon. E. P. Oates, Judge. The judgment should have been for the defendant and the court erred in giving a peremptory instruction to find for the plaintiff, for the reason that under the policy contract and the undisputed evidence, there was no liability on the part of the defendant in that the policy of indemnity did mot cover accidents or injuries happening while riding on an elevator. Prendergast v. Ins. Co., 67 Mo.

- — Hon. Wm-. L. Jarrott, Judge. (1) The justice did not acquire any jurisdiction over the subject-matter of the controversy, because the instrument filed as the basis of the suit did not disclose any cause of action in favor of plaintiff against defendant. The court should have sustained defendant’s objections to thei introduction of the contract in evidence. Smith v. Zimmerman, 29 Mo. App. 249; Pattison v. Lutz, 1 Mo. App. 133.

Louis City Circuit Court.- — Hon. John A. Talty, Judge. (1) The proof should be confined to matters existing before the bringing of the suit. Defendant could not desert plaintiff after the suit was brought. The statute requires the desertion should exist, without a reasonable cause for one whole year before the institution of the suit. In divorce proceedings the recovery must be on the state of facts which existed when the suit was brought. Dwyer v. Dwyer, 26 Mo. App. 651.

Louis Court of Criminal Correction. — Hon. Willis Glarh, Judge. (1) We consider it not to be material that the negative allegation should be proved merely conjunctively, for the term “stealing” includes larceny of itself. State v. Schaltz, 71 Mo. 504. (2) This statute (section 2036), for all the purposes of this point, requires the application of the same principles as perjury; because using substantially the same defining words, and is sui generis et in pari materia with it.

— Son. David H. Eby, Judge. (1) If the respondent really accepted defendant’s offer of guaranty made June 28, 1899, the law required it to notify defendant of its acceptance within a reasonable time thereafter, and its failure to do so defeats recovery in this ease. Kankin v. Childs, 9 Mo. 673; Smith v. Anthony, 5 Mo. 503; Bank v. Shine, 48 Mo. 456; Taylor v. Shouse, 73 Mo. 361; Mitchell & Bro. v. Kailton, 45 Mo.

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

.Appeal from St. Louis City Circuit Court. — Hon. Selden P. Speticer, Judge.

— Hon. David H. Eby, Judge. (1) A city is not liable for every defect or imperfection in a sidewalk; tbe defect must be sucb that on its account the sidewalk is not reasonably safe for travel in tbe ordinary modes. Young v. Kansas City, 45 Mo. App. 600.

Louis County Circuit Court. — Hon. John W. McMhinney, Judge. STATEMENT. ' Tin's proceeding originated between School District No. 1 ;and School District No. 4, township 45, range 3 east, St. Louis county, for the purpose of changing the boundary lines ■between the two districts.

— lion. Franls B. Bearing, Judge. STATEMENT OF THE CASE. The statement- before the justice of the peace in this case is as follows (omitting caption and signature): “Plaintiff states that defendant is a corporation, organized and doing business under and by virtue of the laws of the State of Missouri; that on the twenty-third day of October, 1900, defendant was running and operating a railroad through Black River township-, in the county of Wayne, State of Missouri; that on…

<p>1. Bill of Exceptions: BILL OF EXCEPTIONS MUST BE EMBRACED IN ONE STATEMENT: MANDATORY RULE: STATUTORY CONSTRUCTION. The last clause of section 728, Revised Statutes 1899, in respect to filing exceptions, which provides that, “All exceptions taken during the trial of a cause or issue before the same jury shall be embraced in the same bill of exceptions,” is mandatory,, and contemplates that the final bill of exceptions shall be embraced in one document.</p> <p>2. -: -: JURISDICTION OF JUDGE IN SIGNING BILL OF EXCEPTIONS: PRACTICE, TRIAL: PRACTICE, APPELLATE. When a judge approves and signs a part of a bill of exceptions and orders .the same to be made a part of the record, he exhausts his jurisdiction in respect to signing a bill of exceptions, and can not thereafter sign a remainder, supplemental or additional bill of exceptions.</p>

— Hon. David II. Ehy, Judge. (1) A probate court has no jurisdiction to adjudicate, and allow claims of the husband, against his deceased wife’s estate, upon contracts made during coverture. Lindsay v. Archibald, 65 Mo. App. 120; Davis v. Smith, 75 Mo. 227; Boston v. Murray, 94 Mo. 181. (2) A husband contracting with his wife, has no personal cause of action against her, which would survive against her representative. Bank v. Mc-Menamy, Adm’r, 35 Mo.

<p>The court follows the decision in Grimes y. Reynolds, 94Mo. App. (St. L.) 576, and certifies the case to the Supreme Court for the reasons stated in the opinon cited.</p>

— Hon. John W. Mc-Elhinney, Judge. (1) On its face, the statute only applies to those demands that can be allowed and classified after allowance. Secs. 184, 185, E. S. 1899; Brammel v. Adams, 146 Mo. 70. (2) Appellant was not seeking a money judgment against the estate. He only sought the allowance of a credit, the establishment and allowance of which would reduce his indebtedness to the estate pro tanto. Stiles, Adm’x, v. Smith, 55 Mo. 363.

— Hon. Edwin B. McKee, Judge. (1) A party can not attach property of defendant and have it sold under writ of attachment, and then when inter-pleader claims same under mortgage, assert title independent of attachment. Boettger v. Noehling, 74 Mo. App. 257. (2) There was a forfeiture under the mortgage as is clearly shown by the petition of the plaintiff in the cause, and the right of the mortgagor to redeem after forfeiture is not subject to at» tachment or execution.

— Hon. Elliott M. Hughes, Judge. STATEMENT of the case. Lorenz Eeger formerly lived in Audrain county, where he died on the seventeenth day of January, 1900, and after his death the demand which is the subject-matter of this controversy was presented for allowance against his estate, of which William Eecht is administrator.

Original Habeas Corpus Proceeding. The St. Louis House of Refuge Act is found in Revised Statutes 1899, pages 2553, et seq. This act shows that the house of refuge is not a penal institution but an eleemosynary institution provided by law for the care and protection of infants; it shows further that there is no provision authorizing the imprisonment of any one in this institution for crime.

Louis City Circuit Court. — lion. D. D. Fisher, Judge. (1) The attempt of the town to grant respondents an exclusive privilege to build waterworks does not invalidate the ordinance, nor the first section thereof. The exclusive feature alone is void. The ordinance without this feature is .good, and is sufficient consideration for the bond.

Louis City Circuit Court. — Hon. Wm. Zachritz, Judge. (1) An action for damages growing out of the keeping of an animal after knowledge of its yiciousness, is distinct from one based upon negligence in the manner of keeping. Cox v. Murphy, 82 Ga. 627. (2) When two causes of action are blended in one count, the remedy is by motion to elect. Otis v. Bank, 35 Mo. 128; State ex rel. v. Tittmann, 103 Mo. 553; Mooney v. Kennett, 19 Mo. 554; Okristal v. Craig, -80-Mo. 371.

Louis City Circuit Court. — Mon. FranhKn Ferns, Judge. STATEMENT OF THE CASE. George Mueller, one of tbe defendants, is the son' of Johan and Barbara Mueller, both now deceased. Said George Mueller, on the twenty-fifth day of February, 1896, made a promissory note to.

— No». Henry Q. Riley, Judge. The appellant insists that the temporary injunction and the judgment making it perpetual was inconsiderately done. That defendant had not infracted any legal right or privilege of plaintiffs, and that the grant by the city of Cape Girardeau of a license to plaintiff to operate a ferry was an act ultra vires.

— lion. Henry O. Pepper, Judge. (1) “No petition for review of any judgment for divorce, rendered in any case arising under this chapter, shall be allowed, any law or statute to the contrary notwithstanding; but there may be a review of any order or judgment touching the alimony and maintenance of the wife and the care, custody and maintenance of the children, or any of them, as in other cases.” R. S. 1899, sec. 2932.

— ílon. Jmies T. Neville, Judge. (1) This being an action for damages in the nature of slander of title, the court held the petition bad because plaintiff failed to set out the exact words spoken by the defendants. If that is required in cases of this kind, then we concede the petition is bad.