Volume 95 — Missouri Appeal Reports

— How. Wm. L. Jarrott, Judge. (1) If Bowen had never assigned the judgment at all, it would still be subject to set-off as against him. This was expressly decided in Johnson v. Hall, 84 Mo. 211, and the case has never been overruled by the Supreme Court. (2) The judgment in this case is similar to a judgment in case of mutual accounts, only it presents stronger reasons why set-off should lie allowed.

A. D. Burnes, Judge. (1) A motion in arrest can only be upheld when a petition fails to state a cause of action, or there is some defect which renders the judgment void. A motion in arrest only reaches defects which are apparent upon the face of the record proper. In this case the petition and judgment both are regular. Black on Judgments, 98; White v. Caldwell, 17 Mo. App. 691. (2) A defective pleading can not be taken advantage of by a motion in arrest of judgment.

— Hon. E. P. Gates, Judge. (1) Under the testimony of the plaintiff himself, the court should have directed a verdict for the defendant. Nolan v. Sliickle, 69 Mo. 336; Bohn v. Railroad, 106 Mo. 429; Shea v. Railroad, 76 Mo. App. 29; Fugler v. Bothe, 117 Mo. 475; Thomas v. Railroad, 109 Mo. 187; Berning v. Medart, 56 Mo. App. 443; Aldridge v. Furnace, 78 Mo. 559; Watson v. Coal Co., 52 Mo.

-— Eon. W. L. Jarrott, Judge. (1) The officers of the city had no power or authority to prevent Martin from carrying out his contract, and did not do so. Under Martin’s own testimony there is no pretense that the officers forcibly interfered and carried away the casing to have it perforated. The meaning and effect of his testimony is that he reluctantly yielded to their request to have the casing perforated. He could have prevented it if he had insisted.

— Hon. Nat M. Shelton, Judge. (1) The court erred in admitting in evidence the statements filed with justice Gruffey and the judgment of said justice in the case of Thomas N. Welsh v. J. M. Warnick for the conversion of the note read in evidence. It was agreed at the time these were offered in evidence the judgment remains wholly unsatisfied.

— How. James Gibson,, Judge. (1) The hangers that broke were of a character in general use for the work they were doing, and had always proven safe and sufficient. In such case no negligence is shown by the use of the hanger. Holt v. Railway, 84 Mo. App. 443; Mason v. Mining Co., 82 Mo. App. 370; Smith v. Railroad, 69 Mo. 32; Higgins v. Panning & Co., 195 Pa. St. 599; Ship Building-Works v. Nuttall, 119 Pa. St. 149; Railway v. Husson, 101 Pa. St. 1; Hehler v. Schwenk, 144 Pa.

— Sow. J. W. Alexander, Judge. (1) The court, over the objection of appellant, admitted evidence that James J. Lawson had given plaintiffs, as pay for extra services, forty acres of land of the value of $600 and $45 in cash. This was error. The contract in issue was dated April 4, 1894, and James Lawson died on May 23,. 1894, and these sums could not have been for reward of services for one month and nineteen days.

— Ho». Win. L. Jarrott, Judge. (1) The indictment is defective; it charges no crime. (2) If they had separate licenses or were running separate stores, then they could not be jointly charged. The statement of facts says they made “joint and separate sales” and we can’t tell which the jury convicted them of. R. S. 1899, sec. 8540; State v. Martin, 5 Mo. 362; State v. Brown, 8 Mo. 211; State v. Cox, 32 Mo. 566; State v. Richeson, 45 Mo. 575; State v. Ford, 47 Mo.

<p>1. Equity: PLEADING: .MULTIFARIOUSNESS: PETITION: DEMURRER. If a plaintiff bases his claim to equitable relief against several defendants on one general right, his petition is not demurrable for multifariousness, although 'the defendants have separate and distinct defenses.</p> <p>2. -: -: CLOUD UPON TITLE: TAXBILLS. A city by several distinct ordinances constructed several sewers and issued taxbills to several contractors therefor against plaintiffs’ realty. The action was had under an unconstitutional statute. During different parts of the time two constitutional laws authorizing the building of sewers and issuing taxbills were in force. ' Held, that said taxbills constituted a cloud upon plaintiff’s real estate and he could maintain a bill in equity against the several owners of said taxbills to remove the cloud and cancel the bills.</p> <p>. 3. -: -: -: DIFFERENT STATUTES. Whether the tax-bills were issued under the constitutional or unconstitutional law, was a question of fact if traversed; but the allegation of the petition, that they were issued under the unconstitutional act, was admitted by demurrer.</p>

— He». J. D. Perkins, Judge. (1) The court should have given instruction No. 1, asked by the plaintiffs, as under the undisputed evidence in the case, plaintiffs had sold the defendant goods between the date of the chattel mortgage (February 27) and May 9, 1899, the sum of $134.40. That during all that time said chattel mortgage was kept secret and off of the record, and defendant remained in possession of the property and used the same until the last-mentioned date.

— Ho». Geo. F. Long cm, Judge. (1) Plaintiff’s evidence shows conclusively that he broke the condition of the bond by not notifying defendant immediately after the first and all subsequent defaults' of the principal, and defendant’s demurrer to the evidence should' have been sustained. Michigan Savings & Loan Ass’n v. Trust Co., 73 Mo. App. 161; Rice v. Fidelity & Deposit Co.., 103 Fed.

<p>1. Passenger Carriers: DEGREE OF CARE: INSTRUCTION. An instruction Folding a passenger carrier guilty of negligence unless Fe exercised tlie utmost Fuman skill, diligence and foresigFt to prevent tFe accident, is error.</p> <p>2. Evidence: INSTRUCTIONS: ABSENT WITNESS. An instruction relating to tFe evidence of an absent witness, whicb in effect told' tlie jury that the absent witness Fad made contradictory statements, is. condemned.</p> <p>3. -:--: -: An instruction set out in tlie opinion and relating to tlie testimony of an absent witness, is held to be at -least of doubtful propriety and should not be given.</p> <p>4. Damages: HUSBAND, AND WIFE: SOCIETY: INSTRUCTION: ASSUMING FACT. An instruction relating to damages for the loss of a wife’s society should not assume facts in dispute on the evidence,</p> <p>5. -: LOSS OF TIME: NURSE: SUGGESTIONS. Among other hints for a new trial it is suggested that a husband who nurses his wife is entitled to recover the reasonable value of his time as a nurse without regard to his ability for earnings in any other capacity.</p>

— Ho». L. H. Waters, Special Judge. (1) A mechanic’s lien on three houses, based on a general contract for the erection of all three, etc. 1 Greenleaf on Evidence, p. 51, p. 70; R. S. 1899, sec. 4160, subdiv. 1.

— Now. E. P. Gates, Judge. (1) In passing upon a demurrer to evidence, or a request for a peremptory instruction in favor of the defendant, the court is required to make every inference of facts in favor of the plaintiff which a jury might have made in his favor. The court can make no inference of fact in favor of the defendant nor can the court question the truth of any of plaintiff’s evidence.

— Hon. John W. Henry, Judge. (1) Under the evidence submitted by plaintiff, the case should have gone to the jury; the rule being well settled that if there is any evidence tending to prove the issues, the case must go to the jury. Batavia v. Wallace, 42 C. C. A. 310 (102 Fed. Rep. 240), where on page 314 the exact point is decided on the same facts as in this case. Groll v. Tower, 85 Mo. 249; Moody v. Deutsch, 85 Mo. 237; Baum v. Fryrear, 85 Mo. 151.

— Hon. J. H. Slover, Judge. (1) The architect made his contract with and drew his pay from the owner of the building and acted for him in all matters pertaining to the contract. Northern Light Lodge Co. v. Kennedy, 73 N. W. 524; Lewis v. Slack, 27 Mo. App. 131. (2) It is no breach of the bond to charge that parties threatened to file liens; hence, the court can réadilv see that no cause of action against sureties is stated in the petition.

— How. J. H. Slover, Judge. (1) The age of the cattle named in the mortgage is no material part of the description and should be rejected or disregarded, as an entirely erroneous addition to the part of the description which controls. It is merely an erroneous designation which does not impair the validity or lien of the mortgage. Jones on Chattel Mortgages (3 Ed.), par. 61; Barse Live Stock Com.

<p>1. Corporations: LIABILITY OP STOCKHOLDER: TRANSPER ON BOOKS. Generally a shareholder is only released from his liability on his stock after it has been formally transferred on the books but this, doctrine is generally founded on the law requiring transfers of stock to be entered.</p> <p>2. -: -: OWNER: CREDITOR. While the Missouri statutes. provide for stock books yet it is not requisite to title that the stock should be transferred on the books; and so where unissued stock has been fairly transferred to another by parol, the transferer is not liable to a creditor of the corporation.</p>

<p>Corporations: LIABILITY OF STOCKHOLDEE: CEEDITOE: OWNER. Affirmed on the authority of Dain Manufacturing Company v. Trumbull Seed Company, 95 Mo. App. láá.</p>

— Hon. J. D. Perkins, Judge. (1) It is fundamental that in declaring on a contract containing stipulations to be performed by the plaintiff precedent to the performance of the agreement of the defendant, the plaintiff must allege the performance of such stipulations. He' can not plead performance, on his part, of a part of the contract, and his failure to perform another part of the contract,' unless the contract is apportionable.

— Hon. E. P. Gates, Judge. (1) The contract was not executed by the contractor and guaranteed by two or more sureties, Eowland, one of the two sureties thereon, being the actual contractor. City Charter, sec. 20, art. 9. (2) Thé work was not completed within the time required by the contract. City of Springfield v. Davis, 80 Mo. App. 574. When no timé is fixed by ordinance, a reasonable time is implied. Ayers v. Schmohl, 86 Mo. App. 349; McQuiddy v. Brannock, 70 Mo. App. 535.

— So». E. P. Gates, Judge. (1) The court erred in giving instruction number two for plaintiff on the measure of damages. Trust Co. v. Bambrick, 149 Mo. 560; Martin v. Railroad, 47 Mo. App., 452; Sheehy v. Railroad, 94 Mo. 574. (2) The court erred in permitting plaintiff to recover damages for the cost of a retaining wall. Bauman- v. Boeckeler, 119 Mo. 189; Rosenberger v. Miller, 61 Mo. App. 422; Brinck v. Collier, 56 Mo. 164.

— How. Jno. Wo Henry, Judge. (1) The court erred in excluding all evidence offered by appellant under its cross-petition against its co-defendant, Doggett Dry Goods Company, and in permitting plaintiff to dismiss her suit as to said defendant.' Mancuso v. Kansas City, 74 Mo. App. 138; Independence v. Railroad, 86 Mo. App. 585; Sec. 767, R. S. 1899; Hicks v. Jackson, 85 Mo. 283; Benoist v. Thomas, 121 Mo. 660; Bobb v. Wolff, 54 Mo. App. 515; See also 5 Enc.

— Ho». James Gibson, Judge. (1) The court submitted the case to the jury upon a different contract than that pleaded in the amended petition. Woods v. Campbell, 110 Mo. 572; Brown v. Railroad, 101 Mo. 484; Railroad v. Railroad, 118 Mo. 625; Smith v. Railroad, 108 Mo. 243, and cases cited; Edwards v. Railroad, 79 Mo. App. 257; Chitty v. Railroad, 148 Mo. 64; James v. Hicks, 76 Mo. App. 108; Manufacturing Co. v. Ball, 43 Mo.

— Ho». E. P. Gates, Judge (1) The court erred in refusing the peremptory instruction to had for the defendant at the close of the evidence. 156 Mo. 27. (2) The court erred in admitting evidence of the condition of the frames north and south of the one in controversy. Kuntsch v. New Haven, 83 Mo. App. 174; Weinberg v. Appleton, 26 Wis. 56-58. (3) The court erred in admitting the anwer to the hypothetical question asked Mr; Hedrick by the plaintiff. Benjamin v. Railway, 50 Mo.

— Ho». Samuel Davis, Judge. (1) It was the duty of the court, especially under the peculiar facts of this case, to have instructed the jury that if respondent was indebted to Renick and paid such indebtedness without allusion to any account (which was conclusively proven), there was a presumption of fact from which the jury might (not should) infer that all indebtedness existing was settled. Burkholder v. Henderson, 78 Mo. App. 287; Pickel v. Association, 10 Mo.

— Ho». J. D. Perkins, Judge. (1) It was admitted that after the policy was issued, one of the co-partners insured sold his interest to an outside party. That wrought, of course, a change in the co-partnership and a change in the interest and title to the property insured, which avoided the policy, unless the same was waived. Finley v. Ins. Co.,. 30 Pa. 311; Dix v. Ins. Co., 22 111. 272; Hartford Ins. Co., v. Ross, 23 Ind. 179; Card v. Ins. Co., 4 Mo. App. 424; Malley v. Ins.

— Hon. J. D. Perkins, Judge. (1) The petition is bad. It shows on its face that plaintiff was guilty of contributory negligence. 5 Ency. Pleading and Practice, pp. 7 and 8, par. 3; Railroad v.* Wilson, 134 Ind. 95; Railroad v. Griffin, 100 Ind. 221; Railroad v. Goldsmith, 47 Ind. 43; Fort Wayne v. DeWit, 47 Ind. 391; Riest v. Goshen, 42 Ind, 339; Ream v. Railroad, 49 Ind. 93; Reynolds v. Copeland, 71 Ind. 422.

— Eon. E. P. Gates, Judge. (1) Under the evidence, the plaintiff was not entitled to recover and the cause should he reversed. Wray v. Electric Light Co., 68 Mo. App. 380; Lawless v. Laclede, 72 Mo. App. 679; Deisenwieter v. Malting Co., 72 N. W. 735; Corcoran v. Wanamaker. 39 Atl. 1108; O’Keefe v. National Box Co., 33 Atl. 587.

— lion. James E. Gibson, Judge. (1) Plaintiff’s instruction 10, given by the court, was error, because the only testimony in the case as to the $15.25 showed that assessments 650 and 651 and six month’s dues, for which deceased was suspendible, formed a part thereof; and for the fp.rtk.er reason that it absolutely ignores the provision contained in the application for membership that an omission or neglect to pay assessments, fines or dues on- or before the day when the same…

— How. Jno. W. Henry, Judge. (1) It Laving been made clear by the testimony that the board of public works did not exercise its judgment in the selection of the vitrified brick of the Diamond Brick & Tile Company, as the brick material for the pavement, and that such designation and selection by the board of public works was due to a practice of the board, then in vog’ue, to designate whatever materials might be specified in a petition, signed by residents owning a majority…

— How. E. P. Gates, Judge. (1) A former judgment is not a bar unless the former case was upon the same cause of action, unless the merits now involved were at issue and actually decided, and unless… Held: 58 Mo. 213.'

— Son. J. D. Perkins, Judge. (1) There is no contention in this case that the plaintiff had any greater right in the note sued on than Gr. L. Crenshaw had, who is plaintiff’s president, and it is expressly so stated in the reply; neither does the plaintiff seek to affirm the judgment on any technical ground. (2) The defense of failure of consideration will not avail the defendant in this case. The assignment of the leases was a good consideration for the note.

<p>■ 1. Attachment: INTEEPLEA: TITLE: POSSESSION. An interplea is a separate proceeding from the attachment and the right of property is the issue; and the interpleader must show his right at the time as general or special owner to the immediate exclusive possession. (Cases considered.)</p> <p>-2. -: -: POSSESSION: DESTRUCTION OF PROPERTY: ACTION. An interplea is in the nature of replevin engrafted on an attachment proceeding, and is a possessory action; and where the attached property had been burned before the interplea is filed, the proceeding can not be sustained.</p>

— Hon. H. G. Timmonds, Judge. (1) The court committed error in allowing plaintiff, over the objection of defendant, to read to the jury the transcribed notes of the testimony of J. W. Tarr, defendant, as taken by the official stenographer in a former trial. This was especially erroneous when, as in this case, the witness whose testimony was read was alive and present in court. Padley v. Catterlin, 64 Mo. App. 629; Byrd v. Hartman, 70 Mo. App. 57; Dempsey v. Lawson, 76 Mo.

— How. H. G. Timmonds, Judge. (1) The court erred in refusing appellant’s instruction number 2. In an action of replevin the plaintiff must recover upon the strength of his own title, and not on the weakness of defendant’s title. Kennedy v. Dodson, 44 Mo. App. 550; Mo.ore v. Carr, 65 Mo. App. 69; Grocer Co. v. Shackleford, 65 Mo. App. 361. (2) Bright is certainly estopped to claim her as against Miller.

— How. H. G. Timmonds, Judge. (1) Cassie Redlinger duplicates her application for exemptions. John P. Redlinger having left the State before the attachment, and being out of the State when the claim for exemptions was made, could not, for himself claim exemptions. Cassie, his wife, is his representative and can not claim an exemption that' he could not. Steele v. Leonori, 28 Mo. App. 675; State ex rel. v. Chaney, 36 Mo. App. 513.

— How. H. G. Timmonds, Judge. (1) The statute requires that the name and capacity of the dead party shall be stated in the order of revival. R. S. secs. 756, 757.

— Ho». H. G. Timmonds, Judge. (1) A dog breaking into a dwelling house in the nighttime, and doing mischief, or attempting to do mischief therein, may be killed by the owner of such dwelling house, and such killing is justified at common law. Wolf v. Chalker, 31 Conn. 121; Cooley on Torts (Ed. of 1880), p. 346; Barrington v. Turner, 3 Lev. 28; Protheroy v. Mathews, 24 Eng. Com. Law Rep. 465; 1 Hilliard on Torts (3 Ed.), 140, 562, 563.

J. D. Perkins, Judge. (1) In this State, suits for partition of real estate, including the allowance of attorneys’ fees, and fees to guardians ad litem, are of merely statutory origin, and there is no power in .the circuit court to allow ■attorneys’ fees or fees to guardians ad litem until a judgment of partition on the merits has been rendered, or a sale of the land sought to be partitioned under a decree of court.

— How. Geo. F. Longan, Judge. (1) The policy sued on, which is the contract between the parties, does not assume to insure the interest of any person other than Mary L. O’Brien. Held: in an action at law, to cover the interest of persons not named therein. Wise v. Ins. Co., 23 Mo. 80.

— Now. E. P. Gates, Judge. . (1) The court erred in giving plaintiff’s instruction one. It submitted the question whether the street was a regular station. Baltimore Traction Co. v. State, 78 Md. 409; s. c., 28 Alt. 397; Creamer v. Rail-way, 156 Mass. 320; s. c., 31 ÍST. E. 391.

<p>1. Appellate Practice: BILL OB EXCEPTIONS: ORDER OB RECORD. No bill of exceptions can be noticed by the appellate court unless the abstract shows an entry on the record ordering its filing; the bill can not prove itself.</p> <p>2. Trial Practice: APPEALS: ORDER. An order granting an appeal should designate to what court the appeal is taken.</p>

<p>1. Street Railways: NEGLIGENCE: INSTRUCTION. An instruction mentioned in the opinion is condemned on the authority of Freeman against the same defendant, 95 Mo. App. 94.</p> <p>2. -: -•: - — : CONFUSING AND CONFLICTING. An instruction set out in. the opinion is condemned as calculated to bewilder the jury and as conflicting, with other proper instructions given.</p>

<p>1. Appellate' Practice: REFEREES: FINDING: VERDICT: EVIDENCE. The finding of a referee is in the nature of a special verdict, and reviewing courts will not interrupt it if supported by substantial evidence.</p> <p>2. Limitations: OPEN MUTUAL ACCOUNTS: EVIDENCE. On the evidence, the dealings between plaintiff and defendant constituted an open mutual account with reciprocal demands and the five-year statute of limitation was inapplicable.</p>

— -How. J. H. Slover, Judge. (1) Ordinance number 8438 is void because it fails to designate any time within which the improvement was to commence or be completed; and confers no authority, immediate or otherwise, upon any person to proceed to make the improvements. McQuiddy v. Brannock, 70 Mo. App. 535; Carlin v. Cavender, 56 Mo. 288.

— Ho». W. A. Teasdale, Judge. (1) The appellant’s abstract neither contains nor pretends to contain all the evidence in the case, and all presumptions are in favor of the finding of the trial court, and it should be affirmed. Nichols v. Nichols,. 39 Mo. App. 291; Irvine v. Kearnes, 58 M°- App. 254; Glunby v. Rogers, 42 Mo. App. 465; Toler v. McCabe,, 52 Mo. App. 532; Costello v. Fesler, 80 Mo. App. 107; Craig v. Scudder, 98 Mo. 664; Brand v. Cannon, 118 Mo. 595.

— Ho». W. B. Teasdale, Judge. (1) The petition does not allege that plaintiff has been a resident of the State for “one whole year next before filing of the petition” or that “the offense or injury complained of was committed within this State, or whilst one or both of the parties resided within this State.” Sec. 2924, R. S. 1899; Collins v. Collins, '53 Mo. App. 470. Non-support not an indignity. Campbell v. Campbell, 73 Mo. App. 579; Owen v. Owen, 48 Mo. App. 209.

<p>1. Administration: SETTLEMENT OE ADMINISTRATOR: APPEAL TO CIRCUIT COURT. The final settlement of an administrator or executor is reviewable, both as to law and facts, on appeal from the circuit court to an appellate court in Missouri.</p> <p>2. Administrator May Employ Agent. An administrator is authorized (subject to the approval of the probate court) to employ an agent to perform necessary labor on behalf of the estate, as well as to engage legal counsel for the same purpose.</p> <p>3. Administration: ANNUAL SETTLEMENTS: PRIMA EACIE EVIDENCE. Annua* settlements are prima facie evidence in favol of the administrator; and the allowance of a credit therein is such evidence of the correctness of the allowance.</p>

— Hon. Elliott M. Hughes, Judge. (1) When plaintiff in replevin, having obtained possession of the property, dismisses his suit, the defendant is entitled to a judgment for the return of the property or the payment of its value. The command of the statute is imperative. R. S. 1899, sec. 4474; Callius v. Hough, 26 Mo. 149; Rhoades v. McNultz, 52 Mo. App. 301; Rosentretter v. Brady, 63 Mo. App. 398.

— Hon. Henry C.. Pepper, Judge. (1) The constitutional questions pleaded in plaintiff’s amended answer were fairly raised by the pleading, and it was reversible error for the circuit court to strike it out and refuse to pass upon the questions raised. State ex rel. v. Smith, 150 Mo. 88; Railroad v. Thornton, 152 Mo. 575; Baily v. Gentry, 1 Mo. 165.

—Hon. James T. Neville, Judge. In construing a contract effect should he given to -each and every part of the contract, so' as to reconcile. ■and uphold all portions of the same, if it can be done. Uhiclde v. Chouteau, etc., Co., 10 Mo. App. 241, 84 Mo. 161; Calloway v. Henderson, 130 Mo. 77; Ellerbe v. Barney, 119 Mo. 632; Frame v. Sovereign Camp, 67 Mo. App. 127; Goodwin v. Prov. Sav. Life Ass’n, 59 Am. St. Rep. 411.

— Hon. James L. ■ Fort, Judge. (1) A common carrier is the agent of the consignee, and is bound “to carefully watch tbe interest of the owner whoever he may be,” “He is bound to do this to the same extent that a prudent man. would, were he present acting for himself.” “Pie must see that the previous charges are reasonable before he is authorized to pay them, for it is not every overcharge, which every extortioner through whose hands goods pass in transitu may see fit to…

Original Action in Prohibition. (1) Tbis is a proceeding to obtain a writ of prohibition to forbid the taking of depositions by defendant, Augustus M. Wood, a notary public in the city of St. Louis, Missouri. Summing up sections 74-77, it is apparent that they provide a summary mode for the discovery of assets — -that procedure, in the first instance, under these sections is within the exclusive jurisdiction of the probate court, goes without saying.

<p>Appeal from Audrain Circuit Court. — No». Elliott Hughes, Judge.</p> <p>There was no evidence, not one syllable, that all three of the cattle guards were not ordinarily sufficient. The evidence was undisputed, that notwithstanding one strip of barbs four or five inches wide were mashed down on one guard, and that one strip was torn out of another guard, that the mules did not get in by walking through this narrow space, and that all the guards were nevertheless sufficient to prevent, and did for years prevent, horses, mules, and cattle from getting on the right of way. Cole v. Railroad, 47 Mo. App. 624; Jones v. Railroad, 59 M'o. App. 141.</p> <p>(1) It is the settled law of this State that the appellate court, in determining whether the evidence is sufficient to support a verdict for the plaintiff, will lay aside defendant’s controverting evidence, assume that plaintiff’s evidence is true, and will give to it every favorable inference which may be reasonably and fairly drawn from it. James v. Mutual Life Ass’n, 148 Mo. 16; Cohn v. Kansas City, 108 Mo. 387. (2) If fences or barriers are defective at the point where the animals enter upon the right of way, and they are injured as a direct consequence of such entry, then it is no defense to show that at the point where they were killed the company maintained proper fences or barriers. Witthouse v. Railroad, 64 Mo. 523; Snider v. Railroad, 73 Mo. 465; Cecil v. Railroad, 47 Mo. 246; Moore v. Railroad, 81 Mo. 499. (3) It is the duty of a railroad company to construct a cross-fence or other barriers from the cattle guards to the fence on the sides of the road. R. S. 1899, secs. 1105, 2867; Edwards v. Railroad, 74 Mo. 117. (4) Plaintiff is entitled to recover on proof that the horses entered upon the railroad from a public road, even though he is not an adjoining or next adjoining owner of land. Morris v. Railroad, 79 Mo. 370; Rozzelle v. Railroad, 79 Mo. 345; Emerson v. Railroad, 35 Mo. App. 624. (5) Under section 1105, plaintiff is entitled to double damages. The proper practice is for the jury to find the actual damages, and the court doubles the amount of the verdict and enters judgment for double the amount of said verdict, as was done in this case. Brandenburg v. Railroad, 44 Mo. App. 226; Kavanaugh v. Railroad, 75 Mo. App. 84; Kaes v. Railroad, 6 Mo. App. 397.</p>

<p>Appeal from Greene Circuit Court. — Son. James T. Neville, Judge.</p> <p>(1) The petition alleges no duress, and the proof shows none. The instruction given by the court is erroneous, for the reason that money voluntarily paid can not be recovered. Prom an unbroken line of decisions on this point I cite only: Claffin v. McDonough, 33 Mo. 412; Union Savings Ass’n v. Kehlor, 7 Mo. App. 158; Wolf v. Marshall, 52 Mo. 167. (2) The tender pleaded was an admission by Rhodes of the amount due at that time. Mahan v. Waters, 60 Mo. 167; Williamson v. Bailey, 78 Mo. 636; Johnson v. Gartrichs, 63 Mo. App. 578.</p> <p>(1) Whenever a man has received from another an injury through the violation of any legal duty which the other owes him, the law will give him redress.” Bishop on Non-Contract Law, secs. 486, 487. (2) The effect of plaintiff’s tender on June 18, while evidence that that much was due on the note at the time, does not relieve defendant from liability by reason of his fraud. It is not a waiver of plaintiff’s damages against him. The case of Williamson v. Bailey, 78 Mo. 636, cited by appellant, is against him upon his own theory of that proposition.</p>

— How. L. B. Woodside, Judge. (1) Where the indorser resides in the town where the hill or note is payable, or there has an office or place of business, and it is known to the holder of the bill or note, the notice óf prote.st must be personal and not by mail. Story on Notes and Bills, p. 316; Norton on Bills and Notes (2 Ed.), pp. 352, 366; Waller v. Bank of Missouri, 8 Mo. 704; Barrett v. Evans, 28 Mo. 331; Gilchrist v. Donnell, 53 Mo. 591.

<p>Appeal from St. Louis City Circuit Court.— Hon. Walter B. Douglas, Judge.</p> <p>(1) In an action for damages, consisting of future profits to be gained from the performance of a. contract which binds the party in default to take a. certain product but no definite or stipulated amount thereof, evidence showing the gross amount of the product supplied, the gross receipts therefrom, the average monthly receipts, the average monthly profits as well as gross profits, made under the same contract for a period prior to the breach reasonably sufficient to afford the jury a basis for estimating future profits, together with a computation of the amount of profits based_upon the past experience (as shown by the evidence) which the injured party could have made if he had been permitted to perform the contract from the breach to its expiration, is competent and substantial evidence to go to the jury for the purpose of aiding them in the-inquiry as to what future profits the plaintiff could reasonably have expected to gain under the same contract, if he had not been prevented by defendant from completing the performance of the contract. Bagley v. Smith, 10 N. Y. 498; Driggs v. Dwight, 17 Wend. 71; Wakeman v. Wheeler Co., 101 N. Y. 205; Williams-v. Milling Co., 37 Pac. 52; Goebel v. Hough, 26 Minn. ■256; Allison v. Chandler, 11 Mich. 542; Terre Haute v. Hudnut, 112 Ind. 542. (2) The action of the trial court in granting a new trial on the ground that the-verdict is against the evidence, is not subject to review on appeal where there is substantial evidence to support the action of the trial court. Kuenzel v. 'Stevens, 155 Mo. 280; Haven v. Railroad, 155 Mo. 230-1. (3) If the contract sued upon does not bear the construction placed upon it by the plaintiff, this court should remand the case to the trial court for further proceedings in accordance with its opinion. Riley v. Sherwood, 144 Mo. 369; Haseltine v. Smith, 154 Mo. 404.</p>

<p>Appeal from Lawrence Circuit Court. — Hon. Henry G.. Pepper, Judge.</p> <p>(1) The demurrer to the evidence in this case-should not have been given, unless, after conceding the truth of all that appellant testified to and every reasonable inference to be drawn from the facts in evidence, it can be said, that plaintiff failed to prove some material element necessary to make up her cause of. action. Young v. Webb City, 150 Mo. 331; Roe v.. Annan, 80 Mo. App. 198; Kattlemen v. Fire Association, 79 Mo. App.-447; Bird v. Railroad, 146 Mo. 265. (2) Where a contract is complete, and one party proposes a modification of it, such proposed modification is not binding on the other party unless he assents to it; and even then such assent must be based on an additional consideration independent of the original one. Moomaw v. Emerson, 80 Mo. App. 322; Henning v. Ins. Co., 47 Mo. 425; Merril v. Trust Co., 46 Mo. App. 230.</p> <p>(1) The court committed no error in sustaining respondent’s demurrer to the evidence because, in an action upon a contract, a performance of its terms in every essential particular must be shown before a reuovery can be had. Marsh v. Eichards, 29 Mo. 99; Eyerman v. Mt. Sinai Cemetery Association, 61 Mo. 489; Freeman v. Aylor, 62 Mo. App. 613. A plaintiff must have alleged and proved performance on her part of the whole contract. Billnpps v. Daggs, 38 Mo. App. 367. (2) By the contract sued on appellant conld not recover without proof by her that the condition upon which the exchange was agreed to be made, that is, “provided she, Ermina Holmes, can make a perfect title to same,” had happened because all conditions precedent contained in a contract must be complied with before a right of-action on the contract accrues to the party agreeing to perform them. Monks v. Miller, 13 Mo. App. 363; Craycroft v. Walker, 26 Mo. App. 469. (3) These parties modified the 'Original contract sued on, by agreeing to exchange their lands on other terms, to which modified and new contract they each agreed. Where this is so no action can be maintained on the original contract, but their rights stand as expressed in the new or modified contract. Sutter v. Eaider, 149 Mo. 297.</p>

— Hon. Edwin R. McKee, Judge. There was no contract made, and there is a complete failure of proof to sustain defendants’ allegations in their answer in regard thereto. Brewington v. Mesker, 51 Mo. App. 348; Eobinson and Ferral v. Estes, 53 Mo. App. 582; Creen v. Cole, 103 Mo. 70.

— Hon. David M. Eby. Judge. (1) Plaintiff is not a purchaser for value before-maturity. The note does not contain the words “for value received” and is therefore a non-negotiable instrument. Sec. 457, R. S. 1899; Sec. 4488, R. S. 1899;. Austin v. Blue, 6 Mo. 265; Bailey v. Senock, 61 Mo. 218; Taylor v. Newman, 77 Mo. 263; Cutter v. Cook,. 77 Mo. 388.

<p>Appeal from Barry Circuit Court. — Hon. Henry G. Pepper, Judge.</p> <p>- (1) The Act of 1895, section 25, page 70, provides that the board of alderman shall have power to fix the compensation of all officers by ordinance, and the ordinance offered in evidence, and contained in section 118, of the revised ordinances of the city, fully complies with the above-named section of its charter. (2) The defendant’s liability for fees earned by plaintiff in city prosecutions for violation of ordinances, is that the defendant in such prosecution, or prosecutions, shall be convicted and committed. E. S. 1899, sec. 5938. (3) It was beyond the power of defendant to limit, by ordinance, its liability to plaintiff for fees earned in prosecutions for violations of ordinances of defendant. Carr v. St. Louis, 9 Mo. 191. Lonergan v. Louisana, 83 Mo. App. 101. (4) The proper construction to be placed upon the ‘ ‘ proviso ’ ’ or last clause of section 118 of the revised ordinances, is, that all fees earned by the city attorney in securing convictions and commitments against persons violating city ordinances shall be taxed and collected as costs from the defendant or defendants, in such prosecutions so as to reimburse the city for its costs laid out and expended.</p> <p>(1) Section 118, revised ordinances of the city of Monett, passed March, 1898, and the ordinance under which plaintiff seeks to recover, after fixing the fees of the city attorney, specifically provides that in all cases of prosecution for violations of ordinances, such fees shall he taxed against, and collected, from such defendants. (2) Under this language, could we assume that the city intended to pass an ordinance, wherein it would.be obligated to pay the fees of the city attorney? Such a construction would be at variance with the plain intent and language of the ordinance, the very thing the city was trying to guard against. (3) The power to fix compensation of all city officers is given the board of aldermen. R. S. 1899, sec. 5918; Lonergan v. City of Louisiana, 83 Mo. App. 101; Carr v. City of St. Louis, 9 Mo. 191, have no application to this case. (4) In the Louisiana case, the plaintiff was the city recorder, and operating under a statute providing that such officers should receive the same fees as were allowed to justices of the peace, with no ordinance providing that costs should be recovered from the defendants only, and in such case it was not within the power of the board of aldermen, to change or fix a different schedule of fees. (5) There is no such provision in the statute as to fees of a city attorney. To the same effect is the case of Carr v. St. Louis, 9 Mo. 191. Where the fees are regulated by the city ordinance only, the courts will only enforce payment as provided by ordinance. Boucher v. Moberly, 74 Mo. 116. This case is directly in line with the one at bar.</p>

<p>1. Contracts: FRAUD: ACTION: EQUITY: JURISDICTION: PA-ROL EVIDENCE: TRIAL: NONSUIT. Plaintiff was injured by collision with a street ear, and brought action at law against the company on its failure to perform an alleged agreement by which it was to furnish a physician to treat and cure plaintiff’s broken leg so as to make it well and sound, so that plaintiff could walk and perform manual labor. Defendant produced a written agree- ■ ment, signed by plaintiff, by which defendant merely agreed to pay plaintiff’s expenses, doctor and board bills, until he was able to get home: Held, that plaintiff was not entitled to show that he signed the agreement under a mistake as to its contents, produced by misrepresentations made to him by the agents of the railway company, when he was too weak to read, with the dishonest intention of securing his signature to an agreement different from the one agreed to verbally; as the fraud which renders a contract void at law relates to the execution, and not misrepresentations as to the subject-matter.</p> <p>2. -: -: -: RELEASE OF,' SETTLEMENT: STATUTORY CONSTRUCTION: EVIDENCE: PLEADING. In the ease at bar, the evidence was not admissible under section 654, Revised Statutes 1899, providing that, when a release or settlement is pleaded in bar of plaintiff’s action, plaintiff may show fraud in its procurement, as plaintiff’s action was not founded on the injury from collision.</p> <p>3. -: -: -: -: -: -. In the case at bar, plaintiff, who had been injured by collision with a car, sued the railroad company for failure to fulfill an alleged agreement to furnish him a physician who would treat and cure his leg until he could walk and perform manual labor, and defendant produced a written agreement, signed by plaintiff, by which defendant had merely agreed to furnish a physician, and on refusal to permit plaintiff to show that such writing was procured by certain misrepresentatons as to its contents, he suffered a nonsuit, held, that, in view of the voluntary nonsuit, plaintiff could not urge that, as there was evidence that defendant actually furnished a physician who treated plaintiff carelessly, he was entitled to go to the jury, on the question of an implied, undertaking to furnish proper treatment.</p>

Louis City Circuit Court. — How. William Zachrits, Judge. (1) “A delay of three years in bringing a bill in equity to enforce a charge upon land created by a will, is not such laches as will defeat the plaintiff’s right, if there has been no change in the defendant’s position by reason of such delay.” N-udd v. Powers, 136Mass. 273. “Laches can not be imputed to one who begins proceedings as soon as he is in legal condition to do so, as where one awaits a discharge in…

— Ho». David H. Eby, Judge. (1) The last word of the instruction asked by defendant should have been read as “defendant” instead of “plaintiff,” and the instruction thus given disregarding the clerical error. Fischer v. Packing and Provision Co., 77 Mo. App. 108; Bank v. Goldsell, 8 Mo. App. 596; Shortell v. City of St. Joseph, 104 Mo. 115.

Rouis City Circuit Court. — How. William Zachrits, Judge. (1) Before a broker can recover compensation for effecting a sale of property, be must sbow that be found and procured a purchaser who was willing and able to purchase the property upon the exact terms proposed by bis principal. Warren v. Cram, 73 Mo. App. 640; Reiger v. Reiger, 29 Mo. App. 421; Yoder v. White, 75 Mo. App. 155; Blackwell v. Adams, 28 Mo. App. 61; Stinde v. Blesb, 42 Mo.

<p>Appeal from Monroe Circuit Court. — -How. David E. Eby, Judge.</p>

<p>1. Appeal: WRIT OP ERROR: PRACTICE, TRIAL: PRACTICE, APPELLATE. Plaintiffs appealed from a circuit court judgment and, without filing the necessary papers in the appellate court, afterwards sued out a writ of error from the latter, upon the judgment appealed from: Held, that the writ of error was improvidently issued pending the appeal, and should be dismissed.</p> <p>2. -: -. An appeal is not to be considered abandoned (so as to warrant a writ of error immediately) because appellant fails to file the required transcript or record in the appellate court in due time.</p> <p>3. Jurisdiction of Cause. An appeal has the effect to transfer to the appellate court the jurisdiction of the cause, as distinguished from the jurisdiction over the record therein.</p> <p>4. -: PILING BRIEP, EPEECT OP: WAIVER.- The filing of a brief on the merits upon writ of error, does not waive a motion to dismiss on the ground that the writ was issued while an appeal was pending in the same cause.</p> <p>5. Writ of Error: NOTICE: STATUTORY CONSTRUCTION. Pailure to give due notice of writ of error as required by section 852, Revised Statutes 1899,, is ground for dismissal of the writ.</p>

Ajipeal from Butler Circuit Court. — Non. James L. Fort, Judge.

— Hon. Argus Cox, Judge. (1) This cause, both as to tbe procedure and the rights of the parties thereto, is governed by the principles of equity. In re Est. of Meeker, 45 Mo. App. 86; Finley v. Schlueter, 54 Mo. App. 455; Hammons v. Renfrow, 84 Mo. 341; Hoffman v. Hoffman, 126 Mo. 487.

— Ho». David H. . Eby, Judge. (1) There was no evidence adduced to show that Whose Tatley assigned or indorsed said note to Hosea Tapley, or that Hosea Tapley was the owner of said note and had the right to maintain this action, or that said note was executed to Hosea Tapley by name of Whose Tatley. Neither are “Whose Tatley” and “Hosea Tapley” idem sonans. Possession of an unindorsed promissory note by one other than the payee is no evidence of ownership in the holder.

Louis City Circuit Court. — No». Warwick Hough, Judge. (1) Plaintiff failed to make a prima facie case, there being neither proof that the sale was made through the direct or indirect aid of the report, nor ■of any facts from which that inference can be legitimately drawn. Chemical Co. v. Lackawana Line, 78 Mo. App. 312; Click v. Bailroad, 57 Mo. App. 104; Bigelow v. Bailroad, 48 Mo. App. 367; Tarnell v. Bail-road, 113 Mo. 580; Sanders v. Bailroad, 147 Mo. 426.

Louis City Circuit Court. — How. Horatio D. Wood, Judge. (1) On June á the appellants in the above-entitled cause, through counsel, presented the bond herewith and prayed the court to make an order that said bond be approved and ordered filed in the circuit court and operate as a stay of proceedings as provided by section 810, Revised Statutes 1899.

Louis City Circuit Court. — Him. Horatio D. Wood, Judge. The appellant contends that its property can not be disturbed until it has been paid the damages arising out of the change of grade of the street (MacMurray v. St. Louis, 138 Mo. 608); and that the respondent acquired, under ordinance 19352, the right to occupy Twenty-first street with its tracks at the grade established by ordinance 15119, and not at the surface of the ground or at any former grade of the street.

Louis County Circuit Court. — How. John W. Booth, Judge. (1) The losses which plaintiffs sustained, as shown in exhibit A, were losses on speculations in stock transactions in which neither defendant nor any of the parties actually bought or sold in good faith, nor intended to buy or sell in good faith, any stock; there was no actual bona fide delivery, nor any intended by the parties, or any of them; they were wagering and gambling transactions, in violation of the statute,…

Francois Circuit Court. — Ho». James D. Fox, Judge. (1) The trial court erred in overruling defendant’s demurrer-to plaintiff’s amended petition, and in refusing to dismiss his petition, for the reason that plaintiff failed to plead any tender of any portion of the money that he had received from defendant on the compromise and settlement of the case, or any offer to return the same on the institution of his suit; and,, secondly, for the reason that plaintiff’s action ought…

Louis City Circuit Court. — No». John A. Tatty, Judge. (1) In all cases wliere the court may, under sec- ' tion 698 (R. S. 1899), on motion of either party, without the consent of the other, or on its own motion, direct a reference, it may review the findings of the referee on the evidence reported, even though the reference is actually made by agreement.

<p>1. Evidence: ITEMS OE ACCOUNT. Plaintiff sued upon an account written on the flyleaf of a bible. The flyleaf was afterwards destroyed by a child, whereupon plaintiff and her daughter arranged the fragments and the daughter transcribed the original record, translating it at the time into English. A number of items thus transcribed were copied literally from the original, some of the transcribed items being aggregates of similar items of the same general class which appeared in the first document. At the trial the first-mentioned entries were admitted in evidence along with plaintiff’s tstimony as to the items; and the second group the court allowed to be used to refresh the memory of the witnesses who took part in the preparation of the copy and were acquainted with the original transactions. Seld, that the ruling was correct under section 4653, Revised Statutes 1899.</p> <p>2. -: -: STATUTORY CONSTRUCTION. Loans of money are admissible items of book account under the Missouri statute (section 4653), if otherwise admissible.</p> <p>3. -: -: ---: BOOK ACCOUNT: CONTEMPORANEOUS TRANSACTIONS. Original entries of book account are admissible testimony when authenticated as memoranda contemporaneous with the transactions recorded.</p> <p>4. -: -: RES GESTAE: EVIDENCE. Entries of book account are admissible in evidence as part of the res gestae of the events they describe. They may be supported by other evidence of the facts recorded.</p> <p>5. Book Account, What It Is: STATUTORY CONSTRUCTION. The flyleaf of a book containing only one account is a sufficient “book of account” within the meaning of section 4653, Revised Statutes 1899. The origin and history of section 4653, Revised Statutes 1899, is stated by the court.</p> <p>6. Lost Document: SECONDARY EVIDENCE: DISCRETION OE TRIAL COURT. Where an original document containing an account is destroyed, the admissibility of secondary evidence thereof is an issue resting peculiarly within the sound judicial discretion of the trial judge.</p> <p>7. -: -. The voluntary destruction of an original manuscript by an interested party does not of itself preclude the introduction of secondary evidence thereof; if done innocently secondary evidence will not be excluded.</p> <p>S. Error: EVIDENCE. Where an entry is admitted in evidence to support a fact which the other party to the suit admits, the error is harmless where the entry was not properly admissible as original evidence.</p> <p>9. Objection: PRACTICE, TRIAL. Where an objection to a paper in its entirety is made on the ground of incompetency, but some parts thereof are admissible, the objection is bad, in default of particular specification of the parts to which the objection is applicable. ;</p> <p>10. Proof: COMPETENT TESTIMONY. A judgment should not be reversed by the refusal of an instruction whose substance is otherwise given to the jury.</p> <p>12. Testimony: INFERENCE. Testimony of a fact may be either direct or founded on reasonable inference from other evidence.</p> <p>13. Instruction: EVIDENCE: PRACTICE, TRIAL An instruction should not be given to the jury in the absence of evidence to prove the facts on which it is based.</p> <p>14. Weight of Evidence: VERDICT: OBJECTION: PRACTICE, TRIAL. The objection that a verdict is against the weight of evidence is not available in an action at law on appeal,</p> <p>15. Construction of Statutes of Sister States. The prior construction of a statute borrowed in part from another State, is of persuasive aid in construing the enactment in this State.</p>

— How. Henry G. Riley, Judge. (1) The giving of instruction 1 on behalf of respondent and the refusal to give instruction 2 asked by appellant, constitutes reversal error. Ashford v. Ins. Co., 80 jVTo. App. 638; 1 Bigelow on Fraud, p. 410; Kerr on Fraud and Mistake, p. 57; White v. Ins. Co., 4 .Dillon (U. S. C. C.) 177.

Louis City Circuit Court. — Ho». W. B. Douglas, Judge. (1) The slanderous words declared on in the second count are not slanderous per se, and, in the absence of any averment of extrinsic facts showing they were intended to be slanderous, and were so understood, the count fails to state a cause of action.

Louis City Circuit Court. — How. William Zcichritz, Judge. (1) The trial before the justice was upon the issue and the only issue that was presented by the denial of the garnishee’s answer, to-wit, that the deed of trust was “void and ineffective to convey the said property and effects by reason of the illegal and fraudulent provisions of the said pretended deed of trust.” (2) The trial in the circuit court, under the statute, must be a trial de novo.

<p>1. City of St. Louis: BUILDING INSPECTORS: CONSTRUCTION OF ORDINANCE OF CITY OF ST. LOUIS. Building inspectors in St. Louis are “assistants” of the commissioner of public buildings, and as such they may be removed by the chief officer whom they assist.</p> <p>2. Definition. The meaning of the word “assistant” is defined by the court.</p> <p>3. Construction of Charter of City of St. Louis. The provisions of the charter and ordinances of the city of St. Louis touching removals from office of subordinate officials by their superiors, are fully discussed. (State ex rel. Khittel v. Longfellow, 93 Mo. App. 364 (67 S. W. 665) followed.)</p> <p>4 -: -. An officer, within the meaning of the St. Louis charter provision, forbidding the change of an officer’s salary during the term for which he was elected or appointed, is one who, by the local law, enjoys either an annual salary or a definite term' of office. As to other officers not included in the above definition, it is competent for the municipal assembly to alter their salaries or tenures of office.</p> <p>■5. -: -. An ordinance referring to “all appointments of janitors, engineers or other persons,” does not include inspectors of buildings. The words “other persons” do not reach a higher class of officials (such as building inspectors') than those enumerated, but only apply to those ejusdem generis.</p> <p>■6. Notice. Where an official notice is otherwise valid, it is not invalidated by the superfluous signature of another officer. The good part of the notice is not vitiated by the unnecessary addition.</p> <p>7. Mandamus. The court suggests a doubt whether mandamus is available to compel recognition of a plaintiff as an officer, and a query whether a prior action against the city for salary constitutes an obstacle to mandamus.</p>

<p>This decision follows State ex rel. Knittel v.. Longfellow, 93 Mo. App. (St. L.) 364 (67 S. W. 665), and State ex rel.' Bartraw v. Longfellow, 95 Mo. App. 660.</p>

Francois Circuit Court. — Ho#. James D. Fox, Judge. (1) The' conrt erred in refusing to give the second declaration of law asked by the plaintiffs at the close of all the evidence in the cause and in holding as he did that the improvements put upon the two lots in controversy in this case by plaintiffs were-not put there by them in .good faith, for the reason that they were put upon said premises by plaintiffs after they had notice of the adverse title of the defendants.

<p>■Appeal from St. Louis' City Circuit ■ Court. — How. William Zachritz, Judge.</p> <p>(1) Nicholls-Ritter Realty & Financial Company became agents for the collection of the rent on the fifth ■day of May, 1898, when the Fair Grounds Real Estate Company acquired the property. The assignment of May 5, 1898, merely directed the application of the rents assigned thereby. The note of $2,000, secured by said assignment and the second deed of trust, was paid February 9, 1899. Such assignment of rents and the mortgage then became functus officio. Murphy v. Simpson, 42 Mo. App. 654; Welton v. Hull, 50 Mo. 296; Allen v. Dermott, 80 Mo. 56; Patrick v. Petty, 83 Ala. 420; Bank v. McKinney, 78 Me. 442; Lyon v: Ins. Co., 55 Mich. 141. (2) The assignment of May 5,1898, having become functus officio on February 9, 1899, Nicholls-Ritter Realty & Financial Company could not be bound thereunder, or be in default under said assignment in not paying the ground rent accruing for March, April and May, 1900, or the interest notes, which did not mature until April 30, 1900. (3) The testimony conclusively shows that the $1,000 paid to Henry B. Seammel, on April 27, 1900, and the $1,200 paid to Nicholls-Ritter Realty & Financial Company on April 28,1900, and the $1,788.87 paid to Nicholls-Ritter Realty & Financial Company on the open account, were paid on said dates, and that said payments were made under the unconditional assignment of August 17,1898, long after the claimed conditional assignment had ceased to exist; and under this assignment Nicholls-Ritter Realty & Financial Company had a perfect right to prefer itself in preference to either the ground rent due to Mrs. Pirn,-or the interest due to Maria Bredell, and Fair G-ronnds Real Estate Company had a right •to make such preference. Ames v. Gilmore, 59 Mo. 537; Foster v. Planing Mill, 93 Mo. 79; Larraber v. Bank, 114 Mo. 593. (4) • The provision contained in the mortgage, held by respondent, which provides “in case of a failure to perform any of the covenants herein contained . . . the said parties of the second part, or either of' them, or his successor in trust, shall be entitled to the immediate possession of said premises, and the rents, issues and profits thereof,” nor the assignment, will not vary the common-law rule, that until the mortgagee takes possession is he entitled to the rents and profits of the real estate. Simpson v. Keene, 39 Mo. App. 635; Armour Pack. Co. v. Wolff, 59 Mo. App. 663; In re Life Assn. v. Rosenblatt, 96 Mo. 32. (5) The testimony shows that the promise to each of the third parties, for whose benefit it was made, has been discharged by payment, by the receiver. There was no debt on the date of the trial owing by the promisee to the third parties. No evidence was given of any assignment of the causes of action to the receiver, or to the plaintiff, Maria Bredell. The receiver was not a party to the suit, and did not ask subrogation to the rights of Mrs.- Bredell and Mrs. Pirn, under the contract. Therefore, there was no cause of action, and any judgment in favor of the receiver and against the appellants would plainly be erroneous., Hicks v. Hamilton, 144 Mo. 495; Devers v. Howard, 144 Mo. 678; Street & J. v. Goodall, 77 Mo. App. 320; Harberg v. Arnold, 78 Mo. App. 238.</p> <p>(1) When a corporation places all of its assets into the possession and control of another person, not a bona fide purchaser without notice, leaving its debts unpaid, its property is charged in equity with its debts. Railway v. Bank, 134 U. S. 276; Railroad v. Pettus, 113 U. S. 116; Railroad v. Branch, 59 Ala. 139; Bank v.'. Moran Packing Co., 138 Mo. 59. (2) A contract made, upon a valid consideration may he enforced by a third-person, though he is not named in the contract, where the obligee owes to such third person some duty, legal or equitable, which will give him a just claim. Meyer-v. Lowell, 44 Mo. 328; Elanagin v. Hutchinson, 47 Mo. 237; Ellis v. Harrison, 104 Mo. 270; Houseman v. Trenton Water Co., 109 Mo. 304; Devers v. Howard,-144 Mo. 671; Kansas City School District v. Livers,-.147 Mo. 580; Street v. G-oodall, 77 Mo. App. 318; Harberg v. Arnold, 78 Mo. App. 237. (3) The words “ground rent,” as used in the instrument of date May-25, 1898, include the payment of taxes, as well as the payment of monthly installments of rent. Gilbert on Rents, p. 9; Smith on Landlord and Tenant, *9, 90; Coke-Littleton, 142a; Doe v. Benham, 7 Q. B. 976; Ehrman v. Mayer, 57 Mo. 622; Eliot v. Gantt, 64 Mo. App. 248; Woods’Landlord and Tenant, sec. 298. (4) The words “subject to,” as used in the instrument dated August 17,1898, are the equivalent of “charged with,” and mean that the rents referred to in the instrument are to be applied to the performance of the covenants contained in the deed of trust. Jackson v. Isaacson; 27 L. J. Eq. 392; Bullery v. Rovinson, 3 Burd. 392; 3 Jarman on Wills, p. 399; 9 Am. and Eng. Ency. Law (1 Ed.), p. 962; Walker v. Goodsill, 54 Mo. App. 631.</p>

— Hon. Henry C. Riley, Judge. (1) Appellant contends that interpleader has no standing in court, because his pretended appointment as administrator of the partnership estate of Stanley & Maynard, is void. Hence, appellant’s peremptory instruction should have been given. Secs. 56 and 57, R. S. 1899.

<p>Appeal from Pulaski Circuit Court. — No». L. B. Wood-side, Judge.</p> <p>(1) It was the plaintiff’s duty to have notified -defendant before trial to produce the original proofs in its possession. It is not laying a proper foundation for secondary evidence to ask of the opposite party for the production of an original paper or document, on the moment, which he has not at hand. Sheehan v. Ins. Co., 53 ÍVIo. App. 355. (2) The rule is that, where a condition precedent exists, the performance of which is necessary to convert a right of action, such condition must be alleged and proven. Price v. Protection Co., 77 Mo. App. 240. That' the clauses in the policy relating to proofs of loss and notice of loss are conditions precedent, see Kyle v. St. L. Co., 11 Mo. 291; Haggard v. Ins. Co., 53 Mo. App. 98. That proofs of loss are conditions precedent in regard to the time, as well as with regard to all other matters, see Shapiro v. Ins. Co., 63 N. W. 614, 51 Minn. 239. (3) The court ■erred in its ruling, that plaintiffs could offer oral testimony as to the contents of the proofs of loss and other papers mentioned in the notice and order of the court. Here follows the attempt on the part of the plaintiffs to prove, by secondary testimony, the contents of the proofs of loss. The court after hearing testimony by Mr. Locker, whose testimony was undisputed that Mr. Fauntleroy had not been able to send the papers to him, and that he was without them, allowed the plaintiffs to go on and show the contents of the proofs of 'loss. We submit that all this testimony was error. That no foundation was laid for secondary testimony, and that the ruling of the court admitting this testimony was error under the rule laid down in the two cases hitherto cited, of Sheehan v. Ins. Co., 53 Mo. App. 355; Dade v. Ins. Co., 54 Minn. 337. And that the objection once made, need not be repeated, see Schierbaum v. Schemme, 157 Mo. 1. (4) This is a letter written by Nixon, the attorney, for plaintiffs, to the American Central Insurance Company, St. Louis, Missouri. It. was. incompetent, for the reason that no foundation had been laid for it, and it should have been excluded. Then, again, there was no evidence in the record at all that it was properly mailed, or that proper postage was placed upon the letter, so as to entitle it to be ■carried to its alleged point of destination. There was, also, no evidence introduced that defendant’s head •office or place of business was at St. Louis, Missouri. Where policy requires notice to be given the company, it means at its principal place of business. Hodgins v. Ins. Co., 34 Barbour 213. There is no presumption that it reached the company without proof of proper postage being prepaid on the letter. Plath v. Ins. Co., 23 Minn. 484; Boon v. Ins. Co., 37 Minn. 426. 'Where it is not shown that party resided at place to which letter was sent, there is no presumption attached to the act that it ever reached said party. Goodwin v. Ins. Co., 25 Ins. L. Jr. 401.</p> <p>(1) Allegata of performance of all conditions of policy is sufficient pleading to admit probata of conditions precedent of policy as to notice and proof of loss, as well as their performance by waiver or otherwise; that in cases of insurance the pleading of conditions precedent are exceptions to the general rule and not required. McCulloch v. Ins. Co., 113 Mo. 616; James v. Life Ass’n, 148 Mo. 1; Duff v. Fire Ass’n, 129 Mo. 460; Okey v. Ins. Co., 29 Mo. App. 105; Howe v. Ins. Co., 75 Mo. App. 63; Russel & Co. v. Ins. Co., 55 Mo. 593. (2) The petition stated a good cause of action and was not subject, in any event, to a general demurrer on ground that it did not state the conditions precedent, because such conditions could only be known when evidence was offered at the trial, so that the legal objection could only be raised at the trial by the objection to evidence offered as a variance between allegata and probata. There was no material variance in this ease, because the defendant was not misled to his prejudice in maintaining his defense on its merits. R. S. 1899, sec. 655; Clydesdale Horse Co. v. Barnett, 52 Mo. App. 333; Waldheir v. Railroad, 74 Mo. 514; Carroll v. Pond, 16 Mo. 226; Olensleive v. Smith, 87 Mo. 602. (3) The general rule is that if a document desired as evidence is in possession of the opposite party, and he refuses to produce it after reasonable notice, it is competent to prove its contents by oral evidence, and secondary evidence of proofs of loss may be given where defendant fails to produce them in evidence on notice. Ins. Co. v. Patrick Smith, 31 L. C. P. (U. S.) 497. (4) Upon the whole record it is manifest that the defendant has not been prejudiced on the merits, and that the judgment is for the right party and should not be reversed, though error was committed at the trial. Barrett v. (Hover, 31 Mo. App. 150; Bank v. Armstrong, 92 Mo. 265; Cheek v. Waldron, 39 Mo. App. 21; Vaughn v. Daniels, 98 Mo. 230; Phillips v. Bachelder, 47 Mo. App. 52.</p>

<p>Appeal from Pemiscot Circuit Court. — Hon. Henry G. Riley, Judge.</p> <p>(1) Courts of equity will interfere by injunction to prevent or restrain trespass on real property, for either one of the following causes: (a) to prevent a multiplicity of suits, and (b) where the defendant is insolvent, and so unable to respond in damages. Bailey v. Wade, 24 Mo. App. 186; Weigel v. Walsh, 45 Mo. 560; Crenshaw v. Cook, 65 Mo. App. 264; Turner v. Stewart, 78 Mo. 480. (2) It is insisted that in the case at bar, the testimony of appellant made out a prima facie case of insolvency against respondent, so strong as to require countervailing proof in rebuttal. Continuous acts of trespass and waste, by respondent covering a period of some weeks, were also shown. (3) The case made out by appellant showed that appellant was in possession. Respondent’s grantor, Adams, had sued appellant in ejectment for the land in question, and had been defeated. Respondent bought whatever title Adams had, while the suit of Adams against appellant was pending. Respondent took with notice and is bound under the doctrine of estoppel by the solemn admissions made by his grantor in the petition in ejectment. Hasenritter v. Kirchhoffer, 79 Mo. 239; St. Louis v. Wiggins Perry Co., 15 Mo. App. 227. (4) Even if it were granted, for the sake of argument,, that appellant had no such title nor possession as were sufficient upon which to base his suit for an injunction, yet the proof shows that on the eleventh day of September, 1899, when the suit at bar was filed, there were pending against appellant two suits in ejectment, for this identical land, to-wit: the suit of Virgil P. Adams v. T. Cole Powell, and the suit of Adams’ grantee J. W. Canaday v. Percy Orr, the tenant of appellant. Pending a decision of these ejectment suits, appellant had the right to protect the premises from waste at the hands of the plaintiffs therein. While not pertinent to this view it is at least suggestive that the first named action in ejectment was decided on the merits in favor of appellant (who-was the defendant therein), and the last-named suit was dismissed by respondent. Hernán v. Wade, 74 Mo. App. 339; Sills v. Goodyear, 80 Mo. App. 128;: High on Injunctions (1 Ed.), sec. 458.</p> <p>(1) That Canaday would be estopped from denying the title of Adams, is clearly a mistake of the-law or the facts, on the part of counsel for appellant. A vendee is not estopped to deny the title of his vendor. Macklot v. Dubriel, 9 Mo. 447; Jockel v. Easton,. 11 Mo. 118; Blair v. Smith, 16 Mo. 273; Cutter v„ Wadding-ham, 33 Mo. 269; Mattison v. Ausnxuss, 50 Mo. 551. (2) His possession is adverse to that of his vendor, and he may go so far as to set up the statute of limitations in bar of an action founded on his vendor’s title. Ibid. (3) The vendee can set up an outstanding title as well as the statute of limitations, as against his vendor, and he may show that the vendor had no title. Page v. Hill, 11 Mo. 149; Cummings v. Powell, 97 Mo. 524. (4) The plaintiff should prove his entire case, and unless he does so the defendant is under no obligation to show that plaintiff has no case. Krampe v. St. L. Brewing-Ass’n, 59 Mo. App. 277. (5) If the complainant makes no case, the chancellor need not call on the other side for a showing, but may at once dismiss the bill. Leeper v. Bates, 85 Mo. 224. (6) Where the party has an adequate remedy at law, and the injury complained of will work irreparable mischief, and defendant is solvent, injunction will not lie. Damshroeder v. Thias, 51 Mo, 100; Railroad v. Maddox, 92 Mo. 469; Victor Min. Co. v. Morning- Star Min. Co., 50 Mo. App. 525. (7) A court of equity will not restrain the continuation of trespass on real property,' where an adequate remedy at law may be had, that is, if a judgment for damages could be collected. Boeckler v. Railroad, 10 Mo. App. 448. (8) To warrant the relief in this class of cases, the party aggrieved must show a satisfactory title to the locus in quo. Equity will not enjoin a trespass to realty when plaintiff’s title is in dispute and has not been established at law, when no irreparable injury is shown; and when defendants are in possession alike with pláintiffs of the premises in controversy, and the title is doubtful and disputed, and it is not shown that plaintiffs have taken any steps to establish their title and no reason is shown why they are not so doing, they will be denied an injunction. In such case a court of equity will not presume to determine the title to the propertv, and will not permit a temporary injunction to-be granted which would operate as an action in ejectment. 1 High on Inj. (3 Ed.), secs. 698, 701, 723.</p>

<p>1. Conversion of Personal Property: INTEREST WHEN RECOVERABLE: PLEADING AND PRACTICE: STATUTORY CONSTRUCTION. In an action for conversion of personal property, interest is not recoverable as of right hut may be awarded, by the jury, “if they think fit” (R. S. 1899, see. 2869), and any demand for such interest, from a date before suit brought, must be made in plaintiff’s petition.</p> <p>2. Bond of Indemnity: LEVY ON PERSONAL PROPERTY: ACTION. A bond of indemnity to hold a levy on personal property, is admissible as evidence of participation in the levy by the signers thereof, in an action based on the illegality of the levy.</p> <p>3. Court: JURISDICTION: SUBJECT-MATTER. Where a court has authority to hear and determine actions of the general class in question, it has jurisdiction of the subject-matter.</p> <p>4. Maxim: PRESUMPTION. It is a maxim that a court is presumed to have rightly acted, in the absence of any showing to the contrary.</p> <p>5. Jurisdiction of Person: APPEARANCE OF DEFENDANT. Where defendant appears and answers to the merits, it will be assumed, in the absence of a different showing, that the court has jurisdiction over his person.</p> <p>6. -: PLEA TO THE JURISDICTION MAY BE JOINED IN' SAME ANSWER WITH PLEA TO THE. MERITS. A plea to the jurisdiction of the court over defendant’s person may be joined in the same answer with a plea to the merits of 'the action. " '‘ ■</p> <p>7. Judgment: REMITTITUR. Where, on motion for leave to remit part of a judgment, facts of record are shown which demonstrate that the proposed remittitur is adequate to cure an error in the amount of the judgment, and the motion is not opposed, the remittitur will be allowed, the judgment reduced and affirmed at the cost of the respondent.</p>

<p>1. Demurrer to the Evidence: INFERENCE: PRACTICE, TRIAL. Where a trial court grants a demurrer to the plaintiff’s evidence, every fact which the evidence tends to prove, though hut in the slightest degree, must be taken as admitted by the demurrer, and every inference which the evidence tends to show in plaintiff’s favor should be drawn.</p> <p>2. Negligence: PEDESTRIAN MUST “LOOK AND LISTEN”: CONTRIBUTORY NEGLIGENCE. A pedestrian who is about to cross a street railway crossing where there are no gates, flags, guards or signals of warning, is guilty of negligence if, according to his opportunity, he fails to look and listen both ways for a car before attempting to cross the track; but this rule should be reasonably applied and exception made to it when reason and common experience would make its application impracticable or harsh and unjust to the pedestrian in the streets of a populous city.</p> <p>3. -: -: -. In the case at bar, the time between cars on the same track, while not always uniform, was well known to be from three to twenty minutes. The plaintiff was familiar with . the streets and with the running of the cars. He stated he did not expect a car so soon from the north (neither would any other person in his situation and with his experience) and that he looked to either side of the street and south down the east track for a car on-that track: Held, this was such care as an ordinarily prudent man would have exercised in like circumstances, and that plaintiff was not guilty of contributory negligence.</p> <p>4. -: -: -: PROXIMATE CAUSE OF NEGLIGENCE. But in the case at bar, considering that the plaintiff was guilty of negligence per se, in failing to look to the north for an approaching car, the fact remains that if there was time and opportunity for the motorman to have stopped or so reduced the speed of his ear as to have avoided the injury after the peril of the plaintiff was discerned, or could have been discerned by the motorman by the exercise of ordinary care, the law is that though the plaintiff was guilty of negligence, his negligence was not the direct cause of the injury, but that the negligence of the motorman in failing to stop the car and prevent the injury, was the sole- and proximate cause of the injury.</p> <p>5. -: -•: -. Where there is a mere passive fault or negligence on the part of the plaintiff, the defendant is bound to the observance of ordinary care and prudence in order to avoid the wrong.</p> <p>e. -: -: -: INFERENCE: EVIDENCE. . In the case at bar, it is a reasonable inference that, had the car been -running at a speed of eight miles per hour, the plaintiff would have had ample time to pass over the west track in safety. The ordinance regulating the speed of ears in the city is a police regulation for the protection of the public, and is as binding on the defendant as if the regulation had been made by a State enactment, and all persons traveling in the street have a right to expect that defendant would observe the ordinance and govern the situation accordingly.</p> <p>7. -: -■: --: ORDINANCE REGULATING SPEED OF CARS. An ordinance regulating the speed of street ears has a direct ' bearing on the question of defendant’s negligence in striking a pedestrian, and should be taken into consideration in determining whether or not its negligence in running, its cars at an unlawful rate of speed was the proximate cause of the injury.</p> <p>8- -: -: -: -. In the case at bar> the evidence is clear and uncontradicted that defendant at the time it struck plaintiff was running its cars at not only an unlawful rate of speed, but at a speed that was reckless and extremely hazardous to persons traveling in the streets.</p> <p>9- -: -: -: BREACH OF DUTY. And if this breach of duty and reckless conduct in running its ears can be reasonably connected with the accident, the case should have gone to the jury.</p> <p>10. -: -: -: INFERENCE. In the ease at bar, the conceded facts justify the inference that if there was a failure to discover plaintiff’s danger and to stop the car in time to avert the injury, such failure was owing to the recklessness of the defendant’s servants in the management of the car.</p>