Volume 97 — Missouri Appeal Reports

— Ho?». A. D. Burnes, Judge. (1) The petition fails to state a cause of action in that it nowhere states that defendant was negligent or negligently failed to make or repair its sidewalk, or that it was not in a state or condition reasonably safe for travel thereon by the traveling public, which is the test of the defendant’s liability. Bonine v. Richmond, 75 Mo. 440.

— Hon. W. K. James, Judge. (1) The case admits that Owen was a faithful trustee, that his conduct is above criticism and his service meritorious. The only issue in the case, and the only one that ever was in it, is as to the amount of compensation. Two courts have passed upon it, the first ' one on several occasions, when it was better advised than the last one. The action of the first made a prima facie ease for the curator.

— Now. John P. Butler, Judge. (1) Defendant’s first instruction required the plaintiff to prove that the defendant’s officers, whose duty it was to inspect and repair sidewalks, knew of the defective condition of the sidewalk, and that thereafter defendant’s said authorities had time to repair the- defect before the accident. This is not the law.

— flow. J. D. Perkins, Judge. (1) The city had no authority to pass ordinance No. 72. Laws 1875, page 159, section 49. If it is doubtful the question must be determined against the ■corporation and in favor of the public. St. Louis v. Telephone Co., 96 Mo. 626; Trenton v. Clayton, 50 Mo. App. 539; Kansas City v. Lorbe, 64 Mo. App. 608; 1 Dillon on Mun. Corp. (4 Ed.), sec. 89; Stein v. Water Supply Co., 141 U. S. 80.

— New. John P. Butler, Judge. (1) The court erred in granting defendant thirty days within which to file his exceptions to the report ■of the referee. R. S. 1899, sec. 714. Maloney v. Railroad, 122 Mo. 106. It is not contended that the court may not, on its own motion, set aside a referee’s report without the filing of any exceptions. But the action of the court in this'case is not based upon its own motion but upon' defendant’s exceptions.

— No». J. D. Perkins, Judge. (1) The court erred in modifying and changing instruction No. 2a as ashed by plaintiff and giving it as 2b. The instruction is based on section 8767, Revised Statutes 1899. The right to mine given by that section terminates in three years.

— Hoot. Nat. M. Shelton, Judge. (1) The court erred in taking the case away from the jury.p Whether or not the note and mortgage was obtained under duress, was a question for the jury under proper instructions of the court. Cribbs v. Sowel, 87 Mich. 340; Thompson v. Wiggley, 26 L. R. A. 803; Bank v. Croco, 46 Kan. 620; Bank v. Kusworm, 26 L: R. A. 48; Ganz v. Weisenberger, 66 Mo. App. 110.

— No». W. K. James, Judge. (1) The court erred in permitting special ordinance number 303 and special ordinance number 304 providing for the grading and paving of Eleventh street to be introduced in evidence‘by the defendant Edelbroek. It was not a proper defense on the part of defendant Edelbroek that the city had graded and paved the street after the water plug or stop box had been placed.

— Ho». John W. Henry, Judge. (1) If respondent was a party to an agreement to the effect that none of the brewers would sell to a retailer as long as that retailer was in debt to any other party to the combination, it was for the jury to say whether such agreement was one regulative of the price of beer or “designed or made with a view to lessen, or which tended to lessen full and free competition.” Gutridge v. Railroad, 105 Mo. 520; Tyler v. Hall, 106 Mo. 313; Williamson v.…

— Rom. Gallatin Craig, Judge. (1) The building insured was not a dwelling when insured or when destroyed. Its nse in part for a millinery store or millinery shop deprived it of that character and changed the nature of its insurance risk. Gannett v. Albree, 103 Mass.. 372; Mensing v. Ins. Co., 36 Mo. App. 602.

— Row. A. D. ' Burnes, Judge. (1) The defendant’s objection to any evidence under the petition should have been sustained. (2) The defendant’s demurrer should have been sustained. The evidence for plaintiff failed to establish a promise or agreement on defendant’s part to have the cars at the station at one o ’clock in the morning.

— Now. John A. Ilockaday, Judge. (1) The overflow complained of was occasioned by surface water resulting from excessive rainfall. The defendant was not liable for such damage. McCormick v. Railroad, 57 Mo. 433; Abbott v. Railroad, 83 Mo. 271. (2) Waters overflowing the banks of a stream are to be regarded as surface water. Abbott v. Railroad, 83 Mo. 280; Shane v. Railroad, 71 Mo. 248.

— No». Samuel Davis, Judge. (1)' Courts will not allow a verdict to stand when it is clearly contrary to the evidence and a manifest mistake — ignorant or willful. Borgraefe v. Knights of Honor, 22 Mo. App. 127; Doty v. Steinberg, 25 Mo. App. 328. Nor when it can only be accounted for on the ground that it was the result of bias, prejudice, ignorance, or misunderstanding.

— Hon. A. D. Burnes, Judge. (1) In order for the plaintiff in replevin to recover, there must he a right to the possession, coupled with a general or special property. Stone v. McNealy, 59 Mo. App. 396; Baker v. Campbell, 32 Mo. App. 530; Wright v. Richmond, 21 Mo. App. 270; Leet v. Bank, 141 Mo. 584; Weeks v. Etter, 81 Mo. 375.

Appeal ■from Clay Circuit Court. — Ho». J. W. Alexander, Judge. (1) Suits by infants can only be commenced by guardian and curator of sucb infant, or by next friend, appointed for bim in sucb suits. Sec. 550, R. S. 1899; R. S. 1899, sec. 555. (2) A separate action for maintenance of minor children, subsequent to a decree of divorce, can not b'e maintained.

— Eon. John A. Hockaday, Judge. (1) The plaintiff’s story was so improbable and contradictory in itself and the weight of evidence was so overwhelmingly against it that the demurrer should have been sustained. The very construction of the vestibule renders her story impossible. The statement of a witness which, from the nature of things, could not be as said, will be treated as unsaid.

Louis City Circuit Court. — Ho». William Zachritz, Judge. (1) Goods may be held to secure charges due; that is the carrier has a lien to secure his compensation, and the carrier may insist upon retaining possession until those charges are paid. Potts v. Railroad, 131 Mass. 455; Newhall v. Vagras,. 15 Maine 314; Pennsylvania Steel Oo. v. Railroad, 94 Ga. 636.

Louis City Circuit Court. — Hon. William Zachritz, Judge. (1) The so-called contract of February 5, 1900, remained indefinite and incomplete by reason of the failure of the parties to subsequently agree on plaintiff’s territory. (2) The contract being denied in the pleadings, the statute of frauds is available at the trial without special pleading.

<p>1. Contracts: EXCHANGE OE LAND: STATUTE OE ERAUDS. A contract for the exchange of land for bank stock was alleged by plaintiff. In support of the allegation he offered certain written memoranda described in the opinion, and the court held them insufficient under the statute of frauds.</p> <p>2. -: -: -. A contract required by the statute of frauds to be in writing can not be enlarged by oral agreement so as to make the amendment enforeible when the statute is interposed.</p> <p>3. -:---. A contract for the exchange of land for land or other things than money is within the statute of frauds governing the sale of lands.</p> <p>4. Contracts: STATUTE OE ERAUDS. If a part of an entire contract is within the statute of frauds, the whole is controlled by it.</p> <p>5. -: -: PLEADING AND PRACTICE. The statute of frauds may be used as a defense under a general denial to a petition upon a contract, where the petition does not allege the contract to be oral, and the statute is invoked at the trial in some appropriate way.</p>

Louis City Circuit Court. — Hon. Selden P. Spencer, Judge. (1) The special commissioner did not perform his services at the instance and request of MacDonald; but as an officer of the court on motion of Watkins. R. S. 1899, sec. 2883. (2) The subject of costs is a.matter of statutory enactment; and all such statutes must be strictly construed. Ring v. Vogel Paint & Glass Co., 46 Mo. App. 375; Wilson v. Ruthrauff, 87 Mo. App. 226; State v. Oliver, 126 Mo. 188.

Louis City Circuit Court. — How. Selden P. Spencer, Judge. A renewal note is a renewal of the contract under which the original note was given. It is subject to the same defenses and is protected by the same rules, as the original. Coming v. Leedy, 114 Mo. 454; Hunt y. Rumsey, 83 Mich. 136; Bank v. Plankington, 27 Wis. 177; Bank v. Orchard, 39 Neb. 485; Schutt v. Evans, 109 Pa. 625.

Louis City Circuit Court. — Now. William Zachritz, Judge. (1) The damage complained of and sought to be recovered is not what appellant lost by reason of the borrower’s failure to pay all the notes, but what he lost by the purchase at the sale under the deed of trust, when he bid in the lands for $230.12, to which was added costs, taxes, etc., aggregating an approximate of the amount prayed for in the petition.

<p>Appeal from St. Louis City Circuit Court.— Hon. Warwick Hough, Judge.</p> <p>(1) Volenti non fit injuria. Respondent was alone to blame. Bnt for Ms unauthorized entry into the house without knocking he would not haye been shot at. Doyle v. Doyle, 26 Mo. App. 545. (2) Respondent was a trespasser and must take the consequences. Denver v. Harris, 122 U. S. 597; Westcott v. Arbuckle, 12 Ill. App. 577; Sampson v. Henry, 11 Pick. (Mass.) 379. The house was appellant’s castle and she had the right to resist his entry if she was alarmed or afraid of injury to the house or assault on her person. 1 Bishop New Crim. Law, 1892, par. 858; State v. Kennade, 121 Mo. 414; State v. Reed, 154 Mo. 129; State v. Taylor, 143 Mo. 150. Even if it afterwards appears that there was no occasion for her resistance or resort to arms. Morgan v. Durfee, 69 Mo. 477; Nichols v. Winfrey, 79 Mo. 544, 547; 90 Mo. 403, 406, lb.</p> <p>(1) A single act of gross cruelty is sufficient cause for a divorce. A' deliberate and unprovoked attempt by one upon the life of the other surely warrants a dissolution of their marriage. Doyle v. Doyle, 26 Mo. 545;' 1 Nelson on Div. and Sep., sec. 268; Pluilker v. Huilker, 64 Tex. 1; Beyer v. Beyer, 50 Wis. 254. (2) The appellate courts pay great deference in divorce cases to the findings of facts by the trial courts, which see the witnesses and observe their demeanor, and if the findings are supported by a preponderance of the evidence, they will be upheld. Miller v. Miller, 14 Mo. App. 424; Owens v. Owens, 48 Mo. App. 212; G-riesedeick v. Griesedeick, 56 Mo. App. 94; Rawlins v. Rawlins, 102 Mo. 563.</p>

Louis City Circuit Court. — Eon. 8el-den P. Spencer, Judge. (1) The testimony of attorneys as to the value of legal services rests upon the same basis as other expert testimony, should be received with the same caution, and should not control the judgment of the jury so as to preclude them from exercising their own knowledge and ideas upon the value of such services. To refuse such an. instruction is reversible error.

Louis City Circuit Court. — Hon. William Zachritz, Judge. (1) Suit was brought by tbe principal — who was also owner of tbe land — against tbe broker, for $225 beld back by him as commissions and tbe Court of Appeals held that tbe broker was entitled to bis commissions out of tbe earnest money.

Louis City Circuit Court. — How. D. D. Fisher, Judge. (1) The larceny or embezzlement of $858.19 is, under our statute, a felony. R. S. 1899, secs. 1914,1899. (2) Corporations can not, in the very nature of things, be guilty of a felony. Clark & Marshall on Priv. Corp., p. 656, and eases cited; Cook on Corp., sec. 15d; 7 Am. and Eng.

Louis City Circuit Court. — How. Warwick Hough, Judge. STATEMENT OF THE CASE.

Louis City Circuit Court. — No». Franklin Ferris, Judge. (1) The chattel mortgage to Crawford does not purport on its face to be the deed of A. E. Warrendorf, and is not, as between Warrendorf and his creditors, prior and subsequent, his deed within the meaning of section 3404, Revised Statutes 1899. Mackey v. Cole, 79 Wis. 426.

<p>1. Corporations: REPORTS: 'FAILURE OF CORPORATION TO PILE REPORT. Tbe duty of instituting proceedings to recover tlie fines and penalties provided for if corporations do not make the reports to the Secretary of State as required by sections 1013 and 1017, Revised Statutes 1899, rests on the prosecuting attorney of the county where the company is located, or, if in the city of St. Louis, on the circuit attorney, and the proceedings should be in the name of the State at the relation of the county, or of said city.</p> <p>2. Defect of Parties: PRACTICE, TRIAL: PLEADINGS: WAITER. Defect of parties is waived by not objecting to said defect either by demurrer or answer.</p> <p>3. Statute of Limitations. The limitation of the time within which a suit may be brought for failure of a corporation to report to the Secretary of State is fixed at six months from the first day of September of the year in which the report is due, and the right of action accrues on that day.</p> <p>4. Pleading: PETITION, SUFFICIENCY OF. Under Revised Statutes 1899, section 1015, providing that no corporation required by statute to furnish reports to the Secretary of State shall be excused by reason of its failure to receive blanks required to be supplied by the Secretary of State, a petition in an action'to recover the penalty provided by section 1017, Revised Statutes. 1899, for failure to make such report, need not allege that blanks had been mailed to the corporation therefor.</p>

Louis City Circuit Court. — So». John A. Talty, Judge. (1) Tlie court erred in holding, on the authority of Edgell y. Sigerson, 26 Mo. 583, and Hickerson v. City of Mexico, 58 Mo. 61, that the proceedings in the justice court, in which defendant E. M. Call, the guarantor, was a party defendant and made the defense and paid the judgment, was res adjudicata as to defendant Silver.

Louis City Circuit Court . — Eon. Franklin Ferris, Judge. (1) Tire jury should have been instructed as requested by defendant in'his refused instruction, that the default of contractor Lemke in the performance of the building contract was entirely consistent with defendant’s non-ability, for withbut such instruction the cause was not fairly submitted, and the jury was left to consider, and from the verdict apparently did consider, that the measure of defendant’s liability…

Louis City Circuit Court. — Hon. William Zacforits, Judge. (1) The copy or duplicate of the warehouse receipt offered in evidence was competent evidence because the destruction of the original having been proved it was the best secondary evidence of the contents of the original. Briggs v. Henderson, 49 Mo. 531; Conn v. McCollougli, 14 Mo. App. 584; Winfrey v. Gallatin, 72 Mo. App. 191.

Louis City Circuit Court. — Ho». Selden P. Spencer, Judge. (1) By the terms of the contract of August 19, 1898, the carriage company is obliged to take power from plaintiff until August 19, 1903. Springfield Seed Co. v. Walt, 67 S. W. 938; Missouri Edison Co. v. Bry, 88 Mo. App. 135; Missouri Edison Co. v. Steinberg Co., 68 S- W. 383.

Louis City Circuit Court. — Bern. H. D. Wood, Judge. (1) The testimony of witnesses Taylor and Grant as to the alleged contract or agreement under which the suit in question was instituted by Mackie, is incompetent; these witnesses are parties to the contract or agreement jointly with Mackie, now dead, and both are interested in the result of the litigation. R. S. 1899, sec. 4652; Tierman v. Meier, 90 Mo. 433; Bank v. Hunt, 25 Mo. App. 170; Rice v. McFarland, 41 Mo.

Louis City Circuit Court. — Ho». Selden P. Spencer, Judge. STATEMENT. The suit is for the recovery of damages for personal injuries received by plaintiff on June 6, 1901, by being struck by one of the defendant’s cars moving north on Yandeventer avenue in the city of St. Louis. The allegations of negligence are: “1.

Louis City Circuit Court. — Ho». Horatio D. Wood, Judge. (1) Our code of civil procedure provides that “Every action shall he prosecuted in the name of the real party in interest. ’ ’ Sec. 540, R. S. 1899. And the petition herein certainly shows that the plaintiff is the real party in interest.

Louis Court of Criminal Correction.— Hon. John W. McElhinney, Special Judge. Judge McElhinney had no jurisdiction to try this cause, and any judgment entered under' his supervision has no more validity than one rendered in a moot court of any. law school. Section 2597, R. S.' 1899; State v. Shipman, 93 Mo. 157; State v. Bulling, 105 Mo. •204.

<p>1. Evidence: INJUNCTION: REMEDY AT LAW: PRACTICE, TRIAL: PRACTICE, APPELLATE: BILL OE EXCEPTIONS. In the ease at bar, the evidence preserved in the bill of exceptions fails to show that plaintiff did not have an adequate remedy at law: Held, injunction’will not lie.</p> <p>2. Judicial Notice: COURTS OE APPEALS: PRACTICE, APPELLATE. The Court of Appeals takes judicial notice of all of its records and proceedings.</p> <p>3. Injunction: POSSESSION: TRESPASS TO REAL ESTATE. One out of possession can not maintain injunction for a trespass to real estate.</p>

— Ho». L. B. Wood-side, Judge. (1) The contract, the note sued on, was plain and unambiguous in its terms, and the testimony squarely contradicts it. It is an agreement to pay, and the evidence offered is to the effect that it was not to be paid, except upon certain conditions. The note, the deed of trust and the deed embodied the entire transaction and left nothing to be added. It was a complete contract in all its terms.

Louis City Circuit Court. — Hon. Daniel D. Fisher, Judge. (1) All of the evidence presented at the trial in the circuit court is preserved in the bill of exceptions, and the only evidence therein of the amount of damages is contained in the agreement that those damages amounted to one dollar. It was therefore error to allow a greater amount of damages in the verdict. Moore v. Dixon, 50 Mo. 424; Batch v. Myers, 65 Mo. App. 422.

<p>1. Peremptory Instruction, Wben Given: PRACTICE, TRIAL. Where there is testimony tending to prove plaintiff’s ease, by direct proof or by reasonable inference, it is not proper to give a peremptory instruction or declaration of law to find for defendant.</p> <p>2. Weight of Evidence: PRACTICE, APPELLATE. It- is not the-proper province of an appellate court, in reviewing the record in an ordinary action at law for the recovery of money, to pass upon the-weight of evidence.</p> <p>3. Agent: CAN NOT ACT FOR TWO MASTERS: EXCEPTIONS. The-exceptions to the general rule that an agent may not-act for two masters in the same transactions, rest upon ground outside of the-true province of the rule itself and are sustained because its underlying precept of good faith has not been violated.</p>

<p>Appeal from St. Louis City Circuit Court. — No». William Zachritz, Judge.</p> <p>STATEMENT.</p> <p>In the fall of 1894, David, William and Theodore Nicholson, a partnership doing business under the firm name of Nicholson Brothers, contracted in the name of the firm with Charles N. Stevens to construct a two-story brick residence and porch on a lot in the city of St. Louis. The title to the lot was in Phoebe Stevens. Phoebe Stevens was not a party to the contract.</p> <p>The contention of appellant is that Charles Stevens in the making of the contract acted as the agent of -his wife, Phoebe.</p> <p>On October 4, 1894, Nicholson Brothers sublet to plaintiffs the slating of the house and porch. In January or February, 1895, Nicholson Brothers had some trouble with the architects and abandoned work on,the building in the latter part of February, and dissolved the partnership by giving up the business in which they were engaged and by each member of the partnership going his own way. Afterwards Stevens contracted with Smith Brothers to finish the house, which they did.</p> <p>Plaintiffs furnished the material and did all the work called for by their contract by January 27, 1895, except about three hours work on the roof of the building and the roofing of the porch. They left off work on January 27 because, as P. S. Naughton, one of the partners, testified, there were no facings around the dormer windows and the porch was not ready for roofing. This witness further testified that in March or April he passed by the house and saw that the doors and windows were boarded up. Afterwards on May 27 when he was again passing by the house he discovered that it was open and immediately went for one of his workmen and had the roof of the house completed on that day which required about three hours work. In June following Smith. Brothers notified him that the porch was ready for roofing and he went to work and roofed the porch and presented his bill to Mr. and Mrs. Stevens, after it had been approved by the architects, and Stevens gave him a check for the amount of the bill, $63.59. He also testified that the work done by his firm on May 27th and prior thereto was done under the contract with Nicholson Brothers.</p> <p>Plaintiffs agreed with Nicholson Brothers to do all the slating for $450. Within four months after May 27, 1895, plaintiffs-filed their mechanic’s lien for $386.41 and commenced this suit to enforce the same before a justice of the peace, where it had a personal judgment against Nicholson Brothers and against defendant Stevens to enforce its mechanic’s lien. From this judgment defendant Stevens alone appealed.</p> <p>On a trial anew in the circuit court, at the close of plaintiff’s case, the jury was instructed that plaintiffs had no lien, and judgment was given for defendants Stevens and wife. After an unsuccessful motion for a new trial plaintiffs appealed.</p> <p>The husband was the agent of the wife in this case. The alleged dissolution of the. firm of Nicholson Brothers could not revoke the rights of plaintiff already acquired under his contract, nor his right to complete his work. 'These two points have already been decided by this court-in the plaster suit against the same house, adversely to the owners.</p> <p>(1) The Nicholson abandonment of the contract with owner Stevens and their dissolution of firm, terminated their contractual relationship with him and also terminated their contract with plaintiff. Lyon v. Railroad, 127 Mass. 101; Basham v. Toors, 51 Ark. 309; Henderson v. Stnrgis, 1 Daly (N. T.) 336. (2) The dissolution of the Nicholson firm broke the continuity of appellant’s account with that firm in March, 1895, and lien should have been filed within four months from time of dissolution. Greenway v. Turner, 4 Md. 396; Henry v. Rice, 18 Mo. App. 514. (3) No notice of abandonment by Nicholson firm or of its breach of contracts to its sub-contractors, was necessary. Green-way v. Turner, 4 Md. 396.</p>

Louis City Circuit Court. — How. Warwick Rough, Judge. (1) Plaintiff (appellant here) contends that her petition states a cause of action, i. e., that the defendant having procured the judgment or decree under which she claims the property referred to in the petition by means of fraud, i. e., by false and fraudulent representations in her petition in said cause, and to the public administrator in charge of said estate, thereby preventing an active defense in said suit, and…

— Hon. L. B. Wood-side, Judge. (1) It was tire duty of the plaintiff to allege and prove three elementary facts: (a) That he was a bona fide purchaser before maturity, (b) The indorsement by the payee, and before maturity, (c) A consideration. (2) Under the pleadings each of these three points was a question of fact and should have been submitted to the jury. Worrell v. Roberts, 58 Mo. App. 197; Campbell v. Hoff, 129 Mo. 317; Seehorn v. Bank, 148 Mo. 256.

Lonis City Circuit Court. — Hon. War- ■ wick Hough, Judge. Evidence of value of time employed by respondent, in recovering the property, over appellant’s objection, was improperly admitted; because, no such damages were claimed in the petition.

Appeal, from St. Louis City Circuit Court. — No». Franklin Ferris, Judge. STATEMENT OF THE CASE. The following instructions were-requested by the defendant and refused: “1. The court instructs the jury that under the pleadings and all the evidence, the plaintiff can not recover in this case and your verdict will be for defendant. “2.

Louis City Circuit Court. — flow. Warwick Hough, Judge, (1) The motion to elect, filed by defendant at the threshold of plaintiff’s case, should have been sustained, because the petition pleaded in one count three common-law acts of negligence, all of which are ex delicto and constitute one cause of action, and also attempted to plead a violation of the vigilant watch ordinance, which, is ex contractu, because passed by the city under its contractual powers, and the…

Louis City Circuit Court. — Hon. H. D. Wood, Judge. (1) The certified copy of the deed of trust of date April 23, 1877, on which the respondents’ claim is predicated, was- not properly admitted in evidence, because the acknowledgment thereof was not in accordance with the statute in force when the 'acknowledgment was taken. Garner v. Barry, 28 Mo. 438; Calloway v. Pash, 50 Mo. 420; Patterson v. Pagan, 38 Mo. 70; Hoskins v. Atkins, 77 Mo. 539; Hunt v. Selleck, 118 Mo. 588.

<p>1. municipal Corporations: PUBLIC IMPROVEMENTS: SPECIAL TAXES: SPECIAL TAX BILL: ACTION. Under the charter of the city of St. Louis, article 6, section 25, declaring that the certificate to a tax bill shall be prima facie evidence that the work and material charged in the bill have been furnished and that the work has been executed, and of the correctness of the prices, and of the liability of the persons therein named as the owners of the land charged with such bill to pay the same, the admission of a special taxbill in an action thereon establishes a prima facie ease in favor of plaintiff.</p> <p>2. -: -: -: -: CONSTRUCTION OE CHARTER OE ST. LOUIS. Under the charter of St. Louis, article 6, section 22, requiring the cost of sewers to be assessed on the property of the district, no recovery on' a special taxbill for such an improvement can be had without such an assessment.</p> <p>3. -: -: -. The St. Louis charter, article 6, section 22, provides that as soon as a district sewer, etc., is fully completed, the board of public improvements shall assess the costs as a special tax against all lots in the district, etc., pro rata, and that the board shall cause to be made out a certified bill of such assessment against each lot in the district, held, that where the board, niter receiving the sewer commissioner’s report, showing the aggregate cost of the construction of a sewer, approved the report, and, having before it a computation of the whole area of the sewer district, referred the matter to the president of the board to make out the special taxbills, which he presented to the board without their being dated or signed, when they were approved by the board, and dated and signed by the president, the approval of the bills constituted an assessment, within the meaning of section 22, article 6 of the charter of the city of St. Louis.</p>

<p>Appeal from St. Louis City Circuit Court. — No». Warwick Hough, Judge.</p> <p>(1) There is but one question in this case, and that arises on the pleadings, and admitted facts set out in a stipulation filed in the trial court. Section 18, article 6, of the charter of the city of St. Louis provides, in substance, that the lots abutting a street shall not be charged for the construction of such street in excess of twenty-five per cent of the assessed value of said property, calculating a depth of such property to 150 feet. And the question to be determined in this case is whether or not, in determining the amount of twenty-five per cent, of the assessed value of any lot, the value of the building on the lot is to be taken into account or considered. (2) The injustice of taking the improvements into account .for a purpose of this kind is clearly stated in Snow v. Fitchburg, 136 Mass. 183, where this language is used: “It would be manifestly unjust in making assessment for a sewer, to value. a lot worth $500 with a house on it worth $5,000 at $5,500, and to value an adjoining lot of the same size and value, but vacant, at $500, when within a few months the owner of the vacant lot might build a house upon it of greater value than the house on the adjoining-lot and require and enjoy equal facilities for draining.” This language is equally applicable to the construction of a street, where each lotowner would have the same use and benefit of the street after it was constructed. Brewing v. Springfield, 97 Mass. 152; City of Boston v. Shawl, 1 Met. 138; Dovner v. Boston, 7 Cush. 281 ; Cooley on Taxation (2 Ed.), 649; 25 Am. and Eng. Ency. of Law, p. 526.</p> <p>(1) "Whatever doubt there might be on this question is settled by the acts of the General Assembly of Missouri. It is provided by section 8, of the act approved March 30, Í872, (Laws 1872, p. 85) and by section 1, of the act approved, March 15, 1883, (amending section 6664, Revised Statutes 1879) Laws 1883, p. 135, as follows: “The term ‘real property,’ ‘real estate,’ Band’ or dot’ wherever used in this chapter [the chapter here referred to is as to the assessment of the revenue] shall be held to mean and include not only the land itself, whether laid out in town or city lots or otherwise, with all things contained therein, but also all buildings, structures and improvements and other permanent fixtures of whatsoever kind thereon, all shot-towers and all machinery connected therewith, all gristmills, sawmills (except portable mills of every description), oil wells, tobacco, hemp and cotton factories,' tobacco stemmeries, rope-walks, manufactories of iron, nails, glass, clocks, and all other property belonging to manufactories of whatever kind, all -wool-carding .machines, all distilleries, breweries, all tanneries, all iron, copper, brass. or other foundries, and all rights and privileges belonging, or, in anywise -pertaining thereto, except where the same may be otherwise denominated by this chapter,” etc.</p>

— Ho». Elliott M. Hughes, Judge. STATEMENT OP THE CASE. The substantive allegations of the amended petition —on which the cause was tried — are that plaintiff in April,.1899, was employed by the defendant as a common laborer; that he was put to work with other employees of defendant on the reconstruction of an old and abandoned piece of railroad near Bussey in the State of Iowa; that he was inexperienced in such work; that after having worked on the reconstruction of the…

Louis City Circuit Court. — So». Jas. E. Withroio, Judge. (1) Defendant, the Mississippi Valley Trust Com-owed no legal duty to deceased who was the servant of an independent contractor, by violation of which it could he charged with negligence and subsequent liability to plaintiff therefor. Shearman & Redfield, Negligence (5 Ed.), secs. 3, 5 and 25; Herzer v. Mfg. Co., 110 Mo. 605; Curley v. Railway, 104 Mo. 211; Roddy v. Railway, 104 Mo. 234.

Louis City Circuit Court. — Eon. Selden P. Spencer, Judge. (1) The circuit court erred in holding that a contract for the sale of tobacco was made by defendant. Defendant invoked the statute of frauds. R. S. 1899, sec. 3419; Pattison’s Missouri Code Pleading, sec. 592; Boyd v. Paul, 125 Mo. 9; Hackett v. Watts, 138 Mo. 502. (2) And the writings put in evidence did not satisfy that statute or show a meeting of minds.

Louis City Circuit Court. — No». Selden P. Spencer, Judge. (1) The policy of insurance is an assessment contract of a domestic company, and the representations were warranted to he true and agreed if false would avoid the contract.

Louis City Circuit Court. — Ho». Daniel D. Fisher, Judge. (1) As appears from the record, the gist of the contention herein is, the sale in question being void, is appellant under the evidence estopped from pleading this fact as a defense? As appears from the record, defendant contends that the sale in question is void, and respondent, in effect, admits this contention, hut claims that under the evidence appellant is estopped from attacking the validity of said sale.

Louis City Circuit Court. — Ron. William Zachritz, Judge. STATEMENT.

— How. James E. Ha-sell, Judge. (1) The evidence did not establish negligence on the part of defendant. The fact that plaintiff was injured is not enough to raise a presumption of negligence. Blanton v. Dold, 109 Mo. 74; Bohn v. Railroad, 106 Mo. 429; Carvin v. St. Louis, 151 Mo. 334; Railroad v. Nelms, 9 S. E. (Ga.) 1049. (2) The defendant was not required to furnish absolutely safe tools to the plaintiff.

— Now. Nat. M. Shelton, Judge. (1) The court erred in holding the contract of November 25, 1896, void. Plaintiff admitted its execution. The burden was on him to show such fraudulent acts on the part of the agent of the association, as would vitiate it. He who charges fraud must prove it by preponderance of the evidence to the satisfaction of the court, and such evidence must be clear, convincing and conclusive.

— -Hem. Gallatin Craig, Judge. Piled lengthy argument. (1) When defendants ’ motion for change of venue was overruled, the defendants “by agreement” submitted the case to the justice, took part in the trial and as the “complaint” is admitted sufficient, the justice had jurisdiction of the subject-matter, and of the person by voluntary appearance. They could not submit to the jurisdiction — if results were favorable, hold — if unfavorable, cry want of jurisdiction.

— Hon. GallatinCraig, Judge. (1) Defendant Snyder and Ms partner Wilson bad a right, under the allegations in tbeir affidavit, to-apply to the probate judge for the apprehension of Dougherty.

— Now. A. M. Woodson, Judge. (1) The court erred in sustaining the motion to strike out parts of the answer. There can he no ¿doubt but that such ruling would have made a material difference in the verdict. As the case now stands these parties have recovered $3,000 from the city for grading around their property, in the outskirts of the city, with a small seven-room house and some sheds on it.

— Ho». John A. Hochaday, Judge. (1) . Neither the effect upon the plaintiff’s health, nor her mental anxiety, if any, are proper elements of damage under the pleadings and the evidence in this case, or in actions of this character, (a) Because they are too remote. Trigg v. Railroad, 74 Mo. 147; Marshall v. Railroad, 78 Mo. 610; Connell v. Telegraph Co., 116 Mo. 34; Francis v. Transfer Co., 5 Mo. App. 7; Strange v. Railway, 61 Mo. App. 586; Deming v. Railway, 80 Mo.

— Now. John A. H.ochaclay, Judge. (1) The relation of carrier to passenger was never created, and therefore never existed, between the plaintiff and defendant. For that reason the plaintiff was not entitled to recover. Berry v. Railroad, 124 Mo. 247; 1 Fetter on Carriers of Passengers, sec. 210, p. 552, and cases cited.

— Ho». John A. Hockaday, Judge. STATEMENT BT BROADDUS, J. This is a suit in equity to have declared as void a certain taxhill, and to remove the cloud upon plaintiff’s title to lots'271, 272 and 273 in Columbia.

— Hon. John A. ■ Hockaday, Judge. (1) The contention that the contractor failed to complete the work on time is based on an erroneous theory, as to when the time began to run. On September 9, 1901, the council for the first time by ordinance adopted this contract. The work under the contract was completed on November 1, within seventy working days after its approval by ordinance, but not within seventy days after its date.

— Ho». W. S. Stockwell, Special Judge. (1) It is conceded that by the deed from defendants to James A. Egan, he got all of the interest in the real estate in question except what was vested in the Warren lodge, and in determining the value of the lodge’s interest the limitations on its estate was a proper subject of inquiry, hence, the court committed error in refusing to permit such inquiry and in refusing defendants ’ instruction No. 2.

— Hon. James E. Hazell, Judge. The court erred in assessing plaintiff’s damages at a sum in excess of that at which the plaintiff himself placed them. Shortly after the fire occurred the plaintiff presented to the defendant his claim for damages, placing his loss at forty-two dollars. Yet the court, by its finding and judgment gave him more than this sum. No authorities are needed to convince the court that this was error. No brief.

Samuel Davis, Judge. (1) A city is not an insurer of pedestrians upon its streets and sidewalks ag’ainst accidents, nor is every •defect or imperfection in its streets or sidewalks actionable. Dillon on Mun. Corp., sec. 1019; Elliott on Roads and Streets, p. 448; Brown v. Glasgow, 57 Mo. 156; Craig v. Sedalia, 63 Mo. 417; Carvin v. St. Louis, 151 Mo. 334.

— Soto. Samuel Davis, Judge. (1) How a written and signed statement made by the plaintiff, with reference to the origin of the fire, could be incompetent or irrelevant or immaterial, is beyond our comprehension. Even telegrams, letters, etc., are admissible. Hammond v. Beeson, 112 Mo. 190; Hatten v. Randell, 48 Mo. App. 203; Rheinhart v. Grant, 24 Mo. App. 154; War lick v. Peterson, 58 Mo. 408; State v. Turlington, 102 Mo. 642.

— Now. J. D. Perkins, Judge. Piled brief and argument on merits. While what purports to be the-bill of exceptions is copied into the printed abstracts of the record, there appears to be nothing contained in the record proper showing the filing of such bill of exceptions. This is fatal. It has been uniformly held that a bill of excep-. tions can not prove itself. As no such entry appears in the abstract of the record proper, the bill of exceptions can not be noticed.

— Eon. II. C. Timmonds, Judge. (1) The circumstance that the'administration was delayed for a few months is no evidence of any fraud. The only way that title can legally pass to heirs is through an administration. State ex rel. v. Moore, 18 Mo. App. 406; Becraft v. Lewis, 41 Mo. App. 547; Boeger v. Landenburg, 42 Mo. App. 12; Adey v. Adey, 58 Mr. App. 408; Jacobs v. Maloney, 64 Mo. App. 270; Hendrix v. Dixon, 69 Mo. App. 204; Smith v. Denny, 37 Mo. 20.

— Ho». James Gibson, Judge. , (1) The finding should have been for the defendant under the evidence. (2) The court erred in giving instruction No. 1 for the plaintiff. It concluded with a peremptory instruction to find for the plaintiff upon the facts contained in it and wholly ignored all the defense. This was erroneous. Corder v. Primm, 60 Mo. App. 426; Linn v. Massilon, 78 Mo. App. Ill; McMahon v. Express Co., 132 Mo. 641; Goetz v. Eailroad, 50 Mo. 472.

— Hon. J. H. Slover, Judge. (1) The court erred in giving instruction number eleven on behalf of defendant. (2) The fact that the shipper had' knowledge of such unlawful or unreasonable charges or rules does not estop him from maintaining an action for money had and received for such unlawful or unreasonable charges or regulations. Heiserman v. Railroad, 63 Iowa 732, and cases cited; Carrier v. Railroad, 79 Iowa 87.

Son. Paris G. Stepp, Judge. (1) The check of William A. Lynam to G. W. Squires, or hearer, with authority to fill in full amount said Lynam had in the bank, from time such amount was filled rq and bank had knowledge thereof, operated as an assignment to the legal holders of said check, as against Lynam or any person standing in his place, or in fact any and every person, of such funds so in said hank; and hence said Stiles and Miller being the legal holders, and for a most…

— Hb». W. K. James, Judge. (1) The arrangement between the interpleader hank and Tyson, by which the hogs were bought for the bank by Tyson in his own name was, valid; there is no controversy between Tyson and the bank as to the ownership of the property; it is not claimed .that the attaching creditor is in any manner injured by the transaction, his being an antecedent debt. Anderson v. Biddle, 10 Mo. 23.

<p>Appeal from Andrew Circuit Court. — No». A. D. Burnes, Judge.</p> <p>(1) The court erred in sustaining plaintiff’s motion to strike out a part of the answer. Nelson v. Yon Bonhorst, 29 Penn. St. 352; Perry v. Cooper, 8 Mo. 205; Blaine v. Knapp & Co., 140 Mo. 241; Allen v. Davis, 11 Mo. 479; Ray v. Hodge, 13 Pac. 599; Krum v. Mersher, 9 Atl. 324; Salinas v. Wright, 11 Tex. 572; Gellespie v. Mather, 10 Penn. St. 28; Mason v. Graff, 35 Penn. St. 448. (2) Contracts must be construed according to the plain intent and meaning of the parties. Webster v. Meyer, 52 Mo. App. 338; Truman v. Stephens, 83 Mo. 218. An arbitration may either be “statutory,” or “at common law.” Williams v. Perkins, 83 Mo. 379; Lasar v. Baldridge, 32 Mo. App. 365; Quinliván v. English, 42 Mo. 362; s. c., 44 Mo. 46. (3) Arbitration or a refusal to arbitrate on the part of the defendant is a condition precedent to a recovery. Murphy v. Mercantile Co., 61 Mo. App. 323; McNees v. Ins. Co., 61 Mo. App. 335; McCollough v. Ins. Co., 113 Mo. 606, and cases cited; Dautal v. Ins. Co., 65 Mo. App. 50; Sweringer v. Ins. Co., 66 Mo. App. 90; Johnson v. Ins. Co., 69 Mo. App. 226; Hooker v. Ins. Co., 69 Mo App. 141. (4) The court erred in permitting witness Hill to give an opinion to the jury as to how in his judgment the cattle were killed. Railroad v. Stock Yards Company, 120 Mo. 541, 550; Benjamin v. Railway, 133 Mo'. 274; Hurt v. Railway, 94 Mo. 255; Muff v. Railway, 22 Mo.. App. 584; Hartman v. Muehlebach, 64 Mo. App. 565; Madden v. Railway, 50 Mo. App. 666; Turner v. Haar, 114 Mo. 335; Goins v. Railway, 47 Mo. App. 173. (5) The plaintiff’s first instruction should not have been given for the very obvious reason that the petition alleges the cattle killed were five head of two-year-old cattle and two bead of yearling cattle, while the evidence showed fonr milk cows and three yearlings. (6) Plaintiff’s second instruction is open to the same objection as the first, and to the further objection that it required the jury to allow interest from April 26, the day the cattle were drowned, while the contract of insurance provides “the amount of loss or damage to be paid within sixty days after adjudication.” R. S. 1899, sec. 3705.</p> <p>(1) A party can not complain that the court permitted a witness to testify against his objection to certain facts, if subsequently in the same trial he admits the facts brought over his objection. State v. Goddard, 162 Mo. 226. (2) "Where a party adduces incompetent evidence he can not complain on appeal that his adversary was given the same privilege. State v; Palmer, 161 Mo. 175. (3) The clause in appellant’s constitution: “All disputes . . . whether touching the point of liability or amount of loss must be settled by mutual agreement or arbitration; any other proceeding in court is entirely prohibited,” constituted no defense and was properly stricken from the answer. 2 May on Ins. par. 492; 6 Lawson on R. R. & P., par. 3326; Same, vol. 5, par. 2087; 2 Story on Eq. Jur., par. 1457; 2 Am. and Eng. Ency. of Law, p. 570; Dadenfield v. Ins. Co., 154 Mass. 77 (27 N. E. 769); Haggard v. Morgan, 5 N. T. 422; McNees v. Ins. Co., 61 Mo. App. 340; Strohmaier v. Zeppenfield, 3 Mo. App. 432; Secs. 8056, 8064, R. S. 1899. (4) The by-law set up in the answer is no defense. There was a denial of all liability and the answer showed such denial. Since the company denied all liability there was nothing to arbitrate. 5 Lawson on R. R. & P., par. 2087; 2 Am. and Eng. Ency. of Law, p. 581; Farnum v. Ins. Co., 83 Cal. 246; Rosenwald v. Ins. Co., 3 N. Y. 215; Bailey v. Ins. Co., 77 Wis. 336; Hamilton v. Ins. Co., 137 U. S. 370; Dautel v. Ins. Co., 65 Mo. App. 50; McNees v. Ins. Co., 61 Mo App. 341; Thomas v. Ins. Co., 78 Mo. App. 273; Montgomery v. Ins. Co., 80 Mo. App. 506. (5) Where there is a variance, the statute points ont the method by which it is necessary to proceed in order to save the point. Sec. 655, R. S. 1899; Chouquette v. Railway, 152 Mo. 262; Bank v. Leyser, 116 Mo. 68; Bank v. Taylor, 69 Mo. App. 103; Pancoast v. G-as Eixt. Co., 60 Mo. App. 60; Lalor v. Byrne, 51 Mo. App. 583.</p>

— How. W. L. Jarrott, Judge. (1) The indictment does not charge any offense, and is fatally defective in this: It does not charge the acts of defendant to have been either willfully or unlawfully done. State v. Oreen, 11 Mo. 585, and authorities therein cited.

— Hon. J. D. Perkins, Judge. STATEMENT BT BROADDUS, J. This is a proceeding brought to September term, 1901, of the Jasper Circuit Court to recover damages for injuries to plaintiff in alighting from defendant’s car (upon which she was a passenger) on August 16, 1901, at Main and Elizabeth streets in Carterville, Missouri.

— Ho». W. B. Teasdale, Judge. (1) This is a case where a statute enumerates particular classes of indebtedness which the district directors are authorized to incur as incidentals, followed by the general words, “all other expenses,” and these general words will be limited in their meaning and restricted in their operation to indebtedness of like kind with those particularly specified. St. Louis v. Laughlin, 49 Mo. 559; Dart v. Bagley, 110 Mo. 54; Miller v. Wagenhauser, 18 Mo.

— Koto. E. P. Gates„ Judge. (1) This appeal is prosecuted under the short form provided by section 813, Revised Statutes 1899, and it was appellant’s duty to file printed abstracts of the entire record; said record so filed does not show that any judgment was rendered on the verdict found by • the jury. Sec. 813, R. S. 1899; Wilson v. Railway, 120 Mo. 60.

— No». John W. Henry, Judge. (1) The first point we make is, we think, decisive of this case. Under the facts as disclosed by the record plaintiff’s case must fall for a failure of proof. His petition does not state a cause of action, nor do the proofs make a case. He does not establish a legal demand.

<p>1. Justices’ Courts: STATEMENT, SUFFICIENCY OF. • A statement before a justice of the peace, sufficiently specific to inform the opposite party of the foundation and character of the demand asserted is a full and sufficient compliance with the statutory provision.</p> <p>2. -: -. The forerunning statement filed before a justice of the peace meets the requirements of the statutes: “Mexico, Mo., Sept. 17, 1901. E. Kahn, Dr. to Willis Johnson: Making sale of saloon stock, $92.50.”</p> <p>3. Trial Court: DUTY OF TESTIMONY: PROCEDURE; TRIAD. The provision of a trial court in a case before a jury is not to determine when proof has been made sufficient for a verdict, but is confined to instructing when testimony introduced tends to establish a fact in issue.</p> <p>4. -: -: EXPERT TESTIMONY: JURY: COURT. The testimony of experts is admitted as a matter of necessity to be received and considered with great caution. The competency of such witnesses to testify is a legal question for the court to decide, but the weight to be given to expert testimony is to be determined by the jury.</p>

<p>Injunction: SALE UNDER DEED OF TRUST: PETITION. A petition alleging that plaintiff is the owner of certain real estate, that some years before a person named conveyed said land in trust, that afterward defendant trustee under such deed was advertising the land for sale in a certain newspaper in which such sales could be advertised under the law, states no cause of action for injunction to restrain such sale, it not appearing what was the character of the trust in the instrument, apparently unrecorded, or the nature of the advertisement or how such sale would "affect plaintiff’s title.</p>

Clark Circuit Court — Now. Edwin R. McKee, Judge. (I) Appellant is a fraternal benefit society, as defined by the laws of Missouri, governing such societies. Sec. 1408, R. S. 1899; Brassfield v. M. W. of A., 88 Mo. App. 208.

Louis City Circuit Court. — Ho». Selden P. Spencer, Judge. (1) The court should have given the instructions ■asked by plaintiff. The deliveries to Filley and to plaintiff were effective. “Symbolic delivery by bill ■of sale is sufficient to vest title and a right to replevy. ’ ’ ■Collins v. Wayne Lumber Co., 128 Mo. 451.

<p>Principal and Agent: COMMISSION: SEGUEING A TENANT: EVH DENOE. Defendant agreed to pay plaintiff a certain commission if slie obtained a tenant for a building which defendant was erecting. She showed the plans to one who wished to rent, and twice visited the building with him, but he refused to rent at the terms offered, After a portion of the building had been rented to other tenants, another real estate agent influenced the one whom plaintiff had solicited, to rent the remainder of the building, and on different terms from those offered through plaintiff; plaintiff took no part in the contract finally made: Held, that plaintiff was not entitled to a commission.</p>

— Ho». N. M. . Shelton, Judge. (1) It has long ago been settled in this State that after condition -broken the mortgagee is the absolute owner of the property and can maintain trover therefor even though in the actual possession of the mortgagor. The earlier cases on this question have recently been cited with approval by both the appellate courts in the cases of Burge v. Hunter (K. C.), and Edmonston v. Jones (St. L.) cited below.

— Eon. J. L. Fort, Judge. (1) Upon the pleadings in the action on the bond the defendants in that action were entitled to judgment in their favor, and the Carter Circuit Court should have rendered such a judgment. Accordingly, a court of equity will do now what that court should have done in the original action. Spurger v. Hardy, 4 Mo. App. 573; State ex rel. v. Spencer, 79 Mo. 314; Shelby County v. Bragg, 135 Mo. 291; Farris v. Coleman, 103 Mo. 352.