Volume 98 — Missouri Appeal Reports

Louis City Circuit Court. — Him. O’Neill Ryan, Judge. STATEMENT. The action is for malicious prosecution. The material parts of plaintiff’s own testimony is as follows: “I got on the car at Twenty-first and Cass avenue.

<p>Appeal from St. Louis City Circuit Court. — No». Selden P. Spencer, Judge.</p> <p>STATEMENT.</p> <p>Defendant has a double street railway track on Easton avenue running east and west in the city of St. Louis. Easton avenue is crossed at right angles by Euclid avenue running north and south. On December 6, 1900, plaintiff’s teamster was driving plaintiff’s three-horse wagon'south on Euclid avenue, the driver being seated on the wagon. When he reached Easton avenue he turned the lead horse in a southeasterly direction for the purpose of crossing to the south side of Easton avenue and then proceeding east thereon. When his lead horse reached the south railway track on Easton avenue, it was struck by a car traveling east and the horse' and his harness were badly damaged. . This suit is to recover this damage.</p> <p>The defense was contributory negligence.</p> <p>On the part of plaintiff the evidence tends to prove that as soon as the driver cleared the building line ■on Easton avenue he looked and listened for a car on the south track but neither saw nor heard one; that his vision was partially obstructed by a west-bound car that had stopped on the northwest corner at the intersection of Euclid and Easton avenues for the purpose of •discharging passengers, and that the noise of his wagon .and the west-bound car interfered with his hearing; not’ seeing or hearing a car on the south track he proceeded to cross the street in a southeasterly direction; that the •car traveling east on the south track gave no warning signal as it approached the crossing and was running at .a high and dangerous rate of speed; a speed of from ■eighteen to twenty miles an hour.</p> <p>On the part of defendant the evidence tended to prove that the car was running on a down grade at a moderate speed with the power shut off; that the gong was continuously sounded as the crossing was approached; that the night was dark and rainy but the •car was brilliantly lighted; that Easton avenue is sixty feet wide, and that space between the building lines is eighty feet; that the driver could have seen the car after he entered the avenue and passed beyond the obstruction caused by the standing car before his lead .horse had reached the south track if he had looked.</p> <p>For the plaintiff the court gave the following instructions :</p> <p>“If the jury find and believe from the evidence that on December 6, 1900, the defendant was operating a street railway by means of electricity along Easton avenue, in the city of St. Louis, and was running its cars along said avenue in charge of a motorman and conductor; and if the jury further find and believe from the evidence that on said date plaintiff’s wagon was being driven by plaintiff’s driver southwardly along Euclid avenue, and was proceeding to cross Easton avenue from the north' side thereof toward the south side thereof, at its intersection with Euclid avenue; and if the jury further find'and believe from the evidence that while plaintiff’s said wagon was so proceeding to cross Easton avenue, an east-bound car in charge of defendant’s servants ran into the lead horse attached to said wagon and injured plaintiff’s said horse and its harness; and if the jury further find and believe from the evidence that at the time of, and immediately prior to such injury said east-bound car was permitted to run at a rate' of speed which was excessive and dangerous to persons and animals crossing Easton avenue at said point, or that the motorman failed to give any notice or warning of the approach of his car; and if the jury further find ■ and believe from the evidence that said rate of speed or said failure to give warning was negligent under All the facts and circumstances detailed in the evidence and under these instructions, and that but'for such negligence said injury would not have happened; and if the jury further find and believe from the evidence that plaintiff’s said driver at the time of said injury was exercising ordinary care for the protection of his team in so driving across Easton avenue then the jury will find a verdict in favor of the plaintiff.</p> <p>“What constitutes ‘ordinary care’ as mentioned in these instructions depends on the facts of each particular case. It is such care as a person of ordinary prudence would exercise (according to the usual and general experience of mankind) in the same situation and circumstances as those of the person or persons in this case with reference to whom the term ‘ordinary care’ is used in these instructions. The omission of such care is negligence in the sense in which that word is used in these instructions.</p> <p>“If you find for the plaintiff, you will assess its damages at such sum, not exceeding two hundred dollars as will reasonably compensate plaintiff for the damage to plaintiff’s horse and harness, and for plaintiff’s expenses for medical services, feed, care and attention to said horse, and for the loss to plaintiff from being deprived of the use of said horse.</p> <p>“If your verdict is for the defendant, you will simply so state in your verdict. ’ ’</p> <p>For the defendant the following:</p> <p>“1. The court instructs the jury that plaintiff’s petition charges that its servant was on December 6,1900, about 8 p. m. driving his stake wagon drawn by three horses, one of them being in the lead, south on Euclid avenue, and that at the intersection of Euclid and Easton, while said wagon was being driven from the north side towards the south side thereof, an eastbound car of the defendant company struck said lead horse. The negligence charged against said defendant is: first, that said car while approaching said crossing was being operated at an excessive and dangerous rate of speed to persons and animals crossing Easton avenue at its intersection with Euclid: second, that the motorman thereof failed to give any warning of the approach of said ear on Euclid avenue. The court instructs you that in regard to those allegations of negligence the burden of proof is upon the plaintiff to show by the preponderance or greater weight of the evidence that said accident was caused by either one or both said alleged acts of negligence. By burden of proof is meant that the evidence to sustain a proposition thus to be proved is greater in weight and credibility in your judgment than the evidence to the contrary.</p> <p>“2. The court further instructs the jury that it was the duty of plaintiff’s driver to both look and listen for an approaching car just immediately before driving across defendant's track, no matter whether defendant’s servants on said car gave the signals or not, and no matter at what rate of speed said car was running. And if from the evidence the jury believe that said driver failed to both look and listen just before crossing said track, and thereby materially contributed to the collision between the car and the horse, then your verdict should be for the defendant.</p> <p>1 ‘ 3. The court instructs the jury that if from the evidence they believe that both plaintiff’s driver and the servant of defendant operating defendant’s car were both guilty of negligence, and that the negligence of plaintiff’s driver materially contributed to the injury, then your verdict shall be for the defendant. ’ ’ '</p> <p>The. jury returned a verdict for plaintiff and assessed his damages at $168.75.</p> <p>After an ineffectual motion for a new trial defendant appealed.</p> <p>(1) The demurrer to the evidence should have been sustained. The evidence for both plaintiff and defendant disclosed that the car could have been seen by the driver if he had looked. It could have been heard if he had listened. He neither looked nor listened, but on a dark and rainy night drove on the track only a few feet in front of a moving car without looking to see whether a car was approaching or giving any heed to his surroundings. This is such negligence as precludes a recovery. Schmitt v. Railroad, 149 Mo. 287; Hogan v. Railroad, 150 Mo. 36; Vogg v.- Railroad, 135 Mo. 440; Huggart v. Railroad, 134 Mo. 673; Lane v. Railroad, 132 Mo. 27; Weller v. Railroad, 120 Mo. 648. (2) This rule is not changed by the fact that plaintiff testifies that he looked for the car, but saw it not; such evidence, in the face of the indisputable evidence, and the physical facts that, had he looked, he could have seen, at the very lowest estimate, the car over ninety feet away, with no obstruction between him and it, before he drove onto the track, and in ample time to have avoided the accident, has no probative force. “It will be disregarded as testimony by the court. ’ ’ Kelsey v. Railroad, 129 Mo. 362; Lane v. Railroad, 132 Mo. 27; Baker v. Railroad, 122 Mo. 589; Payne v. Railroad, 136 Mo. 575; Hook v. Railroad, 162 Mo. 581; Heckman v. Railroad, 47 Mo. App. 65; Weaver v. Railroad, 60 Mo. App. 210. (3) It will not do for plaintiff to say that, inasmuch as his driver looked once, he was exonerated from looking again. This duty is continuous until the dangerous locality is passed. Kelsey v. Railroad, 129 Mo. 362; Jones v. Barnard, 63 Mo. App. 501; Moberly v. Railroad, 98 Mo. 183; Hayden v. Railroad, 124 Mo. 566; Drake v. Railroad, 51 Mo. App. 562. (4) The demurrer to the evidence should have been sustained, because the evidence shows no causal connection between the alleged negligence of defendant and the injury to the plaintiff. ‘ ‘ The connection between cause and effect must be established.” Stanley v. Railroad, 114 Mo. 624. (5) “In every case the plaintiff was required to go further and show that the negligence was the proximate cause of the injury.” Murphy v. Railroad, 153 Mo. 261.</p> <p>(1) The demurrer to the evidence was properly overruled. Where street car tracks are in close proximity, to run a car in one direction, on a down grade, at rapid speed, and without signal, past 'an intersect; ing street, while a car bound in the opposite direction is discharging passengers at such street, and where the view of the approaching car is obstructed by the standing car, is evidence of negligence, and there was no proof in this case that the plaintiff’s driver did not.nse ordinary care in. looking and listening before driving his horse upon the south track. Schmidt v. Railroad, 163 Mo. 645; Railroad v. Robinson, 127 111. 9; s. e., 4 L. R. Á. 126; Railway v. Snell, 54 Ohio St. 197; s. c., 32 L.-R. A. 276; Smith v. Union Trunk Line, 45 L. R. A. 169; Woehrle v. Railroad, 52 L. R. A. 348. (2) The instructions given by the court covered all the issues presented, hence no error was committed in refusing the instructions offered by defendant. (3) The refusal of defendant’s nine instructions was justified by their number, in view of the simple issues of this case. Desberger v. Harrington, 28 Mo. App. 632; Renshaw v. Ins. Co., 33 Mo. App. 394;. Hannibal v. Richards, 35 Mo. App. 15; Girard v. St.. Louis Car Wheel Co., 46 Mo. App. 79; Blanton v. Dold, 109 Mo. 64.</p>

— How. Edwin B. McKee, Judge. (1) • Plaintiff’s motion for judgment on the pleadings on the first count, for the balance due on the note, ought to have been sustained. The answer does not state facts to constitute any defense to the action on the note. It is first charged the contract of sale was fraudulently obtained. On this trial that question is immaterial ; defendants do not ask to rescind; they are in no position to do it.

J. T. Neville, Judge. (1) When the terms of a written instrument are clear, plain and unmistakable, and neither fraud nor misrepresentation is shown in procuring or inducing the signature, the signer is bound by what he signed, as fully as if he had read it. He is presumed to have read the writing, and is bound by its terms.

<p>Appeal from Montgomery Circuit Court. — Ho». Elliott M. Hughes, Judge.</p> <p>(1) The controlling guide in construing a will is to ascertain the intention of the testator. Sec. 4650, R. S. 1899; Turner v. Timberlake, 53 Mo. 371; Smith v. Hutchinson, 61 Mo. 83; Long v. Timms, 107 Mo. 512; Murphy v. Carlin, 19 S. W. 543. (2) In construing a will the circumstances surrounding the testator, the subject-matter of the devise, and the persons to be benefited ought to b.e considered in order to determine the real objects of testator’s bounty. Reinders v. Kopple- • man, 94 Mo. 338; Murphy v. Carlin, 9 S. W. 543; Garth v. Garth, 139 Mo. 456; Walton v. Dumtra, 152 Mo. 489; McMillon v. Farrow, 141 Mo. 55. (3) The eight-hundred-dollar legacy mentioned in the fifth item of the will in controversy, is a contingent legacy and not a vested legacy. 2 Blackstone’s Com., p. 513; Hanson v. Graham, 6 Yes. 245; Onslow v. South, 1 Eq. Cas. Abr. 295, pi. 6.</p> <p>(1) In giving construction to a will, all the parts of it should be examined and compared and the intention of the testator ascertained, not from particular phrases or clauses, but from the whole instrument. If it contains doubtful or ambiguous terms or expressions, the situation of the testator, the objects of his bounty, and all the circumstances surrounding the parties, should be considered. Our statute provides that in the construction of wills, courts shall have due regard to the directions of the will, and the true intent and meaning of the testator, in all matters brought before them. R. S. 1899, sec. 4650; Schoer v. Carter, 120 Mo. 413; Jarboe v. Hey, 122 Mo. 348; Redman v. Barger, 118 Mo. 568; Garth v. Garth, 139 Mo. 462. (2) In giving a practical construction to wills, technical rules, when they stand in the way of the manifest intention of the testator, may be disregarded. Collier’s Will, 40 Mo. 321; Suydam v. Thayer, 94 Mo. 55; RoBards v. Brown, 167 Mo. 457. (3) Where an absolute vested interest in a defined and designated fund is given to an infant legatee, so that according to the ordinary rule of law it would be payable on the legatee’s attaining his majority, but payment is postponed by the will until a period beyond his majority, the courts have in several instances ordered payment on the legatee’s reaching' twenty-one years of age, on the ground that the direction to withhold the possession of the property from the legatee after he reached his majority, was inconsistent with the absolute rights of property given him by the will; And that he may, on attaining his majority, obtain an order for its payment notwithstanding such postponement. 18 Amer. and Eng. Ency. of Law (2 Ed.), 793; Dado v. Maquire, 71 Mo. App. 641; Rocke v. Rocke, 9 Beavan 66; 2 "Woerner on Administration, 995-996;. Fonereau v. Fonereau, 3 Atkyns Rep. 644. (4) The legacy to Francis W. Walker is accompanied with an absolute gift of the interest.. The rule is now well settled that although there be no gift of a legacy previous to the period appointed for its payment, yet if the immediate interest be given to the legatee, or be directed to be applied for his maintenance or education, these circumstances will have the effect to vest the legacy. Dupre v. Thompson, 8 Barbour’s Rep. 537; Fonereau v. Fonereau, 3 Atkyns 644; Hanson v. Graham, 6 Yesey 239, and notes; Everett v. Mount, 22 Ga. 323; Felton v. Sawyer, 41 N. H. 202; 2 Williams on Executors, 958; Roper on Legacies, 573, and authorities cited. (5) Adverbs of time, as “when,” “there,” “after,” “from,” and like expressions, do not make a contingency, but merely denote the commencement of the enjoyment of the estate or legacy. Chew v. Kellar, 100 Mo. 360; 4 Kent (11 Ed.) 230; Collier’s Will, 40 Mo. 322; Hanson v. Graham, 6 Yesey, Jr. Rep. 246.</p>

<p>Appeal from St. Louis City Circuit Court. — Hon. John A. Tatty, Judge.</p> <p>(1) Defendant’s peremptory instruction asked at the end of plaintiff’s case, and renewed at the conclusion of the trial, should have been given. On the whole case plaintiff was not entitled to recover, (a) The plaintiff’s evidence showed that the only employing of him by defendant was to sell at certain specific prices, and within fixed limits of time; and that before the making of the sale at $160,000 by Small and Crouch, all the times within which he had béen authorized to act had expired, and he was then without authority to sell. Being so, he could not recover: for, a broker employed to sell in a limited time is not entitled to commissions on a sale made by the owner after the expiration of the limit, even though it be to a purchaser with whom the' broker had been already negotiating. Beauchamp v.. Higgins, 20 Mo. App. 514; Page et al. v. Griffin, 71 Mo. App. 524; Fultz v. Weimer, 34 Kans. 576; Watson v. Brooks, 11 Oreg. 271; McCarthy v. Cavers, 66 Iowa 342; Antisdel v. Canfield, 119 Mich. 229. (2) And in cases in which the attention of buyers was not drawn to the land by any act or exertion of the brokers, or they came in touch with the owners independently of them, there, although the negotiations were carried on for a time by the brokers, it was held that they were not the procuring cause of the negotiations that resulted in the sales. Van Dyke v. Walker, 49 Mo. App. 381; Burkholder v. Fonner, 34 Neb. 1; Ludlow v. Carman, 2 Hilt. (N. T.) 107; White v. Twitchings, 26 Hun 503; Collier v. Johnson, 67 S. W. 830. (3) The undisputed evidence showed that in this case the plaintiff did not bring the land to the buyer’s attention by any means, or introduce him to the owner, or in any other way cause the negotiations between him and the owner to be begun. The buyer had known both the land and the owner for years, and was already in negotiation with him. Plaintiff came into the negotiations already pending; and that too at the request of the buyer, and in order to assist him. He in no sense procured the buyer, or caused the negotiations between him and the owner. .</p> <p>(1) The controlling question in this case simply is: Was Hogan the procuring cause of this sale? If he was, he is entitled to recover. Brennan v. Roach, 47 Mo. App. 297; Lloyd v. Matthews, 51 N. Y. 132; Lyon v. Mitchell, 36 N. Y. 237; Sibbald v. Iron Co,, 83 N. Y. 378. (2) A sale made through a second broker, at a less price, to a purchaser to whom the first broker had named a higher price, makes the principal responsible to the first broker. Reynolds v. Thompkins, 23 W. Ya. 229. (3) If the purchaser is found and negotiations begun within the time limited, it is immaterial that they were not consummated until afterwards. Groffe v. Gibson, 18 Mo. App. 1; Mechem on Agency, sec. 966. (4) The principal can not, when the broker’s efforts have resulted in negotiations for a sale, step in, and by taking the matter into his own hands and completing the sale, escape liability to the broker. Keys v. Johnson, 68 Pa. St.'42; Butler v. Kennard, 36 N. W. 579; Nicholas v. Jones, 37 N. W, 679; Mechem on Agency, sec. 967.</p>

<p>1. Sale: WARRANTY OF QUALITY: BREACH OF WARRANTY: NOTE. Where the purchaser of an engine , sold with warranty of quality, after receiving the machine, gave notes to the seller as required by the contract, the giving of such notes did not debar him from redress for a breáeh of warranty.</p> <p>'2. -: -: ACCEPTANCE AND RETURN OF ARTICLE SOLD: REMEDY: PRACTICE,'TRIAL. Acceptance and use of an article sold with warranty do not prevent the vendee from recovering on the warranty if he makes timely objection.</p> <p>3. -: -: TITLE III VENDOR: EFFECT OF: CHATTEL MORTGAGE. The retention of title by the seller of a chattel until paid for is legal, and in effect a chattel mortgage.</p> <p>4. -: -: ACKNOWLEDGMENT AND RECORDING OF CONTRACT: STATUTORY CONSTRUCTION: LOSS OF SECURITY: RISK OF VENDOR: SUBSEQUENT SALE OF CHATTEL BY VENDEE: EFFECT OF. Where the vendor of a chattel retains title until it is paid for, and does not require the - agreement to be acknowledged and recorded as required by section 3412, Revised Statutes 1899, in order to render such agreement valid as against third parties, the vendor takes the risk of loss of .benefit of security by any subsequent sale.</p> <p>5. - — : -: CHATTEL MORTGAGE: RIGHT OF VENDEEr ESTOPPEL. Where the vendee of a machine sold with warranty, title to which is retained by the vendor until full payment, gives a chattel mortgage thereon to a third person, such act does not estop him from relying on a breach of warranty when sued for the purchase-price.</p> <p>6. -: -: EXTENSION OF TIME OF PAYMENT: EFFECT OF: WAIVER: CONSIDERATION: BREACH OF WARRANTY. Where a machine is sold with warranty and the purchaser secures-extension of the time of payment, such extensions are a sufficient consideration for a waiver on the part of the vendee of any breach of warranty.</p> <p>7. -: -: SALE WITH WARRANTY: EXTENSION OF TIME OF PAYMENT: EFFECT OF: ESTOPPEL: SUIT FOR PURCHASE PRICE: DEFENSE: VENDEE, RIGHTS OF WHEN SUED FOR PRICF. Where a machine is sold with warranty, the securing by the vendee of an extension of time of payment does not estop him to set up a breach of the warranty in an action for the price.</p> <p>8. -: -: -: -: When a chattel is sold with warranty, breach of the same may be set up by the purchaser in an action for the price, notwithstanding there was an extension of payment by the renewal, or otherwise, unless an intention to waive the breach, is shown.</p> <p>9. Intend, to Waive Breach of Warranty: JURY QUESTION: EXTENSION IN TIME OF PAYMENT. Where a machine is sold with warranty, and subsequently the purchaser obtains extensions of the time of payment, the question whether there was any intention to waive a breach of warranty is for the jury.</p> <p>10. -: EXECUTORY SALE: PROMISE TO PAY: WAIVER OF BREACH OF WARRANTY: INTENT. In as much as in executory sales a warranty survives acceptance and survives full payment, promises of the purchaser to pay will not amount to a waiver of any breach of warranty unless they are made with that intention.</p> <p>11. -: -: -: -: ■ — -. And the question. whether such intention exists is one for the jury.</p> <p>12. - — : -: VENDER: VENDEEFRAUD: PLEADING AND ' PRACTICE: DEFENSE. Though the maker of a machine sells at the price of a new one, and delivers a disguised second-hand one, in an action for the price the defense of fraud can not be made unless pleaded.</p> <p>13. -: -: -: IMPLIED WARRANTY. Where the vendor of a gasoline engine delivered an engine of the kind and character agreed on, there was no implied warranty that it should be fit for the purposes for which the vendee intended to use it.</p> <p>14. -: -: ACTION FOR PRICE: WARRANTY: TESTIMONY: INSTRUCTION: ERROR. Where, in an action for the price of an engine, the defense was a breach of quality, but defendant himself testified that it was worth a certain amount, it was error to instruct that if the engine was wholly worthless, plaintiff could not recover.</p> <p>15. -: —-: -;: -. Where the vendor of an engine agreed to furnish certain parts if it should prove defective in material or workmanship within a year, in an action for the price, the defense being a breach of warranty, the jury should have been instructed that plaintiff did not agree to make good natural wear of the machine.</p> <p>16. Action: EVIDENCE: AGENCY: ADMISSION: PREJUDICIAL ERROR: PRACTICE, TRIAL. In an action for the price of an engine, the defense being a breach of warranty, there was t offered in evidence, ostensibly for the purpose of proving that a certain person .was plaintiff’s agent, an advertisement in the nature of a “puff” for plaintiff’s engine: Held, that, the fact of agency having been admitted, the advertisement was incompetent, and might have been prejudicial.</p>

— Hon. H. C. Pepper, Judge. (1) It is essential to a valid parol gift that it go into effect at once and completely. Mere words signifying an intent to transfer in the future are insufficient. R. S. 1899, sec. 3400; Spencer v. Vance, 57 Mo. 427;' Wheatley v. Abbott, 32 Miss. 343; Gfratside v. Phalman, 45 Mo. App. 160; Chevallier v. Wilson, 1 Texas 161; Brink v. Gould, 7 Lans, 425.

— Hon. J. T. Neville, Judge. The sale of the whiskey, as in this case confessedly illegal, can not be the basis of a valid contract and can not be enforced in a suit at law. Friend v. Porter, 50 Mo. App. 89; Bick v. Seal, 45 Mo. App. 475; Waite v. Bartlett, 53 Mo. App. 378; Lewis v. Walker, 61 Mo. App. 550-554. That which is prohibited by law can not be the basis of a contract. Sprague v. Rooney, 104 Mo. 359.

Louis City Circuit Court. — Row. W. B. ■ Douglas, Judge. (1) That portion of the specifications under the heading of “Excavations” is a part of the contract between appellant and respondent. Iron Co. v. Danforth, 91 N. Y. 153; White v. McClaren, 151 Mass. 553; 1 Lloyd’s Law of Building (2 Ed.), sec. 54.

— H It is certainly quite obvious that the natural effect of the language used by the judge in his address to the jury was to coerce them into making the verdict returned by them. Appellant’s motion for a new trial should have been sustained for that reason. The courts of this State, in a number of well-considered cases, have uniformly held the use of language of similar import, by a trial judge, in communicating with the jury, to be reversible error.

— No». David N. Eby, Judge. (1) The findings of the court are substantially in favor of the plaintiff, and are to the effect that the conduct of the wife had been such, as to justify the granting of a decree of divorce to the husband, but for the further fact which we claim the court erroneously and without any evidence found to exist, viz., a condonation by the husband of all his wife’s- offenses, after full knowledge of the same.

— Hon. David H. Eby, Judge. STATEMENT. The petition in this case covers twenty pages of printed matter.

Error from Pike Circuit Court. — How. David H. Eby, Judge. (1) There can be no controversy, as to the legality of Poacher’s title to the office np to the passage of the ordinance attempting to appoint Kuhlman, as the judgment of the court recites his legal appointment March 12, 1900, and his commission running till his successor should be elected and qualified. Sec. 5, art. 14, Constitution of Missouri.

— lion. Ediuin B. McKee, Judge. STATEMENT. This is an action brought upon a policy of insur•ance, and in which on motion of defendant insurance company, a portion of plaintiff’s petition was stricken •out, leaving remaining as plaintiff’s declaration of her right of action the following: “Plaintiff for cause of action states that defendant, 'Home Insurance Company, was, on the 27th day of December, 1901, and for a long time prior thereto, and ever since has been, and now is…

Louis City Circuit Court. — Sow. Selden P. Spencer, Judge. STATEMENT. This is an action brought upon a building contract of date May 5, 1899, whereby defendant agreed to erect for plaintiff, under the supervision of the architect of the latter, two detached brick dwelling houses in the city of St. Louis. The contract recites among other provisions, the following: “Article 1. The contractor under the direction and to the satisfaction of Theo.

— Ho». James E. JIasell, Judge. (1) Under the facts, the defendant had constantly in his employ a competent pharmacist, and he is, therefore, a druggist within the meaning of the law. State v. Steele, 84 Mo. App. 317. (2) The evidence also shows that the defendant was a merchant. Being both a merchant and a druggist, he should have been prosecuted for the violation of the druggist statute. State v. Steele, 84 Mo.-App. 317; State v. Alexander, 73 Mo. App. 607.

Circuit Court . — Hon. Samuel Davis, Judge. (1) The petition did not state a cause of action, and defendant’s objection to the introduction of any ■evidence should have been sustained. (2) The court erred in giving plaintiff’s first instruction. (3) The ■court erred in giving plaintiff’s second instruction. (4) The court erred in giving plaintiff’s third instruction. ■(5) The plaintiff was guilty of gross . contributory negligence which barred recovery.

— Ron. J. D. Perkins, Judge. (1) By the instruments, Exhibits C and D, signed by plaintiff with others, he clearly bound himself to transfer to,defendant the lease from the Granby company to Dermott. Defendant paid the full purchase price, and was placed in possession of the'lots. This is a perfect answer to any claim by plaintiff for royalty. .(2) This is true even if plaintiff’s contention is believed, and defendant accepted the sublease (Exhibit B.) as his source of title.

— Hoot. J. D. Perkins, Judge. (1) The defendant is a fraternal beneficiary association, and its contract or benefit certificate brings it clearly within the statutes of the State of Missouri. R. S. 1899, sec. 1408. (2) The defendant introduced the certificates of the state superintendent of insurance authorizing it to do business in the State of Missouri as a fraternal beneficiary association.

— Ho». H. G. Tim- ' monds, Judge. (1) Plaintiff could not recover against the district on account of defendant’s officers “discharging” him, as no officer of the defendant had power to discharge him, if he had ever been legally employed by the district. R. S. 1899, sec. 9767. (2) In discharging a teacher the directors are not acting in the scope of their authority, and the district is not liable.

— No». N. G. Timmonds, Judge. (1) There was no substantial evidence that a freight train passed along defendant’s track by plaintiff’s barn. (2) There was no evidence either proving or tending to prove, that the freight train which it is claimed passed, was operated by defendant. There is an entire failure of proof upon this subject.

— Row. R. G. Timmonds, Judge. (1) Tire mere lodgment-of a deed, properly executed and acknowledged by the grantor, in a place or to a third party when there is a condition thereto attached by the grantor that the grantee should live with said third party and work for him until he is of age, does not constitute a delivery of the deed, and the taking and recording of such a deed by the third party after the death of the grantor, is inefficient to pass title.

— Now. W. W. Graves, Judge. (1) Under the circumstances the defendants will be each as conclusively bound by the terms of their written contract as if they had fully read and re-read the same any number of times. Snider v. Express Co., 63 Mo. 383; Kellerman v. Railroad, 136 Mo. 188; Robinson v. Jarvis, 25 Mo. App. 425; School District v. Ins. Co., 61 Mo. App. 600.

— Rom. George F. Long an, Judge. ' STATEMENT BY BROADDTJS, J. This is an action in equity instituted by Oora Y. Hopkins Rector, legatee of the will of Cora Y. Thompson, deceased, against John N. ‘Dalby, trustee, and the residtiary legatees of the said Cora Y. Thompson, to compel the trustee to pay to the plaintiff the legacy which he is holding as trustee of plaintiff .until she should reach the age of thirty years, as provided by the will, and asking an accounting of the…

— Hon. George F. Longan, Judge. (1) As a general proposition, annual crops raised by yearly labor and cultivation, fructus industriales as distinguished from fructus naturales, are regarded as personal chattels and it seems are the subject of replevin whether matured or not. Q-arth v. Caldwell, 72 Mo. 622.

— Hon. Geo. F. Longan, Judge. (1) Where a party purchases a note even before or after maturity, knowing the same has been paid, or there was some defense to- it, he is not an innocent purchaser of said note and the maker of said note can set up any defense he may have thereto. Gage v. Averill, 57 Mo. App. 111.

<p>Appeal from Jackson Circuit Court. — How. James Qibr son, Judge.</p> <p>(1) It is apparent from the record that the sole defense to defendant’s counterclaim was that the contract of January 10, 1899, was abandoned by the parties. That was the defense set up in the amended reply, and that was the only substantial defense to the counterclaim. (2) Now, unless there is some evidence to show that the contract of January 10, 1899, was abandoned by the parties, then it follows that the court erred in submitting the question of abandonment to the jury.</p> <p>The court committed no error in submitting to the jury the question of an agreement to abandon the January contracts, as that may be established by the conduct, acts, declarations and dealings of the parties. Chouteau v. Iron Works, 94 Mo. 388; Seligman v. Rogers, 113 Mo. 642; Pine v. Rogers, 15 Mo. 315.</p>

— How. John W. Henry, Judge. (1) On the trial below the court erroneously held that the plaintiff must put the bill of lading in evidence. Clark v. Railroad, 64 Mo. 446; Bemett v. Lynch, 5 B. & C. 609.

<p>Appeal from Jackson Circuit Court. — How. James Gibson, Judge.</p> <p>(1) The court below erred in granting a new trial on the grounds stated. 3 Elliott on Railroads, sec. 1133; Railroad v. Holmes, 3 Wash. Terr. 543; 18 Pac. 76; Continental Co. v. Stead, 95 U. S. 161; Railroad v. Electric, 60 N. J. L. 52; Watson v. Railway, 53 Minn. 551; Railroad v. Hatch, 79 111. 137; Haas v. Grand Rapids Co., 47 Mich. 401; Railroad v. Cody, 166 U. S. 606; Railroad v. Storewell, 126 Ind. 35; Kárle v. Railroad, 55 Mo. 476; Hicks v. Railroad, 64 Mo. 430; Harlan v. Railroad, 65 Mo. 22; Frick v. Railroad, 75 Mo. 595; Welsch v. Railroad, 72 Mo. 451; Swearengen v. Orne, 8 Mo. 707; Hornnth v. Railway, 129 Mo. 629; Whitehead v. Atchison, 136 Mo. 485; Bartley v. Railway, 148 Mo. 124; Martin v. Block, 24 Mo. App. 60; McCollongh ■v. Insurance Co., 113 Mo. 606; Powell v. Railroad, 59 Mo. App. 335; Administrator v. Railroad, 99 Ya. 804; Tyree v. Harrison, 42 S. E. 295.</p> <p>(1) If for any of the' reasons assigned in the motion for new trial the verdict should have been set aside, this court will affirm the ruling of the trial court. Ittner v. Hughes, 133 Mo. 679; Hewitt v. Steele, 118 Mo. 463; Bank v. Armstrong, 92 Mo. 265; State ex rel. v. Adams, 84 Mo. 310; Powell v. Railway, 59 Mo. 335; Lovell v. Davis, 52 Mo. App. 342. (2) The trial court has a large discretion in granting a new trial where it is alleged that the verdict is against the weight of the evidence, and this court will not interfere with the action of the trial court in setting aside a verdict unless it clearly appears that its discretion has been arbitrarily and unreasonably exercised. Bemis Co. v. Com.. Co., 74 Mo; App. 627; Chouquette v. Railway, 152 Mo. App. 257; Wright v. Railway, 20 Mo. App. 481; Reid v. Ins. Co., 58 Mo. 421; Lionberger v. Pohlman, 16 Mo. App. 392; Bank v. Armstrong, 92 Mo. 265; State v. Young, 110 Mo. 495; Hull v. Railway, 60 Mo. App. 539; McKay v. Underwood, 47 Mo. 185; Lawson v. Mills, 130 Mo. 170; Dean v. Fire Assn., 65 Mo. App. 209; Lockwood v. Ins. Co;, 47 Mo. 50; McCullough v. Ins. Co., 113 Mo. 606; Taylor v. Bailroad, 163 Mo. 183; Taliaferro v. Evans, 160 Mo. 380. (3) Defendant’s instruction No. 3 was erroneous, and for that reason the verdict should have heep set aside.</p>

— Now. James Gibson, Judge. (1) The court erred in refusing defendants’ evidence offered to show that the consideration of the trustee’s deed to Hicks (to-wit, $700), was grossly inadequate, and also in refusing to permit defendant to prove that the property in question was sold by Hicks soon after his purchase for $2,000. Hardwicke v. Hamilton, 121 Mo. 465; Montgomery v. Miller, 131 Mo. 599;, Stoppel v. Schroeder, 62 Mo. 147; Kelly v. Hunt, 61 Mo. 463.

--How.1 Argus Coco, Judge. (1) The liability of the surety depends upon the identity of the contract, and the identity of the contract •depends upon the identity of the. obligee and the time, place, terms and conditions therein named and stated. 'The liability of the surety is always strictly construed, .and any variation of the contract which changes' the ■identity of person, time, place, terms and conditions, without his consent,’ releases the surety.

<p>1. Bankruptcy: PREFERRED DEBTOR.: PAYMENT OF DEBT: NOTICE. In order for the trustee of a bankrupt to recover a payment made shortly before the bankruptcy, it is not necessary that the debtor should know or even believe that a preference was intended; it<is sufficient if he have a reasonable cause to believe such preference is intended; and in this ease there was evidence tending to show reasonable cause to believe a preference was intended. (Affirmed on motion for rehearing.)</p> <p>2. •-: PREFERENCE: REMEDY: BAR. A firm sold their stock and with a part of the money paid their debt to the bank. Some months later their trustee in bankruptcy sued the purchaser to recover the goods on the grounds of fraud 'in the sale. This action was compromised. He then instituted suit against the bank to recover the money- paid it as a preference. Held, the remedies were not inconsistent, and the first action was no bar to the second.</p>

— Hon. John W. Henry, Judge. (1) From and after November 9, 1901, the date of forfeiture of defendant’s lease, defendant bad no right in or to tbe possession of the ball park, and from and after tlie 12th day of November, 1901, defendant, bis agents and servants, were trespassers therein. Callaway v. Henderson, 130 Mo. 77; Webb v. Ins. Co., 14 Mo. 3; Patton v. Bond, 50 la. 508; 18 Am. and Eng. Ency. of Law (2 Ed.), p. 371; Gfuffy v. Huskill, 34 W. Ya. 49; 18 Am. and Eng.

— Hem. W. B. Teasdale, Judge. (1) Plaintiff was required to assume as a part of tile purchase price the $1,600 mortgage mentioned in the contract. This was a material and essential element in the contract. The plaintiff is solvent and his solvency the defendant is entitled to the benefit of, by the assumption of this mortgage.

— Ho». James Gibson, Judge. (1) The court should not assume the existence, nor take judicial notice, of an ordinance authorizing' the issuance of these taxbills in four installments. Such an ordinance must be pleaded and proven. St. Louis-v. Roche, 128 Mo. 544. (2) The petition in all cases, is required by the code in this State to state facts sufficient to constitute a cause of action.

Jackson Circuit Court. — Hem. J. H. Slover, Judge. (1) Relator must establish, its clear legal right to the warrant sought. State ex rel. v. Newman, 91 Mo. 445; State ex rel. v. Williams, 99 Mo. 291; State ex rel. v. Lesueur, 136 Mo. 452; State ex rel. v. Johnson, 123 Mo. 43. (2) Relator’s right to said warrant as assignee is determined by the contract of employment between Dock Wilson and Kansas City. Sumrall v. Ins.

— How. W. B. Teas- ■ dale, Judge. The court should have sustained defendant’s demurrer to the evidence. Upon reason as well as authority a verdict which, under the evidence in the case, must necessarily have been based upon mere guesswork or conjecture upon the part of the jury, should not be permitted to stand. Moore v. Railroad, 28 Mo. App. 622; Railroad v. Shertle, 97 Pa. St. 450; Peck v. Railroad, 31 Mo. App. 123.

— Hon. E. P. Gates, Judge. (1) Plaintiff was entitled to judgment under the uncontradicted evidence. There was absolutely no evidence that Gattel built the house voluntarily or without defendants’ request. Allen v. College, 41 Mo. 307; Kammerman v. Wiggington, 70 Mo. App. 480; Buelterman v. Myer, 132 Mo, 482; Whaley v. Peak, 49 Mo. 83; Painter v. Ritchey, 43 Mo. App. 111.

— Row. J. D. Perkins, Judge. (1) Tlie court committed error in overruling defendant’s application for a change of venue. The notice was sufficient. Douglass v. White, 134 Mo. 228; Cor-penny v. Sedalia, 57 Mo. 88; Reed v. State, 11 Mo. 380. (2) The court committed error in striking out all of the second count of defendant’s first amended answer. The part stricken out contained a good defense to the plaintiffs ’ action. Chemical Co. v. Lackawanna Line, .78 Mo. App. 305.

<p>Appeal from Jasper Circuit Court.- — Noil Hugh Dabbs, Judge.</p> <p>(1) Plaintiff’s petition does not state any cause -of action, in that it does not show any right in plaintiff to maintain this action or that defendant has failed to comply with the provisions of the statute, this action being founded upon sections 8820 and 8822, Revised Statutes 1899. (2) The statute must be strictly construed. McNamara v. Stevens, 76 Mo. 329; Gibbs v. Hannibal, 82 Mo. 143; Burkes v. Railroad, 91 Mo. 86; Kelley v. St. Louis, 152 Mo. 596; Brown v. Railway, '70 Am. St. Rep. 666. (3) Plaintiff is not entitled to maintain this action not being one of the persons provided for in the statute. The rule of ejusdem generis is in full force in this State. Black, Interpretation of-.Statutes, page 141; Brooks v. Cook, 44 Mich. 617; State v. Schuchman, 133 Mo. Ill; Brannell v. Adams, 146 Mo. 70; Joplin v. Leckie, 78 Mo. App. 8; State ex rel. v. Ennis, 79 Mo. App. 12. (4) , The statute gives a right -of action only to those who are legally dependent upon •deceased for support. In other words those persons whom the law makes it decedent’s duty to support, and does give the right of action where there is only a moral ■obligation, or a good will or friendship support. Good v. Towns (56 Vt. 410), 48 Amer. Rep. 799. (5) The plaintiff was not entitled to recover under the evidence (conceding that she comes within the terms of the general clause). The evidence shows that she was not dependent on deceased for support. She lived in her own house, used her own furniture, did the cooking and part of the washing for her two sons who lived with her, owned two other houses from which she received $8 to $10 per month rent. There is no evidence that deceased ever furnished her a dollar nor any evidence as to the amount of his earnings. The evidence shows that he worked irregularly and for six months was away and in no manner helping, that plaintiff and one adult single son still live together. In fact the evidence tends more to the idea that plaintiff supported deceased than that deceased supported plaintiff. The statute gives the right of action to one dependent for support on the deceased. Sec. 8820, R. S. 1899. Under the statute there must be an actual dependency on deceased for support. Webster’s Dictionary, defining “Dependent.” 5 Amer. and Eng. Ency. of Law (1 Ed.), 596; 8 Amer. and Eng. Ency. of Law, 903 and 904; Hodnett. v. Railroad, 156 Mass. 86; Houlihan v. Railroad, 164 Mass. 555; Duval v. Hunt, (34 Fla. 85), 15 So. 76; Tel., Co. v. McGill, 57 Fed. 699; 5 Am. and Eng. Ency. of Law, 596; 8 Am. and Eng. Ency. of Law (2 Ed.), 903; 156 Mass., 164 Mass., 34 Fla. and 57 Fed., cited above. (6) The word “required” in section 8822 must be read and construed as “requested” or “demanded.” Adams v. Coal Co., 85 Mo. App. 494; Bonner v. Lead Co., 69 Mo. App. 601; Leslie v. Coal Co., 110 Mo. 31; Debath v. Coal Co., 141 Mo. 497; 21 Am. and Eng. Ency. of Law' (1 Ed.), 22; Black on Interpretation of Statutes, ch. 2, art. 16, page 25; Black on Interpretation of Statutes, ch. 5, art. 57, page 128; R. S. 1899, sec. 4160; State v. Jones, 120 Mo. 305; Warren v. Paving Co., 115 Mo. 572; State ex rel. v. Marion Co. Court, 128 Mo. 427. (7) The measure of damages' is the pecuniary loss sustained by plaintiff, and before plaintiff can recover she must furnish evidence npon which to base the verdict. In the case before the court, there is no evidence npon which to base the judgment for damages in this cause. Knight v. Lead & Zinc Co., 75 Mo. App. 541, and cases cited; Smith v. Railroad, 28 L. R. A. 573; Yan Brunt v. Railroad, 78 Mich. 530; Clinton v. Laning, 61 Mich. 359; Coal & Min. Co. v. Limb, 47 Kan. 469.</p> <p>(1) Section 8820 and 8822, Revised Statutes 1899, do apply to lead and zinc mines. They apply to all mines alike. Acts of 1881-85 and 1887, on Mines and Mining; Hamm an v. Coal & Coke Co., 156 Mo. 232; Boemer v. Lead Company, 69 Mo. App. 601. (2) Plaintiff is included in the persons authorized by section 8820, to maintain an action for violation of the mining law. Where the intention of the.Legislature is plain as it is in this case, no rule of interpretation like the rule of ejusdem generis, is necessary. Rules for the construction of statutes are only intended to aid in ascertaining the legislative intent and not for the purpose of controlling it or confining the operation of the statute within narrower limits than was intended by the lawmakers. State ex rel. v. Corkins, 123 Mo. 67; St. Joseph v. Elliott, 47 Mo. App. 421; State v. Williams, 35 Mo. App. 548. (3) The word'“required” as used in section 8822 means “needed” or “necessary.” It does not mean “requested” or “demanded.” Boemer v. Lead Co., 69 Mo. App. 601; Leslie v. Coal Co., 110 Mo. 40; Century Dictionary and Cyclopedia. (4) Plaintiff did not need to have been legally or entirely dependent -upon her deceased son, prior to his death, in order to recover in this case. Daley v. Iron Co., 29 N. E. 507; McCarthy v. Order of Protection, 26 N. E. 866; Bailan v. Gile, 50 Wis. 619; Haulihan v. Railway, 42 N. E. 108; Railroad v. Adams, 55 Pa. St. 499; Railway v. Sweet, 92 Am. Dec. 206; Railway v. Long, 26 S. W. 114; Railway v. Southwick, 30 S. W. 594; Legion of Honor v. Perry, 5 N. E. 638; Daniels v. Railway, 12 S. E. 365; Clay v. .Railway, 10 S. E. 967; Railway v. Gravett, 26 L. R. A. 553.</p>

Adair Circuit Court.— Hon. Nat. M. Shel-' ton, Judge. (1) The defense attempted can not he made unless pleaded in writing, or orally, and noted on the docket by the justice. “In trials before a justice of the peace in the absence of anything to the contrary, the defendant is presumed to plead the general issue.” Reed v. Snodgrass, 55 Mo. 180; Bank v. Williamson, 61 Mo. 259.

— No». J. D. Perkins, Judge. (1) Whatever the alleged agent says or does in relation to the act by him to be performed is a part of the res gestae, if done or said while the transaction is passing. Singleton v. Mann, 3 Mo. 464; Larson v. Railroad, 110 Mo. 234; Peck v. Ritchey, 66 Mo. 114; Ingalls v. Averitt, 34 Mo. App. 371. So, too, if they are made so soon after the transaction as to constitute a part of same. Bergeman v. Railroad, 104 Mo. 77.

— Hon. W. W. Graves, Judge. (1) There is an entire .failure of proof, to the effect that defendant’s locomotive which passed about 11:30 on July 11, 1900, emitted at that time any smoke, sparks or fire. (2) There is not a syllable of evidence to the effect that said locomotive was defective, or that at any time or on any occasion, in passing from Nyhart to said road crossing, it emitted any sparks or fire.

Jasper Circuit Court. — Sim J. D. Perkins, Judge. (1) An injunction will not lie as an original and independent proceeding to determine the title to land and mines located thereunder, where the same are held by the defendants, under claim of right and color of title. Smith v. Jameson, 91 Mo. 13. (2) The Center Creek Mining Company, under their rules and regulations, retain the possession of the lot sued for, and are entitled to all ores produced therefrom.

. Appeal from Jackson Circuit Court. — Ho». E. P. Gates, Judge. (1) The court committed error in refusing to give instruction No. 1, asked by defendant. There is no evidence whatever even tending to show that said hangers fell on account of any defect or insufficiency of the rope, or on account of any improper method of doing the work. In fact, the evidence is entirely silent as to what caused the hangers to fall. Breen v. Cooperage Co., 50 Mo.

— Hon. Jamies Gibson, Judge. (1) Plaintiff’s action was grounded upon defendant’s negligence. He alleges a want of ordinary care on the part of defendant to prevent the loss of his wearing apparel and personal effects by theft or otherwise. Beyond the mere fact of loss, his evidence showed no want of ordinary care on the part of defendant. From proof of loss alone, no presumption of negligence arises., 22 Am. and Eng.

— Ho». W. B. Teasdale, Judge. (1) If Mr. Floyd was a superintendent, foreman or vice-principal of the respondent in the distinct undertaking of respondent id unloading the timbers from the-cars to the wagon, the instructions given by the court, in behalf of the plaintiff are correct and were properly given. Brothers v. Carter, 52 Mo. 372; Gormly v„.

— Ho». John P. Butter, Judge. (1) The judgment in this case is wrong and should be reversed without remanding for the reason that all the evidence on both sides shows that the plaintiff is not entitled to recover. (2) The defendant is a farmers’ mutual fire-and lightning insurance company incorporated under article 10 of chapter 119, Eevised Statutes 1899.

— How. John P. Butler, Judge. (1) Under the Act of April 20,1895, which is carried forward into the revision of 1899 as article 10 of chapter 12, no competitive bidding is necessary in order to render a premium charged by a loan association a legal charge. Sections 1363 and 1364, art. 10, chap. 12, R. S. 1899. Covey v. Loan Association (not yet reported).

— Ho». John P. Butter, Judge. (1) J. A. Arbuthnot should not have been allowed to testify in this action, as he was the attorney for the appellant at the time the loan was made, and the facts testified to came to his knowledge as such attorney. R. S. 1899, sec. 4659. (2) The respondents should have been charged with the amount of the fines, with which they were chargeable under the by-laws, shown by the evidence, to the amount of $73.70.

— Ho». J. D. Perkins, Judge. (1) Defendants’ answer does not contain a negation of the warranties therein alleged. Hence they were not entitled to prove the alleged warranties. 19 Ency. PL and Pr., 104; Mfg. Co. v. Jones, 60 Mo. App,. 220; Cook v. Pntnam Co., 70 Mo. 668; Northrup v. Ins. Co., 47 Mo. 443; Snyder v. Free, 114 Mo. 367.

— Hon. George F. Longcm, Judge. (1) A party defrauded in'a transaction, on discovery of the fraud, may stand by the contract and' sue for damages resulting from the fraud and deceit. Shinnabarger v. Shelton, 41 Mo. App. 147; Owens v. Rector, 44 Mo. 389; Parker v. Marquis, 64 Mo. 38; Campbell v. Hoff, 129 Mo. 317. (2) When the fraudulent representations relate to the quantity of land sold or conveyed, it is immaterial whether the sale is by the acre or in gross.

<p>Appeal from Jackson Circuit Court. — Hon.'W. B. Teasdale, Judge.</p> <p>Filed brief on merits.</p> <p>Filed brief on merits.</p>

— Hb». J. E. Slower, Judge. Filed brief on merits. (1) The abstract of the record fails to show a judgment, original entry or order, or matters necessary to a full understanding of questions presented to the court. Eule 15, Kansas City Court of Appeals: E. S. 1899, secs. 808, 813; Herman v. Daily, 74 Mo. App. 505. (2)- The recitals in the bill of exceptions do not supply the record proper.

— How. James Gibson, Judge. (1) Where the contract of insurance provides that the amount shall be payable after ‘ ‘ due notice and proof thereof,” no action can be maintained until after the notice is given and the required proof furnished; for the liability of the insurer does not become absolute unless the preliminary proof, as required by the conditions of the contract of insurance, is obtained. Bacon on Benefit Societies and Life Insurance, sec. 410; Burn-ham v. Ins.

Circuit Court. — How. W. B. Teasdale, Judge. (1) . The cattle in controversy were shipped under a written contract, and of course this contract could not be varied by oral testimony. ' Hutchinson on Carriers (last Ed.), secs. 126-128; Brown v. Railroad, 18 Mo. App. 568; O’Brien v. Kenney, 74 Mo. 125; Railroad v. Oleary, 77 Mo. 637. (2) The court also committed error in withdrawing the written contract from the consideration of the jury.

<p>1. Divorce: PATERNITY OF CHILD: EVIDENCE. On a petition to modify a decree of divorce regarding the support of a child, evidence relating to the paternity of the child is reviewed and the finding of the lower court that the child was the progeny of the parties and not a foundling, is held sustained.</p> <p>2. -: -: PLEADING. In a cross-bill in a divorce case, the husband alleged the birth of the child, describing it, and asked for the care and custody thereof. On an application some two years thereafter to modify the allowance to the mother for the support of the-child, to whose care it had been adjudged, the defendant is bound by such allegation, since if he had such suspicions he ought to have stated them in his pleading and he can not now stultify himself by denying the allegations of his cross-bill.</p>

— Hon. James Gibson; Judge. (1) The court erred in refusing tó instruct the jury peremptorily to find for appellant for the reason that by the evidence Morris Cauveren was in suspension at the time of his death and his certificate was null and void. Red Men v. Schmidt, 57 Md. 98; Knights Golden Rule v. Ainsworth, 71 Ala. 436; Toran v. Ben. Association, 4 Pa. St. 519; Ben. Society v. McVey, 92 Pa. St. 510; Ballon v. Gile, 50 Wis. 614; Karcher v. Sup.

— Hon. J. H. Slover, Judge.. (1) The filing and indexing of the transcript judgment against E. G-. Seibert constituted a valid lien against her real property, though held and subsequently conveyed by her under the name of Eleanor G. Sibert, and such conveyance can not affect the lien. The names Seibert and Sibert are idem sonans. 16 Am. and Eng. Ency.' of Law, p. 122; State v. Mohr, 55 Mo. App. 327; 1 Bishop, Crim. Pros., sec. 688; Donnell v. IT. S., 1 Morris (Iowa) 141.

Circuit Court. — How. E. P. Gates, Judge. (1) The trial court committed error in permitting the plaintiff to testify that after the difficulty had occurred the porter ran around the car and said, “This is my bread and butter, and if it was to do over I would do it again.” (2) The testimony, as to what occurred between the porter and the other traveling man (if it did occur) had no bearing whatever upon what had taken place between the conductor, the porter and the plaintiff,…

— Ho». Daniel D. Holmes, Special Judge. (1) Under the decisions of the courts of Missouri, the memorandum required by statute to be signed by the party must contain all the terms of the contract, The memorandum can not be pieced »ont by parol nor by other writings not referred to in a writing signed by the party'to be charged. Rucker v. Harrington, 52 Mo. App. 48Í; Miller v. Goodrich, 53 Mo. App. 430;'Weil v. Willard, 55 Mo. App. 376; Eos v. Courtney, 111 Mo.

— No». J. E. Hasell, Judge. (1) The petition stated an agreement made on the 15th day of November, 1897, to furnish hired help from the said 15th day of November to August, 1900, a contract not in writing which requires over two years and eight months for its performance. It is, therefore, nonenforcible and defendant’s objection should have been sustained. Pitcher v. Wilson, 5 Mo. 46; Atwood v. Fox, 30 Mo. 499; Schultz v. Tatum, 35 Mo. App. 136.

— Ho». E. P. Gates, Judge. (1) Defendant’s demurrer to the evidence should have been sustained. Abbott v. Railroad, 83 Mo. 27T; Martin v. Benoist, 20 Mo. App. 262; Schmidt v. Rowse, 35-Mo. App. 288; Byrne v. Railroad, 47 Mo. App. 383. (2) The court committed error in giving plaintiff’s instruction No. 1. (3) The court also committed error in giving plaintiff’s instruction No. 11. Graves v. Railroad, 69 Mo. 579.

— Hon. Samuel Davis, Judge. (1) The appellate court may examine into and weigh the evidence in divorce cases for the purpose of forming its own judgment, not being bound by the finding of facts made by the trial judge. Torlotting v. Torlotting, 82 Mo. App. 192; Morris v. Morris, 60 Mo. App. 86; Davis v. Davis, 60 Mo. App. 545 ; Green v. Green, 22 Mo. App. 494; Endsley v. Ehdsley, 89 Mo. App. 597; Jennings v. Jennings, 85 Mo. App. 290.

— Ho». Samuel Davis, Judge. The court below seems to have held that the fund in controversy was a trust fund, and therefore could not be reached by the statutory garnishment evoked, but only by an equitable garnishment. These two methods of reaching a delinquent debtor’s money accomplish the same thing, the equitable proceeding being usually a proceeding after a return of nulla bona upon execution, and such equitable proceeding is still statutory.

— Hon. John P. Butler, Judge. ■ (1) The defendant company was organized under a statute providing for the incorporation of life insurance associations on the “assessment plan;” its license specially authorized the transaction of a life insurance business on the “assessment plan,” and the policy or certificate sued on in this case is an “assessment contract” as defined by the Missouri statutes. Gen. Stat.

<p>1. Trial and Appellate Practice: REVERSING AND REMANDING: RETRIAL. Whore on an appeal it is ruled that a peremptory instruction should have been given and the cause is reversed and remanded, it does not indicate that judgment should be rendered without another trial, but rather the reverse.</p> <p>2. Appellate Practice: BILL OE EXCEPTIONS: QUASHING DEPOSITION. Where a motion to quash a deposition is not set out in. the bill of exceptions and no attention called thereto in the motion for new trial, the action of the trial court can not be reviewed on apipea!.</p> <p>3. -: -: EVIDENCE: WITNESS. Where a witness’s testimony is objected to on the ground that it contradicts his testimony at a former trial, the action of the trial court in admitting it can not be reviewed unless such former evidence is set out in the bill of exceptions, since the' fact of a witness’s evidence being inconsistent with his prior testimony is not ground for its exclusion.</p> <p>4. Appellate and Trial Practice: LEAVE TO PILE BILL OE EXCEPTIONS: EXTENSION OE TIME: JUDGE: CLERK. Whether a vacation entry not purporting to be made by the judge or by his direction extending the time to file the bill of exceptions is valid, quaere.</p>

Appeal-from Cass Circuit Court. — Hon. W. L. Jarrott, Judge. (1) Instruction C was vicious and was properly refused at the trial. The granting ©f a new trial because of such refusal was error. Chappell v. Allen, 38 Mo. 213; Raysdon v. Trumbo, 52 Mo. 35; Siegrist v. Arnot, 10 Mo. App. 197; Ehrlich v. Ins. Co., 15 Mo. App. 579; Clay v. Railroad, 17 Mo. App. 629; State v. Holmes, 17 Mo. 379; Shaffner v. Leahy, 21 Mr. App. 110; Weil v. Schwartz, 21 Mo.

— How. Gallatin Craig, Judge; (1) The second instruction given for the plaintiff is erroneous. The facts hypothecated therein do not constitute a marriage. Ashford v. Ins. Co., 80 Mo. App. 638. (2) Plaintiff’s fourth instruction is erroneous in that it casts the burden.of proof as to the want of marriage on the defendant. The continuance of a condition once shown to exist will be presumed until contrary is shown. 1 Greenleaf Evidence, sec. 74.

— How. Hugh Dabbs, Judge. STATEMENT BY BROADDUS, J. On October the 25,1897, the plaintiff and defendant entered into the following agreement, viz.: “Joplin, Mo., October 25, 1897. “This agreement is hereby entered into, by and between Adam Scott and P. P. Howard, that any amount or amounts of money, with interest, that may be advanced from time to time by P. P. Howard in excess of the amount pr amounts by Adam Scott, in any kind of business in which they may be engaged,…

— Hon. J, D. Perkins, Judge. (1) The instruction, given at the instance of defendant that the unauthorized alteration of a stranger to the notes would destroy them is not the law and never was. There is a distinction* between the alteration and the spoliation of an instrument, as to the legal consequences. Medlin v. Platte County, 8 Mo. 235; State v. McGronigle, 101 Mo. 366.

— He». George F. Longcm, Judge. (1) The local camp at Nevada had no power, by either acts or omissions, to waive contract provisions, between Callies and the head camp. McMahon v. Maccabees, 151 Mo. 522; Borgraffe v. K. & L. of H. 22 Mo. App. 141; TIarvey v. Gd. Lodge, 50 Mo. App. 477; Snp. Ldge. v. Keener, 25 S. W. 1085; Field v. K. & L. of Sec., 89 N. W. 6; Nor. Ass A v. Gd. View B. Ass A,’ 22 Snp. Ct. Rep. 153; U. S. L. I. Co. v. Smith, 92 Fed. 503.

— Ho». George F. Longan, Judge. (1) The property in question, having been reduced to the actual possession of the Federal court and there held by its order, at first by its receiver, and then by its trustee, which court was proceeding to sell the same as part of the bankrupt’s estate to pay claims allowed against said estate in that court, was in custodia legis, and being so held was not subject to the process of any other court not having supervisory or appellate…

— How. Geo. F. Longan, Judge. The statement upon which both parties appeared and tried the-cause before the justice, being sufficient, the circuit court should not have dismissed plaintiff’s .suit; but should have given plaintiff a trial on the merits. Carter v. Womack & Staggs, 64 Mo. App. 388; Buzzard v. Hapeman, 61 Mo. App. 464.

— -Ho». J. G. V. Karnes, Special Judge. (1) The theory in this case, upon which it was tried, that it was the duty of the defendant to- furnish a reasonably safe place for the servant to work, was wholly beside the case under the evidence here. The place in which he was working and the dangers, if any, were because of the changed conditions from time to time which the plaintiff and his fellow-servants were themselves producing.

— Ron. J. IS. Slover, Judge. STATEMENT BY BROADDITS, J.' The plaintiff in this case, Charles H. Beckman, is a young man nineteen years of age, and for more than five years prior to the injuries complained of had worked for the defendant at its place of business at the northeast comer of Twentieth and Walnut streets in Kansas City, Missouri.

— Hon. James E. ' Hasell, Judge. (1) The instruction offered at the close of plaintiff’s evidence should have been given, because there was no substantial testimony offered which warranted the submission of the ease to the jury. Asker v. Sharper, 25 Mo. App. 1; Stokes v. Burns, 132 Mo. 214; Weaver v. Railroad, 60 Mo. App. 207; Pueschell v. Iron Works Co., 79 Mo. App. 464; Payne v. Williams, 63 Tenn.

— Ro». John P. Butter, Judge. (1) The court erred in holding that under the pleadings the plaintiff was not required to- make its prima facie case by introducing in evidence the note sued on. R. S. 1899, sec. 746; Abbott Trial Ev. (2 Ed.), p. 481; State to use v. Samuels, 28 Mo. App. 649; Sebree v. Dorr, 9 Wheat. (681) 558; Truman v. Ellison, 37 Mich. 459; Lucas v. Smith, 42 Ind. 103; Glenn v. Porter, 49 Ind. 500.

— Ho». J. H. Slover, Judge. (1) The tender of the rent due, together with the costs in the court below, entitled appellants to judgment in their favor. Johnson v. Douglas, 73 Mo. 168.

Appeal ifrom Jackson Circuit .Conrt. — Hon. J. H. Slover, Judge. (1) Article 5, section 13, Charter 1898, provides that all property of corporations, etc., shall be assessed as the property of individuals is assessed, etc. If this brewing company carried merchandise for sale, then it was taxable. Revised Charter of Kansas Citv, 1898, art. 5, sec. 8. The act of the assessor and board is judicial.

— No». John P. „Butler, Judge. (1) The sale by Martin to'Smith of the stock of goods has all the earmarks of fraud. (2) The reading of the attachment writ to Smith and the garnishment were notice of imputed bad faith in the sale, and payment thereafter would not protect Smith or vest title-in him as against attaching creditors. Wetmore v. Woods, 62 Mo. App. 265; Arnholt v. Hartwig, 73 Mo. 485; Dougherty v. Cooper, 77 Mo. 529; Shoe- Co. v. Lisman, 149 Mo. 85.

Pettis Circuit Court. — Bow. George F. Longan, Judge. (1) The defense or contention below to the effect that Downing had his full forty acres of land under his deed, and therefore the note, for that reason, was without consideration, can not avail respondent on this appeal ; because appellant introduced, a mass of testimony from divers witnesses showing it was not true and the question on such issue thus became one for the jury and not the judge.

— Hon. A. M. Woodson, Judge. (1) It will be seen from the statements of counsel made in connection with the objection to the admission of evidence under the petition, that there is a small lot or strip of ground, twenty-five feet wide, the railroad right of way, between plaintiff’s lots and said Mitchell avenue; that plaintiff did not claim that his lots abut Mitchell avenue, but he claimed that they abut 'the alley that runs in the center of the block across Mitchell avenue…

— Bo». W. W. Graves, Judge. (1) Evidence of an unexecuted compromise between the parties is not admissible for any purpose; nor are hypothetical or provisional estimates made during an attempt to settle differences. Wright v. Gillespie, 43 Mo. App. 244; Huittman v. Yiesselman, 48 Mo. App. 582.

— Ho». P. C. Stepp, Judge. (1) We insist that each instruction, given for the respondent is erroneous; first, because they do not correctly declare the law; second, because there is no evidence upon which to' base them. Lemon v. Lloyd, 46 Mo. App. 450; Boughton v. Railroad, 25 Mo. App. 10; Goff v. Mulholland, 28 Mo. 397.

— No». P. C. Stepp, Judge. (1) The landlord’s lien is given by section 4115, Revised Statutes 1899, on crops grown within the year and continues for eight months after the rent becomes due and payable and no longer. “And such lien may be enforced by attachment in the manner hereinafter provided.” The manner provided for enforcing the lien is given in section 4123. These sections, 4115 and 4123 are to be construed together: 22 Mo: App. 416.

— Wo». P. G. Stepp, Judge. (1) When the loan association has become insolvent, payments on stock can not he applied as credits on a loan. The borrower must repay his loan and should present his claim for stock payments to be allowed in due course against the insolvent estate. Brown v. Archer, 62 Mo. App. 277; Price v. Loan Ass’n, 75 Mo. App. 551; Clark v. Lopp, 80 Mo*. App. 542; State ex rel. v. Loan Ass’n, 80 Mo. App. 585; Woerhide v. Johnston, 81 Mo.

— Ho». P. C. Stepp, Judge. (1) When the loan association has become insolvent, payments on stock can not be applied as credits on a loan. The borrower must repay his loan and should present his claim for stock payments to be allowed in due course against the insolvent estate. Brown v. Archer, 62 Mo. App. 277; Price v. Loan Ass’n, 75 Mo. App. 551; Clark v. Lopp, 80 Mo-. App. 542; State ex rel. v. Loan Ass’n, 80 Mo. App. 585; Wo-erhide v. John.ston, 81 Mo.

— Hoot. Gallatin Craig, Judge. (1) The circuit court had no jurisdiction to hear, try and determine said cause. The writ of certiorari was illegally and improvidently issued and was void. Stover v. Doyle, 39' S. E. 939; Hamilton v. Ins. Co., 107 Ga. 728, 33 S. E. 705; Wingart v. Railroad, 109 Ga. 177, 34 S. E. 275; Secs. 3358-59-63, R. S. 1899. (2) The writ of certiorari was not properly served upon the justice.

— No». Gallatin Crcdg, Judge. (1) In this case it is immaterial whether the court holds that the transaction between Bailey & George was a commission contract or a conditional sale. In either case the title to the goods and their proceeds was in appellant and the appropriation of same by Bailey & George to their own use was a conversion. Thomas Mfg. Co. v. Huff, 62 Mo. App. 124.

— Ho». Gallatin Craig, Judge. Under the original order the title was to remain in appellant until paid for. If the court holds that there was not an acceptance of the new terms imposed by appellant, then, as the order was in duplicate, the change would not invalidate the contract for it may be proven by the copy in hands of Bailey & George. Jones v. Hurd, 26 S. W. (Ark.) 193. In such cáse the vendor may'recover from the assignee of the vendee. Tufts v. Thompson, 22 Mo.

— Ho». Gallatin Craig, Judge. (1) The trial court erred in applying the doctrine of estoppel to the facts in this case. A building and loan association can not arbitrarily fix any period when its shares shall mature, and a borrowing stockholder is entitled to have his deed of trust given to secure the payment of his monthly, dues released only when his monthly dues paid and the, earnings thereon bring his stock to par.

— Ho». A. D. Burnes, Judge. (1) The court should have sustained, defendant’s objections to the panel of jurors, as they were not summoned in the manner provided by law, and the defendant was entitled to be tried by the regular panel. R. S. 1899, sec. 3769. (2) The court erred in refusing instruction No. 1,- asked by the defendant.

— Ho». A. D. Burnes, Judge. (1) The ordinance under which defendant was convicted is unreasonable, oppressive and void, and the court should have so declared it. White v. Railroad, 44 Mo. App. 540; Zumault v.- Air Line; 71 Mo. App. 670; Evison v. Railroad, 45 Minn. 370; Meyers v. ítailroad, 57 Iowa 555; Burg y. Railroad, 90 Iowa. 106; City v. Tel. Co., 96 Mo. 623; Trenton v. Clayton, 50 Mo. App. 535; Corrigan v. Gage, 68 Mo. 541; Skinker y. Heman, 64 Mo.

— Ho». John P. Butler, Judge. (1) The thirty-five cents on the hundred dollars for the interest and sinking fund, with which to pay the bonds, should have been excluded in the decree, ordering the peremptory writ of mandamus.

— Now. P. G. Stepp, Judge. (1) The original loan made to Mrs. Endicott in 1894, was an nsnrions transaction. (2) The renewal of the original loan by Mrs. Endicott in 1897, and the execution of a new money bond and deed of trust, did not purge the transaction of usury. (3) Mrs. Endicott was entitled to relief from the usurious conditions of the original contract, and this plaintiff being her assignee, becomes entitled to the same relief. (4).

— Ho». H. G. Timmonds, Judge. (1) T. C. Hayden is not made trustee of tbe legacy bequeathed to appellant, Ernest Webb, by the terms of the will of Emma I. Webb, but Rebecca Hayden is by said will “constituted, nominated and appointed” such trustee. Hayden was made executor of her will in case of 'death or refusal to act of Rebecca Hayden, but the office of executor and that of trustee under the will are, by its terms, entirely distinct.

<p>1. Contracts: INDEMNITY: CONSIDERATION: MEANS: MALUM IN SE. When a consideration for a contract of indemnity is illegal, the contract is void whether the illegality is disclosed by the contract itself or established by evidence outside; and the law which prohibits the end will not lend its aid in promoting the means designed to carry it into effect, and makes no distinction between malum in se and malum prohibitum.</p> <p>2.--: -:--: -: -. Where several parties claim the ownership of property, and the party in possession, supposing one to be ill the right and upon the request of such party, does acts which -are legal in themselves though they finally prove in violation of the rights of others, may make a valid contract of indemnity against such acts; but he must be an innocent party and not a willful participator in the wrong.</p> <p>3. -: -: -: -: ---. Plaintiffs shipped with their own, certain cattle of others to the market. On reaching there they found several claimants for such cattle, and among them defendant to whom plaintiffs turned them over and took a contract of indemnity. Held, plaintiffs were trespassers in shipping the cattle, and the contract with defendant was nothing more than indemnity for their trespass and therefore invalid.</p>

— How. P. C. Stepp, Judge. Filed argument on merits. (1) To avail a party of the benefits of our statute against gaming, suit must be brought within three months. Sec. 3431, R. S. 1899; Ryan v. Judy, 7 Mo. App. 74; Connor v. Black, 132 Mo. 150-4. (2) It is not necessary that the limitation be pleaded, in order that it may be relied upon as a defense. 19 Am. and Eng. Ency. of Law (2 Ed.), Í50; Morgan v. Railroad, 51 Mo. App. 323-5; Sparks v. Railroad, 31 Mo.

W. K. James, Judge. (1) The right to contribution whenever one person discharges more than his just share of a common burden, is well settled. Van Petten v. Richardson, 68 Mo. 379; Mason v. Lord, 37 Mass. 447; Taylor v. Reynolds, 53 Cal. 686. (2) This right exists among partners after the partnership is closed. 7 Am. and Eng. Ency. Law (2 Ed.), 361; Clark v. Miller, 36 Kas. 393; Sambs, Admr., v. Durham, 98 Va. 392; Note to Sambs, Admr., v. Durham, 54 L. R. A. 621.

H. G. Timmonds, Judge. (1) Where the positive unimpeached testimony of eye-witnesses is sustained by the physical facts -and there is no substantial evidence to the contrary, the case should be withdrawn from the jury. Bank v. Bank, 151 Mo. 320; Kornfeld v. Supreme Lodge, 72 Mo.