text:
    Cloud, Plaintiff in Error, v. Ivie, Defendant in Error.
    1. The statute of frauds does not embrace resulting trusts.
    2. Where two proprietors of land agree that one of them shall enter under the graduation law of Congress an adjoining tract of government land, each furnishing one-half the sum required to pay the graduation price, and that the one who enters shall convey one-half the tract to the other, and the entry is made under this agreement; held, that there will he a resulting trust as to one-half of the land entered.

      Error to Newton Circuit Court.

    The petition in this case is substantially as follows : Plaintiff states that he is the owner of and occupies for agricultural purposes a certain forty acre tract; that on the-day of-, 1858, a certain forty acre tract of goYernment land [describing it] was subject to entry at the graduation price of one dollar per acre ; that, the same is adjacent to plaintiff’s farm aboye described; that, on the day and year aforesaid, the defendant agreed with plaintiff that if plaintiff would furnish him twenty dollars he would enter the forty acres above, described and make to plaintiff a good deed of conveyance of the south half thereof; that, confiding in the integrity of defendant and believing that he would perform his part of the contract, plaintiff delivered to defendant, for the purpose aforesaid, the sum of twenty dollars; that, confiding in the integrity of defendant, he proceeded to prepare a por tion of the south half of the lot aforesaid for cultivation, clearing off the brush, timber, making rails, &c.; that defendant did enter said tract, but has refused to make to plaintiff a deed as agreed.
    The evidence adduced supported the petition. The court instructed the jury as follows : “ Admitting all the evidence in the case to be true, the plaintiff can not recover.”
    The plaintiff took a nonsuit, with leave, &c.
    Hendrick, for plaintiff in error.
    I. The court erred in instructing the jury. The petition was sufficient. The evidence sustained the petition.
   Napton, Judge,

delivered the opinion of the court.

The instruction given by the court, which caused the plaintiff in this case to take a nonsuit, does not disclose the grounds upon which it proceeded. Whether it was based upon a construction of the statute of frauds, or upon the act of Congress under which the land was entered, does not appear.

The statute of frauds does not embrace resulting or implied trusts. The entry of land by one in bis own name with the money of another is a resulting trust and may be proved by parol.

There is nothing in the bill of exceptions to show under what act of Congress the .land was entered. It may be conjectured that the graduation law of 1851 was the act under which the entry was made, and it is possible that the restrictions of that law occasioned the instruction which the court gave, though this is mere conjecture, for there is nothing in the record or in the brief filed by the counsel to throw any light upon the subject. We do not perceive any thing in the agreement between the plaintiff and defendant which violates the spirit of the act of Congress. Whether the defendant could with propriety take the oath required by that act is a matter not involved in the present controversy. The land was entered; it adjoined both plaintiff and defendant, and under the act either could have entered the entire tract. The agreement was to contribute equal portions of the purchase money and to divide the land, each retaining the half adjoining his farm. There was nothing in such an arrangement calculated to defraud the government or to evade any restriction in the graduation act. It was equitable and just to both parties and did no injury to the government. Whether such an entry could be made consistently with a literal construction of the provision of the act of Congress is a matter, as we have said, which concerned alone the defendant’s conscience and the government; though it is plain that, .so far as the government was concerned, her interests could not be affected by the agreed division of the land between the two, either of whom might, by a literal compliance with the law, have entered it all.

The instruction of the circuit court was merely a general one, that the plaintiff was not entitled to any relief. No proposition of law was decided, and it is merely a matter of conjecture as to what was the view entertained by the court. Under these circumstances, we shall reverse the judgment and remand the case.

The other judges concur.


source: Caselaw Access Project

author: Napton, Judge,

license: Public Domain

text:
    Farrington et al., Defendants in Errror, v. McDonald, Plaintiff in Error.
    1. In a suit upon a promissory note, if the defendant be personally served with process, he must answer the petition on or before the second day of the term at which he is bound to appear. (R. C. 1855, p. 1235, § 24.) This rule applies where an attachment is sued out in aid of such suit, in case there has been service of the writ of attachment in time for judgment at such term.

      Error to Vernon Circuit Court.

    On the 22d day of July, 1858, the plaintiffs filed their petition against defendant on a promissory note. Summons in the usual form issued July 23,1858. This writ was served October 5,1858. Before it was served, the plaintiffs filed an affidavit in which they alleged that the defendant was about fraudulently to convey or assign his property or effects so as. to hinder or delay his creditors; that he had fraudulently conveyed or assigned his property or effects so as to hinder or delay creditors ; that he had absconded or absented himself from his usual place of abode in this state so that the ordinary process of law could not be served upon him. Bond being given, a writ of attachment issued on the 5th of August, 1858, and property of the defendant was attached August 11, 1858. At this time no personal service was had upon defendant. At the instance of plaintiffs an order of publication was made. On the 5th of October, 1858, the writ of attachment was personally served on defendant. On the 8th day of November, 1858, the circuit court met, being the regular term of the court. On said 8th of November, 1858, the defendant filed a plea in the nature of a plea of abatement. By this plea the defendant alleged that he had not absconded or absented himself from his usual place of abode in this state so that the ordinary process of the law could not be served upon him. On the 4th day of the term the defendant filed a second plea in abatement. On the same day the plaintiff moved the court to strike out said plea, on the ground tbat it bad been filed out of time. The court granted the motion. On the same day the court rendered judgment by default against defendant, and refused to grant him leave to file a plea in bar, or to dissolve the attachment.

      Johnson Sf Ballou, for plaintiff in error.
    I. The defendant was not required to plead on the second day of the term. The court should have allowed him to file a plea in bar on the fourth day. The court erred in treating defendant’s first plea as a nullity and rendering a judgment by default; also in overruling the motion to dissolve the attachment. There was a double service of the attachment.

      Freeman, for defendants in error.
    I. Defendant was bound to file his answer on or before the second day of the term. There was no answer of any kind filed until the .fourth day. The circuit court did right in striking out the plea in abatement. No reason was given, or cause shown why it was not filed sooner. The court properly treated the first plea as a nullity. It did not controvert the matters charged in the affidavit for an attachment.
   Napton, Judge,

delivered the opinion of the court.

This was a suit upon a promissory note and was commenced in the ordinary way; but subsequently an attachment was sued out. There was personal service of the writ in time for a judgment at the first term. The only question in the case is, whether the defendant was bound to plead or answer on or before the second day of the term, as he unquestionably would have been if no attachment had been sued out; and upon this point, we think, the decision of the circuit court correct. We have not found any thing in the letter or spirit of the attachment law which requires a suit, under these circumstances, to progress with less speed than it would if no attachment had been sued out. On the contrary, the forty-second section of the act says that “ when the defendant has been seiwed with the writ, or appears to the action, the proceedings in the canse shall be the same as in actions instituted by summons only.”

Judgment affirmed;

the other judges concur.


author: NaptoN, Judge,

text:
    Dulle, Defendant in Error, v. Deimler, Plaintiff in Error.
    1. A special adjourned session of a court, although it may -with propriety he said to be a continuance of the regular term, since its object is the completion of the business of the regular term, is a separate and distinct term of the court. Should such a special adjourned term be appointed and a cause be continued thereat at the cost of the party applying for such continuance, this order, properly construed, would embrace the costs of such adjourned term only and not those of the previous regular term.
    2. Should the clerk in such case, in issuing execution for costs, include the costs of the regular term, the court may at a subsequent term order a re-taxation of the costs.

      Error to Cole Circuit Cowrt.

    The facts sufficiently appear in the opinion of the court.
    Parsons, for plaintiff in error.
    I. The court having adjourned over from August until November, all its proceedings in the latter month were but the proceedings of the regular August term. The court was authorized to hold the court in November in continuance of the regular term. (R. C. 1855, p. 540, § 48.) No additional process was required to enforce the appearance of witnesses or parties. The effect of the adjournment was the same as if the court had adjourned over from Saturday until the following Monday. The judgment for costs covered the costs that accrued in August. (R. C. 1855, p. 1260.) The court had no power to alter, amend or review its judgment at a term subsequent to- that at which the judgment was rendered. (Hill v. City of St. Louis, 20 Mo. 586.) The judgment for costs having been rendered at the August term, 1857, could not be revised or modified at the August term, 1858.

      Gwrdenhire 8f Lay, for defendant in error.
    I. The continuance granted to Dulle rendered him liable only for the costs occasioned thereby — the costs of the term at which the continuance was granted. The costs of the August term were occasioned by want of time to try the case. Dulle was then ready for trial. Having ultimately gained the case, it would be manifestly wrong to make him pay the costs of that term. The payment of the costs of the adjourned session of November by Dulle will place his adversary in precisely the same condition as if no continuance had been granted.
    II. The “ special adjourned” session of November, though in continuance of the regular term, was a distinct term recognized bylaw as such, and unlike an-adjournment from day to day, or from -Saturday till Monday, during a regular term. There was no court between the termination of the regular term in August and the commencement of the adjourned session in November.
    III. The power of the court to set aside its own judgment at a subsequent term is not involved in this case. The continuance was at Dulle’s cost, but what costs were included in the order was not specified. The court gave one construction ; the court, on the motion to retas, gave another.
   NaptoN, Judge,

delivered the opinion of the court.

At a special adjourned term of the circuit court of Cole county, in November, the plaintiff, upon his application, obtained a continuance at his costs, and the clerk in taxing the costs under the order included the costs of the regular August term of which the November term was a continuance. At a subsequent term, and after a verdict and judgment for the plaintiff, the court, upon motion, directed the clerk to retax the costs, so as to exclude from the costs of the continuance in November the costs of the regular August term. This opinion was excepted to, and its propriety constitutes the only question in the case.

If tbe November term could be considered as a part of tbe August term in tbe same sense and to tbe same extent that tbe second week of a regular term is regarded as a part of that term, notwithstanding an adjournment from Saturday until Monday, tbe costs accruing in August as well as November would undoubtedly fall upon tbe party procuring a continuance. But we do not so consider it. A special adjourned session of a court is as much a distinct and separate term as a special term called to try criminals, or a regular term which is fixed by law. During a regular term of the court, parties are required to be ready to proceed with the trial on any day which may suit the convenience of the court, subsequent to the day for which the case is docketed; but after the court has adjourned to the next regular term, or to a special adjourned term, as a matter of course no such liability to be called in the interim exists. Although an adjourned special term may with propriety be said to be in continuance of the regular term, because its object is to complete the business which the court is uuable to go through with at the regular term, yet it is a distinct and separate term, and so it is the practice to note it in the record kept by the clerk. That parties and witnesses are required to appear without any additional process, may be so; but this is because of the character of the order of adjournment, which is, for convenience, expressly or impliedly made to embrace this additional requisition. As the parties are in court and their witnesses, or presumed so to be, they are subject to the orders of the court as to the time when they shall appear for a hearing. The same thing might be done where the adjournment is over to the next regular term, if the court thought proper to make such an order.

There is no express provision of the statute on this subject, but general principles of equity and the spirit of the practice act seem to warrant the order of the circuit court in this case. The costs of the adjournment in August, because of the inability of the court to finish the business of the term, ought not to fall upon one party more than ano-tlier¿ neither being in fault and neither responsible for the adjournment. Justice requires that the adjournment should operate as a general continuance, the costs to abide the event of the suit.

We do not perceive any difficulty in the power of the court to have the costs retaxed. Such an order constituted no revision or alteration of a judgment rendered at a previous term. The court was simply called upon to give a construction to its own order, as it related to costs, and if the clerk was mistaken, it was the right and duty of the court to correct the error.

Judge Scott concurring, the judgment is affirmed.


text:
    Boggs, Respondent, v. Caldwell County, Appellant.
    1. A county court has the power to order an index to be made to the hooks in which deeds are recorded and to allow a reasonable compensation therefor out of the county funds.
    2. In order that such an order may be valid and binding upon the county, it is not, it seems, necessary that it should be entered of record. A verbal direction from the justices on the bench or from the presiding justice would be sufficient.
    3. At the May term, 1857, of the Caldwell county court an account was presented for allowance against the county. The account was disallowed. At the March term, 1858, by leave of court, testimony touching the same account was introduced. The court having heard the testimony, “ adhered to its former decision.’’ An appeal was then taken to the circuit court. Held, that the appeal was well taken; that the rejection of the claim at the May term, 1857, was not like a judgment in a suit between individuals which the court could not open at a subsequent term; that the county court could waive an advantage the county might have.
    4. The act of the general assembly of January 21, 1857, (Sess. Acts, 1857,) p. 746,) directing the county icourt of Caldwell county to audit and allow one W. IP. Boggs, for services rendered in making an index of deeds and mortgages of record in said county at the rate of ten cents for each name, and to draw their warrant in favor of said Boggs for the sum thus ascertained to be due, and declaring that it shall be the duty of the county treasurer to pay said warrant out of any money appropriated for county expenditures, is unconstitutional and void.

      Appeal from Caldwell Circuit Court.

    At the May term of 1857, of the Caldwell comity court Wilbur E. Boggs presented for allowance against the county an account for three hundred and ninety-six dollars and ten cents for making an index to the record of deeds. The account was “ disallowed.” At the March term, 1858, he asked and obtained leave to introduce testimony touching the same account. The court having heard the testimony adhered to its former decision. An appeal was prayed and granted to the circuit court. At the trial the plaintiff proved by a witness that the court directed the index to be made. The defendant objected to the admission of this testimony on the ground that the records of the court should be introduced to prove such an order. An act of the general assembly approved January 21, 1857, was introduced against the objection of the defendant. Said act is as follows: “ Sec. 1. The county court of Caldwell county shall audit and allow Wilbur E. Boggs, for services rendered in making a direct and inverted index of deeds and mortgages recorded and of record in said county, at the rate of ten cents for each name. Sec. 2. The county court of said county shall draw their warrant in favor of said Wilbur E. Boggs for the sum thus ascertained to be *due him; and it shall be the duty of the county treasurer of said county to pay said warrant out of any money appropriated for county expenditures.” The cause was submitted to the court without a jury. The court found for the plaintiff and allowed him one hundred and fifty dollars.

      E. B. Ewing, (attorney general,) for appellant.
    I. The plaintiff had no legal demand against the county. The court made no order directing the index to be made. If it had done so, it would have been a nullity for want of authority of law. (26 Mo. 276.) It is the duty of the clerk to make and keep an index of deeds, &c. The claim is res adjudicata. The decision of the county court in May, 1857, is conclusive. No appeal was allowable from it; if allowable, it was not taken in time. If the county was liable, it was only so liable by virtue of the act of the legislature read in evidence. That act is unconstitutional. It was an unconstitutional interference with the administration of justice. (State v. Fleming, 7 Humph. 183 ; The State v. Sloss, 25 Mo. 293; 2 Pet. 657 ; 9 Cranch, 43.) It also took private property for public use without making any provision for compensation. The counties are corporations having-rights of property. The act is also retrospective. (2 McLean, 212 ; 10 N. H. 387.)
    Gardenhire, for respondent.
    I. The county court had the right to employ plaintiff to make out the index. The rejection of the plaintiff’s account at May term, 1857, is no bar to his recovery. It was not interposed as such at the March term, 1858. (See County of Boone v. Corlew, 3 Mo. 10.) No specific objection was made to the admission of the act of the legislature. (23 Mo. 438.) The act had no effect whatever in the decision of the case. No instruction was asked.
   Napton, Judge,

delivered the opinion of the court.

There can be no reasonable doubt, we think, that the county courts have the. power to order an index to be made to the books of recorded deeds, and to allow a reasonable compensation for the work out of the county funds. Although it is the duty of the recorders to keep up their indexes without any compensation from the county, and their compensation is provided by law to come from the persons having their deeds recorded, yet in the course of time it may happen that these books become unfit for use and have to be renewed. The county court is specially entrusted with the duty of seeing to tlie preservation of any property belonging to the county, and they necessarily have the right of appropriating a sufficient sitm from the county treasury to secure the proper execution of these duties. Undoubtedly tbe more formal and usual mode of doing this is by an order of the court, entered on its records; but in a matter relating to the books and papers in the office of their clerk, such formality is not, we apprehend, necessary. A yerbal direction from the judges on the bench, or from the presiding judge of the court alone, would certainly warrant a prompt compli--anee on the part of the clerk, and lay the foundation of a just claim against the county for a reasonable compensation. But in this case, the absence of a formal entry on the record was not insisted on by the county court, nor did it constitute, so far as this record shows, any part of their reason for rejecting this claim. The order was proved orally by the judges on the trial in the circuit court, and although there can be no doubt that the records of a court can alone be appealed to for the purpose of showing any proceeding necessary to appear on the record, we do not regard an order of this nature, relating to the books in the office, as one which necessarily had to appear by record. If the judges of the court had ordered ice to be procured during the session of the court, or benches to be constructed for the convenience of visitors or bystanders, a compliance with such orders would constitute a claim against the county, whether the court thought proper to enter it on the record or not. There was, however, no dispute in this case but that the work was done and done in pursuance of an order of the court.

We do not see any objection to an appeal from the rejection of this account at the March term in 1858, although it had been previously rejected at a prior term. The county court permitted the plaintiff to introduce new proof, and gave him to understand that, by such permission, they were still open to conviction. He could have appealed from the original order of rejection, but when he presented his claim a second time by leave of the court, no objection was interposed of res adjudicata. The objection, if it would have been available, may be considered as waived. The rejection of the claim was not like a judgment in a suit between individuals, which the court could not on its own motion open at a subsequent term, but the county court were the commissioners or agents of tlie county, and could, on behalf of the county, waive any advantage the county might have.

Upon the trial of this case in the circuit court, an act of the legislature was offered, which ordered the county court to pay the plaintiff his claim out of the county treasury. The reading of the act was objected to, for what reason is not stated. The law was road and this is the principal error assigned for a reversal of the judgment. It is insisted that the law was unconstitutional, and of this we entertain no doubt; but the point is not saved. We do not understand that a question of the constitutionality of a law can be brought to this court in this way. We can not see that the court thought the law a valid one; on the contrary, it is quite manifest that the court, although the law was allowed to be read, utterly disregarded it. The court may have supposed it hardly respectful to the legislature to refuse to hear one of their laws read, whether constitutional or unconstitutional. ' No opinion of the court was asked concerning its validity; no instruction was offered. It does not appear but that the objection to its reading related entirely to its authenticity, and the court may have been satisfied on this point. A mere general objection is interposed to its reading in the court-house. But even if such general objections might be regarded by this court as sufficient, in some cases, to bring up the question of the validity of a law, the record in this case shows that, whatever opinion the court may have entertained about the law, it had no influence on the decision of the case. The judgment was not in accordance with the law — the law requiring the court to allow the plaintiff three hundred and ninety-eight dollars, and the court only allowed one hundred and fifty. It would be folly for this court to reverse a judgment for a mere abstract error, if error was really committed in the matter.

Judge Scott concurring, judgment affirmed.


author: Richardson, Judge,

text:
    Burke’s Administratrix, Plaintiff in Error, v. Walroud, Defendant in Error.
    1. The Kansas city court of common pleas, established by the act of the general assembly approved November 20,1865, (Sess. Acts, 1855, Adj. Sess. p. 60,) does not possess probate jurisdiction.

      Error to Kansas City Court of Common Pleas.

      Bouton and Byland 8f Son, for plaintiff in error.
    I. The Kansas city court of common pleas had jurisdiction of probate matters. It could grant letters of administration.
   Richardson, Judge,

delivered the opinion of the court.

The only question in this case is whether the Kansas city court of commgn pleas has probate jurisdiction. The sections of the act creating the court, which define its jurisdiction, are the first and nineteenth. (Sess. Acts, 1855, Adj. Sess. p. 60.) By the first section it is invested with “ the same jurisdiction, civil, original, concurrent and appellate, of civil causes within said township [Kaw] as the circuit and probate courts within and for the county of Jackson and the nineteenth section declares that it “ shall have concurrent original jurisdiction with the circuit court of Jackson county in all civil actions within the township of Kaw, and actions against boats and vessels ; concurrent superintending control with said circuit court over justices of the peace within said township of Kaw, and appellate jurisdiction from their judgments, and concurrent original jurisdiction with justices of the peace in all civil actions in said township.”

It will be observed that the jurisdiction of the court, whether original or appellate, concurrent or exclusive, is limited to civil actions, and these words would not ordinarily be construed to embrace the power of granting letters testamentary or of administration. There is no difficulty in reconciling the reference in the first section to the “ probate court of Jackson county” with the denial of probate jurisdiction to the Kansas court of common pleas. The probate court of Jackson county was established by an act entitled “ A bill to establish a probate and common'pleas court in Jackson county,” approved February 13, 1855. (Sess. Acts, 1855, p. 497.) The fourth section of the act gives the court “ exclusive original jurisdiction of all matters pertaining to the administration of estates of deceased persons, or the estates of minors, as well as the appointment of guardians and curators, and concurrent jurisdiction with justices of the peace and the circuit court upon all actions upon notes or accounts for the recovery of money, when the amount claimed exceeds fifty dollars, and does not exceed one thousand dollars exclusive of interest.” It will be seen that the court has a double jurisdiction — for the transaction of probate business, and the trial of “ civil actions.” But the common pleas and probate business are kept separate. Hence, though the court is allowed four terms a year, the seventh section of the act prohibits the court from transacting common pleas business except at the spring and fall terms. There are many reasons affecting the public interests why the probate business of a county should not be distributed between several courts; and, as full effect can be given to the first section of the act establishing the Kansas court of common pleas without extending the jurisdiction of the court to include probate matters, we think it should be construed as referring only to the common pleas business as distinguished from probate business — a distinction clearly recognized by the act that created the probate court of Jackson county.

The judgment will be affirmed with the concurrence of the other judges.


author: Scott, Judge,

text:
    Platt, Respondent, v. Smith, Appellant.
    1. The Kansas city court of common pleas has no jurisdiction to enforce mechanics’ liens. (Ashburn v. Ayres, 28 Mo. 75, affirmed.)

      Appeal from, Kansas City Court of Common Pleas.

      Otter and Smith, for appellant,
    cited Ashburn v. Ayres, 28 Mo. 75.

      Rylcmd S¡- Son, for respondent.
   Scott, Judge,

delivered the opinion of the court.

The case of Ashburn v. Ayres, 28 Mo. 75, determines that the Kansas court of common pleas has no jurisdiction to enforce mechanics’ liens. When this suit was instituted, the law in relation to the jurisdiction of the court was the same as when the case, to which reference has been made, was brought. Reversed ;

the other judges concur.


text:
    Backster, Plaintiff in Error, v. Hall, Defendant in Error.
    1. The supreme court will not review the verdicts of juries on the ground that they are against the weight of evidence.

      Error to Lafayette Circuit Court.

      Ryland Son, for plaintiff in error.

      Hovey, for defendant in error.
   Napton, Judge,

delivered the opinion of the court.

This case turns entirely upon a question of fact, which the court below found against the plaintiff, and we are called upon to set aside the verdict as not warranted by any evidence in the case.

There is no controversy that, prima facie, the defendant, as one of the makers of the note, is liable to tlie plaintiff who was the endorser, but if the plaintiff and defendant understood themselves to be co-securities for tbe other maker of the note, Kennedy, then this action can not be sustained, as the defendant has paid his half of the note. Whether such an understanding existed was a question of fact for the jury or court which tried the case, and we can not say there was no evidence from which such -an understanding could be inferred. When we consider the practice of the bank in requiring notes in a particular form for discount, the anxiety of the plaintiff in relation to the original note of five hundred dollars, which, under the circumstances, would seem to have been unnecessary upon the supposition that he believed the defendant to stand between him and all liability, and the fact that the plaintiff and Kennedy went into the country to procure the defendant’s signature, all three being present when the note was signed, the inference is not unreasonable that the plaintiff and defendant intended and believed themselves to be sharing equally the responsibility attending the transaction. However this may be, the case is not one in which this court feels itself under obligation to interfere. The instructions being right, the judgment must be affirmed.

The other judges concur.


text:
    The State, Respondent, v. Montgomery, Appellant.
    1. A general verdict against a defendant in a criminal case will authorize a judgment thereon if there is a single good count in the indictment.
    2. It is competent in a criminal case, as affecting the credibility of a witness, to inquire into the state of his feelings towards the party against whom he is called upon to testify; this inquiry can not, however, be made concerning the witness’ feeling towards the husband of such party.

      Appeal from Cedar Circuit Court.

      Johnson Ballou, for appellant.

      E. B. Enoirig(attorney general,) for the State.
   Richardson, Judge,

delivered the opinion of the court.

The defendant was indicted for disturbing an assembly met for religious worship, under the thirtieth section of the eighth article concerning crimes and punishments. (1 R. C. 1855, p. 630.)

The defendant’s counsel concedes that the first count in the indictment is good, but insists that the judgment should be arrested because the verdict is general, and the second count is bad. But there is nothing in that objection, for the practice seems to be settled that the verdict in a criminal case will authorize a judgment upon it, if there is a single good count in the indictment to support it. (State v. Jennings, 18 Mo. 435; State v. Bean, 21 Mo. 269 ; 1 Chitty’s Crim. Law, 639.)

One of the witnesses called by the State was allowed on his cross-examination to testify concerning the state of his feelings towards the defendant, but the court sustained the objection to the defendant’s offer to prove that the witness was unfriendly to her husband. It is always competent, as affecting the credibility of a witness, to inquire into the state of his mind in respect to the party against whom he is called, but we have seen no authority that permits the inquiry to be made concerning the witness’ feelings in regard to other persons, no matter in what relation, however else they may stand to the party. If the rule includes a husband or wife, it would embrace father, mother, brother or sister, and other relatives remotely of kin, and there would be no proper or defensible limit if the inquiry was allowed so wide a range.

In order to sustain an indictment like the one in this case, it is of course necessary to prove that an assembly was disquieted or disturbed, and the fact is one to be proved by the jury; but it is certainly not necessary to prove that every person in the assembly was disturbed, for that could only be done by calling as witnesses all who were present. No rule can be laid down as to the number of persons in a congregation whom it is necessary to prove were disturbed in their worship; and though, perhaps, a case would not be made out by showing that only one or two persons in a congregation were disturbed, yet the real question to try is a practical one, and the jury, from all the evidence, will be able to determine whether an offence has been committed.

The instructions that were given presented the case fairly to the jury, and those which were refused were properly refused. The other judges concurring, the judgment will be affirmed.


author: RichardsoN, Judge,

text:
    Beattie et al., Defendants in Error, v. Lett et al., Plaintiffs in Error.
    1. A person to whom a negotiable promissory note has been endorsed may maintain an action thereon in his own name, although it was endorsed to him merely for collection. In a suit on such a note by an endorsee the caption of the petition was as follows : “A., to the use of B., plaintiff, Y. C., defendant.” In the body of the petition the plaintiff alleged title in himself by endorsement from B. Held, that the words in the caption “ to the use of B.” might be regarded as mere surplusage.

      Error to Holt Circuit Cou/rt.

    The facts sufficiently appear in the opinion of the court.

      Patterson fy Loan, for plaintiffs in error.

      Shackelford 8f Twrner, for defendants in error.
   RichardsoN, Judge,

delivered the opinion of the court.

The title of the cause in the caption to the petition is as follows : “ Armstrong Beattie and James M. Wilson to the use of B. W. Lewis & Bros., plaintiffs, against Henry C. Lett and John B. McAllister, defendants.” The petition then states that the defendants executed and delivered to B. W. Léwis & Bros, their certain negotiable promissory note therewith filed, which is particularly described; that said B. W. Lewis & Bros, assigned by endorsement and delivered the same to William C. Boon, who assigned by endorsement and delivered the same to the plaintiffs; that the note was duly protested for nonpayment, and that afterwards a partial payment was made, but that the residue was unpaid, for which they asked judgment. The defendants demurred because the suit was brought to the use of B. W. Lewis & Bros., though it appeared from the petition that they had assigned the note to Boon, who had endorsed it to the plaintiffs ; and also because the petition did not set out the Christian names of B. W. Lewis & Bros.

As the note in this case was negotiable, if it had returned to the possession of B. W. Lewis & Bros, they would have been regarded, until the contrary appeared, as the bona fide holders and owners thereof, and would have been entitled to recover, notwithstanding the endorsement on it, whether they had originally endorsed it for value or for the mere purpose of collection, “ without producing any receipt or endorsement back" from either of the other endorsers.” (Edwards on Bills & Prom. Notes, 271, 278; Story on Prom. Notes, § 452 ; Glasgow v. Switzer, 12 Mo. 395 ; Picquet v. Curtis, 1 Sumn. 478.) If, on the contrary, the plaintiffs retained the possession of the note, they had a right to maintain an action on it in their own names, although it may have been endorsed to them merely for collection, because they were trustees of an express trust and had the legal title to the note. (Webb v. Morgan, 14 Mo. 428; R. C. 1855, § 2, p. 1217.) The words, then, “ to the use of B. W. Lewis & Bros.,” in the caption, were mere surplusage and might have been stricken out without affecting the petition.

The demurrer was properly overruled, and- the judgment will be affirmed;

the other judges concurring.


text:
    Gillespie, Respondent, v. Gillespie, Appellant.
    1. Judgment affirmed.

      Appeal from Dade Circuit Court.

      Wilkes, Crawford, McDowell and Stemmons, for appellant.

      Coffee and Ewing, for respondent.
   Napton, Judge,

delivered the opinion of the court.

The testimony upon which the decree in this case was based is not of such a nature as to authorize, in our view of it, any interference on the part of this court. No point of law is presented by the record. A review of the evidence could lead to the settlement of no principle or precedent; it is very contradictory, and the circuit court, before whom the witnesses appeared, being satisfied, we do not feel ourselves competent to interfere.

Judgment -affirmed.

The other judges concur.


author: RICHARDSON, Judge,

text:
    Bennett et al., Respondents, v. Pound et al., Appellants.
    1. A., the payee of a non-negotiable promissory note, endorsed the same in blank and delivered the same to B. in satisfaction of a debt due B. Held, that B. might recover in an action in his own name against the maker without having an assignment written above the endorsement.
    2. An action can be maintained in the name of a holder of a non-negotiable promissory note transferred merely by delivery.

      Appeal from Newton Circuit Cowrt.

    The facts sufficiently appear in the opinion of the court.

      Edwards and Ewing, for appellants.
    I. The court erred in permitting the note to be read in evidence. The note was endorsed in blank and said blank was not filled up. The same rule does not apply as in case of negotiable paper. The holder of a non-negotiable note with a blank endorsement thereon can not maintain an action thereon in his own name without filling up the blank. (8 Mo. 9.)

      Sherwood and White, for respondents.
   RICHARDSON, Judge,

delivered the opinion of the court.

Cloud and Graham were the owners of a non-negotiable promissory note, which had been executed to them by the defendants, and being indebted to the plaintiffs they endorsed the note in blank and delivered it to plaintiffs’ agent in satisfaction of their debt. The plaintiffs then instituted a suit upon it against the defendants and alleged in their petition that the note had been assigned by endorsement and delivered to them by the payees, and that they were the owners and holders thereof. The blank endorsement was never filled up by an assignment to the plaintiffs, and the only question is whether they can recover without first writing an assignment above the endorsement.

The principle decided in the case of Boeka v. Nuella, 28 Mo. 180, will determine this one. In that case it was observed that a party claiming to be the owner of a note transferred merely by delivery had only an equitable title to it, and that formerly he could not maintain an action at law upon it in his own name, and was therefore compelled to bring suit in the name of the payee to his use, or file a bill in equity; but that the practice act of 1849 abolished the distinction in the forms of actions so that under the present system which requires every action to be prosecuted in the name of the real party in interest, except as provided in the second section pf the second article of the practice act (R. C. 1855, p. 1217) an action can be maintained in the name of the holder of a note transferred to him merely by delivery.

The judgment will be affirmed, the other judges concur ring.


text:
    The State, Appellant, v. Welch, Respondent.
    1. In an indictment founded on the fifteenth section of the second article of the revenue act of 1857, (Sess. Acts, 1857, Adj. Sess. p. 79,) for delivering to the assessor a false and fraudulent list of taxable property, it must appear in what respect the list delivered is false and fraudulent; the indictment must set out, in terms of general description at least, the taxable prop erty owned by the defendant and fraudulently omitted in the list delivered.

      Appeal from Webster Circuit Court.

    The indictment in this case is as follows: “ The grand jurors for, &c., &c., present that David Welch, late of, &c., on, &c., at, &c., did then and there, when required by one of the assessors in and for the county of Webster, unlawfully fail to give a true list of all his taxable property as required by law, contrary to the form,” &c. By the second count'of the indictment it is charged that the defendant “ did unlawfully deliver to the assessor a false and fraudulent list of his taxable property contrary to the form of the statute,” &c. The court quashed this indictment on motion of the defendant.

      E. B. Ewing, (attorney general,) for the State.
    I. The indictment follows the statute and sets forth every fact and circumstance essential to an offence. It is sufficient to charge the offence in the words of the statute. (1 Chitt. C. L. 218; 7 Pet. 142.)
   Richardson, Judge,

delivered the opinion of the court.

The indictment in this case was intended to be framed on the fifteenth section of the second article of the revenue act of 1857; (Adj. Sess. 1857, p. 79 ;) which is as follows : “ If any person shall deliver to the assessor any false or fraudulent list, the property therein specified, and ail that ought to have been listed therein, shall be taxed triple, and the offender shall moreover be subject to indictment for the fraud, and may be fined in any sum not exceeding five hundred dollars.”

The second count of the indictment is bad, because it does not allege in what respect the list of taxable property delivered to the assessor by the defendant was false or fraudulent; and the first count is defective for the same reason, and also because it is not averred that the act or omission of the defendant was fraudulent. The indictment ought to set out, in terms of general description at least, the. taxable property owned by the defendant and fraudulently omitted in the list delivered to the assessor; otherwise he might not be prepared at the trial to show that the property charged to have been omitted did not belong to him or was not taxable" in his name.

The indictment was properly quashed and the judgment will be affirmed, the other judges concurring.


text:
    Witman et al., Defendants in Error, v. Felton, Plaintiff in Error.
    1. An agent lias discharged his duty when he pays over to his principal money collected hy him as agent; it is no concern of his whether his principal’s title thereto is good or had.
    2. Where, in an action hy a principal against an agent to recover money alleged to have been collected hy him as agent, there is evidence showing that the defendant did collect the money as agent for the plaintiff, this evidence can not he rebutted by showing that the title of the plaintiff to such money is bad as against third persons.

      Error to Cooper Court of Common Pleas.

    The facts are sufficiently set forth in the opinion of the court.

      Adams, for plaintiff in error.
    I. The evidence offered by defendant to show that the money collected belonged to Fisher’s estate was surely competent under the issues in the cause. It rebutted the idea that the money was received under the power of attorney. The defendant denied the reception of the money as agent; he offered to prove that it belonged to a stranger. The reception of the money as agent under the power of attorney was the very issue between the parties. The strongest evidence that the money was not received under the power of attorney was that it belonged to the estate of Fisher, the former husband of the plaintiff, Mrs. Witman. The doctrine that an agent can not deny the title of his principal has nothing to do with this case. The reception of the money as agent is denied. Upon the issue whether the plaintiff’s wife was entitled to the money in Prussia, as alleged in the petition, the best evidence was the written document referred to by the witness Epstein. Any other evidence was inadmissible until its nonproduction was legally accounted for. It was the duty of the plaintiffs to produce this writing.

      Douglass Sf Hayden and Draffen, for defendants in error.
    I. The evidence offered by the defendants, for the purpose of showing that the money collected by him in Prussia belonged to the estate of Fisher, was inadmissible in every point of view. The defendant has not the right to controvert the title of plaintiffs to the money he agreed to collect for them. An agent can not controvert the title to property entrusted to him either by asserting title in himself or a stranger. (Story on Ag. § 217 ; Story on Bailments, § 110, 112.) The defendant is estopped to deny the title of plaintiffs. (Stephen on Plead. 375; 1 Chit, on Plead. 347, 575.) It is admitted by the pleadings that the defendant became the agent of plaintiffs and agreed to attend to their interests in Prussia.
   Napton, Judge,

delivered the opinion of the court.

This was a suit between principal and agent. The latter had collected a sum of money for the former, under a power of attorney, and this action was brought to recover it. The defence was, that the money did not belong to the principal and this was offered to be shown generally, and also by the production of a paper in possession of the plaintiffs. The proof was excluded by the court and this exclusion presents the only question in the case.

An agent has discharged his duty when he pays over to his principal the money he was authorized to collect. It is of no importance to him whether his principal’s title to the money or property be good or bad. That is a matter which concerns third persons, who, if they desire to protect their interests, can easily do so, either before or after the termination of the controversy between the principal and agent. This principle of law is conceded, but it is said that the paper called for in this case, and which it was alleged would show that the money collected by the defendant belonged to third persons, was admissible to show that the money was not really collected under the power of attorney, and was not collected as agent for the plaintiffs. Of course this could be shown, and if there had been any offer to show this, there could be no doubt the evidence should have been admitted. But the mere fact that the money collected belongs to third persons has no tendency to disprove the allegation that it was collected as money of the principal, especially where the only proof previously introduced in the case was positive and unequivocal that the money was collected under the power of attorney and as agent for the plaintiffs. If the simple fact that the money does not really belong to the principal is sufficient to rebut, or entitled to any weight in rebutting the positive proof of agency, then such evidence must be legitimate in all cases of this kind, and in every suit between principal and agent, the latter can go into the question of the ownership of the property or money which he has collected, upon the vague presumption that the money or property was not obtained through the agency, simply because the principal did not have any right to it. Such a course would defeat all the rules of evidence, and practically annul the responsibility of agents.

Judgment affirmed.

The other judges concur.


text:
    Young et al., Defendants in Error, v. Montgomery, Plaintiff in Error.
    1. A parol agreement respecting the sale of land, of which there lias been part performance, is not within the statute of frauds. Possession alone, without payment, is sufficient part performance to authorize a decree for a specific execution; but the possession must be under the contract and not a mere tenancy, or taken under some other contract; and the contract must be unequivocally established.

      Error to Wright Circuit Court.

    It is deemed unnecessary to set forth the facts more fully than they appear in the opinion of the court.

      Riley, Edwards and Ewing, for plaintiff in error.
    I. The court erred in excluding the testimony offered. (2 Mo. 109; 25 Mo. 63; Sugd. Mend. 135; 1 Blackf. 58 ; 5 Blackf. 383.)

      Waddell, for defendants in error.
   Napton, Judge,

delivered the opinion of the court.

This was an action of ejectment to recover eighty acres of land in Pulaski county, and the defence set up in the answer was that there was a parol sale of the land to defendant, and the answer further prayed a specific performance and decree of title. Upon the trial, the plaintiffs showed title in their ancestor, and the defendant offered proof relative to the parol sale, but the proof was rejected. An exception was taken and the case brought here.

We can form no conjecture as to the grounds upon which the proof offered in this case was rejected. That there are cases of part performance of a parol agreement for the sale of land, which will take them out of the statute of frauds, is beyond doubt. Whether the present case is one of them or not, we can of course form no opinion from any information contained in this record. The defendant offered to prove a parol sale, a delivery of possession, and a payment of the principal part of the purchase money; but the proof, was rejected and no other evidence given. It is well settled that possession alone, without payment, is sufficient part performance to maintain a decree for a specific execution; but the possession must be under the contract, and not a mere tenancy or taken under some other contract, and the contract must be unequivocally established.

It is useless, however, to undertake to go into this subject, one that is fully treated of in the elementary books and adjudged cases. The circumstances of the particular case must be fully disclosed in order to determine the applicability of general principles to them. Where there is an offer of testimony generally, unless the defence is totally inadmissible under any circumstances, it will save time and expense to let in the proof and then determine its relevancy and effect.

The other judges concurring, the judgment is reversed and case remanded.


author: GOODE, J.

text:
    In re WILHELMINA DRAINAGE DISTRICT; COLONIZATION REALTY COMPANY et al. v. DOMINIC SEELEY et al., Appellants.
    Division One,
    December 1, 1919.
    1. APPEAL: Drainage District: Organization. The Circuit Court Drainage District Act of 1913, Laws 1913, pp. 232 to 267, does not allow an appeal from an interlocutory order organizing and incorporating a drainage district.
    2. -: -:--: Jurisdictional Question. An appeal does mot lie from an interlocutory order of -the circuit court organiz- . ing a drainage district, on the ground that the articles of association had not “been signed by the owners of a majority of the acres included in the district and therefore the court had no jurisdiction to make the order. A jurisdictional question can be raised at any stage of the proceedings, but that does not mean that an appeal lies from a ruling on the question.
    3. -: -: Statutory Eight. An appeal lies only when the right is given by statute, and only from such orders and judgments as the statute mentions; and the Circuit Court Drainage District Act of 1913 does not expressly or impliedly authorize an appeal from the preliminary order incorporating a drainage district.

      Appeal from. Dunklin Circuit Court. — Hon. - W. 8. G. Walker, Judge.
    Dismissed.

      L. R. Jones for appellants.
    (1) An appeal lies from, the preliminary order of the court incorporating a drainage district if the trial court acquired no jurisdiction of the subject-matter. In re Mississippi & Fox River Drain. Disk, 192 S. W. 727.

      Smith & Seed for respondent.
   GOODE, J.

On April 4, 1916, there were filed in the Circuit Court of Dunklin County, articles of association for the formation of a drainage district, which included a prayer that the lands described in the application be incorporated into a drainage district pursuant to thé act relating to the formation of such districts. The proposed district was to consist of five thousand acres of land and the petition for incorporation purported to he signed by the owners of 3309 acres, or a majority of the acres.

The Colonization Realty Company, a corporation and one of the signers of the application, was stated to own 3159 acres. This company had given contracts for the purchase of seven hundred acres of the lands the petition stated it owned, and the holders of some of these option contracts filed objections to incorporating the proposed district, contending they were owners of the lands on which they held contracts of sale and purchase ; that they had not signed the petition, and if the number of acres owned by them was deducted from the number alleged to he owned by the Colonization Realty Company, 'it' would appear the owners ot a majority of the acres in the district, had not applied for its incorporation. By reason of the terms of the contracts, the court below held the parties who were accorded the right to purchase were not owners of the lands within the meaning of Section 39 of the Drainage Act, bnt that those lands were still owned by the-Colonization Realty Company. An order (accompanied by findings that all the requisite steps for the formation of the district had been taken by the petitioners) was entered February 27, 1917, that the district be established under the name of the Wilhelmina Drainage District. From this order the objectors, after motions for new trial and arrest had been overruled, appealed to this court.

The right to appeal, if any there is, must be found in the Laws of 1913, and it has been decided that under that, act no appeal lies from the preliminary order to incorporate a drainage district. [In re Drainage Dist.; Busehling v. Ackley, 270 Mo. 157.] The reason for this conclusion and authorities in support of it are set out fully in the opinion in the cited case. Shortly stated the reason is that, the Act of 1913 allows an appeal from the judgment of! the circuit court for the determination of only two questions: first, where just compensation has not been allowed for the property in the district appropriated for drainage works; and, second, where proper damages have not been allowed for property prejudicially affected by the improvements. [Flaws 1913, p. 241, sec. 161] Those being the only matters for consideration on an appeal, plainly one cannot be taken from the preliminary order, for, as yet, no compensation for property taken has been allowed, nor damages assessed for harm done by the improvements. In ¡fact, property has not, so far, been appropriated nor improvements made. Appellants concede that no appeal lies from the preliminary order, except when the purpose of the appeal is to have determined whether the circuit court acquired. jurisdiction of the proceeding or whether its order was void for lack of jurisdiction, and supports the present appeal on the ground that the court below acquired no jurisdiction of the proceeding, if the owners of the greater number of acres in the contemplated district did not, sign the articles of association and petition >to have it formed, and that appellants are entitled to a decision here as to whether the evidence shows the owners of the larger number of acres had not signed; further insisting that the question of jurisdiction may be raised at any stage of a case and besides, that the present appeal is authorized by the following excerpt from the opinion in the case cited above:

“While it is true the objectors could have made the same defense in a suit on the tax-bills, yet they were not compelled to do so, for the elementary reason that the lack of jurisdiction over the subject-matter may be shown at any time in any suit or proceeding involving -that question,, even in a collateral proceeding.
“It was not the design of the Legislature in limiting the right of appeal in drainage cases to deny to one affected thereby the right to question the jurisdiction of the district over the subject-matter thereof; and if that were the intention then clearly the statute to that extent, at least, would have been unconstitutional.”

Without deciding that a jurisdictional matter is raised by the appellants, we are clear this court did not say in the quoted excerpt that an appeal lies from a preliminary order of the. circuit court, if the jurisdiction of the court to make the order is contested. What was said in the excerpt had reference to the right of a party to deny the jurisdiction of a district, already incorporated, to assess his land for drainage when the district was, in fact, organized for levee purposes instead of drainage. It is true that if a court takes cognizance of a matter whereof it has none, an objection may be raised in the proper mode at any stage of the proceeding; but it does not follow that it may bé raised by an appeal from an interlocutory order entered at any stage. When the final judgment, or whatever order the statute mav allow an appeal from, has been entered, then an appeal will lie and in the court to which it is taken the objection may be raised that the lower court had no jurisdiction, and this is so whether it was raised in the lower court or not. Beyond doubt an appeal lies only when the right is given by some statute and only from such orders and judgments as the statute mentions; and the act in question neither expressly nor impliedly authorizes one from the preliminary order to incorporate a drainage district. The general rule is that it lies only from final judgments, but statutory exceptions are made. If an appeal taken from a preliminary order was considered in Birmingham Drainage District v. Railroad Co., 266 Mo. 60, it was because there was no suggestion to direct the court’s attention to what order or judgment of the circuit court the appeal was from.

The appeal in the present case must be dismissed. It is so ordered.

All concur.


author: RAGLAND, C.

text:
    JOHN A. BOYERS, Appellant, v. FRANK LINDHORST.
    Division One,
    December 1, 1919.
    1. MALICIOUS PROSECUTION: Evidence: General Reputation. The essential elements in a suit for damages for malicious prosecution are malice and want of probable cause, and such being true,. evidence offered by defendant that plaintiff’s general reputation for peace and quiet in the community in which he lived was bad, if known to defendant at the time of the prosecution, is admissible, whether or not his reputation was put in issue by the pleading, and whether or not he asked for compensation for injury to his reputation by an unwarranted arrest for malicious destruction of property.
    2. -: -: -: Put in Issue by Petition. An allegation in the count of the petition for malicious prosecution that by reason thereof plaintiff “was subject to great pain of mind, humiliation, mortification and disgrace” and asking compensation for these, puts plaintiff’s general reputation for peace and quiet in issue, and justifies evidence offered by defendant to show such reputation was bad.
    3. -: -: Reputation for Peace: Conduct Similar in Character: Erroneous Charge Preferred. In an action for damages evidence of plaintiff’s general reputation must be sucb as shows it to be bad in the same sense in which his reputation was injured by the alleged malicious prosecution; and where defendant requested the arrest of plaintiff for tearing down a fence inclosing a lot belonging to defendant, evidence of plaintiff’s general reputation for peace and quiet is pertinent and admissible, as bearing on the question of the malicious destruction of property; and the fact that the police officer, without the knowledge of defendant, preferred a charge of trespassing against plaintiff, does not affect the admissibility of the evidence.
    4. -: -: -: Form of Answer and Questions; Waiver. Testimony by a police officer, in answer to an inquiry as to appellant’s general reputation, that it was bad among the police officers, though improper, cannot be held error on appeal if no motion to strike it out was made. Likewise complaints that the inquiries concerning appellant’s reputation were not in proper form, and that other witnesses did not qualify by stating they knew his reputation, are waived, if no objections were made at the time.
    Appeal from St. Louis City Circuit Court. — Hon. William T. Jones, Judge.
    Affirmed.

      Jam.es T. Roberts for appellant.
    (1) The general rule in civil cases is that evidence of plaintiff’s reputation or character is not admissible unless put in issue by the pleadings. False imprisonment does not necessarily include injury to character or reputation and therefore the character- of the plaintiff is said not to be directly in issue in such actions. Plaintiff only puts his reputation in issue when he by his petition alleges that the wrongful imprisonment has resulted in damage to his reputation. Milton v. Missouri Dairy, Company, 188 Mo. App-. 278. (2) The fact that defendant had knowledge of the reputation of the plaintiff at the time he made the charge or caused the arrest is essential, where it is offered to show probable cause. Hemming v. Wamsher, 20 Pa. St. 979'; Skidmore v. Bricker, 77 111. 104. (3) Such evidence, if admissible at all, must relate to the general bad reputation of the plaintiff. Evidence of plaintiff’s bad reputation among a particular class of persons is not admissible. Echbacli v. Hurtt, 47 Md. 61. (4) The inquiry should be confined to plaintiff’s general reputation for integrity and moral worth or to conduct similar in character to that with which he is charged by the defendant. Leonard v. Allen, 11 Cusli. (Mass.) 241.

      O'. J. Mudd and Charles J. Franck for respondent.
    (1) Appellant has not saved any exception to the ruling of .the court on which to rest his assignment of error. State ex rel. v. Diemer, 255 Mo. 336. (2) The pleadings fairly put in issue the plaintiff’s character and reputation, and so evidence on that issue was not error. 1 Greenleaf on Evidence (17 Ed.), pp. 45-46, pars. 1-2; 1 Wigmore on Ev. sec. 75, p. 157; Jones on Ev. (2 Ed.) sec. 157, p. 176; Gregory v. Chambers, 78 Mo. 294; Yawter v. Hultzi, 11,2 Mo. 633; Stubbs v. Mulholland, 168 M.o. 47. (3) The objected testimony was proper on the measure of damages. Authorities last above.
   RAGLAND, C.

An action for damages in the sum of $10,000. The petition counts respectively on false imprisonment and malicious prosecution. Plaintiff being cast on the trial to a jury has in due course prosecuted his appeal to this court.

Defendant was the holder of a note secured by a deed of trust on a lot owned by the plaintiff in the City of St. Louis, which was fenced, but otherwise unimproved. Plaintiff defaulting in the payment of interest, a foreclosure sale was had under the deed of trust, through which and a mesne conveyance defendant acquired the full title. After some specious efforts to redeem, the plaintiff began tearing down and removing the fence enclosing the lot. According to defendant’s version, which the jury seem, to have accepted, on knowledge of plaintiff’s action coming to him, he went to plaintiff for an explanation of his conduct and to expostulate with him. Having previously learned from plaintiff’s neighbors that plaintiff was reputed amongst them, to be a dangerous man, he took a police officer with him to the interview for protection against any violence that the plaintiff might exhibit. No particular altercation took place, hut plaintiff told defendant in effect that the foreclosure sale was invalid; that he, defendant, had no title, and that he could not stop plaintiff from taking the fence -down. Théfeupon defendant requested the officer to arrest plaintiff for tearing down the fence. Pursuant to the request plaintiff was placed under arrest, a police patrol wagon was called, and plaintiff was therein conveyed to the police station. There the officer without the knowledge or consent of the defendant, then or thereafter, preferred a charge of trespassing* ag'ainst the plaintiff. Plaintiff was locked up, but later released on bond. On the trial a few days afterward he was acquitted.

In the trial of this cause the court, over the objection'of the plaintiff, admitted in evidence the testimony of several witnesses offered by the defendant to the effect that the general reputation of plaintiff for peace and quiet in the community in which he lived was bad. This, is assigned as error, and is the sole matter preserved by the motion for a new trial for consideration on this appeal.

I. Appellant’s chief contention is that his reputation was not put in issue by the pleadings in that he did not ask for compensation for injury to his reputation. Whatever construction may he put upon the petition in that respect it is indubitably true that the essential issues tendered by the count on malicious ,. , „ , , - prosecution were malice and want of probable cause. On these it was unquestionably admissible for the defendant to introduce in evidence in chief, proof of the general bad character of the plaintiff, if known to him; at the time of the prosecution. [Stubbs v. Mulholland, 168 Mo. 47; Peck v. Chouteau, 91 Mo. 138; Gregory v. Chambers, 78 Mo. 294; Warren v. Flood, 72 Mo. App. 199.]

Bnt the count on malicious prosecution avers that by reason of such prosecution the plaintiff “was subject to great pain of mind, humiliation, mortification and disgrace” and for these he asks compensation. From the use of the terms, “humiliation” and “mortification,” it may' be inferred that the plaintiff claimed that he had suffered either in his own esteem, or in that of others, but by the use of the term “disgrace,” he necessarily charged that he had been brought into disrepute, so that proof of general bad reputation was admissible on the measure of damages. [Peck v. Chouteau, supra.]

II. Appellant next makes the point that, even though evidence of the general bad reputation of plaintiff was admissible under the pleadings, the inquiry should have been confined to general reputation for integrity and moral worth, or to conduct similar in character to that which he was charged by defendant. It must be conceded that on the question of damages the general bad reputation of plaintiff sought to be shown, if admissible, must be bad in the same respect in which his reputation was, or otherwise would have been injured, by the malicious prosecution, and on the questions of malice and probable cause it must be bad in respect to such matters as naturally would be calculated to affect the probability of the plaintiff’s having committed the crime with which he was charged. There must be some logical relation between the two. The question here, in concrete terms is whether the general bad reputation of plaintiff for peace and quiet, considered in connection with the other facts and circumstances in evidence, would have any effect in inducing a belief of plaintiff’s guilt of the statutory .crime of malicious destruction of property in the mind of a reasonable and cautious man. As shown by the evidence the fence was the property of defendant. The plaintiff had no interest in it and in tearing it down either he was acting under the honest belief that he had such an interest in it as gave him the right to do so, or else he did it maliciously. If the act was done under an honest claim of right, it was not a crime; if it was not so done, it was malicious and criminal. If the latter, it was because plaintiff was evilly disposed toward the owner, not the property itself, and by his action he invited retaliatory measures on the part of the owner and a possible breach of the peace. Is it then more probable that he was actuated by malice, if he was a man who was a disturber of the peace and who was quarrelsome, turbulent and violent in his behavior towards others than if he had been a man who respected the tranquility of his community and conducted himself in a quiet, orderly and peaceable manner towards its members? Under the circumstances shown, it seems to us that it is, and we rule, that the evidence was admissible on the questions of malice and probable cause, at least. "We have not overlooked the fact that the plaintiff was .prosecuted on the technical charge of trespassing, but the only complaint that defendant made against plaintiff and for which he requested his arrest and prosecution was that of tearing down the fence. He supposed that the prosecution was based and conducted on that complaint. His liability cannot be predicated on the action of the police of which he. was ignorant and which was not attributable to any fault of his.

III. A police officer being asked concerning the general reputation of the plaintiff for peace and quiet in the community in which he lived, replied that, it was bad among the officers of the district. The answer was not responsive and was improper, but as plaintiff made no motion to strike it out his objection to it was waived. Appellant also complains that the questions asked the witnesses on reputation were not in proper form, and that some of the witnesses stated that plaintiff’s general reputation was bad without first having qualified by stating that they knew his reputation. No objections in any of these respects were made at the time and consequently they were waived.

Finding no error in respect to the matters preserved for review, the judgment isi affirmed.

Brown and Small, GG., concur.

PER CURIAM: — -The foregoing opinion of Rag-land, C., is adopted as the opinion oh the court.

All of the judges concur.


author: BLAIR, P. J.

text:
    SUSIE M. ALFORD v. NEW YORK LIFE INSURANCE COMPANY, Appellant.
    Division One,
    December 1, 1919.
    1. INSURANCE: Governed, by Laws When Policy Was Issued. The laws in force at the time the life insurance policy was issued determines the beneficiary’s right to recover.
    2. -: Right to Paid-up Policy: Definition of Word Entitled. The word “entitled” is susceptible of more than one meaning. It may be used to mean that a right or title is given or is vested; or that one is furnished with grounds for seeking or claiming with success. In the proviso to the Act of 1895 amending Section 5859, Revised Statutes 1889, where it is stated that “in all instances where three annual premiums shall have been paid on a policy of insurance, the holder of such policy shall be entitled to paid-up insurance, the net value of which shall be equal to that provided in Section 5856,” the word “entitled” means that the holder of such policy had the right to claim or demand paid-up insurance, if he desired to do so, in any case in which he had' contracted otherwise in his policy, but it did not require him to accept paid-up insurance without such election.
    3. -: -: — : Contract According to Laws of Another State. The proviso contained in the amendment of 1895 to Section 5859, Re- ’ Vised Statutes 1889, did not automatically convert a policy made in accordance with the laws of New York and which contained an agreement for extended insurance in case of default in the payment of the fourth annual premium, into a paid-up policy for a 'definite proportion of the amount of the insurance, where the holder, after such default, did not elect ■ to take such paid-up policy.

      Appeal from Pike Circuit Court. — Won* Edgar B. Wool-folk, Judge.
    Reversed.

      Jones, Hooker, Sullivan & Angiert, Hostetter & Haley and James G. Jones, Jr., for appellant; James H. McIntosh of counsel.
    The proviso to the Act of 1895 does not provide for automatic paid-up insurance in case of lapse, and without demand, because (1) The title to the act indicates that it was passed for a different purpose than to repeal Sections 5856 and 5857, R. S. 1889. Straughan v. Myers, 268 Mo. 588. (2) Its language as a whole shows a contrary intention. Nichols v. Ins. Co., 176 Mo. 378. (3) The terms of'the statute it displaced show a contrary intention. R. S. 1889, sec. 5859'. (4) The subsequent amendment olfl the Act of 1895 shows that it was not intended to repeal Section 5856 or Section 5857. R. S. 1899, sec. 7900. (5) Repeals by implication are not favored. Nichols v. Hobbs, 197 S. W. 259; State ' ex rel. v. Stratton, 136 Mo. 429'; State ex inf. v. Amick, 247 Mo. 289'. (6) If this enactment is interpreted a,s repealing either Section 5856- or Section 5857, then it falls within the ban of Sec. 28, Art. 4, Missouri Constitution, because no such subject is expressed in the title to the act. St. Liouis v. Wetzel, 139 Mo. 616; State v. Tea Company, 171 Mo. 642; St. Louis v. Wortman, 213 Mo. 139; State v. Rawlings, 232 Mo. 557; Williams v. Railroad. 233 Mo. 677; Hardward Co. v. Fisher, 269 Mo. 278. (7) If the Act of 1895 applies at all to the right to paid-up insurance, then it is in pari materia with Section 5857 and the two must be read and applied together. Macke v. Byrd, 131 Mo. 690'; State ex inf. v. Koeln, 270 Mo. 191,, (8) If the act is interpreted as reouiring automatic paid-up insurance without demand, and as not repealing Section 5866, then it is void, because it takes the property of the company without due process of law and denies it the eaual protection of tha law. Seo. 30, Art. 2, Missouri Constitution; Sec. 1, Art. 14, United States Constitution. (9) A statute will never be interpreted so as to make it unconstitutional, if any other interpretation is at all possible. Straughan v. Myers, 268 Mo. 588; State ex rel. v. Mason, 153 Mo. 49; State ex inf. v. Koeln, 170 Mo. 188. (10) Nor will a statute be interpreted so as to produce unjust-results. Perry v. Strawbridge, 209 Mo. 645 ; Gist v. Constr. Co., 224 Mo. 379; Ruttér v. Carothers, 223 Mo. 643.

      J. S. Fitsyerrell and Won. A. Dudley for respondent.
    (1) The policy in this case was a Missouri contract and controlled by Missouri laws. ^ R. S. 1889, sec. 5856; Laws 1895', p. 197, sec. 5859; Nichols v. Ins. Co., 170. Mo. 355; Epperson v. Ins. Co., 90 Mo. App. 432; Price v. Ins. Co., 48 Mo. App. 281; Cravens v. Ins. Co., 148 Mo. 583; Horton v. Ins. Co., 151 Mo. 604; Smith v. Ins. Co., 173 Mo. 340. (2) This policy is governed by the statutes in force at the time of its issue, 1896. Smith v. Ins. Co., 173 Mo. 329; Bturridge v. Ins. Co., 210 Mo. 158. (3) The provisions of Laws 1895, page 197, and R. S. 1889; Section 5866', entered into and became a part of the policy sued on in this case, and under said policy, plaintiff was entitled to paid-up insurance as prescribed by said law. Nichols v. Ins. Co., 176 Mo. 355; Epperson v. Ins. Co., 90 Mo. App. 432. (4) The amendment of Sec. 5859, R. S. 1889; by Laws 1895, page 197, did not repeal Section 5856, 5857, or 5858, R. S. 1889, but if it had done so, it would not have been in violation of Sec. 28, Art. 4, Mo. Constitution. State v. Doerring, 194 Mo. 398; State v. Heege, 135 Mo. 112; State ex rel. Dickerson v. County Court,, 128 Mo. 427; O’Brien v. Ash, 169 Mo. 288; Barnes v. Pickey, 269 Mo. 403. (5) Neither the statute nor the judgment infringes any of the provisions of the Fourteenth Amendment. The policy properly construed gives no duplication of remedies.
   BLAIR, P. J.

This is an appeal from a judgment for the beneficiary in a twenty-year endowment policy of insurance for $5000 on the life of W. C. H. McPike. The policy was delivered October 13, 1896. ' Three an-nual premiums were paid. Insured defaulted in the payments due September 25; 1899', and thereafter, and died November 26, 1911. Appellant is. a New York corporation, and was licensed to do business in Missouri. McPike was a citizen of this State.

When the policy was issued the laws of New York provided that after any policy had been in force for three full years and default was made in payment of premiums thereafter, the reserve should, on demand made, with surrender -of the policy within six months, be taken as a single premium at the company’s published rates, and applied, as agreed in the application or policy, either to purchase extended insurance for the amount of the policy or paid-up insurance in such amount as the reserve would purchase; that if no agreement appeared in the application or policy, then the “owner of the policy” might exercise his option on demand within six months. The law admitted to be then in force is Sec. 88, Art. II, Chap. 690, Laws of New York of 1892, as set out in full in Nichols v. Ins, Co. 176 Mo. l. c. 364, 365. The policy in'suit contained the following agréement:

“This policy cannot he forfeited after it shall have been in force three full years as hereinafter provided:
“First. If any subsequent premium is not duly paid this policy will be endorsed for the amount of paid-up insurance specified in the table on the preceding page, less the value of any indebtedness on this policy, provided demand is made therefor with surrender of this policy within six months after such non-payment — ? such paid-up insurance being payable either if the insured shall die before the 25th day of September, 1916, or if the insured then be living — or,
“Second. If any subsequent premium is not duly paid, and if this policy is not surrendered as provided in the preceding clause, the insurance under> this policy will, after the repayment of any indebtedness, be extended without request or demand therefor, for the amount of five thousand dollars, during the term provided in the table on the preceding page, payable only if the insured dies within said term. At the end of said term the insurance shall cease, and the amount provided in the last column in said table will become payable if the insured is then living.
Third. The insurance provided for in the two preceding clauses shall be based upon completed insurance years only, and shall be subject to the conditions of this policy, but without further payment of premiums and without loans or participation in surplus.”

The amount of the available reserve under this policy was, in fact, somewhat less than it would have been if computed under the laws of this State then in force. Nevertheless, though so computed, the resultant sum would not have carried the policy to the time of McPike’s death. No demand for a paid-up policy was made, and there was no communication with the company after McPike’s death in 1911 until in July, 1913. The first petition in this case was drawn upon the theory that the policy was kept in force by the non-forfeiture laws of this State until McPike’s death. The amended petition; on which the ease was tried, proceeds upon the theory that upon default in payment of the fourth annual premium the reserve on the policy was automatically converted, without demand, into paid-up insurance for the sum of $1630.80. It was this sum, with interest, for which respondent had judgment.'

The law in force when the policy was issued controls (Liebing v. Ins. Co., 269 Mo. l. c. 521) and must govern in this case. Sections 5856, 5857, 5858 and 5859 (as amended in 1895, Laws 1895, pp. 197, 198), Revised Statutes 1889, were then in force. Section 5856 provided that no policy of life insurance, after two premium, payments, should be forfeited for non-payment of additional premiums, but that it should be commuted into extended insurance, proportioned to the net value of the policy, less authorized deductions, if any. Section 5857 provided that after the payment of two annual premiums and default, the legal holder of the policy might, within sixty days from, the beginning of the extended insurance period, as provided in Section 5856, demand a paid-up policy, which must be issued, of the value prescribed by ' the section. Section 5858 prescribes the rule of payment on commuted policies. Section 5859, as amended in 1895', reads as follews:

“The three preceding sections shall not be applicable in the following oases, to-wit: If the policy shall have been issued by any company authorized to do business in this State, and organized under the lenes of another state of the United States which prescribes a surrender value or paid-up. or temporary insurance in case of default in payment of premiums, and shall contain. an agreement for such surrender value, temporary or paid-up insurance, as prescribed by such other state as a part of said policy, or if the policy shall contain a provision for an unconditional cash surrender value at least equal to the net single premium, for the temporary insurance provided hereinbefore, or for the unconditional commutation of the policy for non-forfeitable paid-up insurance, or if the legal holder of the policy shall, within sixty days after default of premium, surrender the policy and accept from, the company another form of policy, or if the policy shall be surrendered to the company for a consideration adequate in the judgment of the legal holder thereof, then, and in any of the foregoing cases, this act shall not be applicable: Provided that in no instance shall a policy be forfeited for non-payment of premiwms after the payment of three annual premiwms thereon; but in dll instances where three annual premiums shall have been paid on a policy of insurance the holder of such policy shall be entitled to paid-up insurance, the net value of which shall be equal to that provided for in Section 5856 of this article

The italics indicate parts added in 1895. By the same act a clause was eliminated. In Section 5859, Revised Statutes 1889, prior to 1895', the clause relating to paid-up insurance read: “or for the unconditional commutation of the policy to non-forfeitable paid-up insurance, for which the net value shall be equal to that provided for in Section 5857.” In the Act of11895 the last italicized clause was omitted.

It will he observed that Section 5859, Revised Statutes 1889, as it stood before the amendment in 1895, exempted policies from the operation of Sections 5856, 5857, and 5858, Revised Statutes 1889, only when such policies contained (1) provision for an unconditional cash-surrender value at least equal to the net single premium for the temporary insurance “provided herein-before,” or (2.) for the unconditional commutation of the policy to non-fonfeitable paid-up insurance “for which the-net value shall be equal to that provided for in Section 5857,” or (3) if the legal holder, within sixty days after default, exchanged the policy for another, or (4) if the legal holder surrendered the policy for a consideration he deemed adequate. The amendment of 1895 made three changes. The first consisted of a provision which on its face, if considered without reference to the proviso also added, would' have had the effect of rendering Sections 58561, 5857 and 5858 inapplicable in the case of any policy issued by any company of another state whose laws prescribed. (1) “a surrender value or (2) paid-up or (31) temporary insurance in case of default in payment of premiums” and which policy contained “an agreement for such surrender value, temporary or paid-up insurance as prescribed by such other state as a part of said policy.” Prior to this amendment the company and the insured could not avoid the effect of Sections 5856, 5857 and 5858, Revised Statutes 1889, by agreeing to substitute the reserve values fixed by the laws of the state of the company’s origin. By this amendment, unless the proviso is held to qualify it very materially, they were permitted, under stated conditions, to agree in the policy to abide the non-forfeiture laws of the company’s state. Respondent concedes the policy agreement conformed to the laws of New York, but contends the proviso in the Act of 1895' automatically, upon default in 1899, converted the policy in suit into paid-up' insurance “the net value of which” was equal to that provided in Section 5856’, Revised Statutes 1889, i. e. $1630.80'.

We understand respondent’s position to be that Section 5859, Revised Statutes 1889, as amended in 1895, governs this case, but that since the policy did not provide for unconditional paid-up' insurance and did not provide for temporary insurance of the value prescribed by Section 5856, Revised Statutes 1889, therefore the proviso in the Act of 1895 automatically converted the policy into paid-up insurance of the net value prescribed in Section 5856: In other words, respondent’s contention is that in every foreign policy issued ivhile the Act of 1895 was in force, which policy did not provide for temporary or paid-up isurance of a value equal to that under our law, though the law of the company’s state authorizes. such value, the proviso in that act, in case of default as therein provided, automatically transformed such policy into paid-up insurance of the net value prescribed in Section 5856', Revised Statutes 1889. •

The whole burden of this contention rests, in the last analysis, upon the word “entitled” as it appears in the proviso in question. The word is susceptible of more than one meaning. It might be used to mean that “a right or title” is given is vested; or it might mean that one is “furnished with grounds for seeking or claiming with success.” [Webster’s New International Diet.; Reed v. Bank, 29 Grat. l. c. 723, 724; English’s Ex’r. v. McNair’s Adm’rs., 34 Ala. l. c. 48, 49; Robertson v. Railroad, 63 N. H. l. c. 548; Hibberd v. Slack, 84 Fed. l. c. 579.] In determining the meaning to be given to the word in this case it is desirable to examine the effect produced by an acceptance of respondent’s interpretation. It has been already decided that the proviso “applies to all policies, whether foreign” or local.” [Nichols v. Ins. Co., 176 Mo. l. c. 375, citing Epperson v. Ins. Co., 90 Mo. App. 436.] If respondent’s contention be sustained, then every policy, foreign or local, which falls within the Act of 1895', after payment of three premiums and default thereafter, must necessarily he converted by the proviso into paid-up' insurance of the prescribed value. It would make no difference what the laws of the foreign State prescribed, nor what agreement the policy contained, whether the contract value was greater or less than that of our laws. The language of the proviso contains no exceptions. It would apply even in case the holder surrendered the policy and accepted another or accepted some other consideration adequate in his judgment. He might contract in his policy for temporary insurance in accordance with the laws of another State and the policy might provide for the stated cash surrender value. None of these would avail, since, so construed, the proviso would step in in every ease under the act and convert the reserve into paid-up insurance without regard to what the parties had agreed or had done by way of settlement after default. If the proviso be so construed, the preceding provisions of the amended section could be construed only as defining the classes. of policies Avhich would be, by default, transformed by the act into paid-up insurance. The holding of this court that the first amendment added by the Act of 1895 authorized the parties to contract with respect to the non-forfeiture la-ws of the state of the company’s origin is obviously unsound of the proviso is to be construed as respondent contends. Such contract, in that event, would be denied all force as a contract and applied simply to catalogue policies to be governed by the proviso. Fhrther, it is not reasonable to say the Legislature intended to convert into paid-up' insurance a reserve .which the parties had converted by agreement after default into a policy of another kind, or which the holder had adjusted with the company for a consideration he deemed adequate. Nor could any company be induced to issue another policy or pay a consideration in adjustment of' a reserve already converted by the statute into paid-up insurance and liability thereunder already fixed by the proviso. Further considerations arise out of a study of the present statute (Sec. 6949, R. ,S. 1909) wherein the proviso is as it was save that it provides that the holder “shall be entitled to paid-up or extended insurance” in case of default after three payments.

We are of the opinion that respondent’s position is untenable. It seems probable that the Legislature meant by the proviso that in cases to which the act applied, the holder, in the designated cases, should have the right to claim or demand paid-up insurance- of the value fixed by the proviso, if he desired to do so, in any case in which he had contracted otherwise in his policy and concluded he preferred the statutory rather than the purely contract right, the proviso being a part of his contract. It entitled him to claim, such paid-up. insurance, but did not require him, to accept it whether he would or no. There may be other reasonable constructions. Some are suggested. It is not necessary to decide between them in this case. By none of these is the judgment authorized. The insured had the full benefit of his policy agreement; and had he died during the period of temporary insurance, his beneficiary could have collected the face of the policy. He did not die until after the expiration of that period.

The judgment is reversed.

All concur except Goode, J., not sitting.