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there is no merit in this contention. Both | sons, but others are present, and, knowing the counts were submitted to the jury, and they unlawful intent, aid by acts or encourage by found appellant guilty.

words or gestures those actually engaged in the

commission of the unlawful act, such persons so [2] The second exception to the court's aiding or encouraging are principal offenders, charge is he did not submit the issue of and may be prosecuted as such. alibi. The court's charge contains a stereo- connection you are further charged that the of

The court's charge contains a stereo-fense of theft is complete when the alleged thief typed charge on alibi, and, after defining has actually taken possession of and assumed "alibi," instructed them, if they had a rea- ownership and control of the stolen property, sonable doubt as to the presence of the de- and unless you believe from the evidence, beyond fendant at the place where the offense was McAninch, had some connection with the orig

a reasonable doubt, that the defendant, Geo. committed at the time of the commission inal unlawful taking of the cow, if the cow thereof, to find him not guilty.

was unlawfully taken, you will acquit the de[3] The third exception is that it does not

fendant." charge when a theft is completed, and does

We think this sufficiently presented the not charge that the defendant must be ac- failure of the court to so charge, if such quitted unless he participated in the acts error be found in the court's charge for its constituting the theft as a principal. We omission. do not believe the exception is well taken.

[5] Appellant also excepts to the court's The theory of the state was that appellant charge for failing to instruct the jury that and another party committed the theft and defendant should not be convicted if he was drove the cow from Davilla to Cameron, and receiver, and not the thief. We have quoted there was some evidence showing they were a sufficient number of the charges, which, we seen driving this cow at night. Appellant think, presented this matter fairly to the sold the cow at Cameron, and had the check jury, so they could not have made any mismade for the payment of the cow in the take in finding on this particular question.

His contention was that he did not steal name of one W. J. Melear. His claim was that he traded for the cow with Melear, giv- the cow, but that he received it from Meing him a little mule valued at $10 and some

lear. The court instructed the jury directly, money for the cow, and sold her to the butch- if that was true, to acquit and gave a charge er. When the butcher went to make out on circumstantial evidence, and also upon the check, appellant had it made out in fa- the law of principals, which instructed the vor of W. J. Melear, and himself indorsed jury that, if appellant was not connected Melear's name on the back of it when he with the original taking, he could not be cashed it. He says this was done at Melear's

guilty of theft. This omission, if it be so

, request. Now, the court charged the jury, treated, was not calculated to injure the in this connection, that if they should believe rights of the accused in the face of the from the evidence that the defendant re- charges given. It would make no difference ceived the cow described in the evidence in whether appellant received it or not; if he trade or sale from one W. J. Melear, or any he should be acquitted, and the jury were so

was not connected with the original taking, other person, they will find the defendant

instructed, and this whether he received it not guilty, or if they had a reasonable doubt thereof, they will acquit the defendant. This lieved he received the animal from Melear,

innocently or fraudulently. If the jury bedirectly applied the law to the facts.

[4] Another ground is that the court did as he says he did, and as was his contennot define who are principals, and did not They could have taken this view of it, but

tion, they would not have convicted him. instruct the jury that, if defendant is shown they did not, and there is evidence to supby the evidence to be an accomplice, he must

port the finding that he was the original be acquitted. The court charged on cir

taker. cumstantial evidence in the main charge, and submitted to the jury on the different ques

The issues were, we think, fairly then gave this charge at the request of ap- tions. There is no bill of exceptions in the pellant:

record, and these are the matters we have “You are further instructed that all persons thought necessary to mention in deciding the are principals who are guilty of acting together in the commission of an offense. When an of- case. fense is actually committed by one or more per- The judgment is affirmed.

in proper time, which is met by putting it into FIRST NAT. BANK OF GRANT CITY V. the proper post office properly directed. KORN. (No. 11705.)

[Ed. Note.-For other cases, see Bills and

Notes, Cent. Dig. 88 1173, 1178-1187; Dec. Dig. (Kansas City Court of Appeals. Missouri.

On 421.]
Nov. 1, 1915.)

Appeal from Circuit Court, Worth County ; 1. APPEAL AND ERROR 193—GROUNDS FOR REVIEW-OBJECTION TO PETITION.

Wm. C. Ellison, Judge. Unless a petition is so defective as to wholly "Not to be officially published." fail to state any cause of action, and, on that Action by the First National Bank of Grant account, is wholly insufficient to support a judg- City against C. A. Korn. ment, an objection that it does not state a cause

Judgment for of action first made in the appellate court can- plaintiff, and defendant appeals. Affirmed. not be considered.

O. B. Hudson, of Grant City, for appel[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. $$ 1226-1238, 1240; Dec. Dig. lant. John Ewing and Kelso & Kelso, all of Om 193.]

Grant City, for respondent. 2. BILLS AND NOTES Om 410EVIDENCE-CERTIFICATE OF PROTEST-STATUTES. Under Rev. St. 1909, $. 6329, making a drawn by Seasholtz & Scheller on the Keller

TRIMBLE, J. Appellant, having a check certificate of protest prima facie evidence, if filed 15 days before trial, a certificate of protest ton State Bank of Kellerton, Iowa, indorsed filed at the beginning of suit in a justice's court, and delivered it to the respondent bank, and but not verified until the day of trial therein, received from it the proceeds thereof. On was sufficient, where the cause on appeal to the circuit court was tried de novo seven months presentation to the Iowa bank payment was later.

refused, and the check was protested and re[Ed. _Note. For other cases, see Evidence, turned to respondent. Appellant declining to Cent. Dig. $8 1120-1128; Dec. Dig. Om 410.] refund the money he had obtained, respond3. BILLS AND NOTES Ow414-PROTEST-NECES- ent brought this suit on appellant's indorseSITY.

Under Rev. St. 1909, § 10125, providing ment to recover the amount of said check, that protest must be made on the day of dis- with interest and protest fees. The case orighonor, unless delay is excused, it was not neces- inated in a justice court, and, after trial sary that the drawer of a check, who had noti- there, was appealed to the circuit court, fied the bank on which it was drawn not to where it was tried anew, resulting in a judgpay it, be notified of its protest; since the bank was merely his agent in withholding pay- ment for the bank, and the other party has ment.

appealed. [Ed. Note. For other cases, see Evidence, Respondent has a motion to dismiss the apCent. Dig. $8 1142, 1148–1155 ; Dec. Dig. Om peal because of the alleged failure of appel414.]

lant to properly arrange and present the rec4. EVIDENCE 423–PAROL EVIDENCE-INDORSEMENT OF CHECK.

ord herein. The chief ground of this moUnder Rev. St. 1909, $ 10033, providing tion is that appellant has not distinguished that one placing his signature upon an instru- between matters to be shown by the record ment otherwise than as maker, drawer, or ac- and matters which can only appear in the bill ceptor, is an indorser, unless he clearly indicates his intention to be bound in some other capacity, of exceptions. We are of the opinion, howthe legal effect of a blank indorsement cannot be ever, that while the appellant's abstract is changed or varied by evidence from another not in the usual stereotyped form, but is source, as the statute fixes the legal effect of somewhat inartistic, and not as clear as it the instrument and excludes parol evidence.

[Ed. Note.-For other cases, see Evidence, might be, yet nevertheless it is not so open Cent. Dig. $8 1957-1965; Dec. Dig. 423.] to the objections made against it as to jus5. BILLS AND NOTES 400-PRESENTATION tify us in refusing to consider the case on FOR PAYMENT-DUE DILIGENCE.

its merits. The motion is therefore overWhere plaintiff bank, located in Missouri, ruled. received a check on a bank, in Iowa, and presented it through the ordinary channels of busi

[1] Appellant says the petition or stateness, and protested it when payment was re- ment on which the case is based does not fused, there was no failure of due diligence. state a cause of action. No attack was made

[Ed. Note. For other cases, see Bills and on the pleading in any way either before Notes, Cent. Dig. 1067 ; Dec. Dig. Om 400.]

judgment or in the motion for new trial. Un6. BILLS AND NOTES Om537—QUESTION FOR less the petition is so defective as to wholly JURY-DILIGENCE IN PRESENTATION.

Whether a given state of facts constitutes fail to state any cause of action at all, and, due diligence in the presentation of a check to on that account, is wholly insufficient to supthe drawee bank is a question of law for the port a judgment, said objection, made for the court.

first time in the appellate court, cannot be [Ed. Note.-For other cases, see Bills and Notes, Cent. Dig. 88 1862-1893; Dec. Dig. em regarded. The petition is not so defective as

$$ 537.]

this. The alleged defects it is said to con7. BILLS AND NOTES @ww421—NOTICE OF PRO- tain are not such as cause the petition to TEST—MAILING-SUFFICIENCY.

state no cause of action whatever, but, if Where a notice of a check's dishonor was they exist at all, merely show that a good put in a post office to go by the proper post, cause of action exists, but that it has been it was immaterial to the rights of the holder whether it ever reached the drawer or not, as all stated imperfectly in some respects. the law requires is the sending of due notice i The chief grounds of appellant's complaint

Om For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

relate to the admissibility and sufficiency of since he had ordered the drawee bank not the notary's certificate of protest.

to pay it, and said bank was merely the [2] With regard to the first objection there drawer's agent in paying or withholding payto, it seems that the certificate of protest at- ment on the check. tached to the note and originally filed with the [4] Appellant tried to show that at the justice at the time of the institution of the time he indorsed the check to respondent suit, to wit, May 29, 1913, was not verified by there was an agreement that he should not his affidavit, as required by section 6329, R. become liable as an indorser, and it is urged S. Mo. 1909. The case went to trial in the that the court should have submitted to the justice court on July 5, 1913, and on that jury the question of such an agreement or day, before trial, respondent filed another understanding. The evidence of appellant, certificate of protest, which was duly veri- however, does not disclose any such oral fied. Inasmuch as section 6329 makes the agreement, even if it could be allowed to precertificate prima facie evidence provided it vail against his indorsement, which was in is filed in the cause 15 days before the trial blank, and therefore contained nothing limitthereof, appellant takes the position that it ing his liability. Section 63 of the Negotiable was not admissible in evidence on the trial of Instruments Act (now section 10033, R. S. the case in the circuit court. This trial did Mo. 1909), says: not occur till February 19, 1914. The cer

A person placing his signature upon an intificate, therefore, was filed more than 7 strument otherwise than as maker, drawer or months before the trial in question here. acceptor is deemed to be an indorser, unless he The trial in the circuit court on appeal from clearly indicates by appropriate words his inten

in a justice is de novo. The issues are investigated and determined as if that were the

It is held that this is a statutory comfirst time they were ever presented, and as if mand that the legal effect of a blank indorsethe trial in the justice court had never been. ment cannot be changed or varied by evidence The object of the statute in requiring the cer- from another source. Porter V. Moles, 151 tificate to be on file 15 days is to give the op- Iowa, 279, 131 N. W. 23; Neosho Milling Co. posite party that much time in which to ob- v. Farmers', etc., Co., 130 La. 949, 58 South, tain evidence to overthrow the prima facie 825; Deahy v. Choquet, 28 R. I. 338, 67 Atl. case presented by the certificate. The trial 421, 14 L. R. A. (N. S.) 847; Baumeister v. in the justice court was wholly supplanted Kuntz, 53 Fla. 340, 42 South. 886; Rockby the trial in the circuit court, so that only field v. First Nat. Bank, 77 Ohio St. 311, the last trial is the one in which the oppor- 83 N. E. 392, 14 L. R. A. (N. S.) 842; First tunity of the parties to present evidence is National Bank v. Bickel, 143 Ky. 754, 137

This last-named case, at page finally closed. Consequently, appellant had S. W. 790. at that trial vastly more time than the stat- 757 of 143 Ky., at page 791 of 137 s. W., ute allowed him in which to refute the prima says: facie case made by the certificate. We think

“The purpose of the statute is to exclude parol the object of the statute was fully met, and control the rights of the parties. The statute

evidence, and to make the written instrument that the certificate was not inadmissible on fixing the legal effect of the instrument, parol that account.

evidence may not be received to give it a differTurning now to the objections made to the ent effect." sufficiency of the certificate, it is urged that The case of Mudd v. Bank, 175 Mo. App. the certificate should be annexed to the 398, 162 S. W. 314, does not conflict with this. check. There is nothing in the record to In that case the effect of section 10033 was show that it was not. Both certificates re- not noticed or discussed, but the real quesfer to the "annexed check.” Besides, section tion therein was not in regard to the terms

, 10123, R. S. Mo. 1909, says it must be annex- of the indorsement, nor as to how those terms ed to the bill, "or contain a copy thereof,” should be proved, but of authority to make and the verified certificate contained such any indorsement at all. copy.

[5] It is also urged that the court should Other objections are made to the sufficien- have submitted to the jury the question cy of the certificate. We have examined whether or not the check was presented to them all, and find they are without merit. the Iowa bank within a reasonable time, and

[3] Section 10125, R. S. Mo. 1909, does whether notice of dishonor was given to approvide that “protest must be made on the pellant. No such objection was made, or day of its dishonor, unless delay is excused." issue raised, at the trial. So far as the recBut the protest shows that the check was ord shows, there was no evidence of delay. dishonored on March 17, 1913, and protested Respondent was located in Missouri; the on same day. There is no showing to the bank on which the check was drawn was contrary. The drawer of the check notified somewhere in Iowa. The check went through the Iowa bank on which it was drawn not the ordinary channels of business to the to pay the check, for the reason that a horse Iowa bank, and was duly presented and profor which the check was given had been tested when payment was refused. misrepresented to the drawer by the payee. [6] Whether or not a given state of facts Under these circumstances there was no ne- constitute due diligence is a question of law

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Adm'r v. Reinstadler, 31 Mo. 483; Linville spondence, including instruction papers, exV. Welch, 29 Mo. 203; Vogel v. Starr, 132 amination questions, drawing plates, and corMo. App. 430, 112 S. W. 27.

rected work. The contract provided that There are other objections made to the these should be sent to him through the steps taken during the course of the trial. mails. Defendant paid $10 in cash, and was We have examined them carefully, and find to pay plaintiff the balance in monthly inthat they are not sufficient to justify us in stallments of $5 each. The case was tried

. disturbing the judgment. The admissions without a jury, and the court found for deand facts stated in appellant's own evidence fendant; that result being reached by the show that respondent was entitled to recover court's finding that plaintiff had failed to provided the check was duly presented and comply with its contract. The evidence fulprotested. The certificate of protest, which ly sustains this conclusion of the court. The

. we have held was sufficient and admissible, court declared the law to be that, as plainestablished the case on that point, and there tiff had not furnished defendant any instrucwas no contradiction thereof by the defend- tion papers, plaintiff should have performed ant.

the conditions precedent and concurrent of [7] The fact that the latter claims he never the contract on its part before it would be received from the notary notice of the check's entitled to recover. dishonor does not affect the question of his Plaintiff has discussed, at some length, the liability.

difference and distinction between depend“If a notice is put in the post office to go by ent, independent, and concurrent covenants, the proper post, it is not important to the rights but we have not been impressed with the apof the holder whether the notice ever reaches the party entitled to it or not. All that the plication of the argument or the authorities law requires of him is to send due notice in cited. The case could scarcely be more simproper time, and he has discharged his whole ple. Plaintiff agreed to do certain things, duty when he puts it into the proper post office, for which it was to be paid certain sums. in due time, directed in a proper manner. Renshaw v. Triplett, 23 Mo. 213, loc. cit. 220. There was evidence tending to support the

The judgment is manifestly for the right court's finding, and that is the end of the party, and it is accordingly affirmed.

All matter. concur.

The judgment, being manifestly for the right party, is affirmed. All concur.

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INTERNATIONAL TEXT-BOOK CO. V.
SCHWICKRATH. (No. 11451.)

STATE ex rel. WILLIAMS v. STIPP et al. (Kansas City Court of Appeals. Missouri.

(No. 11774.) Nov. 1, 1915.)

(Kansas City Court of Appeals. Missouri. CONTRACTS 319 - FAILURE TO PERFORM On

Nov. 1, 1915.) EFFECT.

1. PLEADING 34, 408 - INSUFFICIENCY OF Where plaintiff correspondence school agreed

PETITION-FAILURE TO OBJECT. to furnish furnish defendant a course of instruc

While an objection to the petition on the tion in electrical engineering by correspondence, ground that no cause of action is stated may including instruction papers, examination ques- be taken at any time, yet, when a defendant tions, drawing plates, and corrected work, plain- fails to object, every intendment which can tiff, thereafter failing to furnish any instruc- reasonably be drawn will be indulged in favor tion papers, could not recover the amount de- of its sufficiency. fendant had agreed to pay for the course. [Ed. Note.-For other cases, see Contracts, Cent. Dig. $ 512, 66–74, 1362–1366; Dec. Dig.

[Ed. Note. For other cases, see Pleading, Cent. Dig. $$ 1458, 1476, 1477, 1479, 1493

On 34, 408.] 1507; Dec. Dig. Om319.]

2. PLEADING Cm 34 FAILURE TO OBJECT Appeal from Circuit Court, Jackson Coun- SUFFICIENCY OF PETITION. ty; A. C. Southern, Judge.

In an action on an attachment bond, the "Not to be officially published."

petition alleged the institution of the attach

ment suit, the execution of the bond, that its Action by the International Text-Book conditions were not performed, in that there had Company against Andrew Schwickrath. been a failure to prosecute the action, and a Judgment for defendant, and plaintiff ap- that had accrued to him by reason of the

failure to pay plaintiff all damages and costs peals. Affirmed.

attachment, that on account of the wrongful atStubenrauch & Hartz, of Kansas City, for tachment plaintiff had been damaged and lost appellant. Metcalf, Brady & Sherman, of defense and in the defense of the attachment,

time in making necessary preparations for the Kansas City, for respondent.

that he had been damaged by way of traveling

expenses, hotel bills, and livery bills necessarily ELLISON, P. J. This action is based on incurred in and about the defense of the at

tachment, and that he had become liable for a written contract whereby for $109.60 plain- necessary attorney's fees incurred in and about tiff was to furnish defendant with a scholar- the defense of the attachment. Held that, ship in the International Correspondence where the petition was not objected to by deSchools entitling him to a course of "instruc- murrer or otherwise, it sufficiently alleged that

plaintiff's property was attached; since, while tion in E. A. D. complete electrical engineer- the word "attachment” was doubtless used in ing," the instruction being given by corre- some cases as describing the character of the

action, in others it was intended to mean the fense and in the defense of said attachment; levy or execution of the writ.

that he has also been damaged in the sum of [Ed. Note. For other cases, see Pleading,

dollars by way of traveling expenses, hoCent. Dig. 88 542, 66–74; Dec. Dig. Om 34.]

tel bills, and livery bills necessarily incurred in

and about the defense of said attachment, and 3. GARNISHMENT O 248 - WRONGFUL GAR- that he has become liable to and has paid, and

Onn NISHMENT-INSUFFICIENT RETURN. That a constable's return certifying that lars for necessary attorney's fees incurred in

become obligated to pay, the sum of dolhe had levied a writ of attachment by summon- and about the defense against said attachmenting as garnishee the cashier of a bank in which amounting in the aggregate to the sum of $350, the attachment debtor had a deposit was so far which remains wholly unpaid.” defective as not to show a valid garnishment did not conclude the attachment debtor on the The word "attachment,” as used in the question of damages from the attachment. petition, doubtless in some connections was

[Ed. Note. For other cases, see Garnishment, used as describing the character of the acCent. Dig. $ 470; Dec. Dig. Om 248.]

tion, while in others it is intended to mean Appeal from Circuit Court, Bates County; a levy or execution of the writ of attach

, ;

ment. C. A. Calvird, Judge. "Not to be officially published."

[3] There was evidence tending to show Action by the State, on relation of s. s. an attachment of plaintiff's money in bank Williams, against C. H. Stipp and others. by garnishment. The constable’s return cerFrom an order granting a new trial, defend- tifies that he levied the writ by summoning

C. C. White (the cashier) as garnishee, and ants appeal. Affirmed.

requiring him to appear and answer interSilvers & Silvers, of Kansas City, for ap- rogatories. It seems that this return was pellants. Smith & Chastain, of Butler, and so far defective as not to show a valid garMcGilvray, Woodbury & Woodbury, of Kan- nishment of the money, but, manifestly, that sas City, for respondent.

fact ought not to conclude plaintiff on the question of damages. State ex rel. V. MC

Cullough, 85 Mo. App. 68. ELLISON, P. J. Plaintiff's action, begun

We think the order granting a new trial in the circuit court of Bates county, is on an attachment bond given in an action be- obviate present objections by filing an amend

was proper. It may be well for plaintiff to gun before a justice of the peace of that ed petition and by making his proof sufcounty. The trial court peremptorily in- ficiently definite to make clear just what was structed the jury that plaintiff could not re- done under the writ. cover. Afterwards that court granted a new

Affirmed. All concur. trial, and defendants appealed.

[1, 2] The grounds upon which the peremptory instruction for defendants was given were that there was neither pleading nor NATIONAL NOVELTY IMPORT CO. V. proof that plaintiff's property had been at

DIEKMAN. (No. 11694.) tached, and that therefore there were no (Kansas City Court of Appeals. Missouri. facts stated constituting a cause of action,

Nov. 1, 1915.) as well as a failure of proof. The petition APPEAL_AND ERROR 501 MOTION FOR

NEW TRIAL was not objected to by demurrer or other

EXCEPTIONS FAILURE TO

TAKE-EFFECT. wise. While it is true that an objection

Where the bill of exceptions, as reproduced based on the ground that no cause of ac- in the abstract on appeal, fails to show an extion is stated may be taken at any time, yet, ception to the overruling of the motion for a when a defendant fails to object, every ation, except such as appear on the face of the

new trial, no errors are presented for considerintendment which can reasonably be drawn record proper, since the saving of an exception will be indulged in favor of its sufficiency. to the overruling of the motion for a new trial Thomasson v. Insurance Co., 217 Mo. 497, 116 is a necessary condition to the review of matters S. W. 1092; Lycett v. Wolff, 45 Mo. App.

of exception. 493. The present petition is faulty, but we Error, Cent. Dig. SS 2300-2305; Dec. Dig. Om

[Ed. Note. For other cases, see Appeal and think it may be reasonably inferred from the 501.] allegations therein that plaintiff's property was attached. It alleges the institution of

Appeal from Circuit Court, Macon County ; an attachment suit, the execution of a bond Nat M. Shelton, Judge. describing it and its conditions, and that

"Not to be officially published." these conditions were not performed, specify- Action by the National Novelty Import

From a ing in what particulars. These particulars Company against Simon Diekman. were charged to be a failure to prosecute judgment for the defendant, plaintiff appeals. the action “and have failed to pay to the re- Affirmed. lator all damages and costs that have ac

Joseph Park, of La Plata, for appellant. crued to him by reason of said attachment.” Dan R. Hughes and John R. Hughes, both of Continuing, it was charged that:

Macon, for respondent. "On account of the wrongful attachment aforesaid (plaintiff] has been damaged; he has lost days' time, of value of - dollars per

JOHNSON, J. This is an action for the day in making necessary preparation for de- / purchase price of certain merchandise plain

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