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the jury. Continental Coal Corporation v. | his conduct being in no way connected with deYork's Adm'r, 167 S. W. 131. fendant's business.-Burns v. Texas Midland R. R., 167 S. W. 264.

$289 (Ky.) Whether a brakeman descending from the top of a car, to throw a switch, when knocked from the car by a depot shed, used ordinary care was for the jury.-Chesapeake & O. Ry. Co. of Kentucky v. Vaughan's Adm'x, 167 S. W. 141.

§ 304 (Tex.Civ.App.) A railroad and a telegraph company were not liable because a boy in their employ got a loaded pistol kept in an unlocked drawer of their private office, while temporarily left in charge by the agents, and shot § 289 (Ky.) Whether a miner struck by ma- another boy in play, where, though he had preterial falling from the sides of a ditch at the viously got the pistol out without permission, bottom of which he was working was guilty he had never before been known to use it in play. of contributory negligence held for the jury.--Burns v. Texas Midland R. R., 167 S. W. 264. Evans Chemical Works v. Ball, 167 S. W. 390. $289 (Ky.) In an action for injuries to plaintiff, while riding on a motor attached to a train in a mine, by being crushed between the motor and a mine rib, the issue of contributory negligence held for the jury.-Wisconsin Steel Co. v. Dixon, 167 S. W. 682.

8 289 (Tex. Civ.App.) In an action for the death of an engineer caused by the failure of the switch tender to throw a switch, the court properly submitted the question whether the engineer had the right to rely upon a go-ahead signal received from the switch_tender.-Trinity & B. V. Ry. Co. v. Dodd, 167 S. W. 238. Where there was in evidence a rule requir- $313 (Ky.) A superior servant directing the ing the engineer to have his train "under full work and the men is jointly and severally liacontrol" in approaching the switch, what "un-ble with the employer for a failure to perform der full control" meant was properly submit- personal duties.-Evans Chemical Works ted to the jury.—Id. Ball, 167 S. W. 390.

MATERIALITY.

§ 289 (Tex.Civ.App.) Evidence, in an action for a brakeman's death from his falling from a freight car under the wheels of another car while switching, held not sufficient to go to the See Alteration of Instruments; Evidence, § jury on the issue of his contributory negligence.-Ft. Worth & D. C. Ry. Co. v. Stalcup, 167 S. W. 279.

145.

§ 293 (Mo.App.) In an action for injuries to a servant, an instruction on defendant's duty to provide safe cars and appliances held erroneous as imposing on defendant the duty of an insurer instead of the obligation to exercise ordinary care.-Spaulding v. Missouri Lumber & Mining Co., 167 S. W. 663.

$291 (Mo.App.) Where plaintiff alleged neg- See Damages, §§ 110-112. ligence only in that an eyebolt connecting a brake chain to the staff was defective, an instruction authorizing a recovery if the chain connecting the brake and the ratchet was defective and broken was erroneous. Spaulding v. Missouri Lumber & Mining Co., 167 S. W. 663.

§ 293 (Tex. Civ.App.) Instruction held not so erroneous as to require a reversal, though it did not expressly state the acts that the jury might consider as negligence.-Missouri, K. & T. Ry. Co. v. Wallace, 167 S. W. 168.

8311 (Ky.) A superior servant directing the work and the men is jointly and severally liable with the employer for a failure to perform personal duties; but he is not liable for the employer's failure to furnish a reasonably safe to work.-Evans Chemical place in which Works v. Ball, 167 S. W. 390.

A superior employé required to inspect a ditch where men worked after an explosion was guilty of actionable negligence where, without making an inspection, he ordered the men to work in the ditch, and, in obedience thereto, one of them commenced work and was injured by falling material.-Id.

§ 293 (Tex. Civ.App.) In an action for the death of an engineer caused by the failure of switch tenders to throw the switch, a charge that if the engineer gave the switch tender the signal that his train was approaching, etc., and the tender negligently failed, etc., to find for plaintiff, was not erroneous in not specifying the kind of signal.-Trinity & B. V. Ry. Co. v.

Dodd, 167 S. W. 238.

§ 295 (Ky.) In a brakeman's action for injuries from being thrown from a train which he attempted to board while it was going at high speed, an instruction that he assumed all the ordinary risks and hazards of his employment was properly refused, where the evidence showed that the risk was an extraordinary one.Chesapeake & O. Ry. Co. v. De Atley, 167 S.

W. 933.

IV. LIABILITIES FOR INJURIES TO
THIRD PERSONS.

(A) Acts or Omissions of Servant. §302 (Tex.Civ.App.) A railroad and a telegraph company were not responsible for the act of a boy in their employ, while temporarily in charge of the office, getting out a pistol kept in

MEASURE OF DAMAGES.

v.

MECHANICS' LIENS.

See Insurance, § 115; Limitation of Actions, § 124.

II. RIGHT TO LIEN.

(C) Agreement or Consent of Owner. $ 59 (Tex.Civ.App.) One merely in possession under a contract to purchase or under an unexecuted parol gift is not the owner of the land and cannot create a mechanic's lien on it.-Wilkerson & Satterfield v. McMurry, 167 S. W.

275.

61 (Tex.Civ.App.) Only the owner or his agent, trustee, or contractor may make contracts & Satterfield v. McMurry, 167 S. W. 275. fixing liens on lands and buildings.-Wilkerson

(E)

an

Subcontractors, and Contractors' Workmen and Materialmen. § 115 (Tex.Civ.App.) Under the statute, owner employing a contractor is not liable to a subcontractor or materialman for any amount paid to the contractor until notice is served, but from such notice he cannot make further payments to the contractor without incurring liability for any lien debt.-Wilkerson & Satterfield v. McMurry, 167 S. W. 275.

VII. ENFORCEMENT.

§ 260 (Mo.App.) Where plaintiff filed a blanket lien against several pieces of real property for work and labor in installing furnaces in the houses, making no attempt to separate the labor and materials furnished for the different houses, he being barred of the right to enforce the lien as to one of m, the entire lien was unenforceable.-Hiller v. Schulte, 167 S. W.

461.

§ 277 (Tex.Civ.App.) In an action to foreclose, the defense that the property was a homestead, and that the wife of the owner did not execute any written contract for the work as required by statute to fix a lien thereon, was available under the general denial.-Wilkerson

VIII. INDEMNITY AGAINST LIENS.

8315 (Tex.Civ.App.) A surety in a building

contractor's bond conditioned on the contractor discharging the property from liens and incumbrances and paying claims which may become liens is not liable to a materialman taking no steps to secure a lien.-Wilkerson & Satterfield v. McMurry, 167 S. W. 275.

MEMORANDA.

See Evidence, § 123; Trusts, §§ 17, 18; Witnesses, 255.

MERGER..

See Contracts, § 237; Corporations, § 583.

MINES AND MINERALS

See Appeal and Error, § 880; Master and Servant, 88 107, 118, 129, 211, 217, 234, 276, 278,

289.

II. TITLE, CONVEYANCES, AND
CONTRACTS.

(C) Leases, Licenses, and Contracts.
$58 (Tex.Civ.App.) A contract of sale of all
the oil, gas, coal, sulphur, and other minerals,
in and under a described tract, that may be
found by drilling and mining operations which
may be conducted on the land, is a valid con-
tract of sale, which the purchaser may not de-
stroy by failing to drill or mine.-Whited v.
Johnson, 167 S. W. 812.

A contract of sale of oil, gas, coal, sulphur, and other minerals in and under described land sufficiently identifies the minerals.-Id.

§ 83 (Tex.Civ.App.) A contract by several persons for the purchase of all minerals in and under described land is, as between the purchasers, joint and several, and each is liable for the contract price.-Whited v. Johnson, 167 S. W. 812.

MINORS.

MISJOINDER.

See Infants.

See Action, §§ 38-50.

MENTAL CAPACITY.

See Evidence, § 501; Wills, §§ 50, 55.

MENTAL SUFFERING.

§ 37 (Tex.Civ.App.) On the issue whether a deed absolute in form is, in fact, a mortgage, the grantor may testify whether the deed was

See Telegraphs and Telephones, §§ 27, 56, 68, executed to secure a debt, but not that he did 71, 73. not intend to execute a mortgage.-Kidd v. Sparks, 167 S. W. 799.

MISREPRESENTATION.

See Fraud; Insurance, §§ 553, 645, 818; Judgment, 143; Sales, §§ 40, 126; Vendor and Purchaser, §§ 93, 108; Witnesses, § 414.

MODIFICATION.

See Appeal and Error, § 1152.

MONEY RECEIVED.

See Action, § 38; Jury, § 14; Limitation of Actions, $33; Payment, §§ 85-89; Taxation, §§ 524, 543.

§3 (Mo.) One whose money was loaned on notes made payable to another, but which had not been paid, was not entitled to recover the amount of the notes in an action for money bad and received, even though entitled to the possession of the notes.-Green v. Whaley, 167 S.

W. 575.

MOOT QUESTIONS.

MORTGAGES.

See Chattel Mortgages; Courts, § 231; Executors and Administrators, § 223; Fraudulent Conveyances, § 132; Husband and Wife, § 171; Insurance, § 328; Payment, § 87; Usury, §§ 18, 27.

I. REQUISITES AND VALIDITY. (A) Nature and Essentials of Conveyances as Security.

§ 24 (Mo.) Appointment of a nonresident trustee in a deed of trust covering land in Missouri in violation of Rev. St. 1909, § 2859, held not a fatal defect.-Commerce Trust Co. v. Ellis, 167 S. W. 974.

§ 38 (Tex.Civ.App.) Evidence held to show that a deed absolute in form was, in fact, a mortgage.-Kidd v. Sparks, 167 S. W. 799.

(D) Validity.

§ 84 (Ky.) The payment of interest by plaintiff on a note and mortgage, the execution of which to an innocent party was fraudulently procured by defendant, and the institution of suit to compel defendant to pay the amount thereof, was a sufficient ratification of the note and mortgage, so that their invalidity did not prevent a recovery against defendant.-Kincaid V. Bull, 167 S. W. 903.

III. CONSTRUCTION AND OPERA

TION.

(D) Lien and Priority.

§ 151 (Mo.) A title acquired in good faith, deed of trust, relates back to the execution of and without notice, under a foreclosure of a the deed of trust, and is superior to a judgment lien based on a judgment obtained against the grantor after the execution of the deed.-McMurray v. McMurray, 167 S. W. 513.

IV. RIGHTS AND LIABILITIES OF
PARTIES.

§ 213 (Tex.Civ.App.) Before a mortgagor can recover property mortgaged, of which the mortgagee is rightfully in possession, he must tender the amount of money due on the mortgage. -Vanderwolk v. Matthaei, 167 S. W. 304.

VI. TRANSFER OF PROPERTY MORT-
GAGED OR OF EQUITY OF
REDEMPTION.

§ 283 (Mo.) Where a grantee of land subject to a deed of trust assumes payment of the debt as a part of the consideration for the conveyance, he becomes the principal debtor as to the incumbrance.-Terry v. Groves, 167 S. W. 563.

X. FORECLOSURE BY ACTION. (B) Right to Foreclose and Defenses.

§ 415 (Mo.) One who, in good faith, makes a loan secured by a deed of trust may foreclose the deed and purchase the property at foreclosure sale, though in the meantime he has learned of fraud vitiating the title of the grantor.McMurray v. McMurray, 167 S. W. 513.

§ 417 (Mo.) Where a deed of trust appointing a nonresident trustee in violation of Rev. St. 1909, § 2859, also provided that, in case of his "disability in any wise," the sheriff of B. county, Mo., should act, the sheriff thereby validly became a cotrustee within the statute, and had full power to foreclose the deed.-Commerce Trust Co. v. Ellis, 167 S. W. 974.

See Appeal and Error, § 19.

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MUNICIPAL CORPORATIONS. See Animals, § 50; Bankruptcy, § 268; Counties; Creditors' Suit, § 8; Elections, § 126; Evidence, §§ 12, 41; Injunction, §§ 26, 186; Intoxicating Liquors, § 30; Judges, § 44; Justices of the Peace, § 36; Mandamus, §§ 84, 148, 173; Negligence, § 82; Pleading, § 8; Prohibition, § 3; Railroads, § 324; Schools and School Districts; Statutes, § 279; Street Railroads.

§ 122 (Mo.) A city ordinance may be pleaded by reference to the date of its passage and number, and by an allegation disclosing its character, and need not be set out in full.-State ex rel. Chamberlain v. Young, 167 S. W. 995.

§ 122 (Mo.App.) A city council's enactment of an ordinance within its powers makes out a prima facie case for the reasonableness of such ordinance, and the burden is upon one attacking it to clearly show its unreasonableness. Shaw v. Stoeltzing, 167 S. W. 1158.

VII. CONTRACTS IN GENERAL.

§ 230 (Ky.) A city was not liable on an implied contract for the value of insect exterminator purchased by the city clerk without authority because it was used by the city, where the council, which alone had power to bind the city, rejected the bill.-Worrell Mfg. Co. v. City of Ashland, 167 S. W. 922.

thereon.-Prendergast v. City of St. Louis, 167 S. W. 970.

$240 (Mo.App.) Where the right to reject all bids is expressly reserved by municipal officers, they cannot act arbitrarily, through caprice or favoritism, or collusively and in bad faith, thereby abusing the discretion imposed in them or failing to exercise it; and, although the than the lowest bidder, such bidder has the right contract may be bona fide awarded to another to fair consideration and to avoid an award corruptly and collusively made to another.State ex rel. Journal Printing Co. v. Dreyer, 167 S. W. 1123.

$238 (Mo.) Under an ordinance requiring bids for a city contract to be signed by the bidder or by an authorized officer or agent, where the bid was by a corporation, held, that the bid of a corporation signed in its corporate name by a director on the direction of its president, in the absence of fraud, did not invalidate the

§ 243 (Mo.App.) Under Rev. St. 1909, § 2778, a city is not liable under a contract not in writing, nor on one to pay for work already performed.-Likes v. City of Rolla, 167 S. W.

645.

contract by reason of having accepted and used $247 (Mo.App.) A city is not liable on a void the benefits derived therefrom.-Likes v. City of Rolla, 167 S.. W. 645.

§ 248 (Mo.App.) A city cannot render valid a contract invalid because not in writing, by ratifying it after the consideration is paid or performed.-Likes v. City of Rolla, 167 S. W.

IV. PROCEEDINGS OF COUNCIL OR S. W. 1158.

OTHER GOVERNING BODY. (B) Ordinances and By-Laws in General.

§ 108 (Tex.Civ.App.) Under Dallas Charter, article 2, § 2, article 3, § 11, and article 8, where ordinance was submitted under initiative and referendum provisions to secure estimates on installing a municipal electric light and power plant, ordinance for the issuance of bonds subsequently submitted held to have been also enacted under the initiative and referendum provisions.-Holland v. Cranfill, 167 S. W. 308.

645.

Verbal contracts by city officials are void, and cannot be rendered valid after the work is done or materials furnished, even by ordinance and written contract, however formal.-Id.

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§ 278 (Mo.App.) Ordinance of a small city situated about eight miles from a large city, providing for the grading of an avenue to the city limits over rough ground, connecting with a county road, which a short distance further on ran into an avenue running into the larger city, so as to make a direct connection, held reasonable and valid.-Shaw v. Stoeltzing, 167

§ 282 (Mo.App.) City council's action in good faith in selecting patented material for street improvement held not subject to be impugned points of superiority over others.-Meek v. City on the ground that such material possesses no of Chillicothe, 167 S. W. 1139.

city council for a street improvement was not
Evidence that patented concrete selected by a
superior to the ordinary concrete, which was
part of the city council.-Id.
less expensive, did not show bad faith on the

City council held to have properly considered wishes of majority of property owners in selecting material for street improvement, where it did not act arbitrarily without determining for itself that such material was meritorious.-Id.

(B) Preliminary Proceedings and Ordinances or Resolutions.

§ 289 (Mo.App.) A city council carnot by ordinance or otherwise bind itself to do more than the statute requires, and, where it proceeds as directed by statute, it is within its jurisdiction, even though it may not proceed in accordance with its own ordinance, since it was not intended that a city council should be given control over its own jurisdiction.-Lemon v. Shepherd, 167 S. W. 1145.

§ 304 (Mo.App.) A resolution to construct "curb and gutter of cement" beyond the sidewalk on designated streets sufficiently describes the improvement within the statute, and tax bills issued for the work are valid.-Wills v. Burbank, 167 S. W. 608.

$ 304 (Mo.App.) A resolution directing the paving of a street is sufficient, though it refers to another resolution for the grade.-City of Maryville v. Cox, 167 S. W. 1166.

$314 (Mo.App.) The plans and specifications

the time of the passage of a resolution therefor, or at any time prior to the time for bids and the letting of the contract, unless the resolution refers to them as the only place where the general character of the work is to be described. -Wills v. Burbank, 167 S. W. 608.

(C) Contracts.

§ 330 (Mo.App.) A contract for a street improvement is not a violation of the provision that it must be let to the lowest and best bidder (Rev. St. 1909, § 9619), though it requires a patented article or one held in monopoly of exceptional value to be used.-Meek v. City of Chillicothe, 167 S. W. 1139.

$330 (Mo.App.) Under Rev. St. 1909, §§ 9241, 9254, 9255, held, in the absence of any statutory provision for advertising for bids for sewer construction, that an ordinance directing such advertisement was binding on the city, so that the award of a contract without advertisement rendered an assessment for the work invalid.-Lemon v. Shepherd, 167 S. W. 1145.

§ 340 (Mo.App.) Where a street improvement, when completed, conforms to the ordinance and resolution therefor, the contract, varying from the ordinance, must yield to the ordinance, and tax bills issued for the work are not invalid because of the variance.-Wills v. Burbank, 167 S. W. 608.

$353 (Ky.) Where a sewer construction contract stipulated for partial payments and the tention of 15 per cent. until completion and the deposit of 6 per cent. as security against defects, and the bond of the contractor stipulated that he assigned to the surety the amounts to be received by the contractor, who assigned to a third person amounts to be retained by the city, the assignment to the third person was an assignment of the amount deposited as security, and was superior to the rights of the surety. -Commissioners of Sewerage of Louisville v. Gates, 167 S. W. 417.

feet from the property line, did not invalidate tax bills for the work.-Wills v. Burbank, 167 S. W. 608.

§ 445 (Mo.App.) The variance between a resolution and ordinance for curbing and guttering streets without excepting the curb and gutter already constructed and the advertisement for bids and the contract for the work, which exre-empted the curb and gutter already constructed, did not invalidate tax bills for the work, where no bidder was favored and there was no denial of competitive bidding.-Wills v. Burbank, 167 S. W. 608.

$360 (Mo.App.) A city is not liable for extra work under contract not so providing, though authorized by city officials in charge of the work and accepted by the city.-Likes v. City of Rolla, 167 S. W. 645.

fications charged a 10 per cent. increase on § 444 (Mo.App.) Where the plans and specithe estimate provided chats were used instead of sand or gravel for curbing and guttering, and the bid of the contractor was higher if chats were used than in case of sand and gravel, and sufficient gravel could not be obtained near the work and the engineer ordered chats, which did not make an inferior curb or gutter, the tax bills were not invalid.-Wills v. Burbank, 167 S. W. 608.

$372 (Mo.App.) A contract for paving, providing that work thereunder shall be paid for in tax bills, and that the city shall not be liable therefor, extra work to be done at the direction of the city engineer is to be paid for in the same way.-Likes v. City of Rolla, 167 S. W. 645.

§ 444 (Mo.App.) Special tax bills for street paving are not invalidated because of relatively small mistakes of computation in the estimate made by the city engineer as required by Rev. St. 1909, § 9407.-City of Maryville v. Cox, 167 S. W. 1166.

§ 446 (Mo.App.) Where a contractor with the approval of the city engineer, laid a pavement higher than the specifications provided, but that considerably higher than the street and merely did not injure abutting owners whose land was diminished the contractor's compensation, as he was paid according to the amount of earth ex

§ 356 (Mo.App.) Where an ordinance provid-cavated, the failure of the contractor will not ing for the pavement of a street required the avoid special tax bills.-City of Maryville v. contractor, whenever the parkway back of the Cox, 167 S. W. 1166. curb needed filling, to bring it to proper grade with surplus dirt excavated out of the street, the contractor was not bound to fill a ravine 10 to 20 feet deep.-City of Maryville v. Cox, 167 S. W. 1166.

(E) Assessments for Benefits, and Special

Taxes.

$443 (Mo.App.) Where an ordinance provided that curbing on a street should be placed 8 feet from the property line, while a prior general ordinance provided that sidewalks should not exceed 10 feet in width, the fact of the construction of a curb and gutter, pursuant to a resolution and ordinance therefor, located 10

Where an estimate of the cost of street paving made by the city engineer was understood by the oity council, although the estimates for labor, breakage, etc., were merely lumped and added to the rest of the estimate without explanation, that fact will not avoid special tax bills issued for the improvement.-Id.

A special assessment for street paving cannot be avoided on the ground that there was not an exact compliance with the ordinance, which provided for a bed of sand four inches in depth; a substantial compliance being all required.-Id. A special assessment for paving cannot be avoided because the sand bed was not smoothed in accordance with the ordinance, where the method prescribed was found impracticable, and another method was substituted with the ap

$ 363 (Mo.App.) Where an ordinance provid-proval of the city engineer, who superintended ing for the pavement of a street with vitrified the work for the municipality.-Id. brick, laid on a sand bed four inches deep, did not require any impervious filler between the bricks, the fact that, four years after the pavement was laid, the sand had worn thin in many places did not show a noncompliance with the specifications.-City of Maryville v. Cox, 167 S. W. 1166.

off the curb as required will not defeat the enThe failure of a paving contractor to finish tire tax bill for the paving assessment.-Id.

the curb as required, and there was no evidence Where a paving contractor did not finish off as to what sum should be deducted for that reason, the entire value of the curb should be deducted in an action to enforce special tax bills for the assessment.-Id.

$ 447 (Mo.App.) A tax bill issued before the completion of a street improvement is invalid.Wills v. Burbank, 167 S. W. 608.

460 (Mo.App.) Under Rev. St. 1909, § 9403, a paving of the intersections of alley crossings back to the property line is not curbing or guttering within an ordinance and resolution providing for the curbing and guttering of designated streets, and a charge against the property abutting on the street for the paving is illegal. -Wills v. Burbank, 167 S. W. 608.

$469 (Mo.App.) Where streets were guttered and curbed pursuant to a resolution ordinance, and contract therefor at a price per front foot, tax bills against lots abutting on streets and al

XII. TORTS.

leys intersecting a street were invalid as to the curb and gutter charge to the extent of the por- (A) Exercise of Governmental and Corpotion thereof lying outside the owners' front footage.-Wills v. Burbank, 167 S. W. 608.

rate Powers in General.

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In an action for an injury to the driver of a wagon caused by his horse becoming frightened at defendant's steam roller, an instruction held not erroneous in making defendant liable if its engineer failed to stop the noises after seeing plaintiff's peril, where another part of the same instruction told the jury that it was the duty of the engineer to exercise ordinary care to stop

§ 733 (Mo.) A city operating an electric light plant assumes the same responsibilities to its employés injured therein as private persons and private corporations running similar plants.Ril v. City of Independence, 167 S. W. 1022.

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§ 822 (Mo.App.) An instruction in an action for injuries by defects in a sidewalk, that to find for plaintiff the jury must believe that ice

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