"possibly 200 feet" from the time he heard [onds. The engineer had no time to do more the alarm whistle and the time he saw the hand car flying through the air. If the plaintiffs' proof of a straight track for 465 feet before the hand car was reached raised a disputable presumption that the engineer saw it as soon as he entered the straight track, then the positive testimony of the engineer that he did not see it until he had gone over half that distance destroyed that presumption. Rashall v. St. Louis, Iron Mountain & Southern R. Co., 249 Mo. 509, 522, 155 S. W. 426; Burge v. Wabash R. Co., 244 Mo. 76, 94, 148 S. W. 925; Hurck v. Missouri Pacific R. Co., 252 Mo. 39, 48, 158 S. W. 581; Guthrie v. Holmes (Mo. Sup.) 198 S. W. 854.

than he did, since human beings cannot work with the rapidity of electrical energy. Burge v. Wabash R. Co., supra, 244 Mo. loc. cit. 102, 148 S. W. 925. Besides, the testimony of all the experts is that a reversal of the engine under the circumstances would have locked the wheels and caused the loss of all control of the train whereby it would have slid along the track, and that sanding of the rails could not have helped, since it would take time for the sand to reach and become effective on the wheels of all the train, and that sand was not used for the purpose of stopping, but to overcome slippery rails on a grade.

[5] It seems to be intimated that, because the former opinion held there was a case for the jury on the theory that the engineer saw the hand car in time, therefore that feature has now become res adjudicata. That principle applies to the law of a case, and where the same evidence is involved; but the ruling in the former opinion was based on the evidence as then presented. Manifestly it was not a ruling that a case was made, regardless of what the evidence might be on a future trial. Vaughn v. Wabash R. Co., 78 Mo. App. 639; Parker Washington Co. v. St. Louis Transit Co., 165 Mo. App. 302, 306, 147 S. W. 189.

But we are unable to see, how, in this case, mere proof of a straight track for 465 feet can raise a presumption that the engineer was looking and saw the hand car at the moment he first entered the straight track. He was going 30 miles an hour, or a fraction over 44 feet a second. So that if, at the time he got upon the straight track, he paid attention to something in the cab for only five seconds, his train in that brief interval traveled to a point 200 feet from the hand car; i. e., to the point where the engineer says he first saw it. If the engineer was claiming that his attention had been diverted from the track for say five minutes, The judgment should be reversed. and during all of that time, if he had look-so ordered. The other Judges concur. ed, he could have seen the hand car, then it might be that a rebuttable presumption could arise that he did not and would not travel at that rate of speed for so long a time without looking at the track. But it is well known that, owing to his other duties, an engineer cannot keep his eyes constantly glued to the track, but momentarily looks elsewhere. And it was in this fleeting momentary interval that the engineer's attention was away from the track that the train got so close to the hand car that the collision could not be averted. It was said in the oral argument that the jury had a right to refuse to believe the engineer when he said he was not looking at the time he got on the straight

But they have not the right to make their disbelief supply the absence of evidence to support a necessary element of plaintiffs' case. If they can, then the principle that a rebuttable presumption in favor of plaintiff is destroyed by positive testimony of defendant to the contrary could not be upheld, as it is in the cases last above cited.

It is claimed that the engineer did not do all he could have done, in that he did not sand the rails or reverse his engine. But the instant he saw the hand car he sounded the

MCCOY et al. v. WABASH RY. CO.
(No. 12821.)

It is

(Kansas City Court of Appeals. Missouri. April 29, 1918.)

1. COVENANTS 114(2) ENFORCEMENT PLEADING AND PROOF-PRIVITY OF ESTATE. In order to enforce a covenant running with the land, it is necessary to allege and prove a privity of estate between the parties to the contract and the parties to the litigation wherein such enforcement is sought..

2. COVENANTS 122 - COVENANTS RUNNING WITH LAND-PRIVITY-EVIDENCE.

enforce a covenant running with land to mainIn an action against a railway company to tain a ditch on the right of way contained in a contract between the former owners of plaintiffs' lands and defendant's predecessor, evidence consisting of admissions by defendant held not suffitiff and the former owners, nor between defendcient to show a privity of estate between plainant and the former railroad company.

Appeal from Circuit Court, Clay County; Frank P. Divelbiss, Judge.

"Not to be officially published."

Action by Garland McCoy and others against the Wabash Wabash Railway Company. Judgment for plaintiffs, and defendant appeals. Reversed and remanded.

stock alarm, shut off the throttle, and applied the emergency brakes, and he says he did all he could do before the collision. The Craven & Moore, of Excelsior Springs, for train, going a little over 44 feet per second, appellant. Martin E. Lawson, of Liberty, for covered the 200 feet in less than five sec- respondents.

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

ELLISON, P. J. Plaintiffs, claiming to be the beneficiaries of certain covenants contained in a contract to dig and maintain a ditch along a railroad right of way, brought this action for damages for an alleged breach of such covenants and recovered judgment in the circuit court.

sions as to the former owners of the land and these plaintiffs. There is nothing in the petition, nor was it shown, that these plaintiffs are the assignees or grantees of the former owners who made the contract.

The judgment will be reversed, and the cause remanded, that the petition may be amended, and on retrial proper proof made. All concur.

(199 Mo. App. 137)

It appears that a certain railroad company, other than defendant, owned and operated the railroad and right of way here involved, and that certain parties, other than plaintiffs, owned land subject to be affected by waters STATE ex rel. DOCKERY v. HUBBARD flowing along the roadbed of the railroad et al. (No. 12775.) over the right of way; that such owners and the railroad company entered into a written contract whereby the railway company, for a valuable consideration, agreed with the owners of the land to construct and maintain a By answering over after a demurrer defendditch which would drain and carry off the ants waived any defect or informality in the surface water along the right of way and pre-petition not amounting to an entire absence of

vent its flooding the lands of the owners aforesaid. The obligations arising on this contract were declared to be covenants run

ning with the land in Withers v. Railroad, 122 Mo. App. 282, 99 S. W. 34.

It will be noticed, and the foregoing observations show, that neither party to the contract is a party to the present action where

in it is sought by plaintiffs to enforce the covenant for themselves against defendant, who is not the railroad company who made

the contract.

(Kansas City Court of Appeals. Missouri. April 1, 1918.)

1. PLEADING 418(1) — ANSWER AFTER DEMURRER-WAIVER OF DEFECTS.

any cause of action.

2. PLEADING 418(1) — ANSWERING AFTER DEMURRER-RIGHT AND CAPACITY TO SUECAUSE OF ACTION-WAIVER.

fendants did not waive the questions of relator's By answering over after a demurrer deright and capacity to sue and whether any cause of action whatever was stated.

3. PARTNERSHIP 250-DEATH OF PARTNER -RIGHT TO ADMINISTRATION.

partnership estate and a legal right to all the Where a partner dies, the right to settle the partnership assets vests in the surviving partner for the purpose of winding up the firm's affairs under the common law, and is not dependent upon his giving bond as required by

4. PARTNERSHIP 250-ADMINISTRATION BY SURVIVING PARTNER-BOND.

[1] In order to thus enforce a covenant | Rev. St. 1909, § 91. running with the land it is necessary that it should be alleged in the petition, and proof should be made showing a privity of estate between the parties to the contract and the parties to the litigation wherein such enforcement is sought. Ladd v. Montgomery, 83 Mo. App. 355; Vancourt v. Moore, 26 Mo. 92; 11 Cyc. 1100. In this respect there is a failure in the pleading and proof. Plaintiffs rely on certain admissions made by defendants in the course of the trial to supply the matters just suggested. We think they do

not.

[2] Plaintiffs endeavored to obtain an admission broader than defendant would make. Defendant's admission was only that:

It "is now in possession of and operating the right of way, and was in possession and operating the same during the entire year of 1916, and that it had control of the right of way formerly owned by the Wabash Railroad Company during all the year 1916, and that the land described in plaintiffs' petition is a part of the original James E. Lincoln tract (he being one of the parties with whom the contract was made) mentioned in the contract read in evidence."

But these admissions do not show that this defendant is an assignee or grantee of the former railroad company, nor that there is any sort of privity between them. There is nothing in these admissions inconsistent with the idea that this defendant claims by some paramount title, or some other independent title. The same may be said of the admis

ual estate.

--

partnership estate had failed to give the bond
If a surviving partner administering the
required by Rev. St. 1909, § 91, he might have
been deprived of the partnership assets by any
administrator of the deceased partner's individ-
5. EXECUTORS AND ADMINISTRATORS 44-
PERSONS ENTITLED TO ADMINISTRATION
ADMINISTRATOR OF SURVIVING PARTNER.
If a surviving partner had not qualified un-
der Rev. St. 1909, § 91, as administrator of the
partnership estate, but had acted merely under
his common-law authority, the right and duty
of administering the partnership estate would,
upon his death, devolve upon his administrator.
6. EXECUTORS AND ADMINISTRATORS 37(2)
-ADMINISTRATION OF SURVIVING PARTNER-
ADMINISTRATOR DE BONIS NON.
There is no provision forbidding the ap-
pointment of an administrator de bonis non of
a partnership estate, where the surviving part-
ner dies after qualification and before complet-
ing the administration, and in view of Rev.
St. 1909, §§ 54, 99, relating to administration
upon partnership effects and to administrators
de bonis non, the probate court might direct
that the administration of his individual estate
and the completion of the administration of the
partnership estate be in different hands, and
to that end might appoint an administrator de
bonis non as to the partnership estate.
7. PARTNERSHIP 250-ADMINISTRATION BY
SURVIVING PARTNER-RIGHT OF ACTION.

Where a surviving partner was appointed administrator of the partnership estate, and gave bond as provided by Rev. St. 1909, § 91, and sold a half interest in the firm for one-half of the appraised value and took notes therefor, and did not report the transfer to the probate

court, and died without having completed the [ and went to trial before the court without a administration, and the probate court appointed jury.. No declarations of law were asked an administrator de bonis non as his successor, the subsequently appointed administrator of the or given. The court found for the plaintiff individual estate could not recover full amount and assessed the damages at $2,350 with 6 of bond of his intestate without showing what per cent. interest from December 5, 1915, the had become of the notes and whether individual date of the institution of suit, aggregating estate had been augmented by conversion of assets of partnership, or that relator had been $2,615.75, and rendered judgment for the directed to take charge of the partnership estate penalty of the bond to be satisfied by the or to sue on the bond. payment of the above amount. Defendants have appealed.

8. PARTNERSHIP 250-ACTION BY SURVIVING PARTNER-ADMINISTRATOR'S RIGHT OF ACTION.

An administrator of individual estate of deceased surviving partner, which partner had given bond under Rev. St. 1909, § 91, as administrator of the partnership estate, but which administration was not completed at time of his death, could not sue sureties on such bond without obtaining revocation of prior letters to administrator de bonis non appointed to administer partnership assets.

Appeal from Circuit Court, Adair County; A. Doneghy, Special Judge.

Suit by the State, at the relation of Thomas J. Dockery, administrator of the estate of Lewis Hubbard, deceased, against L. F. Hubbard and another. Demurrer to petition overruled, and judgment for plaintiff, and defendants appeal. Reversed and cause remanded.

Charles E. Murrell, of Kirksville, for appellants. Higbee & Mills, of Kirksville, for respondent.

[1, 2] By answering over after the demurrer, defendants waived any defect or informality not amounting to an entire absence of any cause of action whatever. But, of course, the questions of relator's right and capacity to sue, and whether any cause of action whatever was stated, were not waived, and remain to be decided.

[3, 4] When William Hubbard died, the right to settle the partnership estate vested in Lewis Hubbard, the surviving partner. Such right was his under the common law, and was not dependent upon his giving bond as required by section 91, R. S. Mo. 1909. Had he failed to give such bond he might have been deprived of the partnership assets by the administrator of William Hubbard's individual estate, had one been appointed. Goodson, Adm'x, v. Goodson, Ex'r, 140 Mo. 206, 215, 41 S. W. 737. Our statutory provisions with reference to the giving of bond by the surviving partner do not change his common-law right, nor even affect it, except in the contingency noted. Upon the dissolution of the firm by the death of William Hubbard the legal right to all the partnership assets for the purpose of winding up the firm's affairs went to Lewis Hubbard as surviving partner. Hargadine v. Gibbons, 45 Mo. App. 460, 467, and authorities there

cited.

TRIMBLE, J. Prior and up to June, 1913, William Hubbard and Lewis Hubbard were partners owning and conducting a drug store. William died intestate, and on June 20, 1913, Lewis, the surviving partner, was appointed administrator of the partnership estate, gave bond, took charge of said estate, and filed an inventory and appraisement thereof on July 7, 1913. The appraised value of the partnership estate was $2,350. Shortly thereafter Lewis Hubbard sold a half interest in the drug store to James F. Waddill for $1,175 (for which he took notes), said amount being one-half of the appraised value, and thereafter Waddill and Lewis Hubbard continued the business as partners until December 8, 1913, when Lewis died. The sale of said one-half interest by Lewis to Waddill was made privately, and no report of the transfer of the store to the new partnership of Waddill and Hubbard was ever made to the probate court. On January 6, 1914, relator Dockery was appointed administrator of Lewis Hubbard's individual estate. As such administrator he caused this suit to be brought on the bond given by Lewis Hubbard as administrator of the partnership estate of Hubbard & Hubbard; on Administration, 286. defendants being sureties thereon. A de- [6] But defendants offered to prove that on murrer to the petition on the grounds that December 12, 1913 (prior to relator's appointit did not state a cause of action, that rela- ment as administrator of Lewis' individual tor had no capacity to sue, and was not the estate), the probate court appointed John proper party to bring or maintain it, was Ryan as administrator de bonis non as his overruled. Thereupon defendants answered successor, and the question arises whether

[5] It is clear that even if Lewis Hubbard had not qualified under the statute as administrator of the partnership estate, but had acted merely under his common-law authority, then upon his death the right and duty of administering upon said partnership estate would have passed to and devolved upon his administrator, the relator herein. Hargadine v. Gibbons, supra; Dayton v. Bartlett, 38 Ohio St. 357. "The executor or administrator of a surviving partner, who died with partnership effects in his possession while engaged in settling the partnership business, is entitled to the possession of such effects, and is charged with the duty of completing such settlement; and he cannot be precluded from receiving compensation out of the partnership funds for his services in the performance of this duty." 1 Woerner

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

this will affect or change the right of Lewis' | settled a partnership estate and had died, administrator to take charge of said. part- then the heirs of a part of the partners nership estate or to maintain this suit with- could not maintain a direct suit to recover out any modification or revocation of the or- assets of the copartnership, but that an adder appointing the adminstrator de bonis ministrator de bonis non of the partnership non, and without any order directing relator estate should be appointed and the estate reto proceed in the partnership estate. opened for the benefit of the creditors and distributees of the partnership estate. Of course, in that case, the right of the administrator of the deceased partner's individual estate to administer the partnership estate was not involved, but it is plain that the court holds that an administrator de bonis

fore attempting to act in reference to the
partnership estate, procure the revocation
of the order appointing the administrator de
bonis non. Orderly procedure would seem
to require this. Certainly the individual
administrator ought not to be allowed to
recover of the bondsmen of the partnership ad-
ministrator without first removing all cloud
upon nis right to sue and also disclosing that
he is not subject to the claim of conflicting
duties and obligations with reference to the
two estates, and liable to decide between
them at the expense of the sureties on the
bond of the partnership administrator: The
case is somewhat peculiar, but owing to the
orders of the probate court wherein the two

hands, and the obvious possibility of there
being good reason for the same being done,
we do not think that relator has shown a right
to maintain the suit or to obtain the judg-
ment he has secured. Certainly defendants
In addition to
have not had a fair trial.
their demurrer to the petition, they demurred
to plaintiff's evidence, and also saved excep-
tions to the exclusion of the evidence herein-
above mentioned.

Wherefore the judgment is reversed, and the cause is remanded. All concur.

(139 Tenn. 685)

cured judgment for the full appraised value trator of the individual estate should, beof the partnership estate against the sureties on the one surviving partner's bond, without any showing whatever as to whether said surviving partner paid any debts of the partnership estate, and without any showing upon the question whether or not the individual estate coming into relator's hands as administrator thereof has not been augmented by the conversion of the partnership estate. For instance, what has become of the notes taken for one-half thereof? Are they worthless or solvent notes? Were they paid to Lewis Hubbard in his lifetime, or were they taken by relator as a part of Lewis Hubbard's individual estate? Did Lewis pay off the debts of the partnership? He had a right to do so without having them al-estates seem to have been placed in different lowed in the probate court. Under the judgment rendered herein, the sureties on the bond of the partnership administrator are required to pay over the full appraised value of the partnership estate to relator as administrator of Lewis Hubbard's individual estate, when, for aught that appears, said individual administrator may already have in his hands a portion at least of the funds derived from the conversion by Lewis. Again, the sureties are compelled to pay said judgment to one upon whose right to sue there appears to be at least some question by reason of the order of the probate court appointing another as administrator de bonis non of said partnership estate. This, of itself, is sufficient to make it more than probable that relator may, by seeking to control the partnership estate, be occupying two incompatible positions, since he may be regarding partnership assets as the individual property of Lewis Hubbard's estate, while calling upon the sureties in the partnership estate to make good the entire apparent loss to that estate, and allowing the sureties no credit for any of such property or for any debts that the surviving partner may have paid. It may be urged that if Lewis Hubbard paid any of the partnership debts, or if there is any likelihood of relator occupying two different and conflicting positions as above indicated, such were matters of defense to be shown by defendants. Some of them were attempted to be shown, namely, the appointment of another person to take charge of the partnership estate as administrator de bonis non, but the offer was excluded. With respect to the others, they were matters resting largely, if not wholly, within the knowledge of the relator himself. He knows better than any one else whether he has among the assets of the individual estate any prop- The motion must prevail. Road Commiserty derived from his decedent's conversion sioners v. Railroad, 123 Tenn. 257, 130 S. W. of the partnership estate. The case is not 768. In opposition to the motion the plainlike one where the knowledge is equally ac- tiff in error refers to Lancaster v. Fisher, cessible to both parties. Again, since the 94 Tenn. 222, 28 S. W. 1094, Barr v. Railprobate court by its order has appointed an road, 105 Tenn. 544, 58 S. W. 849, and State administrator de bonis non of the partner- v. Sneed, 105 Tenn. 712, 58 S. W. 1070, prior ship estate, it would seem that the adminisIn the case cited from 123 Tennessee

SHELTON v. WADE.
(Supreme Court of Tennessee. April 13, 1918.)
APPEAL AND ERROR 783(2)-GROUND FOR
DISMISSAL OF APPEAL-FAILURE TO MAKE
MOTION FOR NEW TRIAL.

the court below was ground for dismissal of
Failure to make motion for new trial in
appeal, though case was tried by the court with-
out a jury.

Appeal from Circuit Court, Grundy County; Frank R. Lynch, Judge.

Suit between E. C. Shelton and C. R. Wade. Judgment for the latter, and the former appeals. Appeal dismissed.

Thos. J. King, of Tracy City, for appellant. Fults & Schnoon, of Tracy City, for appellee.

NEIL, C. J. This case was tried by the circuit judge without the intervention of a jury, and judgment rendered in favor of the defendant in error. The plaintiff in error appealed to this court. Motion was made here that the appeal be dismissed because there was no motion for a new trial in the court below.

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