demurrers to plaintiff's petition filed by each, took down the testimony at the trial below of the defendants herein. The judgment is accordingly affirmed. REYNOLDS, P. J., and ALLEN, J., con cur. moved away from the county without having furnished the transcript, though the same had been ordered written up by the attorneys for appellant, and we therefore have the case here on the record proper only. The sole question raised is as to the sufficiency CITY OF LA GRANGE ex rel. PALMER v. of the statement filed before the justice of CARNIVAL CITY PACKET CO. (No. 14311.) 1. JUSTICES OF THE PEACE 90-ACTIONSPLEADING-REQUISITES AND SUFFICIENCY. Since a court of the justice of the peace is not a court of record, Rev. St. 1909, § 1834, prescribing the forms of pleading in courts of record, does not apply to actions originating before the courts of justices of the peace. the peace. Appellant earnestly contends that the state (St. Louis Court of Appeals. Missouri. March ment filed by the plaintiff on which his cause 5, 1918.) of action is founded is insufficient in that it alleges that "the city of La Grange is and was at all times herein mentioned a municipal corporation organized and existing under the laws of the state of Missouri, and located in Union township, Lewis county, Mo."; that this statement is not sufficient pleading of the 2. JUSTICES OF THE PEACE 91(2)-ACTIONS charter of the said city of La Grange under -PLEADING-REQUISITES AND SUFFICIENCY. section 1834, Revised Statutes of Missouri, Complaint in a justice court alleging that the plaintiff was a municipal corporation, duly 1909, which provides that "in pleading a priorganized under the laws of Missouri and lo- vate statute or a right derived therefrom, it cated in Union township, Lewis county, Mo., shall be sufficient to refer to such statute by sufficiently identified the city, and was sufficient- its title and the day of its passage, and the ly specific to bar another action on the claim involved. court shall thereupon take judicial notice thereof"; and that therefore plaintiff's state Appeal from Circuit Court, Lewis County; ment fails to state a cause of action. In supC. D. Stewart, Judge. "Not to be officially published." Action by the City of La Grange, on the relation of E. O. Palmer, against the Carnival City Packet Company. From a judgment of the circuit court without the intervention of a jury on appeal from the justice court in favor of plaintiff, defendant appeals. Affirmed. O. C. Clay and A. F. Haney, both of Canton, and W. A. Mussetter, of La Grange, for appellant. Carroll Bozarth, of La Grange, E. R. McKee, of Memphis, J. M. Jeffries, of Moberly, and H. S. Rouse, of Monticello, for respondent. BECKER, J. This is an action instituted before a justice of the peace by the respondent, city of La Grange, at the relation of its collector of revenue, against appellant, Carnival City Packet Company, to recover $33 for the use by appellant of an improved wharf on the bank of the Mississippi river which appellant used as a landing place for its steamer Silver Crescent, which it operated in the local packet trade between Keokuk, Iowa, and Quincy, Ill. The finding and judgment of the justice being in favor of plaintiff, the defendant appealed to the circuit court, where the case was tried de novo before the judge without the intervention of a jury, and from a judgment rendered in favor of plaintiff and against the defendant in the sum of $33 and 6 per cent. interest, after unavailing motions for new trial and in arrest of judgment, defendant brings this appeal. port of this contention appellant relies upon the rule of law that such charters which are private acts must be both pleaded and proven, and cites in support thereof O'Brien v. Railway Co., 21 Mo. App. 12; Wisdom v. Railway Co., 19 Mo. App. 324; Apitz v. Railway Co., 17 Mo. App. 419; City of Mexico v. Cauthorn, 25 Mo. App. 285; State ex rel. Oddle v. Sherman, 42 Mo. 210; Kirby v. Railway Co., 85 Mo. App. 345. In the brief plaintiff makes the statement that the charter of the city of La Grange was enacted February 29, 1872 (Laws of Missouri 1872, p. 417), as a private act; there being no declaration contained therein that it is a public act. No formal pleadings upon the part of either plaintiff or defendant are required in actions before a justice of the peace. Section 7412, Revised Statutes of Missouri 1909; Steinbruegge v. Insurance Co., 196 Mo. App. 194, 190 S. W. 1018; Van Cleave v. City of St. Louis, 159 Mo. 574, 60 S. W. 1091; Butts v. Phelps, 79 Mo. 302. It has repeatedly been held that a statement filed in a justice court is sufficient if it apprises defendant of the nature of the claim and is sufficiently specific to bar another action upon the same demand. Razor v. Railroad, 73 Mo. 471; Connelly v. Parrish, 189 Mo. App. 1, loc. cit. 3, 176 S. W. 546; Steinbruegge v. Insurance Co., supra, and cases there cited. [1] Section 1834, Revised Statutes of Missouri 1909, relied on by appellant as applying to the statement filed in the instant case in the justice court, we hold does not apply. This section is part of article 5, chapter 21, It has been brought to our attention that of the Revised Statutes of Missouri relating the bill of exceptions is not before us, due to pleadings. The first section thereof (secto the fact that the court's stenographer who tion 1793) specifically provides that "the forms of pleading in civil action in courts of record, and the rules by which the sufficiency of the pleadings are to be determined, are, except as otherwise specially provided by law, prescribed by this article." (Italics ours.) It is therefore self-evident that section 1834 does not apply to actions originating before justice of the peace courts, in that they are not courts of record. [2] We are of the opinion that testing the statement in the instant case by the rules applicable to statements filed in justice courts, it is sufficient to advise the defendant of the nature of the claim, and is sufficiently specific to bar another action thereon. This being the only question before us, and having determined it adversely to appellant, the judgment is accordingly affirmed. REYNOLDS, P. J., and ALLEN, J., concur. YOUNGS v. PEOPLE'S SAV. BANK (AR- 1. JUDGMENT 743(2)—FAILURE TO APPEAL In suit against a bank for a fund, wherein the bank interpleaded another with plaintiff, resulting in judgment that the bank pay the money into court and be relieved of all further liability, where no appeal from such judgment was taken. it became final, and in disposing of the rights of the interpleaders for the fund there can be no reaching back past the judgment, and no investigation into or disturbance of issues settled by it. 2. CONTRACTS 228-DEPOSIT OF MONEY FOR PAYMENT TO ANOTHER ON CONDITIONS. Where one person deposited money with a bank, to be paid to another on the completion of certain ditches, specifications as to the ditches being definitely set forth in the written receipt given, such other had no claim to the money unless the ditches were completed according to specifications, though the depositor allowed him to have over 80 per cent. of the deposit without insisting upon compliance with the conditions. 3. CONTRACTS 212(1)-TIME FOR PERFORM ANCE. Where one person deposited money with a bank, to be paid over to another when the latter should complete certain ditches according to specifications, such other had a reasonable time in which to finish the ditches, a time which expired before six years. 4. CONTRACTS 177 REFERENCE TO CONTRACT IN RECEIPT-EFFECT. for a fund with plaintiff. From a judgment for Youngs, Arthaud appeals. Affirmed. H. M. Eicher, of Washington, Iowa, and J. D. Allen, of Chillicothe, and Fred S. Hudson, of Kansas City, for appellant. Frank Sheetz and L. A. Chapman, both of Chillicothe, both respondent. this appeal is between interpleaders. No othTRIMBLE, J. The controversy involved in er parties are interested. Originally, suit People's Savings Bank to recover the sum of was brought by respondent Youngs against $320 that respondent had placed with said bank to be paid to Frank L. Arthaud, appellant herein, when he had completed certain drainage ditches. These he had contracted with other persons to construct. The bank filed an answer in the nature of a bill of interpleader asking equitable relief, admitting that respondent Youngs had deposited the money, but setting up that both Arthaud and Youngs were claiming the money, and pray. ing that they be required to interplead therefor. This answer was filed at the April term, April 15, 1916, and at this stage of the proceeding Arthaud voluntarily asked and was allowed to be made a party defendant to the suit, and filed an answer at said term on May 10, 1916. Upon the petition and answers thus filed, a hearing was had at said April term, and judgment was rendered, sustaining said bank's plea for interpleader to be had, and declaring that the bank was entitled to the equitable relief prayed for. The judgment then directed that the bank pay the money into court and be relieved of all further liabili ty to either Youngs or Arthaud; that Youngs and Arthaud be required to file their inter pleas and set up their respective claims to said fund on or before August 1, 1916, and each to plead to the other's interplea by Aug. ust 15, 1916; that the bank be allowed a sum for attorney's fee, to be taxed as costs, to be ultimately paid by the losing claimant. The cause was then continued. No appeal was taken, or attempted to be taken, from this judgment. Thereafter, and at said April term, Youngs filed his interplea, and at the September term, 1916, Arthaud filed his interplea, and the issues between the two were made up. On November 28, 1916, the case between the two interpleaders was heard and submitted, and the court rendered judgment in favor of respondent, Youngs, and against appellant, Arthaud, and adjudged that the fund interpleaded for be paid by the clerk to Appeal from Circuit Court, Livingston respondent, Youngs, and that Arthaud pay County; Arch B. Davis, Judge. Where one person deposited money in bank. to be paid over to another when the latter should complete certain ditches according to specifications, reference, in the receipt given by the bank, to such other person's contract with certain landowners to construct the ditches, did not make the depositor of the money a party to such contract or an adopter thereof. "Not to be officially published." Suit by Frank L. Youngs against the People's Savings Bank, wherein the bank filed answer in the nature of a bill of interpleader, bringing in Frank L. Arthaud to interplead all costs. [1, 2] The only question in the cause is which of the two interpleaders is entitled to the fund. Appellant, Arthaud, seems to take the position that, if he is not entitled to it, neither is respondent, Youngs, and that it For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes son why the latter should have the remainder thereof. The only way Arthaud can be entitled to that is by way of compliance with the conditions. should be paid back to the bank, and used [ subject to the original terms, and it is the in final completion of the ditches. This, in fund now in controversy. At the time effect is to go back and litigate questions Youngs directed the bank to pay over the involved in and settled by the judgment $1,280 to Arthaud, relying on his promise to rendered at the April term, in which the finish the ditches, Arthaud was not entitled bank was let out of the case entirely, as it to any of said money. The fact that Youngs at once complied with the judgment and paid allowed Arthaud to have over 80 per cent. of the money into court. It is no longer liable the deposit, without insisting upon complito either interpleader. That judgment be-ance with the conditions thereof, is no reacame final, as no appeal was taken; and, in disposing of the rights of the respective interpleaders to the fund, there can be no reaching back past that judgment, and no investigation into, or disturbance of, issues settled by it. Either Youngs or Arthaud is now entitled to the fund. If one is not, the other is. And since it is clear that the money originally belonged to Youngs, and was deposited by him with the bank, to be paid to Arthaud upon the completion of said ditches, the latter could have no claim thereto, unless conditions were complied with. If the burden of proof is on one of these interpleaders more than another, it would seem that it ought to be on Arthaud, to show that he had complied with the condition on which he was to be paid the money. In the year 1909 a number of landowners entered into a contract with Arthaud to pay him $375 for each acre owned by them if he would construct two ditches to drain their lands into Grand river. Respondent Youngs did not sign this contract, but refused to do SO. [3, 4] The evidence is clearly to the effect that Arthaud did not finish the ditches according to the terms and conditions set forth in the receipt, which is the only contract under which the money was deposited, and by which it was held, and under which appellant was to get it. Arthaud had a reasonable time in which to finish the ditches. The landowners, who made their contract with him to construct the ditches, extended the time to 18 months as a reasonable time in which to do the work. The ditches were never finished, and the remaining $320 of the Youngs fund lay in the bank from the time of its deposit, May 17, 1909, until the date Youngs brought suit therefor, to wit, March 19, 1915, a period of nearly six years. So that the time Arthaud would reasonably have in which to finish the ditches has expired. He is not entitled to the fund interpleaded for, nor is he entitled to ask that the fund be paid to him on compliance with the con posited the money. The judgment is therefore manifestly for the right party. The refcrence in the receipt to the landowners' contract with Arthaud did not have the effect of making Youngs a party to that contract, nor an adopter thereof. The judgment is affirmed. All concur. RYALL v. CITY OF MAPLEWOOD. (No. 14989.) Missouri. He did, however, deposit $1,600 with the People's Savings Bank, taking a written receipt therefrom, stating specifically that one-ditions imposed by Youngs when he dehalf of the money was to be turned over to Arthaud when the first of said ditches was completed, and the other half when the other was finished. Specifications as to said ditches were definitely set forth in said receipt. So that Arthaud was not entitled to the full sum until both ditches were completed according to the specifications set out in the receipt, showing the conditions on which the deposit was made and under which Arthaud was to get the money. The evidence shows that Arthaud knew Youngs had deposited the money with the bank, knew the terms thereof, and was willing to undertake the work, without having Youngs bound by the contract Arthaud had with the other landowners. The receipt, therefore, is the only contract governing the matter, as to when and under what conditions the money deposited should be paid to Arthaud. After Arthaud began the construction of said ditches, he ran short of money, and respondent's evidence shows that he besought Youngs to allow $1,280 of the $1,600 to be paid over to him, promising that, if this were done, he would finish the ditches according to the required conditions. Youngs authorized the bank to pay Arthaud said sum of $1,280, but the remainder, $320, remained in the bank, (St. Louis Court of Appeals. Whether a city was negligent in maintaining a slightly sloping stepping-stone at a crossing held, under the evidence, for the jury. Appeal from St. Louis Circuit Court; Gustavus A. Wurdeman, Judge. "Not to be officially published." Action by Nettie Ryall against the City of Maplewood. Judgment for plaintiff, and defendant appeals. Affirmed. M. F. O'Brien and Wilfred Jones, both of Maplewood, for appellant. Francis M. Curlee, Richard Anderson, and Connett & Currie, all of St. Louis, for respondent. ALLEN, J. This is an action to recover damages for personal injuries resulting to plaintiff from a fall sustained by her while undertaking to pass over a street crossing in the defendant city, alleged to have been occasioned by a dangerous defect existing in such crossing. The trial before the court and a jury resulted in a verdict and judgment for plaintiff in the sum of $700, and the case is here on defendant's appeal. The evidence discloses that on the evening of July 27, 1913, plaintiff, a married woman, was undertaking to pass over a street crossing in the defendant city, which extended across Maple boulevard at or near its junction with Marshall avenue, public streets in said city, and that in stepping upon one of the stepping-stones comprising this crossing plaintiff slipped and fell, sustaining injuries. This crossing consisted of a number of limestone rocks, of various sizes, placed in a somewhat irregular line as steppingstones. Maple avenue is referred to as a macadam street, but the evidence is that there is much clay on both sides of these stepping stones, and it also appears that upon the surface of the street many other rocks, of various sizes and shapes, were lying thereabout. It appears that for lack of drainage facilities the surface water derived from rainfall flowed through the street at this place, the water flowing between and, it is said, sometimes over, the rocks forming this crossing. Photographs of the crossing and its immediate surroundings were in evidence before the jury, and repeated reference is made to them in the testimony. According to testimony for plaintiff this crossing was originally constructed by an improvement association, a voluntary association of residents in that community, but it fully appears that the city had maintained it, on its public street, for years prior to the time of plaintiff's injury. the stone, and that its surface was smooth, but had little "ripples" or "waves." Her testimony as to the angle at which the stone was inclined is quite meager and indefinite. She identified the stone in one of the photographs, saying: "Well, it was slanting, even more than it shows on that picture; it slants over more than it shows there." It does not appear whether this slant was due to the nature of the rock or to a washing away of the dirt from beneath one side there of by the water which is said to have flowed between and about these rocks at times. According to plaintiff's testimony, howover, the rock was in a firm or stable position, and did not tilt or turn when she stepped upon it. A witness for defendant stated that it was a rock about 2 feet long, 10 or 12 inches wide, and 8 or 10 inches in height, and that it "tilted slightly." When asked how much of a "tilt" the rock had, he said: as this picture (referring to one of the photographs), "My recollection is about the same possibly an inch or two inches." Learned counsel for appellant contends that the trial court erred in refusing to peremptorily direct a verdict for plaintiff; this being the only question before us. There is no contention that plaintiff was guilty of contributory negligence as a matter of law, and we need not, therefore, touch upon this question. It is argued, however, that the defect in this crossing which, it is said, caused plaintiff to slip and fall, was not of such character as to cast liability upon the city for the injuries thus received by plaintiff. It is argued that: "Cities are not required to construct their sidewalks or crosswalks level and without incline or grade, regardless of the topography, and where sidewalk or crosswalk is not negligently constructed or allowed to become unsafe or dangerous, an injury caused by a mere slant or defect in the walk is not actionable"-citing Price v. City of Maryville, 174 Mo. App. 698, 161 S. W. 295; Milledge v. Kansas City, 100 Mo. App. 490, 74 S. W. 892; Young v. Kansas City, 45 Mo. App. 600. On said July 27, 1913, a rain had fallen some time during the afternoon. Plaintiff and her husband lived on a street in that vicinity But in the instant case plaintiff's injury and on the evening in question at about 7 did not result from the mere slanting or slopo'clock they passed over this crossing in ing surface of an ordinary sidewalk or crossgoing to visit some friends. They returned walk. From the evidence it appears that this about 9 o'clock, it being then dark, and while crossing was not only an exceedingly crude plaintiff was attempting to pass over this one, but that the conditions that were alcrossing according to her testimony, she step- lowed to prevail at this place were such as ped upon a stone, identified in some of the to enhance the danger ordinarily attendant photographs in evidence, which slanted or upon using stepping-stones of this general sloped to one side, causing her to slip and character. As indicated above, the evidence fall, resulting in the injuries for which she touching the amount of slant or slope to the seeks to recover. surface of this particular rock is not of a Plaintiff's testimony is that at the time of definite nature. But these photographs, her injury the earth or clay about this cross-brought here by respondent by an additional ing was quite muddy, though no water was then flowing in the street; that, though it was dark, she could see the white surface of the stones, but could not discern that this particular stone in question had the slant or inclination which, it is said, caused her fall. She testified that she later examined abstract, were before the jury, and they, together with the testimony in plaintiff's behalf, viewed in the light most favorable to plaintiff, as it must be viewed for the purposes of the demurrer, tend to make it appear that this particular stone, the sur face of which was elevated a considerable FIXED distance above the ground, had quite a slope | 4. LANDLORD AND TENANT 181 CHARGE FOR USE AND OCCUPATION OF LAND A fixed charge as compensation for the use and occupation of land is "rent." [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Rent.] 5. LANDLORD AND TENANT 183-PAYMENT OF RENT. It is further argued that plaintiff's fall was doubtless occasioned by the fact that her shoes were muddy at the time, and that this caused her to slip upon the smooth surface of the stone. But this argument does not find support in the evidence adduced. Though rain had fallen during the afternoon of that day, according to the testimony, it did not rain in the evening. And though it is said that there was mud or soft clay about this crossing, which plaintiff and her husband sought to avoid, it does not appear that plaintiff had previously walked in mud or that her shoes were muddy. We may add that the evidence fully sufficed to show that the city was chargeable with notice of the existence of the aforesaid condition of this crossing at and long prior to the time of plaintiff's injury. We are of the opinion that the judgment should be affirmed; and it is so ordered. The payment of rent is incident to every tenancy where the relation of landlord and tenant subsists, except as to a mere tenancy at will or by sufferance, where the relation cannot be said to exist. 6. LANDLORD AND TENANT 1-"TENANT.” [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Tenant.] 7. LANDLORD AND TENANT 20-CONTRACT FOR COMPENSATION FOR USE AND OCCUPATION. It is only in the character and status of landlord that an owner of premises can contract with reference to compensation for their use and occupation by another. 8. USE AND OCCUPATION ~1 TRESPASS IMPLICATION OF AGREEMENT TO PAY. Where one takes and occupies the land of another as a trespasser, the law does not imply an agreement on his part to pay for such use and occupation, since there must have been a prior mutual agreement existing between the landowner and the occupier or their privies to pay for such use and occupation. 9. USE AND OCCUPATION 2 TRESPASS IMPLICATION OF AGREEMENT TO PAY BY TRESPASSER. Where the owner of land has served a tres REYNOLDS, P. J., and BECKER, J., con- passer with notice that if he continues his tres cur. pass he will be charged a sum for use and occupation, the law will not imply an agreement to pay on the part of the trespasser from his mere silence, as the owner cannot waive the trespass YOUNG et al. v. HOME TELEPHONE CO. and make the trespasser his tenant without his et al. (No. 12720.) (Kansas City Court of Appeals. Missouri. Jan. 28, 1918.) 1. TRESPASS 40(5)—PETITION-FAILURE TO ALLEGE CHARACTER AND AMOUNT OF DAMAGES. A petition for trespass, without allegations setting forth the character and amount of damages recoverable for the trespass, does not state a cause of action. 2. TRESPASS 47-MEASURE OF DAMAGE. For trespasses other than those enumerated in Rev. St. 1909, §§ 5448, 5449, the recovery is either the value of the thing appropriated, removed, or destroyed, or a sum equal to the damage done. 3. USE AND OCCUPATION consent. Appeal from Circuit Court, Jackson County; Allen C. Southern, Judge. Suit by Albert Young and F. Titus against the Home Telephone Company and the Missouri & Kansas Telephone Company. From judgment sustaining demurrers to the petition, plaintiffs appeal. Affirmed. F. Titus, of Kansas City, for appellants. Battle McCardle, J. W. Gleed, and D. E. Palmer, all of Kansas City, for respondents. TRIMBLE, J. Plaintiffs, on February 6, 1917, brought suit against the above-named 1-NECESSITY FOR telephone companies alleging that the deRELATION OF LANDLORD AND TENANT. fendants were telephone corporations operUnder Rev. St. 1909, § 7886, providing that a landlord may recover a reasonable satisfaction ating and maintaining telephone lines for for the use and occupation of any land held by hire in the state of Missouri; that plaintiffs any person under an agreement not made by were the owners of a certain tract of land, deed, a suit for use and occupation, based mere- describing it; that defendants without lawful ly upon use and occupation, cannot be maintained unless the relation of landlord and tenant, right entered upon said land and erected express or implied, exists between the parties. thereon sundry constructions, namely, seven |
