By error the following eight pages of the index were omitted and the error not discovered until the book had been printed:

ANSWER. See Answer, p. 703.

INDEX.

APPEALS. See Appeals, p. 703; Roads and Highways.

1. New Trial: Stenographer's Notes Destroyed: Depends Upon Circumstances and Determined upon Principles Analogous to Equitable Doctrines. The right of appeal is a creature of the statute, and there being no statute providing for a new trial because the stenographer's notes are destroyed, the right to have a cause remanded on this ground must depend upon the circumstances, and any relief granted on such ground should be determined upon principles analogous to equitable doctrines rather than strict rules of law. Stevens v. Chapin, 594.

2. Where Stenographer's Notes Destroyed Appellant not Entitled to New Trial as Matter of Right, and Must be Wholly Without Fault. Appellant by reason of destruction of stenographer's notes is not entitled as a matter of strict, absolute, legal right to a new trial, but the court may, in the exercise of inherent, extraordinary powers, grant same to prevent injustice being done to one who is himself wholly without fault or blame, and such freedom from fault or blame is a necessary prerequisite to the granting of the relief sought. Ib.

3. Appellant Seeking New Trial Because of Destruction of Stenographer's Notes Must Exercise Due Diligence and be Free from Laches. Party seeking new trial by reason of destruction of stenographer's notes must not only be free from actual fault or negligence, but must also show that he exercised due diligence and was free from laches. Ib.

4. Appellant Failing to Exercise Due Diligence in Obtaining Transcript Before Destruction of Evidence not Entitled to New Trial. Under section 12669, Revised Statutes, 1919, upon appeal, it is the stenographer's duty to furnish transcript of evidence, and under section 12671 he is entitled to prepayment of his fees therefor, and while section 1460, Revised Statutes 1919, gives appellant until the time for filing abstract in which to file bill of exceptions, it was the duty of appellant not to actively delay the stenographer in the performance of his work, and where a stenographer has started to transcribe the evidence, but stopped because he could not obtain guaranty of payment from appellant, a non-resident of the State, and whose attorney informed him he need not proceed with the work, and was not thereafter authorized to complete same, and courthouse burned destroying notes, it is held, that if it had not been for appellant's postponement, his inability to have stenographer's notes transcribed would not have occurred, and by reason of his failure to exercise due diligence he is not entitled to new trial. Ib. APPELLATE PRACTICE. See Appellate Practice, p. 703.

1. Verdict Supported by Substantial Evidence not Disturbed. There being substantial evidence to sustain a verdict, appellate court, is not permitted to interfere therewith. Hastings v. Swindle, 74.

2. Admission of Immaterial Evidence Held Harmless. In an action for injuries to a passenger, who claimed she was thrown from the platform by a sudden jerk while she was waiting for the train to stop, testimony as to a statement by the conductor with reference to the passenger's ticket, though not part of the res gestae and immaterial, was not prejudicial to the carrier. Rooker v. Deering Southwestern Ry. Co., 79.

3. In Replevin, Failure to Find as to Defendant's Possession at Issuance of Writ, Held Harmless. In replevin against a town marshal, who had unlawfully taken whiskey from plaintiff, and claimed to have stored the same in the lockup and given key to mayor, failure of the jury to find that defendant was in possession at the time the writ was issued was harmless, where the evidence abundantly estab lished that the defendant was custodian of the liquor and could have procured the key from the mayor at any time. Long v. Hickey, 92.

4. Where Evidence is Evenly Balanced the Conclusion of the Chancellor Will bd Deferred to on Appeal. Where the evidence is evenly balancd the appellate court will defer to the conclusion of the chancellor. Rawlings v. Waddill, 555.

5. Where all Matters in Reference to Point Raised. Do Not Appear in Abstract the Point Cannot be Considered. Where it is contended that plaintiff's own evidence showed he was overpaid for work, based upon figures taken from account book, a leaf thereof which contained same having been torn out or misplaced at former trial, and it also appeared that said book showed another matter in regard to the account, not in the original abstract, such contention cannot be considered because the defendant should have abstracted all matters in reference to point raised. Huff v. Doerr, 563.

6. Evidence: In Equity Cases the Evidence is Reviewed and Weighed by Appellate Court. In an equity case the appellate court is required to review all the evidence and to pass upon the weight thereof. Guthery v. Bell et al., 570.

7. Decision on Appeal in Prior Action at Law Does Not Determine Law Involved in Subsequent Action in Equity. What was said in a former decision on appeal setting aside the appointment of an administrator in a suit at law, by the widow, does not determine the law involved in an equity case to annul the marriage. Ib. ATTORNEY AND CLIENT. See Attorney and Client, p. 705; Judgments; Breach of Contracts.. See Contracts; Damages.

BROKERS. See Brokers, p. 706.

Not Entitled to Commission Where Not Procuring Cause. Where defendant was employed to procure a loan, and his efforts had something to do with final procuring of said loan, which was obtained by another agent, but did not bring about the loan, defendant was not procuring cause. Rawlings v. Waddill, 555.

206 Mo. App.

702-a

CARRIERS. See Carriers, p. 707; Contracts.

1. Testimony of Passenger Held Sufficient to Take Issue of Negligence to Jury.
Testimony by a passenger that, while she was standing on the car platform wait-
ing for the train to stop, it suddenly lunged forward with an extraordinary jerk
and threw her off, is sufficient to take the case to the jury over defendant's de-
murrer to the evidence. Rooker v. Deering Southwestern Ry. Co., 79.

2. Instruction Held Not to Make Carrier Insurer of Safety. An instruction that it
was the duty of a carrier to use that high degree of care which a person of ordi-
nary prudence would use under like circumstances to well and safely carry a
passenger is correct and not objectionable as making the carrier an insurer of
the passenger's safety. Ib.

3. Pleading: Petition for Freight Charges Against Consignee Demurrable. In an
action by carrier against consignee for freight charges, a petition is demurrable
which did not allege consignee was a party to contract of transportation, and
that the shipments were received and accepted by consignee; the mere exist-
ence of the relation of carrier and consignee, in the absence of an agreement, is
not enough to establish an obligation upon the latter to pay transportation charges.
C. B. & Q. R. R. Co. v. Evans, et al., 553.

4. Contract: Custom: Construction: Where an Expression in Contract Under a Cus-
tom, Meant That Carrier Would not Unload Within Certain Time, Carrier Was
Obligated Not to do so. If there was a custom that the expression "36-hour re-
lease attached" meant that the carrier agreed not to unload within certain time,
then the contract, executed in view of such custom, would constitute an agree
ment to that effect, the same as if it had been explicitly written into the con-
tract. Bradford v. Hines, etc., 582.

5. Contract: Covering Interstate Shipment Must be in Writing. Under the Federal
law and decisions such contracts must be in writing. Ib.

6. Federal Law Granting Shipper Power to Extend Time of Confinement of Live-
stock, not a Privilege to Impose Obligation to Keep Stock Confined as Long as
28 Hours. The Federal 28-hour law, (Sec. 1, 34 U. S. Stat. at Large, Chap. 3594,
p. 607), was never intended to create an obligation on carrier not to unload live
stock within a lawful time, but to prevent carrier from confining it beyond a
certain time, and the shipper could, by written request, extend limit to 36
hours, which power granted to shipper was not a privilege to ipso facto im-
pose an obligation on carrier to keep stock confined as long as 28 hours, but was
only a privilege to extend the time of confinement from 28 to 36 hours. Ib.
7. Duty at Common Law to Feed, Water and Rest Live Stock at Suitable Intervals.
It was the common-law duty of carrier transporting for long distance to feed,
water and rest live stock at suitable intervals to avoid injury. Ib.

8. Rules and Regulations of Interstate Commerce Commission Govern Interstate
Shipments. Rules and regulations of Interstate Commerce Commission govern
interstate shipments, and both shipper and carrier are bound thereby. Ib.
9. Attempt to Carry Stock Past 28-hour Limit, Imposing Special Duties, Without
Corresponding Rate Therefor, Is Void as a Discrimination. If the
carrier agreed to carry stock without unloading, past the 28-hour limit, and
past the regular loading place, for that period, then such was a special agree-
ment, imposing special duties without a corresponding rate therefor, and would
be void as a discrimination. Ib.

10. In Absence of Contract to Carry Beyond 28-hour Limit, and Where Action is
Based upon Breach of Contract Created by Acceptance of Shipment with 36-hour
Release Attached Plaintiff Cannot Recover. Where no contract is established ob-
ligating carrier to carry shipment beyond, or not to unload until after lapse of
28 hours, and the cause of action is based upon a breach of such contract created
by acceptance of shipment with 36-hour release attached, plaintiff is not entitled
to recover. Ib.

11. Negligent Delay: Liable for Damages to Cattle Placed in Sun, Though Not Neg-
ligent in Selecting Place. Where a railroad is guilty of negligent delay in ship-
ment of cattle, the damage caused cattle, while waiting to be moved, by being
placed in the heat of the sun in railroad yard, and at a place therein where they
were deprived of proper air and ventilation, is recoverable even though there
was no negligence in placing the cattle at the particular point in its yards. Neeley
v. Hines etc., 621.

12. Not Liable for Damages to Cattle Caused by Heat of Sun, Unless Guilty of
Negligent Delay. If there was no negligence in the delay, then the carrier would
not be liable for damages caused by the heat of sun, unless there was negligence
in placing the cattle in such unfavorable location. Ib.

13. Interstate Shipment: Burden on Plaintiff to Show Negligent Delay. In an ac-
tion for damages on account of negligent delay in interstate shipment, the burden
is on the plaintiff to show negligence; the burden of proof being a matter of
substance. Ib.

14. Evidence: Insufficient to Establish Prima-Facie Proof. Evidence held insufficient
to establish a prima facie showing of negligent delay in shipment of cattle, or a
situation from which an inference of negligence could reasonably be drawn. Ib.
COMMISSIONS. See Brokers.

CONTRACTS. See Contracts, p. 708; Carriers; Evidence; Marriage.

1. Indivisible: Joint and Several: Defendant Liable in Entirety Under Contract for
Work Done Adjoining Owner, Though not Signed by Her.. Where the contract
fixed a specified sum as compensation for one entire piece of work, that is, the
building of a stone wall fronting property of both defendant and adjoining owner,
and it was the intention to have both properties improved alike, the work done
being a benefit to both properties, such contract was an indivisible contract, and
if it had been signed would have been a joint and several contract under section

CONTRACTS-Continued.

2155, Revised Statutes 1919, and plaintiff could have sued either defendant or ad-
joining landowner for entire consideration. Huff v. Doerr, 563.
2. Breach: Exchange of Property: Plaintiff Alleging Breach Must Establish Per-
formance on His Part. In an action for damages for breach of contract for ex-
change of property, each party being required to do certain things necessary to
be done before an exchange could be enforced, plaintiff must establish the fact
that he has performed, or offered to perform his part. Lewis v. Van Hooser, 618.
CONVERSION. See Conversion, p. 708.
Unlawful Sale: Constable Guilty of Conversion. Where there was no judgment shown,
or an execution upon any judgment, and there was no showing of any advertise-
ment of the sale under execution, as provided by section 7548, Revised Statutes
1909, nor was there any showing of any sale, such as provided by section 7549,
Revised Statutes 1909, or any return of the constable offered to show any sale,
the court did not err in instructing the jury that a constable's sale was not shown
to have been had and conducted according to law, as he was guilty of a conversion
of the goods. Hockaday v. Gilham et al., 132.

COURTS. See Courts, p. 709.

1. Probate Courts Have no Equity Jurisdiction: Jurisdiction of Circuit Court on Ap-
peal is Derivative. Probate courts have no equitable jurisdiction and the juris-
diction of the circuit court on appeal from the probate court is derivative. Davis
v. Roberts, 125.

2. Jurisdiction: Probate Court May Invoke Equity Principles. Under section 4056,
Revised Statutes 1909, the probate court has jurisdiction "over all matters per-
taining to probate business," and in all such matters said court has jurisdic-
tion where the issue can be settled at law, involves a simple matter, and the
court may invoke equity principles in disposing of such business. Ib.

3. Interstate Shipment of Livestock Governed by Decisions of the Federal Courts.
The shipment, being interstate commerce, is governed by the rules and decisions
of the Federal courts, which it is 'duty of State court to follow. Bradford v.
Hines etc., 582.

4. Jurisdiction: County Courts Have Exclusive Jurisdiction to Open and Establish
New Roads. Under sections 10625, 10628, Revised Statutes 1919, the county
court has exclusive original jurisdiction to open and establish new roads, and to
settle, in the first instance, all questions relating to practicability, necessity, pub-
lic utility and damage connected therewith, and, therefore, such questions cannot
be determined primarily in a suit in equity in the circuit court to enjoin prose-
cution of an application for establishment of a road. Parsons v. Wilcox, 603.
5. Interstate Shipment Governed by Rules of Decision of Federal Courts. An in-
terstate shipment is governed by the rules of decision in the Federal Courts.
Neeley v. Hines, etc., 621.

CUSTOMS. See Customs, p. 711. Carriers.

DAMAGES. See Damages, p. 711.

1. Breach of Contract: Lost Profits not Recoverable Where Uncertain, or not Within
Contemplation of Parties. In an action for damages for breach of contract where
recovery is denied for loss of profits it is because the profits were uncertain,
conjectural, or speculative in character, and not susceptible of being reasonably
ascertained, or because they were not deemed to have been within the contemplation
of the parties, being outside of the legitimate scope of the breached contract.
Minneapolis Threshing Machine Co. v. Bradford, 609.

2. Natural and Proximate Result: Compensation Should be Equal to the Injury.
The general rule of damages for a breached contract is that compensation should
be equal to the injury, subject to the condition that the damages be confined to
those naturally and proximately resulting from the breach, and are not within the
two classes above specified. Ib.

3. Lost Profits Necessarily Following Breach, Recoverable if Evidence Sufficiently
Certain and Definite. In an action for breach of contract, if it reasonably ap-
pear that profits would have been made had the terms of contract been observed,
and that their loss necessarily followed its breach, they may be recovered as dam-
ages if evidence is sufficiently certain and definite to warrant jury in estimating
their extent. Ib.

4. Sales: Buyer Entitled to Recover Usual and Ordinary Loss of Profits Due to
Delay and Failure to Deliver Threshing Outfit. Where seller was informed when
sale of threshing outfit was made to buyer, and again after delivery of a part
thereof, that buyer had already obtained the job of threshing for a definitely
ascertainable number of customers with a definite amount of wheat to thresh, and
the use of threshing outfit, and the ability to perform the definite job buyer had
obtained, induced buyer to enter into the contract, the buyer was entitled to re-
cover damages for the usual and ordinary loss on such job to the extent the
same could be ascertained and definitely shown with reasonable certainty. Ib.
DEFAULT. See Judgments.

EJECTMENT. See Judgments.

EVIDENCE See Evidence, p. 714.

1. Court Must Take Judicial Notice of Navigability or Streams. The courts of the
State are bound to take judicial notice of the navigable streams of the State,
when used in the broad sense, where the bed of river is retained in the public
and not deeded to the adjoining landowners. Hobart Lee Tie Co. v. Grabner, 96.
2. Court Not Bound by Admissions as to Facts of Which it Takes Judicial Notice.
Admission by both parties to an action that a certain stream was navigable would
not, and could not, bind the courts in determining the issues in the case, the
court being bound to take judicial notice of the navigable streams of the State.
Ib.

EVIDENCE-Continued.

3. Court Judicially Knows That Gasconade River is Not Navigable Near Source
Except For Floating Logs. The court will take judicial notice of the fact that
Gasconade River is not navigable near its source by reason of the topography
of the country in the Ozark uplift, although navigable in the sense that it is
capable of floating logs, and that adjoining landowners' ownership runs to the
thread of the stream. Ib.

4. Indefinite: Best Obtainable: Sufficient to Support Verdict. Where the evidence
as to the value of goods sold after inventory was not as definite as might be
desired, but no evidence of a more definite character could be obtained, the same
was sufficient to support the verdict. Hockaday v. Githam, et al., 132.
5. Witnesses: Inventory May be Used to Refresh Recollection as to Value.
The
court did not err in permitting plaintiff and his wife to use a so-called "lump"
inventory, which was copied from an original inventory, for the purpose of re-
freshing their recollection as to the value placed upon stock of merchandise by
them when they took the inventory. Ib.

6. Wife Acting as Agent of Husband, Competent to Testify. There was no error
in permitting plaintiff's wife to testify as to the value placed upon the stock,
where it was shown that she was acting as plaintiff's agent at the time the in-
ventory thereof was made. Ib.

7. Witnesses: Offer of Proof: Witnesses not Qualified to Testify to values, Objec-
tion Properly Sustained. The court did not err in sustaining an objection to tes-
timony of certain witnesses as to reasonable market value of stock of goods, where
there was no offer of proof that said witnesses were qualified to testify as to the
value thereof. Ib.

8. Parol Evidence Admissible to Show Who Principal was Under Simple Contract.
Where the evidence showed defendant's husband signed contract as her agent.
and the body of contract was in name of principal, although not signed by her, it
was permissible to show by parol evidence who the real principal was.
Huff v.
Doerr, 563.

9. Contract: Covering Interstate Shipment Cannot be Pieced Out by Oral Testimony.
A written contract covering an interstate shipment cannot be pieced out by oral
testimony. Bradford v. Hines, 582.

EXECUTORS. See Executors, p. 715.

1. Removal: Substantial Controversy Between Executor and Estate Sufficient to
Remove on Ground Unsuitable to Act. Under section 50, Revised Statutes 1909.
in a proceeding to remove an executor on the ground that he is unsuitable to act
as such, because of his claim to the ownership of a certain note belonging to
an estate, it was not necessary to show that the estate was the owner of the
property, but only to show that there was a real and substantial controversy as
to the ownership of the note and that there was reasonable and probable cause
to believe that the note belonged to the estate. Davis v. Roberts, 125.

2. Same: Conflicting Interests: Unsuitable to Execute Trust. Under section 50,
Revised Statutes 1909, an executor of an estate who stands in the position of a
trustee and assumes a position where his interests conflict with that of the es-
tate, it is the positive duty of the court to remove him on the ground that he
has become incapable or unsuitable to execute the trust reposed in him. Ib.

3. Same: Right to Determine Title to Note in Statutory Proceedings Does Not Pre-
vent Removal of Executor. The fact that a remedy was afforded plaintiff under
section 70, Revised Statutes 1909, does not prevent plaintiff from seeking re-
moval of executor as one unsuitable to execute trust because of interests con-
flicting with that of estate, as provided by section 50. Ib.

4. Same: Proceeding in Rem: Removal Solely Upon Grounds Mentioned in Statute
for Causes Arising After Appointment. Under section 50, Revised Statutes
1909, the proceeding is one in rem, and removal can be only upon grounds men-
tioned in said section and for causes arising after appointment, Ib.

5. Removal: Antagonistic Position: Probate Court in Removing Executor Does Not
Exercise Equity Jurisdiction by Invoking Equitable Princples. The probate court
in removing an executor, who has become "incapable or unsuitable" to execute
the trust reposed in him, does not exercise equity jurisdiction, but is only in-
voking the equitable principle that equity and good conscience will not permit
one to occupy an antagonistic position in transactions of this kind. Ib.
6. Same: Incapable or Unsuitable to Execute Trust: Principle of Ejusdem Generis
Has no Application. In construing section 50, Revised Statutes 1909, providing
that an executor may be removed if he is "in any wise incapable or unsuitable
to execute trust reposed in him," the principle of ejusdem generis has no ap.
plication for said phrase being complete within itself, the words in the statute
preceding the words quoted exhaust their class and the general words following
must be construed as embracing something outside of that class. Ib.
FRAUD.

Representations Concerning Quality of Land, Held Representations of Fact Amount-
ing to Fraud. Statements of vendor that timber on land was good and merchant-
able, that cistern and ponds were lasting water, and that 190 acres of the land
were in cultivation, were representations of fact which, if untrue, amounted to
fraud. Hastings v. Swindle, 74.

HUSBAND AND WIFE.

Principal and Agent: Husband's Authority to Execute Contract as Agent of Wife Held
Jury Question. Evidence held sufficient for jury to determine question of the
husband's authority to execute contract on behalf of wife, although such au-
thority was denied both by her and her husband. Huff v. Doerr, 563.