there is one letter, that of March 19, 1904, in which plaintiff wrote: "We want to give you a history of this case.

defendant had only one remedy, and that was an action for damages on the contract. The Your order was plaintiff's authorities on the question have no accepted by a man who was entirely ignorant | application to this kind of an action.

Affirmed. All concur.

On Rehearing.

Plaintiff or appellant now insists that we overlooked his point that there was a con

that defendant acquired a valuable right it had not possessed under the original contract, viz., the right to inspection on its part, which inspection was to be final.

of the specifications of Mill Run or Log Run Maple and Elm, and it will be impossible for us to fill your order as it stands. We do not have anything like the amount you ordered." Defendant answered to the effect that that excuse would not relieve it from any liabil-sideration for the substituted agreement, in ity. Plaintiff replied, in which reply it explained its letter of the 19th, saying: "What we intended to say was that on account of the immense amount of culls found in each pile there would only be a car each of maple and elm that would go on the specifications." We cannot see how that explains or changes the impression conveyed by the former letter. Undoubtedly there were so many culls found that it was impossible to fill the order according to specifications. The letter simply shows that an ignorant agent miscalculated, and for that reason plaintiff was seeking to cancel the contract. And this conclusion is strengthened by the fact that plaintiff would not submit, although making a claim of too severe inspection, to a disinterested inspection, which course a fairminded man would have pursued, although he might have had the right to cancel without such submission.

The proposition of the substituted agreement was: "We will ship on your inspection all the maple and elm we have on hand, provided you will consider the order filled." Defendant wrote to learn the quantity on hand and received a reply promptly. Defendant, on May 17th, wrote: "Your proposal is satisfactory and accepted, provided we are to have the privilege to leave out the 2" maple and elm in case we are unable to use it. * * * We understand from your letter that you desire us to send an inspector to load the lumber, and upon receipt of your reply stating about when you will be ready to load we will send a man to load it. Should you desire to have some independent disinterested inspector load the material, please advise us, and suggest some one who will be satisfactory to you, and ascertain whether or not you can secure his services." Plaintiff consummated the contract on May 21st in the following: "Yours of 17th to hand and noted. You need not take the 2′′ maple and elm unless you want to."

Plaintiff says there was a dispute as to right of defendant to reject mill culls, and that the settlement of this furnished consideration for the substituted agreement. We are not able to find that there was any dispute of this nature between the parties, and, if there was, plaintiff in its brief in the trial court failed to mention and to rely on it. He certainly cannot now ask our attention to it. Plaintiff in his motion in arrest of judgment alleged that the counterclaim of defendant on its face failed to state a cause of action, in that it did not allege acceptance of plaintiff's varying confirmations of defendant's orders. This is true, but the case proceeded to trial as if there was no variance, and the fact that there was a variance was not brought to the court's attention during the trial; and, if at all, only after judgment. Plaintiff will be held to have waived any right to raise this objection, for the counter-plaintiff acquiesced in the views of defendclaim does allege that orders were given and confirmations made; that there was an offer and acceptance.

It is said that the substituted agreement confers upon the defendant the right to inspect the material and that its inspection would be final. The right claimed to be conferred is based upon the words "on your inspection." Whatever might be the meaning of this expression, without any qualification and under the circumstances of the case, is of no importance, as in the defendant's letter of May 17th the construction plaintiff places upon it is clearly negatived. It is apparent in that letter that defendant did not know it possessed such a valuable right; and

ant so far as the correspondence indicates. and the contract is comprised in the correspondence.

Motion overruled. All concur.

v. BAPTISTE.

Plaintiff alleged, also, that the counterclaim did not state a cause of action for the further reason that defendant failed to state willingness and readiness to perform its part of the contract. This is not an action for ST. LOUIS GUNNING ADVERTISING CO. specific performance of a contract, but for damages for the violation of one. The plain- (St. Louis Court of Appeals. Missouri. Feb. tiff having notified defendant that it could not comply with its contract and having repudiat-1. ALTERATION OF INSTRUMENTS (§ 17*)—MAed the same, there was no obligation upon the A lease which is altered after its execupart of defendant to comply on its part. The tion and without the consent of the lessor by

TERIALITY.

9, 1909.)

changing the dates of the commencement and termination of the term is void.

[Ed. Note. For other cases, see Alteration of Instruments, Dec. Dig. § 17.*]

DENCE.

3. EVIDENCE (§ 207*)-ADMISSIONS.

A letter written by a lessor to his lessee, which recites that the time of the lease will expire on a designated date and which requires the lessee to vacate the premises, is not a judicial admission as to the date of the termination of the lease binding the party who makes it, but is an admission against the interest of the lessor, which admission he may explain.

[Ed. Note. For other cases, see Evidence, Dec. Dig. § 207.*]

Appeal from St. Louis Circuit Court; Geo. H. Shields, Judge.

Action by the St. Louis Gunning Advertising Company against George Baptiste. From a judgment for defendant, plaintiff appeals. Affirmed.

Bond, Marshall & Bond and Wm. H. Bleyer, for appellant. Thos. D. Cannon, for respondent.

cording to the original year figures. In defense the alteration is charged to have occurred after the execution of the instrument and without the knowledge of defendant. On 2. ALTERATION OF INSTRUMENTS (§ 29*)-EVI- this question there was a sharp conflict in Evidence held to show that a lease was al- the evidence, positive testimony for plaintiff tered after its execution and without the knowl-being that just before or after George Bapedge of the lessor, defeating a recovery thereon. tiste, president of the Baptiste Tent & Awn[Ed. Note. For other cases, see Alteration of ing Company, had signed the contract, he Instruments, Dec. Dig. § 29.*] called the attention of Arthur Wolff, advertising solicitor for plaintiff, and who had solicited the lease, to the error in the figures, and they were immediately altered in the presence of Mr. Baptiste. The contract was executed in duplicate, and one copy was given to Baptiste, and the evidence for plaintiff rather tends to show the year figures in both copies of the contract were changed before Baptiste signed, and that, whenever changed, it was done with his knowledge and approval. The sign of the Baptiste Tent & Awning Company was painted in November, 1904, said sign being, as stated, part of the rental for the wall on which the signs of other concerns were to be painted by the lessee. Testimony for plaintiff goes to prove Baptiste refused the tender of rent for the second year from January, 1905, to January, 1906, stating he could get more rent for the wall. Several witnesses so testified. George Baptiste and other witnesses either testified posttively or gave testimony indicating the figures inserted to show the first year of the letting were changed after Baptiste had signed the writing and without his knowledge. He swore that, though the contract was made in October, 1903, in order to get the wall Wolff agreed to pay him the full price for said year, and the first year was intended to be stated as running from January 29, 1903, to January 29, 1904. The judge who tried the case found the weight of the evidence showed the contract sued on had been altered by plaintiff after execution by defendant and without the knowledge and consent of the latter by changing the figures we have mentioned, and thereupon the court entered judgment for defendant, which ruling is right if, in truth, the contract was altered after its execution and without defendant's knowledge. Kelly v. Thuey, 143 Mo. 222, 45 S. W. 300. The judgment was right, too, unless the evidence was decisive in favor of plaintiff's contention on the main issue of fact, as is conceded by its counsel.

GOODE, J. Plaintiff, an incorporated company and successor to the Williamson-Gunning Advertising Company, sued for damages for the breach of a written contract by defendant purporting to lease the south wall of a building to said Williamson-Gunning Company for advertising purposes. The rent to be paid was $20 a year and the painting of a sign on the wall advertising the Baptiste Tent & Awning Company's business. The instrument of lease was dated October 2, 1903, and as originally written purported to run from January 29, 1903, to January 29, 1904, with an agreement that the lessee might have it at the same rental for the five succeeding years, unless he gave written notice to terminate the lease to the lessor 10 days before the end of any current year. The contract was drawn on a printed form with blanks for the insertion of the consideration, the description of the wall and of the building of which the wall was a part, and of the dates of the beginning and end of the term. The spaces for dates were in this form: "From day of 19, to the day of 190-." Those spaces were filled in at first so as to read as follows: "From 29th day of Jan 1903, to the 29th day of Jan 1904." Afterwards the writing was altered by placing figure 4 over figure 3 and 5 over 4, in this manner: "From 29th day of Jan 190 to the 29th day of Jan 1905" The writing, as altered, purported to grant a lease of the wall from January 29, 1904, to January 29, 1905, instead of from January 29, 1903, to January 29, 1904, as it did ac

They contend the evidence proves conclusively the alteration of the contract was made either before defendant signed it or afterwards with his knowledge and consent; so that he understood he was engaging to rent the wall for five years from January 29, 1904, instead of from January 29, 1903. On January 9, 1905, defendant wrote the Williamson-Gunning Company the following letter: "Jan. 9, 1905. Baptiste Tent & Awning Co., 612 North Third Street. Saint Louis.

men:

Mo. Williamson-Gunning Adv. Co. GentlePlease observe that the term of one year of which the south wall of building at 612 N. 3d Str. and now used by you, was rented by you will expire on January 29th, 1905, and as we desire to repossess said

Appeal from Circuit Court, Jackson County; E. E. Porterfield, Judge.

Action by Mary Lane against the Niagara Fire Insurance Company. From a judgment for defendant, plaintiff appeals. Dismissed. Aleshire & Gundlach and R. T. Herrick, for

respondent.

JOHNSON, J. Appellant's abstract of the record shows that this case originated before a justice of the peace, and was tried in the circuit court, where a judgment was rendered for defendant. It does not show that the cause proceeded to judgment in the justice court, nor that an appeal was prosecuted from such judgment to the circuit court. These are jurisdictional facts which should affirmatively appear in the abstract. Recently, in the case of Inks v. Brakebill Bros., 119 Mo. App. 159, 96 S. W. 220, we held these defects to be fatal, and dismissed the appeal for lack of jurisdiction over the cause.

premises, you are hereby requested and re- appellant. Meservey, Pierce & German, for quired to vacate the same. [Signed] Geo. Baptiste." Because defendant said in the letter we have quoted the term of one year for which the wall had been leased would expire January 29, 1905, and because, further, defendant, as counsel for plaintiff say, could not satisfactorily explain said statement on the witness stand, it is argued the statement amounted to a solemn admission in open court that the first year of the letting ran from January 29, 1904, to January 29, 1905. It can be inferred from defendant's testimony regarding the statement in the letter that he was misled by the contract as altered, being ignorant at the time he wrote or forgetting for the nonce the instrument had been changed after execution. Whether or not defendant's explanation of the statement in the letter was satisfactory, said statement was no solemn admission in open court, such as an averment in a pleading or admission of some fact for the sake of dispensing with proof of it would be. In truth, the letter was evidence in pais, offered by plaintiff as an admission against interest, and defendant's explanation of it, whether awkward or plausible, did not carry it into the class of judicial admissions, which bind the party making them and the court. 1 Greenleaf, Evidence (16th Ed.) § 205.

The judgment will be affirmed. All concur.

LANE v. NIAGARA FIRE INS. CO. (Kansas City Court of Appeals. Missouri. Feb. 1, 1909. Rehearing Denied Feb. 27, 1909.) 1. APPEAL AND ERROR (§ 635*)—JURISDICTION OF LOWER COURT.

An appeal to the Court of Appeals will be dismissed where the abstract shows that the cause originated before a justice of the peace, and was tried in the circuit court, where judgment was rendered for defendant, but fails to show that the cause proceeded to judgment in the justice's court, and that an appeal was prosecuted, to the circuit court.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2776-2782; Dec. Dig. 8 635.*1

2. APPEAL AND Error (§ 590*)—JURISDICTION OF LOWER COURT.

A record entry in respondent's supplemental abstract, reciting that the cause coming on regularly for hearing before a judge of the circuit court, and, a jury being waived, the following proceedings were had, does not cure the defect in the abstract failing to show that the cause originating before a justice of the peace proceeded to judgment in the justice's court, and that an appeal was prosecuted to the circuit court.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 2611; Dec. Dig. 590.*]

Appellant argues that the record entry appearing in respondent's supplemental abstract of the record cures the defect, but we do not think so. That entry recites "this cause coming on regularly for hearing before the Hon. Edward E. Porterfield, Judge of Division No. 7 of said circuit court, and, a jury being waived, the following proceedings were had." The recital that the cause was regularly heard does not dispense with the necessity of showing in the abstract the preceding facts essential to the investiture of the circuit court with jurisdiction. The appellate court must have before it in regular form the foundation of its own jurisdiction which is derived from the circuit court.

The appeal is dismissed. All concur.

MOORE v. MISSOURI PAC. RY. CO. (Kansas City Court of Appeals. Missouri. Feb. 1, 1909. Rehearing Denied Feb. 27, 1909.) NEGLIGENCE (§ 138*)-INSTRUCTIONS.

1.

Where a petition in an action for negligence is sufficient, and the evidence tends to support its allegations, an instruction as to the negligence of defendant need not be broader than the allegations of the petition and the scope of the evidence, and the jury need not be told what facts which the evidence tended to prove would amount to negligence, where the petition does not specify any particular acts which are charged as being negligent.

[Ed. Note. For other cases, see Negligence, Cent. Dig. § 361; Dec. Dig. § 138.*]

3. DAMAGES (§ 216*)-INSTRUCTIONS-PERMA- | mission to the jury to determine what act or NENT INJURIES-"CONTINUANCE." acts upon the part of defendant's servants would, as a matter of law, constitute actionable negligence. In other words, the jury should have been told what facts, which the evidence tended to prove, would amount to a negligent opening of the door. The charge of the petition is that "the defendant by and through its agents, servants, * * and fellow servants negligently, carelessly, and unskillfully suddenly threw wide

In an action against a master for injuries to a servant, an instruction that, "if the jury find for the plaintiff in determining the damages, they may consider the bodily suffering and mental anguish endured by plaintiff since said in jury in consequence thereof, the character and extent of said injury, and its continuance, together with loss of time, if any," does not authorize the jury to assess damages for permanent injury, as the word "continuance," while generally signifying permanency, does not bear that construction in the connection in which it is used.

[Ed. Note. For other cases, see Damages, Cent. Dig. § 551; Dec. Dig. § 216.*]

Appeal from Circuit Court, Cooper County; Wm. H. Martin, Judge.

Action by Frank Moore against the Missouri Pacific Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed. C. D. Corum, for appellant. Chas. W. Journey and W. F. Johnson, for respondent.

*

open a trapdoor in the bottom of the car near which plaintiff was standing, * * thereby causing the sand," etc. It will be seen that there is no fact pleaded of the negligent opening of the door, but that the fellow servant or servants negligently threw open the door, which amounts to a general charge of negligence. The instruction was as broad as the petition and is held to be sufficient. In Orcutt v. Century Building Co., 201 Mo. 424, 99 S. W. 1062, 8 L. R. A. (N. S.) 929, where plaintiff was a passenger in defendant's elevator, it is held that: "It is not incumbent upon the plaintiff to show the cause of the accident, where general negligence is pleaded. It is sufficient to show the accident and the attendant circumstances and conditions and, where that is done, negligence on defendant's part will be presumed, and the burden then shifts to defendant to show that there was no negligence," etc. In Allen v. St. Louis Transit Co., 183 Mo. 411, 81 S. W. 1142, the holding is similar. "When the peti

evidence tends to prove its averments, a case is made for the jury." Burger v. Mo. Pac. Ry. Co., 112 Mo. 238, 20 S. W. 439, 34 Am. St. Rep. 379. The petition being sufficient, and the evidence tending to support its alle

BROADDUS, P. J. The plaintiff's action is to recover damages as the result of an injury received while in the defendant's employ and alleged to have been occasioned by the negligence of a fellow servant. Plaintiff, with other laborers, was employed by defendant to unload sand from a car upon its tracks. On the occasion in question, the car, which plaintiff was assisting in unloading, was equipped with four trapdoors located in the bottom, two in front and two in the rear. These doors were at first only partially opened, just sufficiently to allow the sand to run gradual-tion charging negligence is sufficient, and the ly through, in order that the workmen who were beneath the car might be able to shovel the sand away as it fell upon the ground. Thus far there is no conflict of evidence. Plaintiff's evidence tends to show that he was standing in the rear of one of the trap-gations, the instruction need not be broader doors and in the rear end of the car, and, while he, with others, was shoveling the sand through the open space, one of his colaborers, who was working on the ground, suddenly threw open the trapdoors where he was working, which caused the sand resting on the doors and near around to rush through the opening, carrying the plaintiff along and precipitating him with violence upon an iron rod beneath the bed of the car. Several of his ribs were broken. He was confined to his bed several months and unable to perform his usual duties. He suffered pain from the in- Instruction No. 5, given for plaintiff, reads jury for two or three months and at the time as follows: "If the jury find the issues for of trial complained of pain. The verdict was the plaintiff, in determining the measure of for the plaintiff for $500, from which defend- his damages, they may take into consideraant appealed. The defendant offered a de- tion, in connection with all the other facts murrer to the plaintiff's evidence, which the and circumstances in evidence, the bodily court refused to sustain. The defendant urg-pain and suffering and mental anguish endures that the plaintiff was not entitled to re-ed by plaintiff since said injury in consecover, as he voluntarily assumed a place of danger; but that is disputed, for which reason the demurrer was properly sustained.

Plaintiff's first instruction is criticised on the ground that it amounted to a roving com

than the allegations of the one and the scope of the other. And it is a rule of law that: "Instructions which are good as far as they go, but do not cover the whole case, amount in civil cases only to nondirection, and not to error, and it is the duty of the other party to ask proper instructions to supply the shortcomings of his adversary." Bank v. Ragsdale, 171 Mo. 168, 71 S. W. 178; Fillingham v. Transit Co., 102 Mo. App. 573, 77 S. W. 314; Wilson v. Ry. Co., 122 Mo. App., loc. cit. 674, 99 S. W. 465.

quence thereof, the character and extent of said injury, and its continuance, together with loss of time, if any," etc. The defendant contends that the instruction, by the use of the word "continuance," authorized the

jury to assess damages for permanent injury. BROADDUS, P. J. This case consists of The petition does not allege any permanent injury to plaintiff, and it is admitted that there was no evidence to that effect. While the word in its general sense signifies permanency, in the connection it is used it does not bear that construction. The connecting words, "the character and extent of said injury and its continuance," imply during or while it continues, or while it remains. We believe the jury was not misled to the prejudice of defendant as the verdict was a moderate one and reasonable in view of the evidence.

tifies a different result.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 3955; Dec. Dig. § 1008.*] 2. MORTGAGES (§ 280*) — FORECLOSURE - EVIDENCE-WEIGHT.

Evidence in an action to foreclose deeds of trust held to show that defendant agreed to discharge outstanding liens when he purchased the land.

[Ed. Note. For other cases, see Mortgages, Cent. Dig. § 746; Dec. Dig. § 280.*]

3. EVIDENCE (8 441*)-PAROL EVIDENCE-EXPLANATION OF CONVEYANCE.

In an action to foreclose a mortgage, it was proper to show by parol evidence that, when defendant purchased the land, he assumed the debts secured by the mortgage, though

the deed was silent as to that matter.

[Ed. Note. For other cases, see Evidence, Cent. Dig. § 2030; Dec. Dig. § 441.*] 4. LIMITATION OF ACTIONS (§ 143*) - NEW PROMISE-ASSUMPTION OF DEBT.

Where the purchaser of mortgaged land agreed to assume the debt, renewal of the debt was just as binding on him as it was on his grantor as affecting limitations.

[Ed. Note.-For other cases, see Limitation of Actions, Cent. Dig. § 583; Dec. Dig. § 143.*] 5. MORTGAGES (§ 298*)-DISCHARGE-ASSIGN

MENT OF NOTE.

The transfer of a mortgage note to the purchaser of the land operated as a payment, and extinguished the mortgage lien.

[Ed. Note. For other cases, see Mortgages, Cent. Dig. § 841; Dec. Dig. § 298.*]

Appeal from Circuit Court, Livingston County; Francis H. Trimble, Judge.

Action by W. O. Grace, administrator, against Forrest M. Gill, administrator, and others. From the judgment, plaintiff appeals. Reversed, amended, and remanded. Oscar L. Smith, for appellant. Wilson & Clapp and Frank Sheetz & Sons, for respondents.

two suits consolidated into one. The plaintiff sues as the administrator of James A. Grace, who died on the 25th day of June, 1906, and the defendant Gill is sued as the administrator of B. O. Brown, who died in June, 1905. Amelia E. Brown is made a party, she being the widow of the said B. C. Brown; and O. K. Frame is made a party defendant, he being in possession of the real estate sought to be affected by the proceedings. The cause of action in the first suit is founded on a promissory note executed by B. C. Brown on the 25th day of January, 1886, payable to said James A. Grace, for the sum of $169.75, due one day after date, bearing 10 per cent. interest per annum, interest from date, which note the said B. C. Brown by writing on the back thereof renewed on November 12, 1902. There is also

a count in the petition seeking a foreclosure of a deed of trust executed by the said Brown and his wife, whereby they conveyed to John C. Grace as trustee for the purpose of securing the payment of said note the following land, to wit: All of the E. 1⁄2 of the S. W. 4, except two acres, of section 4, township 56, range 22, Livingston county, Mo., which was filed for record on the 15th day of February, 1886. The petition in the second suit is to recover judgment on a note executed by the said B. C. Brown on the 17th day of April, 1888, for the sum of $370, due one day after date, and bearing 8 per cent. interest per annum from date, and payable to the order of said James A. Grace, which note the said Brown renewed in writing on November 12, 1902. There is also a count in the petition asking for a foreclosure of a deed of trust executed by said B. C. Brown and his wife, Amelia, by which the property described in the first suit and in addition a certain lot in Bedford, Mo., were conveyed to a trustee for the purpose of securing the payment of said note, which was recorded on the 27th day of April, 1893. W. J. Brown was made a party defendant to both suits on his petition to the court, and. with the other defendants, filed for answer a general denial of the allegations of the plaintiff's petition in the first case. The said W. J. Brown filed his separate answer to both cases, wherein it is alleged, in substance, as follows: That on the 4th day of May, 1881, his father, the said B. C. Brown, executed a note payable to one Martha Brown for the sum of $585, due in three months after date, bearing 6 per cent. interest from date, and that various payments had been made on the note, the first on April 18, 1890, the last one March 9, 1905: that the same is now due, which with interest amounts to $2,445.44; that the said B. C. Brown to secure the payment of said note conveyed the same lands described in said