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(248 S.W.) wise obstructs or renders the same dangerous, "The demurrer to the petition was properly inconvenient or annoying to any person." sustained, and the judgment is affirmed.” Plaintiff's case was based upon the viola

The defendant here was simply a tenant, tion of said ordinance. She was represented and no claim is made that it produced the by able counsel, who thoroughly briefed the hole which caught plaintiff's cane and threw case and orally argued the same here. The her down. The jury returned a verdict for trial court sustained a demurrer to the peti- defendant, and judgment was entered accordtion, and its action in so doing was upheld by ingly. In view of the ruling in the Russell this court. Judge White, in a clear and well- Case, supra, there can be no recovery on the considered opinion, on page 147, among other facts disclosed in this record. Defendant's things, said:

demurrer to the evidence should have been

sustained. “The plaintiff with commendable directness thus states the issue: 'This case presents the had been the duty of defendant to keep said

[2] II. Aside from the foregoing, even if it sole proposition whether or not the violation of the ordinance referred to can be made the walk in repair, we are of the opinion that, in basis of a civil action for damages by one in the exercise of ordinary care, it was not jured as a direct result of such violation.' bound to anticipate that a hole one inch in

*The following passage from Shearman & diameter in a sidewalk otherwise safe would Redfield on Negligence, $ 343, is quoted with ap- result in injury to any one like that sued for proval by this court in the case of Ford v. Kan- in this case. Zasemowich v. Am. Mfg. Co. sas City, 181 Mo. 137, loc. cit. 147, 79 S. W. (Mo. Sup.) 213 S. W. loc. cit. 803, and cases 923, 926: 'An abutting owner, as such, owes cited. no duty to maintain the street or sidewalk in

III. Regardless of any alleged errors comfront of his premises, and is not responsible for any defects therein which are not caused by plained of herein, the judgment below was his own wrongful act.

The fact that for the right party, and is accordingly afhe violates a city ordinance which requires firmed. abutting owners to remove snow and ice from the sidewalk in front of their premises with HIGBEE and DAVIS, CC., concur. in a certain time after their accumulation does not render him liable to one injured by falling PER CURIAM. The foregoing opinion of upon such snow and ice, nor to the city which RAILEY, C., is adopted as the opinion of the had suffered judgment for the same injury.'

court. "The passage quoted states the law as de

All of the Judges concur. termined by this court in numerous Norton v. City of St. Louis, 97 Mo. 537, 11 S. W. 242; City of St. Louis v. Conn. Mut. Life Ins. Co., 107 Mo. 92, 17 S. W. 637, 28 Am. St. Rep. 402; Baustian v. Young et al., 152 Mo. 317, 53 $. W. 921, 75 Am. St. Rep. 462; Hil

HASTINGS v. SCOTT et al. (No. 3214.) liard v. Noe (Mo. App.) 198 S. W. loc. cit. 436; 19 R. C. L. & 180, p. 880."

(Springfield Court of Appeals. Missouri.

March 16, 1923.) Judge White, on page 149, further ob

1. Corporations On 232(3)-Stockholders are

liable for excessive value of property given "No negligence is attributable to a person

for stock notwithstanding good faith. for allowing snow and ice to accumulate and

Under Const. art. 12, § 8, and Rev. St. remain upon a sidewalk. The negligence is that 1919, § 9740, prohibiting issuance of corporate of the city, and the city cannot saddle that ob- stock except for money paid, labor done, or ligation upon the property owner.

property actually received, and section 10144, "It does not matter whether you call an ordi- requiring property for which stock is issued to nance of that kind a police regulation or not. be taken at its actual value and to be itemized, It is not the name you apply to the regulation persons to whom corporate stock is issued in nor the power exercised in ordaining it, but exchange for property at an excessive valuation the relation of the regulation to the duty of the are liable for the difference between the actual person affected, which determines liability. It value of the property and the amount of the is a rule universally recognized that one is stock, even if they believed in good faith that forbidden to create a dangerous condition in a the property was turned in at a fair valuation, thoroughfare where other persons might be injured by reason of it. A statute or an ordi- 2. Corporations Em 232(3)-Requirement prop. dance regulating one's conduct in such matters erty exchanged for stock be itemized does not merely defines the care which shall be exercised change rule requiring value, to prevent injury by reason of his active, posi The requirement of Rev. St. 1919, § 10144, tive agency. While the city may compel a citizen that property taken in payment for corporate

snow and ice and make a side- stock shall be itemized does not change the rule walk safe, he obeys the requirements as an in- that the stockholders receiving such stock are strument of the city, not as his primary duty. liable to the corporation's creditors for the His failure to do it would be the failure of the difference between the amount of their stock

and the actual value of the property. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

cases.

serves:

to remove

city.

as

3, Corporations Cm 232(3)-Latitude should be, debts, when it was found that there were

allowed in estimating value of property ex debts still unpaid amounting to $2,806.69. changed for corporate stock.

This suit was then filed by the trustee in Even though stockholders receiving stock in bankruptcy against these defendants and exchange for property are liable for an excess

one Dr. J. E. Johnson to recover sufficient valuation placed upon the property notwith

to pay these claims. The suit is based on standing their good faith, some latitude must be allowed in arriving at a fair valuation to be the allegation that the stock of the corporafixed on the property exchanged by the corpo- tion at the time of incorporation was paid ration where it was of a character which had for by the subscribers in property at a grossno fixed market value and its actual value was ly excessive valuation. The question involv. difficult to estimate.

ed in the trial was the value of the property 4. Evidence om 598(1)-Weight not determined with which the stock issued was paid for at by number of witnesses.

the time of the formation of the corporation. The weight of evidence is not to be deter. The trial court found in favor of Dr. Johnmined solely on the number of the witnesses son and against defendants A. T. and J. M. who testified on the respective sides.

Scott. 5. Corporations Ow269(3)-Evidence held to

The evidence shows that at the time of sustain finding property ex nged for stock the formation of the corporation the inwas overvalued,

corporators were owners of a mining lease Evidence consisting of estimates by wit- and certain machinery and tools; that some nesses as to the value of property exchanged mining had been done on the ground leased for $30,000 of corporate stock and showing that and ore mined and sold. This lease, machinfour months before the organization of the ery, and the property owned by the incorporacorporation the organizers placed a valuation of $12,000 on the property in forming a part- tors was turned in to the corporation at a nership held to sustain a finding that the stock valuation of $30,000. The plaintiff introduced was overvalued, so

to render the stock- a number of witnesses who testified that the holders liable to creditors after the bankruptcy value of the property at the time of the forof the corporation.

mation of the corporation was small, while

defendants introduced a muc larger numAppeal from Circuit Court, Jasper County; ber of witnesses who testified that the value Grant Emerson, Judge.

was equal to or greater than the value placAction by C. E. Hastings, as trustee in ed on it by the incorporators. Appellants bankruptcy of the High-Grade Zinc Mining contend that their witnesses were better Company, against A. T. Scott, J. M. Scott, qualified to express an opinion on the value and another. Judgment for the plaintiff of the property than were plaintiff's witagainst the named defendants, and those de- nesses, and that the preponderance of the fendants appeal. Affirmed.

testimony in their favor was so great that A. G. Young, of Webb City, and R. A. this court should reverse the judgment. Pearson, of Joplin, for appellants.

[1] Our Constitution (article 12, § 8) and C. E. Hastings and H. S. Miller, both of our statute of 1919 (section 9740) both proJoplin, for respondent.

vide that no incorporation shall issue stock or

bonds except for money paid, labor done, or COX, P. J. Action by trustee in bank- property actually received, and all fictitious ruptcy for unpaid subscription to corporate increase of stock or indebtedness shall be stock on the ground that the stock had been void. Section 10144, Rev. St. 1919, specificalpaid for in property at an excessive valua- ly provides that, if stock be paid for in proption. Finding and judgment for plaintiff, erty, the property must be taken at its acand defendants appealed.

tual value, and also requires the property to A corporation named High-Grade Zinc be itemized. The construction placed upon Mining Company with a capital stock of these provisions by the courts of this state $50,000 was incorporated in Jasper county, and other states with like constitutional Mo., and in the articles of association it and statutory provisions has settled the rule was recited that 60 per cent. or $30,000 of to be that persons who form a corporation the stock had been subscribed and paid for ' and pay for the stock issued to them with in property consisting of mines and a min- property instead of money must see to it ing lease on 40 acres of land and certain that the property is not overvalued, and, if described machinery and tools.

it is turned in at an excessive valuation, The mines and lease were valued at $20,000, even in good faith and in the honest belief and the machinery and tools at $10,000. The that it is being turned in at a fair valuadefendants were among the stockholders, tion, they may, after the corporate assets and 50 shares of stock of the par value are exhausted, be held liable to the creditors of $100 per share were issued to each of of the corporation for the difference between them as fully paid. Afterward the corpo- the actual value of the property and the valration was adjudged a bankrupt, its proper- ue at which it was turned in to the corporatr was sold, and the proceeds applied on its tion. Rogers v. Mining Co., 185 Mo. App.

(248 S.W.) 659, 171 S. W. 676; Van Cleve v. Berkey,, of witnesses, the defendant should prevail, 143 Mo. 109, 44 S. W. 743, 42 L. R. A. 593; but that rule has never obtained. Hodde v. Hahn, 283 Mo. 330, 222 S. W. 799. [5] The evidence shows that for most, if Many other cases in this and other states not all, of the time the mines on the lease are to the same effect. This rule is based in question were operated, they were operon the theory that creditors of the corpora- ated at a loss. It was also shown that on tion have the right, in the absence of in- April 1, 1919, the then owners of the properformation to the contrary, to assume that ty, which included defendant A. T. Scott, the value of the assets of the corporation is entered into a partnership agreement in reequal to its paid-up capital stock, and are lation to this same property in which its presumed to deal with the corporation on total value was placed at $12,000. This corthe faith of that value; also that there is poration was organized and the articles of an implied contract on the part of the sub- association executed on July 15, 1919, and scriber to the stock that he will make his there is no showing of any material increase subscription good; that is, that if he has in value between those dates. A. T. Scott not paid for it in money, he has paid for it is the father of J. M. Scott and had acted in property having a money value equal to for him in the formation of the corporation the par value of the stock. Rogers v. Yoder, and the interest of A, T. Scott in the proper198 Mo. App. 27, 29, 195 S. W. 50.

ty paid for the stock that was issued to [2] The fact that the statute requires both. The fact that the owners of the propproperty taken in payment for stock to be erty in forming a partnership in relation itemized does not change the rule. Rogers thereto less than four months before the v. Mining Co., supra.

formation of the corporation had placed a [3] It is often difficult to arrive at the value of only $12,000 upon it is of itself an actual value of property at a certain time important fact to be considered in deterunless it is property having a fixed market mining the value of the property when the value at that time. Mines, mining leases, corporation was formed. and mining machinery are always difficult This being a law case, and there being of exact valuation. The value of mining substantial evidence to support the finding, leases is often more speculative than actual, that finding is binding upon us. and a court or jury must usually rely large The judgment will be affirmed. ly upon opinions of those familiar with the property in determining the value of proper FARRINGTON and BRADLEY, JJ., conty of that character, and this very uncer- cur. tainty as to the value and the difficulty in securing accurate information in relation to it furnishes one of the reasons for the constitutional and statutory provisions above re-GARRISON V. CITY OF OZARK. (No. 3274.) ferred to and the rule established by the courts in construing them. While it is true (Springfield Court of Appeals. Missouri. that in this state what is known as the "ac

March 16, 1923.) tual value rule" as distinguished from the "good-faith" or common-law rule is the rule Judgment w 248-Relief must be confined to

rights under contract pleaded and proved. by which incorporators are bound, yet the difficulty in accurately ascertaining the ac. city to furnish plaintiff water for named lots, in

Where, in an action on a contract by a tual value, when the parties act in good consideration of plaintiff's allowing a water faith and there is no showing that any credi- pipe to be laid across his tract of land outside tor has in fact been misled, leads to an al- the city limits, the judgment did not confine the lowance of some latitude in arriving at right to the named lots as stated in the petition what would be a fair valuation to be fixed and proved by plaintiff as being the contract enon the property in a given case. McClure tered into, and the evidence showed that, if v. Paducah Iron Co., 90 Mo. App. 567, 579, defendant was liable to so furnish water on 580.

the lots that plaintiff had sold them, and was [4] The court in this case found the actual not the proper party to enforce it, the judg

ment was beyond pleadings and evidence. value of the property turned in at $30,000 to be $18,000. A careful examination of the

Appeal from Circuit Court, Christian Counevidence in this case convinces us that the

ty; Fred Stewart, Judge. court was reasonably liberal in fixing the value at $18,000. The defendants had many

Action by H. F. Garrison against the City more witnesses that testified that, in their of Ozark. Judgment for plaintiff, and de opinion, the property was

worth $30,000 fendant appeals. Reversed. or more than plaintiff had that testified Moore, Barrett & Moore, of Ozark, and W. that its value was either nil or much less L. Vandeventer, of Hartville, Mo., for appelthan $18,000, and, if the question of value lant. were to be determined solely on the number G. Purd Hays, of Ozark, for respondent.

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

FARRINGTON, J. The plaintiff filed a that the court took any action on such motion petition in the circuit court stating that he and that exceptions were taken to the failure had a contract with the defendant to furnish of the court to act upon the motion. him water for lots 135 and 136 in the city of 2. Criminal law 783(1) - Instruction as to Ozark, Mo., in consideration of having allowed purpose for which certain evidence was ad. a water pipe to be laid across a tract of land mitted held properly refused as unintelligible. belonging to him outside of the city limits. In a prosecution for having in possession The water pipe conveyed the water from a two large tanks and a copper pipe or worm and spring east of Ozark to the city. The petition a mash tub fit for use in the manufacture of further alleged that this contract was pro- intoxicating liquor, it was not error to refuse cured by fraud, and damage for fraud was that all evidence admitted in this case as to the

an instruction that “the court instructs the jury asked in the sum of $500. Coupled with defendants making whisky was for the sole these two charges he asked. injunctive relief, purpose of showing whether or not the tank, praying that the city be enjoined from fur- an engine tank claimed to be a vat, of shedding ther use or occupancy of the land. The pe light on that question and that alone”; the intition also attempts to plead a right by ease-struction being unintelligible. ment or right to the water by virtue of the 3. Intoxicating liquors am 238(1)-Submission fact that the city had not collected water

of guilt of having in possession apparatus for rent from him.

manufacture of intoxicating liquor sustained. A motion to elect was filed by defendant, In a prosecution for having in possession and overruled. The defendant then answer- apparatus for the manufacture of intoxicating ed, admitting that it had cut off the water liquor, evidence held sufficient to justify subsupply for failure of the owner of lots 135 mission of defendant's guilt to the jury. and 136 to pay water rent. The court found that there was a contract by which defend Appeal from Circuit Court, Christian Counant was to furnish water to plaintiff on lots ty; Fred Stewart, Judge. 135 and 136 in consideration of the line be R. J. Graves and Dave Graves were coning laid across his land, and adjudged that victed of having in possession apparatus for plaintiff have a permanent water right in the manufacture of intoxicating liquor, and city of Ozark, so long as it used the pipe laid they appeal. Affirmed. over his land. It will be noted that this judgment did not

G. Purd Hays, of Ozark, for appellants.

Charles F. Boyd, of Ozark, for the State. confine the right to lots 135 and 136, as stated in plaintiff's petition, and as testified to by him as being the contract entered into the circuit court of Christian county by the

COX, P. J. An information was filed in It appears that several years before this suit was filed plaintiff had sold lots 135 and 136 and Charles B. Jenkins with having in their

prosecuting attorney charging defendants without any showing that he reserved the water rights that he might have carried on possession two large tanks and a copper pipe these lots, which evidence clearly shows that, or worm and a mash tub fit for use in the if there is any liability due from this defend- manufacture of intoxicating liquor. Defendant to furnish water on these lots, this plain- ant Jenkins pleaded guilty and was then used tiff has sold it, and is not the proper party by the state as a witness against the to enforce it.

other defendants. Upon trial J. R. Graves The judgment went beyond the pleadings and Dave Graves were both convicted and and the evidence in granting a permanent have appealed to this court. right in the whole city of Ozark. For the

It appears from the record that the prosreasons stated, the judgment is reversed.

ecuting attorney filed an affidavit for a

search warrant with the clerk of the circuit COX, P. J., and BRADLEY, J., concur.

court, who then issued the warrant, and it was served by a deputy sheriff. In the house occupied by J. R. Graves and Dave Graves, a piece of copper worm was found, and cov

ered up in a pile of sawdust some distance STATE V. GRAVES et al. (No. 3268.) away a large tank was found. Another tank

was found in a hollow or canyon some dis(Springfield Court of Appeals. Missouri. March 16, 1923.)

tance from the house.

A motion to quash the search warrant 1. Criminal law !! 15(1)-Failure to act up- and suppress the evidence of the parties on motion to quash search warrant will not who served it was filed by defendants, but be considered in absence of showing of ruling the bill of exceptions, does not show that and exceptions.

the court acted upon this motion, The In a prosecution for having in possession apparatus for the manufacture of intoxicating transcript of the record entries made by liquor, failure to act upon a motion to quash the court in the case, however, shows that a search warrant will not be reviewed, in the this motion was overruled. absence of a showing in the bill of exceptions / [1] Counsel for appellants assign as error

(248 S.W.) the failure of the court to act upon the mo- | not want to make her children beneficiaries, tion to quash the search warrant. As stat- because they had abandoned her, but stated ed, the bill of exceptions fails to show that that her brother-in-law was caring for her and the court took any action upon this motion. entitled to compensation, held to warrant the It also fails to show that defendants saved assumption that the company in issuing the exception to the failure of the court to act up though he was designated therein as a brother

policy considered the beneficiary a creditor, on the motion. The only way, under our prac-in-law. tice, to preserve for the consideration of the appellate court the action of the trial court 2. Insurance Cm 666-Creditor as beneficiary upon a motion, or its failure to act upon a

may recover future advancements out of pro

ceeds of policy. motion, is to preserve the matter in a bill of exceptions which must show that the defend beneficiary under an insurance policy are re

Future advances made by a creditor as ant at the time excepted to the action or the coverablc out of the proceeds of the policy. failure to act of the court. This being true, the question of what was done by the court

Appeal from Circuit Court, Crawford or what the court failed to do in relation to County; L, B, Woodside, Judge. the motion filed by defendants is not before us for review.

Contlicting claims having been filed for the The defendants asked, and the court refus amount of an insurance policy, the Springed, the following instruction:

tield Mutual Association paid the amount of “The court instructs the jury that all evi- Wurst and Charles Jonas, as claimants, in

the policy into court, and Bert Ogle, Julia dence admitted in this case as to the defendants making whisky was for the sole purpose of

terpleaded. From judgment for the firstshowing whether or not the tank, an engine named claimant, the others appeal. Affirmed. tank claimed to be a vat, of shedding light on G. C. Dalton, of Atlantic, for appellants. that question and that alone."

Frank H. Farris, of Rolla, and Earl E. [2] There was testimony to the effect that Roberts, of Steelville, for respondent. the tank found buried in the sawdust was taken from an engine and had been used by BRADLEY, J. [1] Maggie Dickerson at defendants and Jenkins to make whisky. her death bad a policy for $120 in the Defendants were not charged with making Springfield Mutual Association. Contlicting whisky, and an instruction to the jury that claims were made, and the insurance comthe evidence of this tank having been used pany paid the amount of the policy into to make whisky should only be considered by court, and appellants and respondent interthem in determining whether or not it was pleaded. The court found for respondent, fit for that purpose, if asked, should have Ogle, and appellants failing to get a new been given; but the instruction as asked is trial appealed. unintelligible and was properly refused. Respondent is the beneficiary named in the

[3] It is contended by counsel that the evi- | policy. Appellants are the children and the dence was not sufficient to sustain a convic only heirs of the insured. Respondent is tion as to Dave Graves. We have carefully not related to insured, but claims the pro read the transcript of the testimony on file ceeds of the policy on the ground that he had in this court and are of the opinion that an agreement with insured by which he was there was sufficient evidence to take the case to take care of her, and was to have the to the jury as to him, and that assignment proceeds of said policy to pay him for such must be ruled against him.

service, and that he rendered services purThe instructions given fairly presented the suant to said agreement of the value of the issues to the jury, and we find no reversible policy. If respondent's witnesses are to be error in the trial as shown by the record be believed, the insured made respondent bene

ficiary because he bad been looking after her, The judgment will be affirmed.

and on the theory that he would continue to

do so until her death, and that the services FARRINGTON and BRADLEY, JJ., con- rendered after the policy was issued were cur.

worth $100. The company was allowed $20 for bringing the proceeds of the policy into

court, and $100 was the amount remaining SPRINGFIELD MUT, ASS'N V. OGLE et al. and claimed by the respective interpleaders. (No. 3282.)

Nanie Dickerson, a daughter-in-law of in

sured, testified that she was present when .(Springfield Court of Appeals. Missouri.

the policy was taken out. Further this witMarch 16, 1923.)

ness said: 1. Insurance 665(2)-Beneficiary designat "Q. Now, what was said at the time, if anyed as brother-in-law held a creditor. thing, in reference to taking out this insurance,

Evidence that at the time of taking out an and who it should be made payable to, and the insurance policy insured stated that she did I reason why? A. She said she had no one to

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
248 S.W.-62

fore us.

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