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make it to, and the insurance man asked if she , ing of the policy. It is stated in respondent's had any children, and she said she had two, and brief that he had been staying with insured he said what about them, and she said they did for two years prior to the issuing of the nothing for her, and he asked her who stayed policy. So it is not unreasonable to assume, with her, and she said Bert Ogle, and she said he wasn't any relation to her, only a broth- under the facts here, that insured and the er-in-law once, and she had raised him from a company regarded respondent as a creditor, school child. She said could she take it out for although he is designated in the policy as a him, and he said yes.”

"brother-in-law." This seems reasonable

from the conversation between insured and The policy designated respondent as “broth- the agent of the company when the policy er-in-law" of insured, and not as creditor.

was taken out. It does not appear that the This witness further testified that after the policy was issued respondent stayed with company was prohibited by its charter or by

statute from issuing a policy designating a insured and was the only one who did, and

creditor as beneficiary; hence we are prothat the services rendered were reasonably ceeding on the theory that the company could worth $100. Mrs. Frances Ogle, a sister-in-law of re

lawfully designate a creditor as beneficiary.

This conclusion reaches the question: Is spondent, testified:

respondent to be considered as a creditor, and "I knew Mrs. Maggie Dickerson in her life- as such entitled to the $100, the remaining time. I was acquainted with her 30 or 40 proceeds of the policy? It is stated in effect, years. I knew her up to her death at Sligo. She was tolerably strong, but was not able to supra, that the evidence tends to show that take care of herself for a number of months respondent rendered services to insured prior prior to her death. I was at her place a couple to the issuing of the policy, and continued to of times. Bert Ogle took care of her to her do so until the death of insured, and that the death. Mag told me she had the insurance services rendered were worth $100. In Mormade in order for some one to care for her, and row v. National Life Association, 184 Mo. she said that Bert was the only one that would App. 308, 168 S. W. 881, where the proceeds stay with her and look after her; that her of an assessment policy were claimed by a children had already thrown her out and kicked her out. This conversation occurred about beneficiary designated as a creditor, the court a couple of months before her death."

said: Respondent introduced other witnesses collect on an insurance policy of this kind, it

"As to the amount which the creditor may who corroborated the two witnesses above seems to us that it might go further than mentioned. One of these, Al. Litty, said : enough to pay the amount which he actually

“Mrs. Dickerson has been at my place quite owes at the time the policy is issued and the a few times and I have been at her place. Dur- advancements which are then agreed and coning her sickness Bert Ogle was there and help templated that he will make in the future. ed care for her. She said Bert was there and Even if there were no promises made as to fushe would not know what she would do without ture advancements, yet, if the creditor, being

the beneficiary in the policy or holding it by him caring for her. She told me she had some insurance, and she divided up the stuff as she assignment, afterward makes advances on the thought that it would be all right to divide it faith of such policy and with an understanding up equally as she could, and she said that Bert then bad that the policy is to stand security ought to have something for his trouble for therefor, we think such payments should be in. staying as faithful as he had with her. She

cluded in the amount to be recovered by him. said she had the insurance made to Bert, but Such is the ruling in Cammack v. Lewis, 82 did not give me any reason why she had it made U. S. 643, 21 L. Ed. 244, where the court held to him."

that the policy was security for the amount

owed when it was assigned, and such advances Appellants' evidence tended to show that as he might afterwards make on account of it.' Mrs. Wurst, one of the appellants, took care Exchange Bank of Macon v. Loh, 104 Ga. 446, of her mother, and that appellants had not 44 L. R. A. 372. This may include funeral ex

penses if there is an understanding to that efneglected insured. Also appellants intro

fect. Shaffer v. Spangler, 144 Pa. St. 223, 22 duced evidence tending to show that respond- Atl. 865, and attorney fees and expenses of ent got about $300 in war savings stamps collecting the policy should be allowed." belonging to insured, and also a horse. It appears also that insured's husband died in [2] It thus appears that under the law of the army and that she was drawing $57.75 this state future advancements may be paid per month from the government on his insur- a creditor beneficiary out of the proceeds of ance. Respondent testified without objection the policy. The Morrow Case settles that that he bought the horse and paid insured question. Appellants contend that since re$60 for horse, buggy and harness, and that spondent concedes that he received from ininsured gave him $187.75 in war stamps. sured war stamps of the value of $187.75 and

There is no showing just what length of that the evidence shows his services worth time respondent had been staying with and not more than $100, he cannot, therefore, be looking after insured prior to taking out the a bona fide creditor. Respondent claims the policy, but the record discloses that he had proceeds of the policy by virtue of a consider

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(248 S.W.)
is no evidence that the $187.75 in war stamps, state nor defendant has filed briefs. In the
was given respondent for the services ren- motion for a new trial, defendant sets up
dered insured. The war stamps question is four grounds, but they all go in effect to the
not important here except as to whether sufficiency of the evidence to support the ver-
said stamps were given respondent in pay. dict.
ment for the same services for whi he The sheriff, with a sear warrant, search-
claims the proceeds of the policy, and, as ed the house claimed to have been the home
stated, there is no evidence to that effect. of defendant, and found two or three cream

Appellants complain of the admission and cans containing mash, a wash boiler with
rejection of evidence. This is an equity case, copper bottom, a lid to the boiler, fixed to
and we do not think that appellants were attach a coil or worm, and a coil. The cans

were behind a folding bed in a corner of the The judgment should be affirmed, and it is house; the wash boiler was in the loft, and 80 ordered,

the coil under the floor. The things found,

according to the sheriff, were the parts of a
COX, P. J., and FARRINGTON, J., concur. still for the manufacture of liquor. Defend-

ant disclaimed ownership or knowledge of
the things found. He said that he was not
at the time living in the house, and had not

lived in the house for some time prior to the
STATE V. FERRELL. (No. 3266.)

search, and that he did not know anything

about the things the sheriff found. The (Springfield Court of Appeals. Missouri. search was made about the middle of JanMarch 16, 1923.)

uary, 1922. No one at the time was in the

house or about the house. The house was
1. Intoxicating liquors Omw236(19) - Circum-
stances held not sufficient to warrant convic not locked, but the front door was latched.

The sheriff said that some furniture and
tion of possessing a still.

household goods were in the house, cook
In a prosecution for possessing a still, etc.,
evidence of the finding of cream cans contain- store, etc., “and all indications that some-
ing mash, a wash boiler with copper bottom, a body lived there." A frying pan looked like
lid to the boiler fixed to attach a coil or worm, it had been used that day. Bert Bailes, a
and a coil hidden in various places around the witness for the state, testified that about the
house, claimed to be that of defendant, but first of the year be lived a half mile east
which defendant claimed he had not occupied and three-quarters north of this house, and
for some three weeks, held insufficient to es- that a short time prior to January 1st defend-
tablish defendant's guilt.

ant lived there, and “was there the next day
2. Criminal law m560-Suspicions will not after Christmas." This witness also stated
support conviction.

that he knew that defendant and his wife Suspicions, however grave, are not of them had separated, and that defendant had gone selves sufficient to support conviction.

back to his father's. Will Burks testified

that about a week or ten days before he Appeal from Circuit Court, Christian

heard about the raid he passed along the County; Fred Stewart, Judge.

road and saw somebody at this house that he Verna Ferrell was convicted of unlawfully took to be defendant and the two Nelsons; possessing a still and mash tubs containing that a few days before he heard about the mash, and he appeals. Reversed and re- raid he had been fox hunting, and one of the manded.

horses got loose, and “that biggest Nelson Moore, Barrett & Moore, of Ozark, for ap- boy came out and talked to us." On crosspellant.

examination this witness stated that he heard Charles F. Boyd, of Ozark, for the State. about the raid in the fall of 1921, and that

he was under indictment for having a still
BRADLEY, J. Defendant, Ferrell, and two in his possession, and that it might have been
others named Nelson were charged by in- suggested to him that his punishment might
formation with unlawfully possessing a still be lighter if he would “turn in so many men
and mash tubs containing mash. The Nelsons or stills." The witness was not indorsed on
were discharged, but defendant, Ferrell, was the information, and was not subpænaed, and
convicted and fined $100, and appealed. defendant had no information that he would

The information is in two counts. In the be used until after the trial had commenced.
first the unlawful possession of a still is Defendant, however, makes no complaint of
charged; in the second the unlawful posses- this in his motion.
sion of mash tubs containing mash. The Defendant testified that he moved to the
court seemed to consider the outfit found and house where the cans, mash, etc., were found
alleged to belong to defendant as a complete in October, 1921, and lived there with his
still, and submitted the cause as to the pos- wife until December 26th; that at that time
session in a single instruction. Neither the he and his wife separated, and that he went

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

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to his father's, and his wife to hers; that he Frank Shelton was convicted of having in had not been back to the house prior to the his possession a “worm" fit to be used in the search since he left on the 26th, and that manufacture of intoxicating liquor, and he the things found were not in the house when appeals. Reversed and remanded. he went away; that they did not belong to him, and that he knew nothing about them.

Moore, Barrett & Moore, of Ozark, for apHe further testified that the house and house

pellant. hold goods in the house belonged to his fa

Charles F. Boyd, of Ozark, for the State. ther. It was further shown that defendant had never been charged or convicted of crime. COX, P. J. Defendant was charged with Defendant's father corroborated him as to having in his possession a "worm" fit to be the ownership of the house and the house- used in the manufacture of intoxicating liqhold goods, and gave some evidence tending uor. A trial by jury resulted in conviction, to show that defendant had not been back and defendant appealed. to the house after he went away on Decem The defendant was found with a copper ber 26th, prior to the search.

worm in his buggy driving along the public [1, 2] We do not think that this record is highway. It was shown that this worm was sufficient to overcome the presumption of in- fit to be used in the manufacture of whisky, nocence and to establish the guilt of defend- and the fact that defendant had it in his ant beyond a reasonable doubt. There are possession in his bugsy was admitted; but some suspicions, but suspicions, however his defense was that it had been placed there grave, are not suficient to support convic- by another party who had requested him to tion. State v. Woodson, 175 Mo. App. 393, throw it out as he crossed a bridge over a 162 S. W. 327, and cases there cited. In stream, and that he was intending to dispose State v. Johnson (Mo. Sup.) 234 S. W. 791, of it in that way and did not intend to use it is said that a reasonable doubt exists if it in making intoxicating liquor. the jury is not morally certain of defendant's The court gave three instructions to the guilt.

jury. In the first they were told that if they The judgment should be reversed and the should find from the evidence that defendant cause remanded, and it is so ordered.

did, on or about December 30, 1921, unlaw

fully possess a certain worm fit to be used COX, P. J., and FARRINGTON, J., con- for the manufacture of intoxicating liquor, cur,

they should convict.

The second instruction was the usual one on reasonable doubt.

The third told the jury that if they should STATE v. SHELTON. (No. 3270.)

find that defendant had the worm in his pos

session without knowing what it was and had (Springfield Court of Appeals. Missouri.

it for the purpose of throwing it away and March 16, 1923.)

not with any intention to use it or have it

used, they should acquit, and the intent for 1. Intoxicating liquors C224-Burden not on which defendant had the worm, if he did state to show possession of worm for pur. have it, was to be determined from all the pose of manufacturing.

facts and circumstances in evidence. In a prosecution for possessing a "worm" The defendant asked, and the court refit to be used for manufacturing intoxicating fused, instructions to the effect that the liquor, the burden was not on the state to burden was on the state to show beyond a show that defendant's possession was for the reasonable doubt that the defendant had the purpose of manufacturing.

worm in his possession with the intent to 2. Intoxicating liquors Cm131-Instruction re use or have it used in the manufacture of

quiring that to acquit jury must find defend- intoxicating liquor. The refusal of these ant did not know what worm was, error. instructions is assigned as error.

In a prosecution for possessing a "worm” [1] As to these refused instructions, the fit to be used in manufacturing liquors, where question before us is whether the state in defendant's claim that a third person placed it order to make a case must show that the in his buggy, requesting that he throw it into defendant had the worm in his possession a stream when passing over a bridge, which, if true, would have been a good defense, an in- for the purpose of using it to manufacture struction that required the jury, in order to intoxicating liquor. We do not think that acquit, not only to find that defendant had no burden rested upon the state. The statute intent to use the worm and that he intended to forbids the possession of a worm or other throw it away, but also "that he did not know named articles that are fit for use in the what it was," was error.

manufacture of intoxicating liquor. The usu

al and ordinary use to which a worm is put Appeal from Circuit Court, Christian Coun- is that of manufacturing intoxicating liquor, ty; Fred Stewart, Judge.

and the purpose of the statute is to prevent

(248 S.W.) that manufacture just as the statute forbid- (2. Damages Fram 62(4)—Party breaching adverding the carrying of concealed weapons is tising contract could not contend that plainintended to prevent assaults and other dis

tiff should have minimized damages by selling turbances that follow that pernicious prac

space to others, tice. It has never been held that the state

Where defendant repudiated a contract must prove that a weapon carried concealed made by it with plaintiff, an advertising corpowas carried for the purpose of being used as fendant was in no position to ask that plaintiff

ration, for advertising space in street cars, dea weapon in order to make a prima facie should accept its breach and sell the space case; but it is sufficient for the state to show which it had sold to defendant in preference to that the weapon was carried concealed, and other space owned by plaintiff which had not then, if defendant has a defense, the burden been sold, so as to minimize defendant's damis on him to prove his defense. State v. ages. Murray, 39 Mo. App. 127; State v. Reed, 140 3. Damages Om62(4)-Defendant could not Mo. App. 251, 124 S. W. 55; State v. Riles, require plaintiff to sell advertising space at 274 Mo. 618, 204 S. W. 1.

less than regular prices to minimize damages We think the same rule should apply to for breach of advertising contract. this case, and hence the instructions asked Where defendant had breached a contract by defendant, which placed the burden on with plaintiff, an advertising corporation, for the state to show in the first instance that advertising space in street cars which plaindefendant intended to use the worm for an tiff had procured and paid for, defendant could

not claim that the space which it had refused unlawful purpose, were properly refused. [2] The defendant in this case testified that to take should be sold at a lower price than

plaintiff's regular price to others, in order to the worm had been placed in his buggy by mitigate defendant's loss; plaintiff having other another party with the request that he throw unsold space in addition to that sold to defendit in a stream as he passed over a bridge and ant. that he had intended to dispose of it in that way. We think that, if that were true, it 4. Damages On 40(1) ---Lost profits recovera

ble where certain and definite. would be a good defense, and had the jury so found, he should have been a cquitted. That dence can fix the loss of profits as certain and

Lost profits are recoverable where the eviissue was submitted to the jury by instruc- definite and where it is not open to speculation tion No. 3. This instruction required the and conjecture. jury, in order to acquit, not only to find that defendant had no intent to use the worm 5. Damages On 40(2)—Loss of profits for found in his possession and that he intended

breach of contract recoverable if they would

have been made had contract been performed. to throw it away, but also that he did not know what it was. This last requirement

Loss of profits which are sufficiently defiwent too far. If defendant had the worm for breach of contract if it reasonably ap

nite and certain may be recovered as damages in his possession for the purpose of throwing pears that they would have been made had it in the stream as he said he had been re- the contract been performed and their loss necquested to do, and had no intention of using essarily followed the breach. it in any way, he should have been acquitted, and the fact that he knew what the worm Appeal from Circuit Court, Greene Counwas would not deprive him of that defense. ty; Orin Patterson, Judge.

For the error mentioned, the judgment will be reversed, and the cause remanded.

Action by Barron G. Collier, Inc., against

the Domino Macaroni Manufacturing ComFARRINGTON and BRADLEY, JJ.,

pany. Judgment for plaintiff, and defendant appeals. Affirmed.

Wright & Rufin, of Springfield, for appellant.

G. M. Sebree, of Springfield, for responBARRON G. COLLIER, Inc., V. DOMINO dent.

MACARONI MFG. CO. (No. 3257.) (Springfield Court of Appeals. Missouri.

FARRINGTON, J. The plaintiff recoverMarch 16, 1923.)

ed a judgment against defendant for the

sum of $228, from which judgment the de1. Damages 120(4)–Measure of damages fendant appealed. for breach of contract to advertise in street

The petition shows that plaintiff is a corcars stated.

poration engaged in the advertising business Where defendant had contracted with plain- by selling space which it had secured from tiff for advertising space in the cars of a certain traction company, but later repudiated the the Springfield Traction Company, which agreement after plaintiff had procured such operates street cars in the city of Springspace and paid for it, the measure of plain- field, Mo.; that the defendant entered into tiff's damages was the amount that defendant a contract with it to take 12 months' adhad agreed to pay.

vertising space at $19 per month; and that For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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the defendant, after entering into such tract, as it had to pay for this space, and agreement, notified the plaintiff that it can- had already paid for it when defendant celed its written agreement and declined to made its contract. There is therefore no pay or to furnish the subject-matter for ad- question in the case of plaintiff piling up vertising. Plaintiff stated that it was at all expense after it knew the defendant would times ready, willing, and able to display de not carry out its contract. Neither was fendant's advertising and carry out and per. there any obligation upon plaintiff to try form the terms of the contract, and that, by and dispose of the space which defendant reason of defendant's failure to perform its had bought at a less price than defendant contract it, the plaintiff, had been damaged had agreed to pay. The defendant is in no in the sum of $228.

position, when it is the one breaching the Defendant answered by general denial, contract, to ask that plaintiff should accept and then admitted that it executed the con- its breach and sell that which it had sold tract, and that it then notified the plaintiff to the defendant in preference to other space that it would not perform its part and would owned by the plaintiff which had not been refuse to carry out its terms of the contract. sold at all. And again the defendant could

The evidence in the case discloses that the not ask that the space which it had refused plaintiff procures the right to advertise in to take should be sold at a lower price than the street cars of Springfield, which right plaintiff's regular price to other customers, costs it a certain amount of money not for, while this might mitigate the defendshown in evidence, and that it must pay ant's loss, it would not go to make up what this amount to the Springfield Traction Com- the plaintiff was losing, because it would pany whether it procures advertisements or be merely shifting its loss as to a given not. In other words, the traction company amount of space to its loss on another given charges the plaintiff for the space, and plain- amount of space. tiff must pay for it and may sell it to ad This identical question and contract has vertising customers. It does not relieve been before the Supreme Court of Minnesota, plaintiff from having to pay for the privilege in the case of Barron G. Collier, Inc., v. of using the street cars because it does not Kindy, 146 Minr. 279, 178 N. W. 584, where procure sufficient advertisers to use the it is held that the plaintiff was entitled to space.

recover from such a defendant the full The defendant admitted that it executed amount of the contract price as its damage the contract, and that it agreed to pay $19 for breach of contract. a month for 12 months, and then admitted [4, 5] As we have heretofore stated, the that it breached that contract. The contract facts in this case clearly show that the shows that no particular space in a street plaintiff lost the profits which it would have car is set aside to any of plaintiff's custom-gained had defendant complied with its coners; they merely are entitled to a certain tract, and lost profits are recoverable where amount of space under the contract. It is the evidence can fix the loss of profits as also shown that after the defendant repudi- certain and definite, and where it is not left ated its contract the plaintiff still had some open to specħlation and conjecture. In this undisposed of space in the street cars which case the plaintiff had purchased from the it was endeavoring in every way possible to Springfield Traction Company the right to sell. Under this statement of facts it clear-/ use space for advertising purposes, and, ly appears that the defendant is liable to when it sold a certain amount of space to the plaintiff for the breach of the contract. this defendant for a certain sum, then it

[1] Much is said in appellant's brief con- inevitably lost by virtue of defendant's cerning the measure of damages. We think breach the amount which defendant had that under the facts found by the court, agreed to pay. It is held in Missouri that which we have stated, the damage to plain- loss of profits as are sufficiently certain and tiff is the same in this case whether it be definite under the evidence may be recovered called a contract in the nature of personal as damages for breach of contract if it reaservices or merely a loss of profits. In the sonably appears that they would have been end the result is the same, because, when made had the contract been performed, and the plaintiff is required to pay a lump sum their loss necessarily followed the breach. to the Springfield Traction Company for the See Minneapolis Mach, Co. v. Bradford, 206 privilege of using that space for advertis- Mo. App. 609, 227 S. W. 628; Hicks v. Naing, and the defendant had agreed to pay tional Surety Co., 169 Mo. App. 479, 155 S. the plaintiff a certain amount for a certain W. 71; 17 Corpus Juris, 788. amount of space, then, when it refused to do The loss in this case is one that could be so, the plaintiff's loss would amount to the said to have fallen within the contemplation amount that the defendant had agreed to of the parties, because the contract between pay.

the plaintiff and defendant shows on its [2, 3] The testimony showed that the plain-face that the space had been procured by tiff would not have been put to one cent plaintiff from the Springfield Traction Com

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