(248 S.W.) wise obstructs or renders the same dangerous, inconvenient or annoying to any person." Plaintiff's case was based upon the violation of said ordinance. She was represented by able counsel, who thoroughly briefed the case and orally argued the same here. The trial court sustained a demurrer to the petition, and its action in so doing was upheld by this court. Judge White, in a clear and wellconsidered opinion, on page 147, among other things, said: "The plaintiff with commendable directness thus states the issue: "This case presents the sole proposition whether or not the violation of the ordinance referred to can be made the basis of a civil action for damages by one injured as a direct result of such violation.' "The following passage from Shearman & Redfield on Negligence, § 343, is quoted with approval by this court in the case of Ford v. Kansas City, 181 Mo. 137, loc. cit. 147, 79 S. W. 923, 926: 'An abutting owner, as such, owes no duty to maintain the street or sidewalk in ** front of his premises, and is not responsible cases. "The passage quoted states the law as determined 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 S. W. 921, 75 Am. St. Rep. 462; Hilliard v. Noe (Mo. App.) 198 S. W. loc. cit. 436; 19 R. C. L. § 180, p. 880." Judge White, on page 149, further ob serves: "No negligence is attributable to a person for allowing snow and ice to accumulate and remain upon a sidewalk. The negligence is that of the city, and the city cannot saddle that obligation upon the property owner. "It does not matter whether you call an ordinance of that kind a police regulation or not. It is not the name you apply to the regulation nor the power exercised in ordaining it, but the relation of the regulation to the duty of the person affected, which determines liability. It is a rule universally recognized that one is forbidden to create a dangerous condition in a thoroughfare where other persons might be injured by reason of it. A statute or an ordinance regulating one's conduct in such matters merely defines the care which shall be exercised to prevent injury by reason of his active, positive agency. While the city may compel a citizen to remove snow and ice and make a sidewalk safe, he obeys the requirements as an instrument of the city, not as his primary duty. His failure to do it would be the failure of the city. "The demurrer to the petition was properly sustained, and the judgment is affirmed." The defendant here was simply a tenant, and no claim is made that it produced the hole which caught plaintiff's cane and threw her down. The jury returned a verdict for defendant, and judgment was entered accordingly. In view of the ruling in the Russell Case, supra, there can be no recovery on the Defendant's facts disclosed in this record. demurrer to the evidence should have been sustained. [2] II. Aside from the foregoing, even if it had been the duty of defendant to keep said walk in repair, we are of the opinion that, in the exercise of ordinary care, it was not bound to anticipate that a hole one inch in diameter in a sidewalk otherwise safe would result in injury to any one like that sued for in this case. Zasemowich v. Am. Mfg. Co. (Mo. Sup.) 213 S. W. loc. cit. 803, and cases cited. III. Regardless of any alleged errors com plained of herein, the judgment below was for the right party, and is accordingly af firmed. 1. Corporations 232 (3)-Stockholders are liable for excessive value of property given for stock notwithstanding good faith. Under Const. art. 12, § 8, and Rev. St. 1919, § 9740, prohibiting issuance of corporate stock except for money paid, labor done, or property actually received, and section 10144, be taken at its actual value and to be itemized, requiring property for which stock is issued to persons to whom corporate stock is issued in exchange for property at an excessive valuation are liable for the difference between the actual value of the property and the amount of the stock, even if they believed in good faith that the property was turned in at a fair valuation, 2. Corporations 232(3)—Requirement property exchanged for stock be itemized does not change rule requiring value. The requirement of Rev. St. 1919, § 10144, that property taken in payment for corporate stock shall be itemized does not change the rule that the stockholders receiving such stock are liable to the corporation's creditors for 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 3, Corporations 232 (3)—Latitude should be allowed in estimating value of property exchanged for corporate stock. Even though stockholders receiving stock in exchange for property are liable for an excess valuation placed upon the property notwithstanding their good faith, some latitude must be allowed in arriving at a fair valuation to be fixed on the property exchanged by the corporation where it was of a character which had no fixed market value and its actual value was difficult to estimate. debts, when it was found that there were one Dr. J. E. Johnson to recover sufficient 4. Evidence 598 (1)-Weight not determined with which the stock issued was paid for at by number of witnesses. The weight of evidence is not to be determined solely on the number of the witnesses who testified on the respective sides. 5. Corporations 269 (3)-Evidence held to sustain finding property exchanged for stock was overvalued. the time of the formation of the corporation. The trial court found in favor of Dr. Johnson and against defendants A. T. and J. M. Scott. The evidence shows that at the time of the formation of the corporation the incorporators 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 corporation the organizers placed a valuation ery, and the property owned by the incorporaof $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 was overvalued, so as to render the stockholders liable to creditors after the bankruptcy of the corporation. valuation of $30,000. The plaintiff introduced a number of witnesses who testified that the value of the property at the time of the formation of the corporation was small, while defendants introduced a much larger num Appeal from Circuit Court, Jasper County; ber of witnesses who testified that the value Grant Emerson, Judge. Action by C. E. Hastings, as trustee in bankruptcy of the High-Grade Zinc Mining Company, against A. T. Scott, J. M. Scott, and another. Judgment for the plaintiff against the named defendants, and those defendants appeal. Affirmed. was equal to or greater than the value placed on it by the incorporators. Appellants contend that their witnesses were better qualified to express an opinion on the value of the property than were plaintiff's witnesses, and that the preponderance of the 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. C. E. Hastings and H. S. Miller, both of Joplin, for respondent. COX, P. J. Action by trustee in bankruptcy for unpaid subscription to corporate stock on the ground that the stock had been paid for in property at an excessive valuation. Finding and judgment for plaintiff, and defendants appealed. A corporation named High-Grade Zinc Mining Company with a capital stock of $50,000 was incorporated in Jasper county, Mo., and in the articles of association it was recited that 60 per cent. or $30,000 of the stock had been subscribed and paid for in property consisting of mines and a mining lease on 40 acres of land and certain described machinery and tools. The mines and lease were valued at $20,000, and the machinery and tools at $10,000. The defendants were among the stockholders, and 50 shares of stock of the par value of $100 per share were issued to each of them as fully paid. Afterward the corporation was adjudged a bankrupt, its property was sold, and the proceeds applied on its [1] Our Constitution (article 12, § 8) and our statute of 1919 (section 9740) both provide that no incorporation shall issue stock or bonds except for money paid, labor done, or property actually received, and all fictitious increase of stock or indebtedness shall be void. Section 10144, Rev. St. 1919, specifically provides that, if stock be paid for in property, the property must be taken at its actual value, and also requires the property to be itemized. The construction placed upon these provisions by the courts of this state and other states with like constitutional and statutory provisions has settled the rule to be that persons who form a corporation and pay for the stock issued to them with property instead of money must see to it that the property is not overvalued, and, if it is turned in at an excessive valuation, even in good faith and in the honest belief that it is being turned in at a fair valuation, they may, after the corporate assets are exhausted, be held liable to the creditors of the corporation for the difference between the actual value of the property and the value at which it was turned in to the corporation. Rogers v. Mining Co., 185 Mo. App. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (248 S.W.) of witnesses, the defendant should prevail, but that rule has never obtained. [5] The evidence shows that for most, if not all, of the time the mines on the lease in question were operated, they were operated at a loss. It was also shown that on April 1, 1919, the then owners of the property, which included defendant A. T. Scott, entered into a partnership agreement in relation to this same property in which its total value was placed at $12,000. This corporation was organized and the articles of 659, 171 S. W. 676; Van Cleve v. Berkey, 143 Mo. 109, 44 S. W. 743, 42 L. R. A. 593; Hodde v. Hahn, 283 Mo. 330, 222 S. W. 799. Many other cases in this and other states are to the same effect. This rule is based on the theory that creditors of the corporation have the right, in the absence of information to the contrary, to assume that the value of the assets of the corporation is equal to its paid-up capital stock, and are presumed to deal with the corporation on the faith of that value; also that there is 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 subscription good; that is, that if he has not paid for it in money, he has paid for it in property having a money value equal to the par value of the stock. Rogers v. Yoder, 198 Mo. App. 27, 29, 195 S. W. 50. [2] The fact that the statute requires property taken in payment for stock to be itemized does not change the rule. Rogers v. Mining Co., supra. there is no showing of any material increase in value between those dates. A. T. Scott is the father of J. M. Scott and had acted for him in the formation of the corporation and the interest of A. T. Scott in the property paid for the stock that was issued to both. The fact that the owners of the property in forming a partnership in relation thereto less than four months before the formation of the corporation had placed a value of only $12,000 upon it is of itself an important fact to be considered in determining the value of the property when the corporation was formed. This being a law case, and there being substantial evidence to support the finding, that finding is binding upon us. The judgment will be affirmed. FARRINGTON and BRADLEY, JJ., con cur. [3] It is often difficult to arrive at the actual value of property at a certain time unless it is property having a fixed market value at that time. Mines, mining leases, and mining machinery are always difficult of exact valuation. The value of mining leases is often more speculative than actual, and a court or jury must usually rely largely upon opinions of those familiar with the property in determining the value of property of that character, and this very uncertainty 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 that in this state what is known as the "actual value rule" as distinguished from the "good-faith" or common-law rule is the rule by which incorporators are bound, yet the difficulty in accurately ascertaining the actual value, when the parties act in good faith and there is no showing that any creditor has in fact been misled, leads to an allowance of some latitude in arriving at what would be a fair valuation to be fixed on the property in a given case. McClure v. Paducah Iron Co., 90 Mo. App. 567, 579, 580. (Springfield Court of Appeals. Judgment Missouri. 248-Relief must be confined to rights under contract pleaded and proved. city to furnish plaintiff water for named lots, in Where, in an action on a contract by a consideration of plaintiff's allowing a water pipe to be laid across his tract of land outside the city limits, the judgment did not confine the right to the named lots as stated in the petition and proved by plaintiff as being the contract entered into, and the evidence showed that, if defendant was liable to so furnish water on the lots that plaintiff had sold them, and was not the proper party to enforce it, the judgment was beyond pleadings and evidence. [4] The court in this case found the actual value of the property turned in at $30,000 to be $18,000. A careful examination of the evidence in this case convinces us that the court was reasonably liberal in fixing the value at $18,000. The defendants had many more witnesses that testified that, in their opinion, the property was worth $30,000 or more than plaintiff had that testified that its value was either nil or much less than $18,000, and, if the question of value were to be determined solely on the number G. Purd Hays, of Ozark, for respondent. Appeal from Circuit Court, Christian County; Fred Stewart, Judge. Action by H. F. Garrison against the City of Ozark. Judgment for plaintiff, and defendant appeals. Reversed. Moore, Barrett & Moore, of Ozark, and W. L. Vandeventer, of Hartville, Mo., for appellant. For other cases see same topic and KEY-NUMBER in al! Key-Numbered Digests and Indexes FARRINGTON, J. The plaintiff filed a petition in the circuit court stating that he had a contract with the defendant to furnish him water for lots 135 and 136 in the city of Ozark, Mo., in consideration of having allowed a water pipe to be laid across a tract of land belonging to him outside of the city limits. The water pipe conveyed the water from a spring east of Ozark to the city. The petition further alleged that this contract was procured by fraud, and damage for fraud was asked in the sum of $500. Coupled with these two charges he asked injunctive relief, praying that the city be enjoined from further use or occupancy of the land. The petition also attempts to plead a right by easement or right to the water by virtue of the fact that the city had not collected water rent from him. A motion to elect was filed by defendant, and overruled. The defendant then answered, admitting that it had cut off the water supply for failure of the owner of lots 135 and 136 to pay water rent. The court found that there was a contract by which defendant was to furnish water to plaintiff on lots 135 and 136 in consideration of the line being laid across his land, and adjudged that plaintiff have a permanent water right in the city of Ozark, so long as it used the pipe laid over his land. It will be noted that this judgment did not 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. It appears that several years before this suit was filed plaintiff had sold lots 135 and 136 without any showing that he reserved the water rights that he might have carried on these lots, which evidence clearly shows that, if there is any liability due from this defendant to furnish water on these lots, this plaintiff has sold it, and is not the proper party to enforce it. The judgment went beyond the pleadings and the evidence in granting a permanent right in the whole city of Ozark. For the reasons stated, the judgment is reversed. COX, P. J., and BRADLEY, J., concur. STATE v. GRAVES et al. (No. 3268.) (Springfield Court of Appeals. Missouri. March 16, 1923.) 1. Criminal law 1115(1)-Failure to act upon motion to quash search warrant will not be considered in absence of showing of ruling and exceptions. that the court took any action on such motion In a prosecution for having in possession two large tanks and a copper pipe or worm and a mash tub fit for use in the manufacture of an instruction that "the court instructs the jury intoxicating liquor, it was not error to refuse that all evidence admitted in this case as to the defendants making whisky was for the sole purpose of showing whether or not the tank, an engine tank claimed to be a vat, of shedding light on that question and that alone"; the instruction being unintelligible. 3. Intoxicating liquors 238(1)-Submission of guilt of having in possession apparatus for manufacture of intoxicating liquor sustained. In a prosecution for having in possession apparatus for the manufacture of intoxicating liquor, evidence held sufficient to justify submission of defendant's guilt to the jury. Appeal from Circuit Court, Christian County; Fred Stewart, Judge. R. J. Graves and Dave Graves were convicted of having in possession apparatus for manufacture of intoxicating liquor, and they appeal. Affirmed. G. Purd Hays, of Ozark, for appellants. the circuit court of Christian county by the prosecuting attorney charging defendants and Charles B. Jenkins with having in their possession two large tanks and a copper pipe or worm and a mash tub fit for use in the manufacture of intoxicating liquor. Defendant Jenkins pleaded guilty and was then used by the state as a witness against the other defendants. Upon trial J. R. Graves and Dave Graves were both convicted and have appealed to this court. COX, P. J. An information was filed in It appears from the record that the prosecuting attorney filed an affidavit for a search warrant with the clerk of the circuit 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 covered up in a pile of sawdust some distance away a large tank was found. Another tank was found in a hollow or canyon some distance from the house. A motion to quash the search warrant and suppress the evidence of the parties who served it was filed by defendants, but the bill of exceptions does not show that the court acted upon this motion. transcript of the record entries made by the court in the case, however, shows that this motion was overruled. The In a prosecution for having in possession apparatus for the manufacture of intoxicating liquor, failure to act upon a motion to quash a search warrant will not be reviewed, in the absence of a showing in the bill of exceptions [1] Counsel for appellants assign as error For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (248 S.W.) not want to make her children beneficiaries, because they had abandoned her, but stated that her brother-in-law was caring for her and entitled to compensation, held to warrant the assumption that the company in issuing the policy considered the beneficiary a creditor, though he was designated therein as a brother 2. Insurance 666-Creditor as beneficiary may recover future advancements out of proceeds of policy. the failure of the court to act upon the mo- The defendants asked, and the court refused, the following instruction: "The court instructs the jury that all evi dence admitted in this case as to the defendants making whisky was for the sole purpose of showing whether or not the tank, an engine tank claimed to be a vat, of shedding light on that question and that alone." [2] There was testimony to the effect that the tank found buried in the sawdust was taken from an engine and had been used by defendants and Jenkins to make whisky. Defendants were not charged with making whisky, and an instruction to the jury that the evidence of this tank having been used to make whisky should only be considered by them in determining whether or not it was fit for that purpose, if asked, should have been given; but the instruction as asked is unintelligible and was properly refused. [3] It is contended by counsel that the evidence was not sufficient to sustain a conviction as to Dave Graves. We have carefully read the transcript of the testimony on file in this court and are of the opinion that there was sufficient evidence to take the case to the jury as to him, and that assignment must be ruled against him. The instructions given fairly presented the issues to the jury, and we find no reversible error in the trial as shown by the record before us. The judgment will be affirmed. Future advances made by a creditor as beneficiary under an insurance policy are recoverable out of the proceeds of the policy. Appeal from Circuit Court, Crawford County; L. B. Woodside, Judge. Conflicting claims having been filed for the amount of an insurance policy, the Springfield Mutual Association paid the amount of the policy into court, and Bert Ogle, Julia Wurst and Charles Jonas, as claimants, interpleaded. From judgment for the firstnamed claimant, the others appeal. Affirmed. G. C. Dalton, of Atlantic, for appellants. Frank H. Farris, of Rolla, and Earl E. Roberts, of Steelville, for respondent. BRADLEY, J. [1] Maggie Dickerson at her death had a policy for $120 in the Springfield Mutual Association. Conflicting claims were made, and the insurance company paid the amount of the policy into court, and appellants and respondent interpleaded. The court found for respondent, Ogle, and appellants failing to get a new trial appealed. Respondent is the beneficiary named in the policy. Appellants are the children and the only heirs of the insured. Respondent is not related to insured, but claims the proceeds of the policy on the ground that he had an agreement with insured by which he was to take care of her, and was to have the proceeds of said policy to pay him for such service, and that he rendered services pursuant to said agreement of the value of the policy. If respondent's witnesses are to be believed, the insured made respondent beneficiary because he had been looking after her, and on the theory that he would continue to do so until her death, and that the services FARRINGTON and BRADLEY, JJ., con- rendered atter 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.) (Springfield Court of Appeals. Missouri. March 16, 1923.) 1. Insurance 665 (2) -Beneficiary designated as brother-in-law held a creditor. Evidence that at the time of taking out an insurance policy insured stated that she did Nanie Dickerson, a daughter-in-law of insured, testified that she was present when the policy was taken out. Further this witness said: "Q. Now, what was said at the time, if anything, in reference to taking out this insurance, and who it should be made payable to, and the 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 |