make it to, and the insurance man asked if she | had any children, and she said she had two, and he said what about them, and she said they did nothing for her, and he asked her who stayed with her, and she said Bert Ogle, and she said he wasn't any relation to her, only a brother-in-law once, and she had raised him from a school child. She said could she take it out for him, and he said yes." The policy designated respondent as "broth er-in-law" of insured, and not as creditor. This witness further testified that after the policy was issued respondent stayed with insured and was the only one who did, and that the services rendered were reasonably worth $100. Mrs. Frances Ogle, a sister-in-law of respondent, testified: "I knew Mrs. Maggie Dickerson in her lifetime. I was acquainted with her 30 or 40 years. I knew her up to her death at Sligo. She was tolerably strong, but was not able to take care of herself for a number of months prior to her death. I was at her place a couple of times. Bert Ogle took care of her to her death. Mag told me she had the insurance made in order for some one to care for her, and she said that Bert was the only one that would stay with her and look after her; that her children had already thrown her out and kick ed her out. This conversation occurred about a couple of months before her death." Respondent introduced other witnesses who corroborated the two witnesses above mentioned. One of these, Al. Litty, said: "Mrs. Dickerson has been at my place quite a few times and I have been at her place. During her sickness Bert Ogle was there and helped care for her. She said Bert was there and she would not know what she would do without him caring for her. She told me she had some insurance, and she divided up the stuff as she thought that it would be all right to divide it up equally as she could, and she said that Bert ought to have something for his trouble for staying as faithful as he had with her. She said she had the insurance made to Bert, but did not give me any reason why she had it made to him." Appellants' evidence tended to show that Mrs. Wurst, one of the appellants, took care of her mother, and that appellants had not neglected insured. Also appellants introduced evidence tending to show that respondent got about $300 in war savings stamps belonging to insured, and also a horse. It appears also that insured's husband died in the army and that she was drawing $57.75 per month from the government on his insurance. Respondent testified without objection that he bought the horse and paid insured $60 for horse, buggy and harness, and that insured gave him $187.75 in war stamps. There is no showing just what length of time respondent had been staying with and looking after insured prior to taking out the policy, but the record discloses that he had heen rendering such service prior to the issu ing of the policy. It is stated in respondent's brief that he had been staying with insured for two years prior to the issuing of the policy. So it is not unreasonable to assume, under the facts here, that insured and the company regarded respondent as a creditor, although he is designated in the policy as a "brother-in-law." This seems reasonable the agent of the company when the policy from the conversation between insured and was taken out. It does not appear that the company was prohibited by its charter or by creditor as beneficiary; hence we are prostatute from issuing a policy designating a ceeding on the theory that the company could lawfully designate a creditor as beneficiary. This conclusion reaches the question: Is respondent to be considered as a creditor, and as such entitled to the $100, the remaining proceeds of the policy? It is stated in effect, supra, that the evidence tends to show that respondent rendered services to insured prior to the issuing of the policy, and continued to do so until the death of insured, and that the services rendered were worth $100. In Morrow v. National Life Association, 184 Mo. App. 308, 168 S. W. 881, where the proceeds of an assessment policy were claimed by a beneficiary designated as a creditor, the court said: collect on an insurance policy of this kind, it [2] It thus appears that under the law of this state future advancements may be paid a creditor beneficiary out of the proceeds of the policy. The Morrow Case settles that question. Appellants contend that since respondent concedes that he received from insured war stamps of the value of $187.75 and that the evidence shows his services worth not more than $100, he cannot, therefore, be a bona fide creditor. Respondent claims the proceeds of the policy by virtue of a consideration moving from him to insured. There (248 S.W.) is no evidence that the $187.75 in war stamps was given respondent for the services rendered insured. The war stamps question is not important here except as to whether said stamps were given respondent in payment for the same services for which he claims the proceeds of the policy, and, as stated, there is no evidence to that effect. Appellants complain of the admission and rejection of evidence. This is an equity case. and we do not think that appellants were injured. state nor defendant has filed briefs. In the motion for a new trial, defendant sets up four grounds, but they all go in effect to the sufficiency of the evidence to support the verdict. The sheriff, with a search warrant, searched the house claimed to have been the home of defendant, and found two or three cream cans containing mash, a wash boiler with copper bottom, a lid to the boiler, fixed to 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 so 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 STATE v. FERRELL. (No. 3266.) (Springfield Court of Appeals. March 16, 1923.) Missouri. Circum 1. Intoxicating liquors 236 (19) 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 search, and that he did not know anything about the things the sheriff found. The search was made about the middle of January, 1922. No one at the time was in the house or about the house. The house was not locked, but the front door was latched. The sheriff said that some furniture and In a prosecution for possessing a still, etc., evidence of the finding of cream cans containing mash, a wash boiler with copper bottom, a lid to the boiler fixed to attach a coil or worm, and a coil hidden in various places around the house, claimed to be that of defendant, but which defendant claimed he had not occupied for some three weeks, held insufficient to establish defendant's guilt. 2. Criminal law support conviction. Suspicions, however grave, are not of them- had separated, and that defendant had gone selves sufficient to support conviction. household goods were in the house, cook stove, etc., "and all indications that somebody lived there." A frying pan looked like it had been used that day. Bert Bailes, a witness for the state, testified that about the first of the year he lived a half mile east and three-quarters north of this house, and that a short time prior to January 1st defendant lived there, and "was there the next day 560-Suspicions will not after Christmas." This witness also stated that he knew that defendant and his wife 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. Verna Ferrell was convicted of unlawfully possessing a still and mash tubs containing mash, and he appeals. Reversed and remanded. road and saw somebody at this house that he took to be defendant and the two Nelsons; that a few days before he heard about the raid he had been fox hunting, and one of the 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 in his possession, and that it might have been suggested to him that his punishment might be lighter if he would "turn in so many men or stills." The witness was not indorsed on the information, and was not subpoenaed, and defendant had no information that he would be used until after the trial had commenced. Defendant, however, makes no complaint of this in his motion. BRADLEY, J. Defendant, Ferrell, and two others named Nelson were charged by information with unlawfully possessing a still and mash tubs containing mash. The Nelsons were discharged, but defendant, Ferrell, was convicted and fined $100, and appealed. The The information is in two counts. In the first the unlawful possession of a still is charged; in the second the unlawful possession of mash tubs containing mash. court seemed to consider the outfit found and alleged to belong to defendant as a complete still, and submitted the cause as to the possession in a single instruction. Neither the Defendant testified that he moved to the house where the cans, mash, etc., were found in October, 1921, and lived there with his wife until December 26th; that at that time 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 to his father's, and his wife to hers; that he had not been back to the house prior to the search since he left on the 26th, and that the things found were not in the house when he went away; that they did not belong to him, and that he knew nothing about them. He further testified that the house and household goods in the house belonged to his father. It was further shown that defendant had never been charged or convicted of crime. Defendant's father corroborated him as to the ownership of the house and the household goods, and gave some evidence tending to show that defendant had not been back to the house after he went away on December 26th, prior to the search. [1, 2] We do not think that this record is sufficient to overcome the presumption of innocence and to establish the guilt of defendant beyond a reasonable doubt. There are some suspicions, but suspicions, however grave, are not sufficient to support conviction. State v. Woodson, 175 Mo. App. 393, 162 S. W. 327, and cases there cited. In State v. Johnson (Mo. Sup.) 234 S. W. 794, it is said that a reasonable doubt exists if the jury is not morally certain of defendant's guilt. Frank Shelton was convicted of having in his possession a "worm" fit to be used in the manufacture of intoxicating liquor, and he appeals. Reversed and remanded. Moore, Barrett & Moore, of Ozark, for appellant. Charles F. Boyd, of Ozark, for the State. COX, P. J. Defendant was charged with having in his possession a "worm" fit to be used in the manufacture of intoxicating liquor. A trial by jury resulted in conviction, and defendant appealed. The defendant was found with a copper worm in his buggy driving along the public highway. It was shown that this worm was fit to be used in the manufacture of whisky, and the fact that defendant had it in his possession in his buggy was admitted; but his defense was that it had been placed there by another party who had requested him to throw it out as he crossed a bridge over a stream, and that he was intending to dispose of it in that way and did not intend to use it in making intoxicating liquor. The court gave three instructions to the 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, unlawfully possess a certain worm fit to be used COX, P. J., and FARRINGTON, J., con- for the manufacture of intoxicating liquor, cur. 1. Intoxicating liquors 224-Burden not on state to show possession of worm for purpose of manufacturing. In a prosecution for possessing a "worm" fit to be used for manufacturing intoxicating liquor, the burden was not on the state to show that defendant's possession was for the purpose of manufacturing. 2. Intoxicating liquors 131-Instruction requiring that to acquit jury must find defend ant did not know what worm was, error. In a prosecution for possessing a "worm" fit to be used in manufacturing liquors, where defendant's claim that a third person placed it in his buggy, requesting that he throw it into a stream when passing over a bridge, which, if true, would have been a good defense, an instruction that required the jury, in order to acquit, not only to find that defendant had no intent to use the worm and that he intended to throw it away, but also "that he did not know what it was," was error. they should convict. The second instruction was the usual one on reasonable doubt. The third told the jury that if they should find that defendant had the worm in his possession without knowing what it was and had it for the purpose of throwing it away and not with any intention to use it or have it used, they should acquit, and the intent for which defendant had the worm, if he did have it, was to be determined from all the facts and circumstances in evidence. The defendant asked, and the court refused, instructions to the effect that the burden was on the state to show beyond a reasonable doubt that the defendant had the worm in his possession with the intent to use or have it used in the manufacture of intoxicating liquor. The refusal of these instructions is assigned as error. [1] As to these refused instructions, the question before us is whether the state in order to make a case must show that the defendant had the worm in his possession for the purpose of using it to manufacture intoxicating liquor. We do not think that burden rested upon the state. The statute forbids the possession of a worm or other named articles that are fit for use in the manufacture of intoxicating liquor. The usual 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 For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (248 S.W.) tising contract could not contend that plaintiff should have minimized damages by selling space to others. that manufacture just as the statute forbid- ƒ 2. Damages 62(4)-Party breaching adverding the carrying of concealed weapons is intended to prevent assaults and other disturbances that follow that pernicious practice. It has never been held that the state must prove that a weapon carried concealed was carried for the purpose of being used as a weapon in order to make a prima facie case; but it is sufficient for the state to show that the weapon was carried concealed, and then, if defendant has a defense, the burden is on him to prove his defense. State v. Murray, 39 Mo. App. 127; State v. Reed, 140 Mo. App. 251, 124 S. W. 55; State v. Riles, 274 Mo. 618, 204 S. W. 1. We think the same rule should apply to this case, and hence the instructions asked by defendant, which placed the burden on the state to show in the first instance that defendant intended to use the worm for an unlawful purpose, were properly refused. [2] The defendant in this case testified that the worm had been placed in his buggy by another party with the request that he throw it in a stream as he passed over a bridge and that he had intended to dispose of it in that way. We think that, if that were true, it would be a good defense, and had the jury so found, he should have been acquitted. That issue was submitted to the jury by instruction No. 3. This instruction required the jury, in order to acquit, not only to find that defendant had no intent to use the worm found in his possession and that he intended to throw it away, but also that he did not know what it was. This last requirement went too far. If defendant had the worm in his possession for the purpose of throwing it in the stream as he said he had been requested to do, and had no intention of using it in any way, he should have been acquitted, and the fact that he knew what the worm was would not deprive him of that defense. For the error mentioned, the judgment will be reversed, and the cause remanded. FARRINGTON and BRADLEY, JJ., cur. Where defendant repudiated a contract made by it with plaintiff, an advertising corpofendant was in no position to ask that plaintiff ration, for advertising space in street cars, deshould accept its breach and sell the space which it had sold to defendant in preference to other space owned by plaintiff which had not been sold, so as to minimize defendant's damages. 3. Damages 62(4)-Defendant could not require plaintiff to sell advertising space at less than regular prices to minimize damages for breach of advertising contract. Where defendant had breached a contract with plaintiff, an advertising corporation, for advertising space in street cars which plaintiff had procured and paid for, defendant could not claim that the space which it had refused to take should be sold at a lower price than plaintiff's regular price to others, in order to mitigate defendant's loss; plaintiff having other unsold space in addition to that sold to defendant. 4. Damages 40(1)-Lost profits recoverable where certain and definite. dence can fix the loss of profits as certain and definite and where it is not open to speculation and conjecture. Lost profits are recoverable where the evi 5. Damages 40 (2)-Loss of profits for breach of contract recoverable if they would have been made had contract been performed. Loss of profits which are sufficiently definite and certain may be recovered as damages for breach of contract if it reasonably appears that they would have been made had the contract been performed and their loss necessarily followed the breach. Appeal from Circuit Court, Greene County; Orin Patterson, Judge. Action by Barron G. Collier, Inc., against the Domino Macaroni Manufacturing ComJudgment for plaintiff, and defendpany. conant appeals. Affirmed. Wright & Ruffin, of Springfield, for appellant. BARRON G. COLLIER, Inc., v. DOMINO 1. Damages 120(4)-Measure of damages for breach of contract to advertise in street cars stated. G. M. Sebree, of Springfield, for respondent. FARRINGTON, J. The plaintiff recovered a judgment against defendant for the sum of $228, from which judgment the defendant appealed. The petition shows that plaintiff is a corporation 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 cer- the Springfield Traction Company, which tain traction company, but later repudiated the 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 the defendant, after entering into such agreement, notified the plaintiff that it canceled its written agreement and declined to pay or to furnish the subject-matter for advertising. Plaintiff stated that it was at all times ready, willing, and able to display defendant's advertising and carry out and perform the terms of the contract, and that, by reason of defendant's failure to perform its contract it, the plaintiff, had been damaged in the sum of $228. tract, as it had to pay for this space, and had already paid for it when defendant made its contract. There is therefore no question in the case of plaintiff piling up expense after it knew the defendant would not carry out its contract. Neither was there any obligation upon plaintiff to try and dispose of the space which defendant had bought at a less price than defendant had agreed to pay. The defendant is in no 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 advertising customers. It does not relieve plaintiff from having to pay for the privilege of using the street cars because it does not procure sufficient advertisers to use the space. The defendant admitted that it executed the contract, and that it agreed to pay $19 a month for 12 months, and then admitted that it breached that contract. The contract shows that no particular space in a street car is set aside to any of plaintiff's customers; they merely are entitled to a certain amount of space under the contract. It is also shown that after the defendant repudiated its contract the plaintiff still had some undisposed of space in the street cars which it was endeavoring in every way possible to sell. Under this statement of facts it clearly appears that the defendant is liable to the plaintiff for the breach of the contract. [1] Much is said in appellant's brief concerning the measure of damages. We think that under the facts found by the court, which we have stated, the damage to plaintiff is the same in this case whether it be called a contract in the nature of personal services or merely a loss of profits. In the end the result is the same, because, when the plaintiff is required to pay a lump sum to the Springfield Traction Company for the privilege of using that space for advertising, and the defendant had agreed to pay the plaintiff a certain amount for a certain amount of space, then, when it refused to do sc, the plaintiff's loss would amount to the amount that the defendant had agreed to pay. [2, 3] The testimony showed that the plaintiff would not have been put to one cent more expense to have carried out its con This identical question and contract has been before the Supreme Court of Minnesota, in the case of Barron G. Collier, Inc., v. Kindy, 146 Minn. 279, 178 N. W. 584, where it is held that the plaintiff was entitled to recover from such a defendant the full amount of the contract price as its damage for breach of contract. [4,5] As we have heretofore stated, the facts in this case clearly show that the plaintiff lost the profits which it would have gained had defendant complied with its contract, and lost profits are recoverable where the evidence can fix the loss of profits as certain and definite, and where it is not left open to speculation and conjecture. In this case the plaintiff had purchased from the Springfield Traction Company the right to use space for advertising purposes, and, when it sold a certain amount of space to this defendant for a certain sum, then it inevitably lost by virtue of defendant's breach the amount which defendant had agreed to pay. It is held in Missouri that loss of profits as are sufficiently certain and definite under the evidence may be recovered as damages for breach of contract if it reasonably appears that they would have been made had the contract been performed, and their loss necessarily followed the breach. See Minneapolis Mach. Co. v. Bradford, 206 Mo. App. 609, 227 S. W. 628; Hicks v. National Surety Co., 169 Mo. App. 479, 155 S. W. 71; 17 Corpus Juris, 788. The loss in this case is one that could be said to have fallen within the contemplation of the parties, because the contract between the plaintiff and defendant shows on its face that the space had been procured by plaintiff from the Springfield Traction Company. |