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there is no merit in this contention. Both | sons, but others are present, and, knowing the counts were submitted to the jury, and they unlawful intent, aid by acts or encourage by found appellant guilty.

[2] The second exception to the court's charge is he did not submit the issue of alibi. The court's charge contains a stereotyped charge on alibi, and, after defining "alibi," instructed them, if they had a reasonable doubt as to the presence of the defendant at the place where the offense was committed at the time of the commission thereof, to find him not guilty.

[3] The third exception is that it does not charge when a theft is completed, and does not charge that the defendant must be acquitted unless he participated in the acts constituting the theft as a principal. We do not believe the exception is well taken. The theory of the state was that appellant and another party committed the theft and drove the cow from Davilla to Cameron, and there was some evidence showing they were seen driving this cow at night. Appellant sold the cow at Cameron, and had the check made for the payment of the cow in the

name of one W. J. Melear. His claim was

that he traded for the cow with Melear, giving him a little mule valued at $10 and some money for the cow, and sold her to the butcher. When the butcher went to make out the check, appellant had it made out in favor of W. J. Melear, and himself indorsed Melear's name on the back of it when he cashed it. He says this was done at Melear's request. Now, the court charged the jury,

in this connection, that if they should believe from the evidence that the defendant refrom the evidence that the defendant received the cow described in the evidence in trade or sale from one W. J. Melear, or any other person, they will find the defendant not guilty, or if they had a reasonable doubt thereof, they will acquit the defendant. This

directly applied the law to the facts.

[4] Another ground is that the court did not define who are principals, and did not instruct the jury that, if defendant is shown by the evidence to be an accomplice, he must be acquitted. The court charged on circumstantial evidence in the main charge, and then gave this charge at the request of appellant:

"You are further instructed that all persons are principals who are guilty of acting together in the commission of an offense. When an offense is actually committed by one or more per

words or gestures those actually engaged in the commission of the unlawful act, such persons so aiding or encouraging are principal offenders, and may be prosecuted as such. And in this connection you are further charged that the offense of theft is complete when the alleged thief has actually taken possession of and assumed ownership and control of the stolen property, and unless you believe from the evidence, beyond a reasonable doubt, that the defendant, Geo. McAninch, had some connection with the original unlawful taking of the cow, if the cow was unlawfully taken, you will acquit the defendant."

We think this sufficiently presented the failure of the court to so charge, if such error be found in the court's charge for its

omission.

[5] Appellant also excepts to the court's charge for failing to instruct the jury that defendant should not be convicted if he was receiver, and not the thief. We have quoted a sufficient number of the charges, which, we think, presented this matter fairly to the jury, so they could not have made any mistake in finding on this particular question. His contention was that he did not steal

the cow, but that he received it from Melear. The court instructed the jury directly, if that was true, to acquit and gave a charge on circumstantial evidence, and also upon the law of principals, which instructed the jury that, if appellant was not connected with the original taking, he could not be guilty of theft. This omission, if it be so treated, was not calculated to injure the

rights of the accused in the face of the charges given. It would make no difference whether appellant received it or not; if he whether appellant received it or not; if he was not connected with the original taking, he should be acquitted, and the jury were so instructed, and this whether he received it innocently or fraudulently. If the jury be

lieved he received the animal from Melear, as he says he did, and as was his contention, they would not have convicted him. They could have taken this view of it, but they did not, and there is evidence to support the finding that he was the original taker. The issues were, we think, fairly submitted to the jury on the different questions. There is no bill of exceptions in the record, and these are the matters we have thought necessary to mention in deciding the case.

The Judgment is affirmed.

FIRST NAT. BANK OF GRANT CITY V. KORN. (No. 11705.)

(Kansas City Court of Appeals. Missouri. Nov. 1, 1915.)

1. APPEAL AND ERROR 193-GROUNDS FOR REVIEW-OBJECTION TO PETITION.

Unless a petition is so defective as to wholly fail to state any cause of action, and, on that account, is wholly insufficient to support a judgment, an objection that it does not state a cause of action first made in the appellate court cannot be considered.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 1226-1238, 1240; Dec. Dig. 193.]

2. BILLS AND NOTES 410-EVIDENCE-CERTIFICATE OF PROTEST-STATUTES.

Under Rev. St. 1909, § 6329, making a certificate of protest prima facie evidence, if filed 15 days before trial, a certificate of protest filed at the beginning of suit in a justice's court, but not verified until the day of trial therein, was sufficient, where the cause on appeal to the circuit court was tried de novo seven months later.

in proper time, which is met by putting it into the proper post office properly directed.

[Ed. Note.-For other cases, see Bills and Notes, Cent. Dig. §§ 1173, 1178-1187; Dec. Dig. .421.]

Appeal from Circuit Court, Worth County; Wm. C. Ellison, Judge.

"Not to be officially published." Action by the First National Bank of Grant City against C. A. Korn. Judgment for plaintiff, and defendant appeals. Affirmed.

O. B. Hudson, of Grant City, for appellant. John Ewing and Kelso & Kelso, all of Grant City, for respondent.

On

TRIMBLE, J. Appellant, having a check drawn by Seasholtz & Scheller on the Kellerton State Bank of Kellerton, Iowa, indorsed and delivered it to the respondent bank, and received from it the proceeds thereof. presentation to the Iowa bank payment was refused, and the check was protested and returned to respondent. Appellant declining to refund the money he had obtained, respond

[Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 1120-1128; Dec. Dig. 410.] 3. BILLS AND NOTES 414-PROTEST-NECES- ent brought this suit on appellant's indorse

SITY.
Under Rev. St. 1909, § 10125, providing

that protest must be made on the day of dishonor, unless delay is excused, it was not necessary that the drawer of a check, who had notified the bank on which it was drawn not to pay it, be notified of its protest; since the bank was merely his agent in withholding pay

ment.

[Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 1142, 1148-1155; Dec. Dig. 414.]

4. EVIDENCE 423-PAROL EVIDENCE-INDORSEMENT OF CHECK.

Under Rev. St. 1909, § 10033, providing that one placing his signature upon an instrument otherwise than as maker, drawer, or acceptor, is an indorser, unless he clearly indicates his intention to be bound in some other capacity, the legal effect of a blank indorsement cannot be changed or varied by evidence from another source, as the statute fixes the legal effect of the instrument and excludes parol evidence.

ment to recover the amount of said check, with interest and protest fees. The case originated in a justice court, and, after trial there, was appealed to the circuit court, where it was tried anew, resulting in a judgment for the bank, and the other party has appealed.

Respondent has a motion to dismiss the appeal because of the alleged failure of appellant to properly arrange and present the record herein. The chief ground of this motion is that appellant has not distinguished between matters to be shown by the record and matters which can only appear in the bill of exceptions. We are of the opinion, however, that while the appellant's abstract is not in the usual stereotyped form, but is somewhat inartistic, and not as clear as it might be, yet nevertheless it is not so open to the objections made against it as to jus

[Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 1957-1965; Dec. Dig. 423.] 5. BILLS AND NOTES 400-PRESENTATION tify us in refusing to consider the case on FOR PAYMENT-DUE DILIGENCE. its merits. The motion is therefore overruled.

Where plaintiff bank, located in Missouri, received a check on a bank, in Iowa, and presented it through the ordinary channels of business, and protested it when payment was refused, there was no failure of due diligence.

[Ed. Note. For other cases, see Bills and Notes, Cent. Dig. § 1067; Dec. Dig. 400.] 6. BILLS AND NOTES 537-QUESTION FOR JURY-DILIGENCE IN PRESENTATION.

Whether a given state of facts constitutes due diligence in the presentation of a check to the drawee bank is a question of law for the

court.

[Ed. Note.-For other cases, see Bills and

[1] Appellant says the petition or statement on which the case is based does not state a cause of action. No attack was made on the pleading in any way either before judgment or in the motion for new trial. Unless the petition is so defective as to wholly fail to state any cause of action at all, and, on that account, is wholly insufficient to support a judgment, said objection, made for the first time in the appellate court, cannot be

Notes, Cent. Dig. §§ 1862-1893; Dec. Dig. regarded. The petition is not so defective as 537.]

7. BILLS AND NOTES 421-NOTICE OF PRO

TEST-MAILING-SUFFICIENCY.

this. The alleged defects it is said to contain are not such as cause the petition to state no cause of action whatever, but, if they exist at all, merely show that a good cause of action exists, but that it has been stated imperfectly in some respects.

Where a notice of a check's dishonor was put in a post office to go by the proper post, it was immaterial to the rights of the holder whether it ever reached the drawer or not, as all the law requires is the sending of due notice j The chief grounds of appellant's complaint

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

relate to the admissibility and sufficiency of since he had ordered the drawee bank not the notary's certificate of protest.

[2] With regard to the first objection thereto, it seems that the certificate of protest attached to the note and originally filed with the justice at the time of the institution of the suit, to wit, May 29, 1913, was not verified by his affidavit, as required by section 6329, R. S. Mo. 1909. The case went to trial in the justice court on July 5, 1913, and on that day, before trial, respondent filed another certificate of protest, which was duly verified. Inasmuch as section 6329 makes the certificate prima facie evidence provided it is filed in the cause 15 days before the trial thereof, appellant takes the position that it was not admissible in evidence on the trial of the case in the circuit court. This trial did not occur till February 19, 1914. The certificate, therefore, was filed more than 7 months before the trial in question here. The trial in the circuit court on appeal from a justice is de novo. The issues are investigated and determined as if that were the first time they were ever presented, and as if the trial in the justice court had never been. The object of the statute in requiring the certificate to be on file 15 days is to give the opposite party that much time in which to obtain evidence to overthrow the prima facie case presented by the certificate. The trial in the justice court was wholly supplanted by the trial in the circuit court, so that only the last trial is the one in which the opportunity of the parties to present evidence is finally closed. Consequently, appellant had at that trial vastly more time than the statute allowed him in which to refute the prima facie case made by the certificate. We think the object of the statute was fully met, and that the certificate was not inadmissible on that account.

Turning now to the objections made to the sufficiency of the certificate, it is urged that the certificate should be annexed to the check. There is nothing in the record to show that it was not. Both certificates refer to the “annexed check." Besides, section 10123, R. S. Mo. 1909, says it must be annexed to the bill, "or contain a copy thereof," and the verified certificate contained such copy.

Other objections are made to the sufficiency of the certificate. We have examined them all, and find they are without merit.

[3] Section 10125, R. S. Mo. 1909, does provide that "protest must be made on the day of its dishonor, unless delay is excused." But the protest shows that the check was dishonored on March 17, 1913, and protested on same day. There is no showing to the contrary. The drawer of the check notified the Iowa bank on which it was drawn not to pay the check, for the reason that a horse for which the check was given had been misrepresented to the drawer by the payee. Under these circumstances there was no necessity for notifying the maker of the check;

to pay it, and said bank was merely the drawer's agent in paying or withholding payment on the check.

[4] Appellant tried to show that at the time he indorsed the check to respondent there was an agreement that he should not become liable as an indorser, and it is urged that the court should have submitted to the jury the question of such an agreement or understanding. The evidence of appellant, however, does not disclose any such oral agreement, even if it could be allowed to prevail against his indorsement, which was in blank, and therefore contained nothing limiting his liability. Section 63 of the Negotiable Instruments Act (now section 10033, R. S. Mo. 1909), says:

"A person placing his signature upon an instrument otherwise than as maker, drawer or acceptor is deemed to be an indorser, unless he clearly indicates by appropriate words his intention to be bound in some other capacity."

It is held that this is a statutory command that the legal effect of a blank indorsement cannot be changed or varied by evidence from another source. Porter v. Moles, 151 Iowa, 279, 131 N. W. 23; Neosho Milling Co. v. Farmers', etc., Co., 130 La. 949, 58 South. 825; Deahy v. Choquet, 28 R. I. 338, 67 Atl. 421, 14 L. R. A. (N. S.) 847; Baumeister v. Kuntz, 53 Fla. 340, 42 South. 886; Rockfield v. First Nat. Bank, 77 Ohio St. 311, 83 N. E. 392, 14 L. R. A. (N. S.) 842; First National Bank v. Bickel, 143 Ky. 754, 137 S. W. 790. This last-named case, at page 757 of 143 Ky., at page 791 of 137 S. W., says:

"The purpose of the statute is to exclude parol control the rights of the parties. The statute evidence, and to make the written instrument fixing the legal effect of the instrument, parol evidence may not be received to give it a different effect."

The case of Mudd v. Bank, 175 Mo. App. 398, 162 S. W. 314, does not conflict with this. In that case the effect of section 10033 was not noticed or discussed, but the real question therein was not in regard to the terms of the indorsement, nor as to how those terms should be proved, but of authority to make any indorsement at all.

[5] It is also urged that the court should have submitted to the jury the question whether or not the check was presented to the Iowa bank within a reasonable time, and whether notice of dishonor was given to appellant. No such objection was made, or issue raised, at the trial. So far as the record shows, there was no evidence of delay. Respondent was located in Missouri; the bank on which the check was drawn was somewhere in Iowa. The check went through the ordinary channels of business to the Iowa bank, and was duly presented and protested when payment was refused.

[6] Whether or not a given state of facts constitute due diligence is a question of law to be determined by the court. Sanderson's

Adm'r v. Reinstadler, 31 Mo. 483; Linville | spondence, including instruction papers, exv. Welch, 29 Mo. 203; Vogel v. Starr, 132 amination questions, drawing plates, and corMo. App. 430, 112 S. W. 27. rected work. The contract provided that these should be sent to him through the mails. Defendant paid $10 in cash, and was to pay plaintiff the balance in monthly installments of $5 each. The case was tried without a jury, and the court found for defendant; that result being reached by the court's finding that plaintiff had failed to comply with its contract. The evidence fully sustains this conclusion of the court. The court declared the law to be that, as plaintiff had not furnished defendant any instruction papers, plaintiff should have performed the conditions precedent and concurrent of the contract on its part before it would be entitled to recover.

There are other objections made to the steps taken during the course of the trial. We have examined them carefully, and find that they are not sufficient to justify us in disturbing the judgment. The admissions and facts stated in appellant's own evidence show that respondent was entitled to recover provided the check was duly presented and protested. The certificate of protest, which we have held was sufficient and admissible, established the case on that point, and there was no contradiction thereof by the defendant.

[7] The fact that the latter claims he never received from the notary notice of the check's dishonor does not affect the question of his liability.

"If a notice is put in the post office to go by the proper post, it is not important to the rights

of the holder whether the notice ever reaches the party entitled to it or not. All that the law requires of him is to send due notice in proper time, and he has discharged his whole duty when he puts it into the proper post office, in due time, directed in a proper manner. Renshaw v. Triplett, 23 Mo. 213, loc. cit. 220. The judgment is manifestly for the right party, and it is accordingly affirmed. All

concur.

INTERNATIONAL TEXT-BOOK CO. v.
SCHWICKRATH. (No. 11451.)
(Kansas City Court of Appeals. Missouri.
Nov. 1, 1915.)

CONTRACTS 319-FAILURE TO PERFORM
EFFECT.

Where plaintiff correspondence school agreed to furnish defendant a course of instruction in electrical engineering by correspondence, including instruction papers, examination questions, drawing plates, and corrected work, plaintiff, thereafter failing to furnish any instruction papers, could not recover the amount defendant had agreed to pay for the course.

[Ed. Note. For other cases, see Contracts, Cent. Dig. §§ 1458, 1476, 1477, 1479, 14931507; Dec. Dig. 319.]

Appeal from Circuit Court, Jackson County; A. C. Southern, Judge.

"Not to be officially published." Action by the International Text-Book Company against Andrew Schwickrath. Judgment for defendant, and plaintiff appeals. Affirmed.

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Plaintiff has discussed, at some length, the difference and distinction between dependent, independent, and concurrent covenants, but we have not been impressed with the application of the argument or the authorities cited. The case could scarcely be more simple. Plaintiff agreed to do certain things, for which it was to be paid certain sums. There was evidence tending to support the court's finding, and that is the end of the matter.

The judgment, being manifestly for the right party, is affirmed. All concur.

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2. PLEADING

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34 FAILURE TO OBJECT SUFFICIENCY OF PETITION. In an action on an attachment bond, the petition alleged the institution of the attachment suit, the execution of the bond, that its conditions were not performed, in that there had been a failure to prosecute the action, and a that had accrued to him by reason of the failure to pay plaintiff all damages and costs attachment, that on account of the wrongful attachment plaintiff had been damaged and lost defense and in the defense of the attachment, time in making necessary preparations for the that he had been damaged by way of traveling expenses, hotel bills, and livery bills necessarily incurred in and about the defense of the atnecessary attorney's fees incurred in and about tachment, and that he had become liable for the defense of the attachment. Held that, where the petition was not objected to by demurrer or otherwise, it sufficiently alleged that plaintiff's property was attached; since, while the word "attachment" was doubtless used in some cases as describing the character of the

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action, in others it was intended to levy or execution of the writ.

mean the [fense and in the defense of said attachment;
that he has also been damaged in the sum of
dollars by way of traveling expenses, ho-
tel bills, and livery bills necessarily incurred in
that he has become liable to and has paid, and
and about the defense of said attachment, and
become obligated to pay, the sum of
lars for necessary attorney's fees incurred in
and about the defense against said attachment-
amounting in the aggregate to the sum of $350,
which remains wholly unpaid."

[Ed. Note.-For other cases, see Pleading, Cent. Dig. §§ 52, 66-74; Dec. Dig. 34.] 3. GARNISHMENT 248- WRONGFUL GARNISHMENT-INSUFFICIENT RETURN. That a constable's return certifying that he had levied a writ of attachment by summoning as garnishee the cashier of a bank in which the attachment debtor had a deposit was so far defective as not to show a valid garnishment did not conclude the attachment debtor on the question of damages from the attachment.

[Ed. Note.-For other cases, see Garnishment, Cent. Dig. § 470; Dec. Dig. 248.]

Appeal from Circuit Court, Bates County; C. A. Calvird, Judge.

"Not to be officially published.” Action by the State, on relation of S. S. Williams, against C. H. Stipp and others. From an order granting a new trial, defendants appeal. Affirmed.

dol

The word "attachment," as used in the petition, doubtless in some connections was used as describing the character of the action, while in others it is intended to mean a levy or execution of the writ of attachment.

[3] There was evidence tending to show an attachment of plaintiff's money in bank by garnishment. The constable's return certifies that he levied the writ by summoning C. C. White (the cashier) as garnishee, and requiring him to appear and answer inter

Silvers & Silvers, of Kansas City, for ap-rogatories. It seems that this return was pellants. Smith & Chastain, of Butler, and McGilvray, Woodbury & Woodbury, of Kansas City, for respondent.

ELLISON, P. J. Plaintiff's action, begun in the circuit court of Bates county, is on an attachment bond given in an action begun before a justice of the peace of that county. The trial court peremptorily instructed the jury that plaintiff could not recover. Afterwards that court granted a new trial, and defendants appealed.

[1, 2] The grounds upon which the peremptory instruction for defendants was given were that there was neither pleading nor proof that plaintiff's property had been attached, and that therefore there were no facts stated constituting a cause of action, as well as a failure of proof. The petition was not objected to by demurrer or otherwise. While it is true that an objection based on the ground that no cause of action is stated may be taken at any time, yet, when a defendant fails to object, every intendment which can reasonably be drawn will be indulged in favor of its sufficiency. Thomasson v. Insurance Co., 217 Mo. 497, 116 S. W. 1092; Lycett v. Wolff, 45 Mo. App. 493. The present petition is faulty, but we think it may be reasonably inferred from the allegations therein that plaintiff's property was attached. It alleges the institution of an attachment suit, the execution of a bond describing it and its conditions, and that these conditions were not performed, specifying in what particulars. These particulars were charged to be a failure to prosecute the action "and have failed to pay to the relator all damages and costs that have accrued to him by reason of said attachment." Continuing, it was charged that:

"On account of the wrongful attachment aforesaid [plaintiff] has been damaged; he has lost

days' time, of value of dollars per day in making necessary preparation for de

so far defective as not to show a valid garnishment of the money, but, manifestly, that fact ought not to conclude plaintiff on the question of damages. State ex rel. v. McCullough, 85 Mo. App. 68.

We think the order granting a new trial was proper. It may be well for plaintiff to obviate present objections by filing an amended petition and by making his proof sufdone under the writ. ficiently definite to make clear just what was Affirmed.

All concur.

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Where the bill of exceptions, as reproduced in the abstract on appeal, fails to show an exception to the overruling of the motion for a new trial, no errors are presented for consideration, except such as appear on the face of the record proper, since the saving of an exception to the overruling of the motion for a new trial is a necessary condition to the review of matters of exception.

Error, Cent. Dig. §§ 2300-2305; Dec. Dig. [Ed. Note. For other cases, see Appeal and 501.1

Appeal from Circuit Court, Macon County; Nat M. Shelton, Judge.

"Not to be officially published." Action by the National Novelty Import Company against Simon Diekman. From a judgment for the defendant, plaintiff appeals. Affirmed.

Joseph Park, of La Plata, for appellant. Dan R. Hughes and John R. Hughes, both of Macon, for respondent.

JOHNSON, J. This is an action for the purchase price of certain merchandise plain

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