as to make him responsible for the costs in the event the defendant should be acquitted.

Section 2477 of the Criminal Code (Rev. St. 1899) reads as follows: "Informations may be filed by the prosecuting attorney as informant during term time, or with the clerk in vacation, of the court having jurisdiction of the offense specified therein. All informations shall be signed by the prosecuting attorney and be verified by his oath or by the oath of some person competent to testify as a witness in the case, or be supported by the affidavit of such person, which shall be filed with the information; the verification by the prosecuting attorney may be upon information and belief. The names of the witnesses for the prosecution must be indorsed on the information, in like manner and subject to the same restrictions as required in case of indictments."

Section 2479 provides that, when the affidavit is made by the prosecuting attorney, it may be in the following form:

"C. M., prosecuting attorney (or E. F., as the case may be), makes oath and says that the facts stated in the foregoing information are true, according to his best information and belief. C. M. "Subscribed and sworn to before me, this day of —, A. D. 19-.

"E. F. (style of office)." Section 2477, supra, authorizes the prosecuting attorney to file an information in the circuit court, either upon his personal knowledge of the commission of an offense, or upon his information and belief that one has been committed. State v. Feagan (St. L.) 70 Mo. App. 406. We think the information was properly verified.

2. Section 2515, Rev. St. 1899, reads as follows: "No indictment for any trespass against the person or property of another, not amounting to a felony, except for petit larceny, and no indictment for the disturbance of the peace of a person, or for libel or slander, shall be preferred unless the name of a prosecutor is indorsed as such thereon, thus: 'A. B., Prosecutor,' except where the same is preferred upon the information and testimony of one or more grand jurors, or of some public officer in the necessary discharge of his duty. If the defendant be acquitted or the prosecution fails, judgment shall be entered against such prosecutor for the costs." Section 2483, Rev. St. 1899, reads as follows: "When the information is based on an affidavit filed with the clerk or delivered to the prosecuting attorney, as provided for in section 2478, the person who made such affidavit shall be deemed the prosecuting witness, and in all cases in which by law an indictment is required to be indorsed by a prosecutor, the person who makes the affidavit upon which the information is based, or who verifies the information, shall be deemed the prosecutor; and in case the prosecution shall fail from any cause, or the defendant shall be acquitted, such prosecut

ing witness or prosecutor shall be liable for the costs in the case not otherwise adjudged by the court, but the prosecuting attorney shall not be liable for costs in any case." The offense charged (assault and battery) comes within the class mentioned in section 2515, supra. State ex rel. Smith v. Hodges (St. L.) 53 Mo. App. 532. It was therefore essential that the prosecuting witness should indorse his name on the back of the information as prosecutor, unless the affidavit of the prosecuting attorney to the information is equivalent to, and takes the place of, the evidence of one or more of the grand jurors. Even if it be conceded (which it is not) that, had the prosecuting attorney sworn of his own knowledge that the offense had been committed, he would then have had the right to present the information without having the name of the prosecutor indorsed on the information, he did not so swear. His affidavit was on information and belief only. This is not evidence of the commission of an offense. It seems to us that, in the class of cases to which this belongs, it is only where an indictment is found on the evidence of one or more of the grand jurors, or where the affidavit of the prosecuting witness is used and filed by the prosecuting attorney as the foundation for the information, that the indorsement of the name of the prosecuting witness on the indictment or information can, under the statutes above quoted, be dispensed with.

The judgment is affirmed.

REYBURN and GOODE, JJ., concur.

KNOEPKER v. AHMAN et al. (Court of Appeals at St. Louis, Mo. Feb. 17, 1903.)

SALES-DRIVING

HORSE-BREACH OF WARRANTY-INSTRUCTIONS-PROPRIETY.

1. In an action for breach of warranty in the sale of a driving horse, in that she was represented to be good for single and double driving, an instruction that if defendants so falsely and fraudulently represented, when the horse was not suitable for driving, as they knew, the verdict should be for plaintiff, provided he tendered the animal back on discovering the breach of warranty and demanded a return of his money, is proper.

2. An instruction that if it was shown that at the time plaintiff purchased the mare he was informed by defendants, or either of them, that the animal would break away from a hitching post, and plaintiff accepted the mare after such information, then the fact that the mare would not stand hitched constituted no breach of warranty, and, unless some other ground for recovery was disclosed, defendants were entitled to a verdict, is proper.

Appeal from circuit court, Warren county; Elliott M. Hughes, Judge.

Action by G. H. Knoepker against John Ahman and another. Judgment for defendants, and plaintiff appeals. Affirmed.

Peers & Peers, for appellant. J. B. Garber, for respondents.

GOODE, J. Plaintiff purchased a mare from the defendants for $80, making a cash payment of $50, leaving the balance of the purchase price unpaid. The cause of action stated for the plaintiff is that the defendants falsely and fraudulently represented to him, when he bought the mare, that she was good for single and double driving, and the plaintiff, relying on that representation, purchased her; that in fact the representation was false, and was known to the defendants to be false at the time they made it. It is charged that the animal is a "tearer"-that is, will not stand hitched, but tears loose; and this seems to be the principal objection to her. There is evidence tending to prove that in harness she is contrary about going, and sometimes balks. The answer denied the allegations in the statement, and preferred a counterclaim for $30 due on the price. There is considerable evidence on both sides of the issues of fact, that of the plaintiff tending to prove the facts alleged in the statement, and the defendants' to show they informed plaintiff the mare would not stand hitched but would break loose; also that she was not fit for family work, but would drive well single or double. The court instructed the jury that if they believed the defendant John Ahman, acting for himself, and also for his codefendant, falsely and fraudulently represented to the plaintiff that the horse mentioned was all right for single and double driving, and plaintiff was thereby induced to purchase her, when in truth she was not suitable for that purpose, as the defendants knew, the verdict should be for the plaintiff, provided the plaintiff had tendered the animal back as soon as he discovered she was not as represented, and demanded the return of his money. That was a fair charge. Complaint is made of this instruction: "The jurors are instructed that if it has been shown by the evidence in this cause that the plaintiff, at the time he purchased the mare from the defendants, was informed by the defendants, or either of them, that the said mare would break away from the hitching post, and plaintiff accepted said mare after being so informed, then the fact, if shown by the evidence, that the mare would not stand hitched to, or would break away from, the hitching post, constitutes no breach of any warranty, express or implied, and is no cause for plaintiff's action, and, unless the evidence shows some other ground for complaint on the part of the plaintiff, defendants are entitled to the verdict." That charge is unobjectionable. Certainly, if the defendants notified the plaintiff in advance the mare would not stand hitched, and plaintiff bought her with full knowledge of the fact, he cannot claim a breach of warranty, either express or implied, on account of her breaking loose, and must recover, if at all, on some other ground, as the court advised the jury.

No error occurred in the trial of this case, and the verdict of the jury in favor of the

defendants, both on the plaintiff's cause of action and on their counterclaim, is supported by testimony. The judgment is affirmed. BLAND, P. J., and REYBURN, J., concur.

HUBER MFG. CO v. HUNTER.* (Court of Appeals at St. Louis, Mo. Dec. 23, 1902.)

CONTRACT OF SALE-TERMS-QUESTION FOR JURY-LAW OF THE CASE-FRAUD-RECOUPMENT OF DAMAGES-EXPERT EVIDENCE. 1. Evidence examined, and held to support a finding that a written contract for the purchase of an engine did not embody the entire agreement of the parties as to the kind of engine to be sold. 2. Where on a prior appeal the issue whether or not a written order embodied the entire agreement of the parties as to the kind of engine to be sold was referred back for trial, it would have been improper for the court to have given a peremptory instruction based on the theory that parol evidence was inadmissible to show conditions not included in the written order, and the issue was properly submitted to the jury.

3. If the entire agreement for the sale of an engine contemplated the delivery of a new engine, and, by fraud on the seller's part, an old one. instead, was imposed on the buyer, the latter could recover for the fraud, in diminution of the seller's demand for the price, though he had not given notice of the defects within a reasonable time, or returned the property.

4. On an issue as to whether a machine was of a certain kind, or not, when bought, where the facts testified to by experts concerned the condition of the machine in particulars which tended to show its permanent construction at that time, the fact that their examination was made a long time thereafter did not necessarily weaken or disqualify their testimony, and it was properly admitted.

Appeal from circuit court, Knox county: Edwin R. McKee, Judge.

Action by the Huber Manufacturing Company against L. M. Hunter. Judgment for defendant, and plaintiff appeals. Affirmed.

L. F. Cottey and J. W. Ennis, for appellant. O. D. Jones, for respondent.

BARCLAY, J. This is an action to recover the amount of a promissory note for $825 executed to the plaintiff by defendant in part payment of the purchase price of a traction engine sold by the plaintiff to defendant in August, 1896, and to foreclose a mortgage given to secure the note. The defense is that there was fraud in the sale on the part of plaintiff, whereby an old, rebuilt engine was foisted on the defendant in lieu of a new one, of the pattern of 1896, which defendant verbally expressed the wish to buy. and plaintiff's agent agreed he should have in execution of the order given; that the fraud was not discovered by defendant until some months after the receipt of the engine: and that the latter was not worth the amount which defendant had paid on account of the debt, etc. To that defense plaintiff made several replies, the substance of which is that the engine was sold upon an express written *Rehearing denied March 3, 1903.

warranty, which plaintiff fully kept; that defendant had not complied with the conditions of said warranty, by which he was bound, and that he accepted, used, and made payments upon the note in suit for the engine long after he had full notice of the alleged defects in its quality; and that defendant waived any right to complain thereof by his conduct after the sale. The cause was tried with the aid of a jury, and resulted in a verdict for defendant, from which plaintiff appealed in the usual manner. Those features of the trial which require notice will be mentioned along with our comment there

on.

1. The cause has been in this court by appeal on several occasions already. Huber Mfg. Co. v. Hunter, 78 Mo. App. 82, and Id., 87 Mo. App. 50. The general outlines of the controversy are shown in the opinions reported as aforesaid. After the latter reversal the cause came again to trial, with two new issues presented, namely, the one which had been tendered by the new matter in the reply, and which this court held to tender a proper issue after the trial court had stricken it out; and the other, the plea of waiver and estoppel founded on defendant's alleged acquiescence after knowledge of the inferior quality of the engine. After these issues were contributed to the legal materials of the litigation, the trial court endeavored to follow the directions which accompanied the judgment of remand. They were quite specific, and may well be quoted here. The majority of the court said: "The only issues which should be submitted to the jury on the next trial are: First. Whether or not the contract embodied the entire agreement of the parties as to the kind of engine to be sold. If it did, plaintiff is entitled to judgment. Second. If the contract was not completely expressed in writing, did plaintiff practice fraud on defendant by palming off on him a different engine from the one intended to be sold by the terms of the complete contract? If so, defendant is only liable for the reasonable value of the thing purchased; but, if he had paid more than that, he could not recover such overpayment, since it was voluntarily made. The judgment is reversed, and the cause remanded to be tried in conformity with this opinion." At the last trial the note and mortgage were admitted, and defendant took the affirmative. The gist of his testimony was that he was a dealer in general merchandise, engines, and threshers at the town of Novelty, Mo., and having a Case engine, which he wanted to trade for a new, 16 horse power one, he telegraphed his wish to plaintiff, a manufacturing company at Marion, Ohio. Plaintiff then sent an agent to see defendant. The agent exhibited to defendant a catalogue of plaintiff for 1896, showing plaintiff's engines offered for sale. Defendant selected one at the net price of $975, and, owing to a minor agreement for exchange and option of repurchase of the

other engine, the note was agreed to be $1.025. According to defendant's testimony, the engine pointed out by the agent as the one which would be furnished was a new one, of the kind indicated in the plaintiff's catalogue of the current year, 1896, which catalogue defendant produced at the trial. When the terms were settled verbally, and the engine definitely indicated, defendant executed the written order already referred to. Defendant's evidence tended to support his contention that the engine actually furnished by plaintiff was a secondhand one, so ingeniously put together and constructed as to be distinguishable as such only by experts, in consequence of which defendant did not discover its real character until long after he had reIceived the machine and had had it in use. Defendant made payments on account of his note-$40 on the day of its date, August 8, 1896; $200 on December 29, 1896; $140.25 on February 24, 1897; and $75 on April 16, 1897. Defendant admitted having given the written memorandum, referred to as a contract in the opinion of the court reported in 87 Mo. App. 50. It was in the form of an order by defendant to plaintiff for "one 16 horse power Huber traction engine," in consideration of which defendant proposed to deliver an older (Case) engine, and to execute the note and mortgage on which this action is based. The written order further recited that "the machinery furnished under the above order shall be made of good material, well constructed, and, with proper use and management, capable of doing well the work for which the machines, respectively, are made and sold. If inside of six days from the day of its first use it shall fail in any respect to fill this warranty, written notice shall be given immediately by the purchaser to the Huber Mfg. Co., at its home office, Marion, O., by registered letter, and written notice also to the local agent through whom the same was received, stating particularly what parts and wherein it fails to fill the warranty, and a reasonable time allowed the company to get to the machine with skilled workmen and remedy the defects, if any there may be, if it be of such a nature that a remedy cannot be suggested by letter, the purchaser to render all necessary and friendly assistance and co-operation in making the machinery a practical success and providing opportunity for a fair test or trial of machine by company's experts." Further along in. the order it is written that all the agreements appertaining to the order are included therein; that no verbal promises or agreements in addition are valid; that no agent has authority to make any different warranty, or to modify any of the written terms, or to waive any of the expressed conditions, etc. The plaintiff accepted the order by sending the engine which constitutes the bone of contention now. The plaintiff's testimony tended to show that the written order was the complete agreement of the parties, and that de

fendant had given no notice of complaint for some months after full knowledge of the alleged imperfections of the engine. It is not necessary to give a full outline of the evidence. It will suffice to say that there was testimony to support the contentions of each of the parties. The learned trial judge refused to give a peremptory instruction for the plaintiff which was founded on the theory that the defendant was precluded by his written memorandum of August 1, 1896, from showing by oral testimony that some of the essential terms of sale were not included therein, namely, the representation, in the nature of a warranty, that the engine was to be new. But that ruling was obviously based on the directions for trial accompanying the order of remand in 87 Mo. App. 62. Under the most recent adjudications in the Supreme Court on the subject, those directions constitute the law of the particular case in the event of a new trial. It has been held to be manifestly improper for the trial court to depart from the directions of the appellate court where the facts disclosed at the last trial do not substantially change the case which was under review when the directions were given. Bealey v. Smith, 158 Mo. 515, 59 S. W. 984, 81 Am. St. Rep. 317; Brummell v. Harris, 162 Mo. 397, 63 S. W. 497. The written order of defendant was before this court on the appeal reported in 87 Mo. App. 50. The issue whether or not it "embodied the entire agreement of the parties as to the kind of engine to be sold" was referred back for trial, as stated in the report of that appeal. That issue, as to the real agreement of sale between these parties, was a proper one to be submitted for a finding. It was submitted, and the finding was for defendant. There was testimony to support that result, by a proper application of the principles announced by this court in the last previous appeal in the cause.

2. In submitting the aforesaid issue to the jury, the learned trial judge gave the following instruction at the instance of the plaintiff: "(3) The court instructs the jury that if they shall believe from the evidence that the written contract read in evidence, for the purchase of said engine, embodied the entire agreement between the plaintiff's agent and the defendant Hunter as to the kind of engine to be sold, then your verdict must be for plaintiff." On the issue of fraud raised upon the answer of defendant, the learned circuit judge gave the following instructions for plaintiff: "(4) The court instructs the jury that the defendant, Hunter, alleges in his answer that he was misled and deceived by false and fraudulent representations made by the agent of plaintiff in the sale and delivery of the engine in question. Unless the defendant shall show by a preponderance of the evidence, and to the reasonable satisfaction of the jury, that the agent of plaintiff in making said sale and delivery, and for the purpose of inducing

“(8)

the defendant, Hunter, to purchase or receive said engine, did make the false and fraudulent representations set forth in defendant's answer, your verdict should be for the plaintiff. (5) The court instructs the jury that if they shall believe from all the evidence in the case that the transactions between the plaintiff's agent, Elliott, and the defendant, Hunter, in regard to the sale and delivery of the engine in question, were as consistent with honesty and fair dealing as with dishonesty or fraud, then they shall find the same to be honest, and return a verdict for plaintiff." The instruction given by the court at the instance of defendant was as follows: "(1) The court instructs you, on behalf of defendant, that if you find from the greater weight of the evidence that the written order for the engine, in evidence, does not embody the entire agreement of the parties as to the kind of engine sold and to be delivered to defendant, and that by the complete contract of the parties the defendant was to have a new and up to date engine, and that the plaintiff, by its agent, committed fraud upon defendant, by palming off on him a different engine from the one agreed to be delivered to him by the complete contract of the parties, and that defendant has paid plaintiff all that it is reasonably worth, then your verdict should be for the defendant." The learned trial judge refused the following instructions asked by plaintiff: If the jury believe from the evidence that the engine in question was the consideration of the note, and was worth anything, and that the defendant has failed to give notice of its alleged defects in a reasonable time to the plaintiff, or to return the same, then he is presumed to have acquiesced in the alleged defects, and is not entitled to any deduction from the amount of the note." The foregoing declaration is substantially a copy of the first instruction for plaintiff in Barr v. Baker, 9 Mo. (1st Ed.) 840 (2d Ed.) 850, copied in the later case of Brown v. Weldon, 99 Mo. 567, 13 S. W. 342. A most interesting and ingenious argument has been submitted here to demonstrate that the decisions cited amount to an approval of that declaration as applied to a case like this. But in weighing that argument it should be remembered that in the Barr decision the instruction was given for the plaintiff, the defendant prevailed in the circuit court, and plaintiff brought a writ of error in the Supreme Court, where the judgment was affirmed. If the instruction, therefore, was more favorable to plaintiff in that case than strict law permitted, there was no occasion for the court to say so. We do not regard the ruling in the Barr Case as decisive of the exception taken to the refusal of the eighth instruction in the case at bar. But another decision cited is more nearly in point. In Estes v. Reynolds, 75 Mo. 563, plaintiff sued for damages for fraud in the sale of bonds, and was held disentitled to recover. He "did

not notify defendant of his discovery" (to quote the statement of facts opening the report of that decision). The court held that he could not keep the benefit of the contract and repudiate its disadvantages. Moreover, in American Ins. Co. v. Kuhlman (St. L.) 6 Mo. App. 522, it was held that, where a party claims to be injured by fraudulent representations, he must "make his objections known within a reasonable time after his discovery of the alleged falsehood, and that he shall not leave the other contracting party to suppose the contract in full force while the objector continues to enjoy its benefits." Yet, on the other hand, we find other decisions (some of them later) which announce and enforce the proposition that, where a sale of personalty has been induced by fraudulent misrepresentation, the injured party may stand by the bargain, and may even execute it thereafter fully on his part, without prejudice to his right of action for the fraud, and necessarily without prejudice to his right to recoup for those damages in an action for the price. Jarrett v. Morton, 44 Mo. 275; Parker v. Marquis, 64 Mo. 38; Finlay v. Bryson, 84 Mo. 669; Nauman v. Oberle, 90 Mo. 667, 3 S. W. 380; Robinson v. Siple, 129 Mo. 208, 31 S. W. 788; Campbell v. Hoff, 129 Mo. 317, 31 S. W. 603; Moore v. Emerson (St. L.) 63 Mo. App. 137; Edwards v. Noel (St. L.) 88 Mo. App. 434. In view of those positive rulings, we must hold that the eighth instruction was properly refused in the case at bar. If the entire agreement (as found by the jury) contemplated the delivery of a new engine, and by fraud on defendant's part an old one, instead, was imposed on plaintiff, he might recover damages for the fraud, in diminution of the seller's demand for the price. That right of recovery would not depend on his having given notice to defendant "in a reasonable time," or returning the property. A purchaser imposed on by fraud in the sale of an article may retain it, and recoup his damages resulting from the fraud when sued for the price. Benjamin, Sales (2d Am. Ed.) sec. 452, note "a"; Brown v. Weldon, 99 Mo. 564, 13 S. W. 342; and the last group of cases above cited.

3. The foregoing observations will suffice to dispose of another assignment of error on the refusal of an instruction (the eleventh) declaring, in substance, a waiver by defendant of his right to recoup on account of the quality of the engine if he failed to object thereto within a reasonable time after he received and used the engine.

4. Exception was taken to the testimony of experts who examined the engine a long time after the sale, and gave statements, as witnesses for defendant, concerning the physical facts they saw, from which it might be inferred that the machine was not a new one when delivered to defendant in August, 1896. The facts they attested concerned the condition of the machine in particulars which

tended to show its permanent construction when bought. The lateness of their examination did not necessarily weaken or disqualify the testimony. The facts they stated tended to show that the machine was not a new one at the time of the contract of sale, and we think their testimony was rightly admitted.

5. In fine, we regard the merits of this appeal as concluded by the rulings on the last previous hearing in this court, and by the Missouri cases of the type of Nauman v. Oberle, 90 Mo. 669. The findings by the trial court in regard to the true terms of the contract, to the delivery of an old for a new machine, and that defendant paid the full value of the delivered machine, leave little for review, considering the precedents, which are binding authority in this court. The judgment is affirmed.

BLAND, P. J., and GOODE, J., concur.

MUTUAL LIFE INS. CO. v. RICHARDS et al. (Court of Appeals at St. Louis, Mo. Feb. 17, 1903.)

LIFE INSURANCE-ASSIGNMENT-INTEREST OF ASSIGNEES.

1. An assignment of a life policy to one paying premiums, but having no other insurable interest in the life, though absolute in form, gives him an interest in the policy only to the extent of the payments.

Appeal from circuit court, Butler county; J. L. Fort, Judge.

Bill of interpleader by the Mutual Life Insurance Company against Lillie Richards and Jesse Reynolds. Judgment for Richards. Reynolds appeals. Affirmed.

L. R. Thomasson, for appellant. W. N. Barron, for respondent.

GOODE, J. Both Lillie Richards, the respondent, and Jesse Reynolds, the appellant, demanded the proceeds of a certain insurance policy issued by the Mutual Life Insurance Company May 27, 1899, on the life of Stephen F. Richards, whereby said company promised to pay Lillie Richards the sum of $2,000 at the death of said Stephen on receipt of satisfactory proof of his death. The insured died December 3, 1901, while the policy was in force; and, satisfactory proofs baving been made, the insurance company filed a bill of interpleader in the circuit court of Butler county, paid the money into court, and prayed that appellant and respondent be required to interplead for the fund, and the company be discharged from further liability. An order to that effect was entered by the circuit court, pursuant to which the appellant and respondent filed pleadings stating their respective claims of right to the insur

1. See Insurance, vol. 28, Cent. Dig. §§ 166, 1477, 1482, 1931, 1978.