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awarded his commissions." In Knox v. Par. It assumes a fact not in proof, and tells the ker, 2 Wash., loc. cit. 37, 25 Pac. 910, the Jury that "he would have no right to return court said: “And if at the time of the revo- and offer to take defendant's farm for the cation the agent should have a pending treaty mere purpose of collecting commissions off with a proposing purchaser, who afterwards, of defendant." It is palpable that Jamison, by a continuance of the same negotiations the purchaser, could have no commissions in with the principal himself, actually buys the trade. The instruction is therefore sugthe property, the agent would have fully gestive of a conspiracy between the appelearned his commission, since the principal in lants and the purchaser to' mulct respondsuch a transaction cannot arbitrarily cut off ent for commissions, of which there was neithe agent's authority, in the midst of what ther evidence, nor a fact from which a reawould be a successful agency, and then, al- sonable inference to that effect could be though himself taking advantage of the drawn, in the record. It stands out in the agent's services, refuse bim compensation." case as an unwarranted imputation of bad The Supreme Court of New York said: faith and conspiracy on the part of appel“Thus, if in the midst of negotiations insti- lants and the purchaser. Instructions of tuted by the broker, and which were plainly this character should be avoided in cases and evidently approaching success, the seller when not warranted by the evidence. Beaushould revoke the authority of the broker, champ v. Higgins, 20 Mo. App. 514; Johnwith a view of concluding the bargain with- son v. Kahn, 97 Mo. App. 628, 71 S. W. 725. out his aid, and avoiding the payment of For the reasons given, the judgment is recommissions about to be earned, it might well versed, and the cause remanded to be probe said that the due performance of his ob- ceeded with in accordance with the views ligation by the broker was purposely prevent- herein expressed. All concur. ed by the principal." Sibbald v. Iron Co., 83 N. Y., loc. cit. 384, 38 Am. Rep. 441.

It seems clear to us that the mere fact that the prospective buyer, Jamison, said in OYLER v. QUINCY, O. & K. O. R. CO.* the conversation at the wood pile that he did

(Kansas City Court of Appeals. Missouri. not want defendant's farm without that of

May 22, 1905.) his brother, and that defendant replied to him that “This ends the matter, then, be

1. RAILROADS-INJURY TO LIVE STOCK-OWN.

ERSHIP OF ROAD SUFFICIENCY OF Evi. tween you and me,” cannot operate to termi

DENCE. nate the agency of the plaintiffs in this case, In an action against a railroad for injury even though it was said in their presence

to live stock alleged to have been struck by a

train on defendant's road, where plaintiff, after and they heard it, as such remarks were evi.

introducing some evidence of the ownership of dently only a part of the negotiations. It the road, was permitted thereafter throughout is an everyday occurrence with a prospective the trial to assume as proved in the examination buyer, when he fully intends to buy, to say

of witnesses the fact of defendant's ownership

of the road without objection, and the defendant that the article does not suit him; that he offered no evidence and gave no intimation of don't believe he wants it, etc.; and such purpose to resist the action on the ground that statements cannot be treated, in cases of this

it did not own the road, no further proof of dekind, as terminating all negotiations. There

fendant's ownership of the road was necessary.

2. SAME-KILLING BY TRAIN. was nothing said by the respondent to the

Where recovery is sought under Rev. St. appellants which tended to terminate their 1899, § 1105, authorizing the recovery of double agency, if they had one, and the remark damages for stock killed by trains, the fact which the defendant says he made—that they

that the stock was killed by a train is not requir

ed to be proved by direct evidence. could go down on the bottom and look at

[Ed. Note.-For cases in noint, see vol. 41, the land for information, but not to buy- Cent. Dig. Railroads, $ 160842.) certainly would not operate at that time as

3. SAME-FAILURE TO FENCE—CONSTRUCTION a termination of the agency, nor as a revo- OF STATUTE. cation of authority. Plaintiffs had perform

Under Rev. St. 1899, § 1105, authorizing ed their services, and were still working to

the recovery of double damages for injury to

live stock caused by railroad trains and the consummate the deal; and the law would

failure of railroad to maintain lawful fences, not permit the trade to be called off by the where the lands adjoining a railroad's right of defendant at the last moment, and their

way are not inclosed by a lawful fence, and the

stock of a stranger reaches the railroad over commissions defeated thereby. Having pro- them, the railroad is liable for injuries inflicted duced a purchaser to whom respondent had by its trains if its right of way is not inclosed given every assurance of his willingness to

by a lawful fence and the stock enters on that

account. sell, they had the undoubted right and it

(Ed. Note.—For cases in point, see pol. 41, was their duty to use every effort to induce

Cent. Dig, Railroads, 8 1430.) him to buy, at least so long as he remained

4. SAME. upon the premises, even though he had ex

Rev. St. 1899, § 1106, authorizing the repressed himself as unwilling; and, upon his covery of damages against railroads for injury finally agreeing to do so, it was respondent's

to live stock caused by their failure to maintain

lawful fences along their right of way, where duty to sell.

the injuries are inflicted by the animals being The twelfth instruction given on behalf of the respondent was bad for a second reason. *Rehearing denied June 26, 1905.

Shteged and running against a fence or into 1.vert, bridge, slough or mire, or other object el og the line of road, is not an exclusive remed, aod, if a railroad fails to erect and mainon a lawful fence, and stock, through such Bach of duty, strays on the right of way and is injured by running along over the ties and

der hard substances and material of the track, the owner may recover.

El Yote.-For cases in point, see vol. 41, Cent. Dig. Railroads, $$ 1427, 1428.) 5. SAYE.

Where the stock in question did not reach the defendant's right of way from the lands of ed adjoinicg owner, but directly from the highFly, a contention that recovery could be had oder neither section 1105 nor section 1106, Purt. St. 1899, because they are intended for the benefit of the proprietors of adjoining lands, and not for the benefit of owners of trespassing animals, was untenable.

(Ed. Note. -For cases in point, see vol. 41, Ceat. Dig. Railroads, $$ 1429, 1431.]

Appeal from Circuit Court, Grundy County: Paris C. Stepp, Judge.

Action by F. S. Oyler against the Quincy, Omaha & Kansas City Railroad Company. From a judgment in favor of the plaintiff, defendant appeals. Affirmed.

Hall & Hall and J. G. Trimble, for appellaat Harber & Knight, for respondent.

JOHNSON, J. This suit originated before & justice of the peace in Taylor township, Grundy county. The complaint is in three counts. In the first, double damages are scught onder section 1105, Rev. St. 1899, for the loss of a mule killed by one of defendant's trains. In the second, single damages are asked for injuries sustained by another mule in its efforts to escape the same train. The third count is founded upon a cause of action assigned by Dr. H. W. Oyler to plaintiff, basd upon a claim for double damages for the Hilling of a horse by another of defendant's trains. It is alleged the two mules entered upon defendant's right of way on the night of December 1, 1903, by jumping over an infufficient cattle guard maintained in Taylor township balf a mile east of the town of Brimson at a point where the defendant's railroad is crossed by a public road. The trze is stated to have entered the right of Fay during the night of by jumping over a cattle guard maintained at another public road crossing in the same tornship, and also charged to have been insuficient to turn stock. At the trial in the círcuit court, upon appeal, plaintiff recovered a terdict upon each count. Judgment was stered upon the first and third counts for o uble damages, and upon the second for the E.ount of the verdict. Defendant appealed.

It is claimed plaintiff failed to offer any fidence tending to show that defendant owned the railroad mentioned. The proof of this fut, the burden of which was upon plainti 1, tbough meager, was sufficient. After It was introduced, plaintiff's counsel throughrut the trial was permitted to assume as froren, in the examination of witnesses, the

fact of defendant's ownership of the road, without objection. Defendant offered no evidence, and gave no intimation of purpose to resist the action on this ground. Under such circumstances, full proof should not be exacted. Geiser v. Ry. Co., 61 Mo. App. 462; Keltenbaugh v. Railroad, 34 Mo. App. 148; Lindsay v. Railroad, 36 Mo. App. 51,

It is contended that the peremptory instruction asked by defendant should have been given. The claim is made that the evidence fails to show that any of the animals mentioned in the complaint was struck or injured upon the railroad. There was no direct proof offered, as the accidents both occurred during night, and, so far as known, were not witnessed by any one; but the facts and circumstances detailed in evidence very strongly indicated that the two animals killed were struck by defendant's trains, and that the one injured received its injuries from running upon the ties and other component parts of defendant's road in fleeing before the approaching train. Defendant says that, as section 1105 provides for the imposition of a penalty in addition to compensatory damages, it is incumbent upon the plaintiff to prove by competent evidence the liability of defendant for the injuries sustained. This is true, but the character of proof required is the same in this class of cases as in others. The existence of ultimate facts may be found from other facts and circumstances in proof. Jones v. Ry. Co., 52 Mo. App. 381; Brown v. Railroad, 104 Mo. App. 691, 78 S. W. 273.

From the evidence adduced it appears that the three animals entered the right of way from public roads by passing over defectively constructed cattle guards. Their subsequent movements were plainly indicated by the tracks and other marks left by them. The two mules proceeded along the right of way several hundred yards from the place of entry. During the night the engine of a passing train was heard to sound the stock signal. The mules turned and ran upon the track, and in close proximity thereto, before the approaching train. One of them was found the next morning beside the track with three legs broken; the other escaped into the public road with injuries sustained from running at high speed upon the hard substances of the roadbed.

The injury to the horse was also clearly traced to a collision with one of defendant's trains, and its presence upon the track shown to have been occasioned by its passage from the public road over a defectively constructed cattle guard. The evidence was sufficient to go to the jury.

Defendant further says the demurrer to the evidence should have been sustained, for the reason that, as it was charged in the complaint, and shown in proof, the railroad, at the points of entry, ran through inclosed lands, and plaintiff was not an adjoining proprietor, no recovery could be had, because sections 1105 and 1106, Rev. St. 1899, are in

-, 1902,

of such owner are not inclosed by the lawru Per

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tended for the benefit of the proprietors of ligence, and will support a recovery. Gorthe adjoining lands, and not for the benefit man v. Railroad, 26 Mo. 441, 72 Am. Dec. 220; of owners of trespassing animals. A suffi- Hill v. Railroad, 49 Mo. App. 520, and cases cient answer to this is that the animals did cited; Hill y. Railroad, 121 Mo. 477, 26 S. not reach the right of way from the lands of W. 576. an adjoining owner, but directly from the Finally, it is said the demurrer should public highway. It was defendant's duty un- have been sustained as to the third count, der the statute to interpose a cattle guard because it was disclosed by the evidence that between its property and the road, reason- the horse was struck by the train, if at all, ably sufficient to turn stock, and for a breach at a place where the road ran through an of this duty it became liable to any one incorporated town, and not required by law whose stock is injured thereby. Moreover, to be fenced. We do not so understand the the duty to fence the right of way through evidence. The points of entry upon the right inclosed fields does not inure solely to the of way and of collision with the train were benefit of the adjoining owner. If the lands both outside of the town limits. The demur

rer to the evidence was properly overruled. fence, and the stock of a stranger reaches Objections made to the instructions given the railroad over them, the company is liable

are answered in the views expressed. The for injuries inflicted by its trains if its case was fairly submitted. right of way is not inclosed by a lawful fence Judgment is affirmed. All concur. and the stock enters on that account. Reed V. C. & A. Ry. (Kan., not yet officially reported) 87 S. W. 64; Rinehart v. Ry. Co. (Mo. App.) 80 S. W. 910.

PAYNE v. QUINCY, O. & K. C. R. CO. Special objections are urged against the al- (Kansas City Court of Appeals. Missouri. lowance of a recovery under the second count.

June 5, 1905.) It is conceded that, as the mule did not come

1. RAILROADS KILLING OF LIVE STOCKinto contact with a passing train, an action PLACE OF ACCIDENT-EVIDENCE. for double damages does not lie under section In an action against a railroad for killing 1105. Counsel for defendant say that the

plaintiff's hogs, the statement alleged that de

fendant owned and operated a railroad over and action cannot be maintained under section

across certain lands belonging to plaintiff lying 1106, for several reasons, as follows: Cattle in the township where suit was brought. The

constable's return recited that the writ was guards are not required to be erected and

served on defendant's station agent in that inaintained under this section; recovery may township. Plaintiff testified that he was owner be had only in case the stock goes upon the of the land described. The fact of the land's loright of way at a place where it is not in

cation in the same township was not controvert

ed, and the evidence showed that the killing occlosed by a lawful fence on both sides, and

curred where the railroad ran through the will not be permitted without it is shown plaintiff's land. Held sufficient to show that the injuries were inflicted by the animal be- the killing occurred in the township where suit ing frightened and run against the fence. or

was brought.

2. SAME-OWNERSHIP OF ROAD-EVIDENCE. into a culvert, bridge, slough ormire, or

Where plaintiff testified that the defend. other object along the line of road. And on ant's railroad ran through his land, and dethis last point defendant calls attention to fendant gave no intimation of purpose to resist the fact that the mule was not injured from

the action on the ground that it did not own or

operate the road, further proof of its ownership any of these causes specified in the statute,

of the road was unnecessary. but the charge is that it was frightened and (Ed. Note.—For cases in point, see vol. 41, pursued “over the ties and other hard sub- Cent. Dig. Railroads, 8 867.) stances and material of said railroad track, 3. SAME-MANNER OF KILLING-EVIDENCE and caused to become sore, lame, and sick,

STATUTE.

Where the action was based on Rev. St. and unable for work and use." The reme

1899, $ 1105, authorizing the recovery of double dies afforded under these sections of the

damages for stock injured or killed by trains, statute relating to the recovery of com- the fact that the hogs were killed by a train pensatory damages are not exclusive, but

need not be proved by direct evidence. cumulative. Independent of them, a cause of

[Ed. Note.--For cases in point, see vol. 41,

Cent, Dig. Railroads, Š 160842.) action exists for the enforcement of commonlaw remedy in favor of the owner of stock

4. SAME-QUESTION FOR JURY.

Where the defective condition of the fence negligently injured. The negligence pleaded separating plaintiff's feed lot in which he kept and proven in such cases may be either act- his hogs from defendant's right of way was ual or constructive, by which latter term is

shown, and it was also shown that the hogs

reached the railroad track by passing through meant the failure to perform the duty im- the defective fence, a case for the jury was posed by statute. If the company fails to made out. erect and maintain the kind of inclosure re (Ed. Note.—For cases in point, see vol. 41, quired by law, and through such breach of Cent. Dig. Railroads, 1429, 1631-1633.] duty stock strays upon the right of way and

Appeal from Circuit Court, Sullivan Counis injured by running along the hard sub

ty; John P. Butler, Judge. stances of the roadbed in escaping from approaching trains, such facts constitute neg- *Rehearing denied June 26, 1906.

2

Action by Reuben Payne against the Quin- , road track by passing through the defective F. Onaba & Kansas City Railroad Compa- fence. A clear case for the consideration of 35. From a judgment in favor of plaintiff, the jury was made out, and therefore no defendant appeals. Affirmed.

error was committed in overruling the deJ. G. Trimble and Wilson & Clapp, for

murrer to the evidence. No other is claim

ed. appellant. Wattenbarger & Bingham and R. E. Ash, for respondent.

The judgment is affirmed. All concur.

JOHNSON, J. This suit was begun be

EVERETT v. BARSE LIVE STOCK COMfore a justice of the peace in Penn township,

MISSION CO.
Sullivan county, to recover double damages
Coder section 1105, Rev. St. 1899, for the

(Kansas City Court of Appeals. Missouri.

June 5, 1905. On Rehearing, June 26, Elog of four hogs. Plaintiff had judgment

1905.) in the circuit court, and defendant appealed.

1. AGISTER'S LIEN-Loss-TAKING OF CATComplaint is made of the refusal of the

TLE BY OWNER. trial court to instruct the jury to find for One does not lose his right to an agister's defendant. It is said the evidence failed to lien by the owners of the cattle taking nem from show that the killing occurred in the town- his pasture without his knowledge or consent. ship where suit was brought. The state

[Ed. Note.--For cases in point, see vol. 2,

Cent. Dig. Animals, $8 54–56.] Dent aleged that defendant owned and op

2. SAME-TAKING CATTLE TO OTHER STATE. erated a railroad "over and across the follow

Where, in another state, under the rule ing described lands belonging to plaintiff, ly, there obtaining, one acquires an agister's lien, bag and being situated in Penn township, superior, though subsequent in point of time, lo Sullivan county, Missouri, to wit, east half

a chattel mortgage, such priority or the right

to enforce it is not lost by the cattle being shipof the northwest quarter, and the north half ped to Missouri and thence to Illinois, and there of the Dortheast quarter, of the southwest sold, though in neither of such states does such quarter of section 25, township 63, range rule as to priority of liens obtain. 19." The constable's return recited that the 3. SAME-ENFORCEMENT IN OTHER STATE. writ was served on defendant's station agent the rule obtains that an agister's lien, though

The right acquired in another state, where in Penn township. Plaintiff testified that he

subsequent, is superior to a chattel mortgage, Tas the owner of the land described in the will be enforced in Missouri, though such rule petition. The fact of its location in Penn does not there obtain. township was not a subject of controversy,

4. SAME_CONVERSION.

One having an agister's lien superior to a 2nd, as the killing occurred where the rail- prior mortgage may, on the owners of the catroad ran through this land, its location in tle taking them without his knowledge and conPeco township was sufficiently proven. Kerr

sent and turning them over to the mortgagee, T.Q.O. & K. C. R. R. Co. (not yet officially

recover for conversion of an innocent commis

sion merchant who sells them for the mortgagee ported) 87 S. W. 596.

and turns over the proceeds to him. Further, it is said plaintiff failed to prove

On Rehearing. defendant's ownership of the railroad. The

5. SAME-EFFECT OF CONTRACT. following is the testimony of plaintiff on this

An agister's lien under the statute for a point: "Q. I will get you to state if the de- reasonable charge is not affected by a contract fernant's railroad runs through your farm. between the owner and the agister that the cat4. It does." As defendant gave no intima

tle are to be pastured in a manner, for a time,

and at a price agreed on. tion of purpose to resist the action upon the ground that it did not own nor operate the Cent. Dig. Animals, $8 54-56.]

[Ed. Note.For cases in point, see vol. 2, Mad further proof was unnecessary. Oyler 7. Railroad Co. (not yet officially reported)

Appeal from Circuit Court, Jackson Coun& S. W. 162; Kerr v. Railroad, supra; Kel- ty; W. B. Teasdale, Judge. teabaurgb v. Railroad, 34 Mo. App. 148;

Action by Palmer L. Everett against the

Commission Company. Geiser r. Ry. Co., 61 Mo. App. 459; Lindsay Barse Live Stock 1. Railroad, 36 Mo. App. 51.

Judgment for plaintiff. Defendant appeals. Also, it is urged that plaintiff failed to

Affirmed. prove that the hogs were struck by a train. Haff & Michaels and D. C. Ketchum, for So direct evidence was introduced, for no appellant. Beardsley, Gregory & Kirshner,

saw the killing; but the facts and cir- for respondent. cumstances disclosed very strongly pointed to a collision between the animals and one ELLISON, J. This is an action for the of defendant's trains as the cause of injury. amount of a bill for pasturage of a lot of The ultimate fact to be found in such cases, cattle. The judgment in the trial court was is in others, is not required to be proven by for the plaintiff. The facts necessary to direct evidence, but may be inferred from state for an understanding of the points in the facts and circumstances. The defective volved are these: The plaintiff had the catwadition of the fence separating plaintiff's tle in possession from the owner, and had an fasad lot in which he kept his hogs from de- unpaid claim for pasturage. Before the catleddant's right of way was shown, as was tle were turned over to plaintiff to pasture lso the fact that the hogs reached the rail- by the owner, the latter had mortgaged them

in business. Plaintif then suled the company 3371

to a commission company known as the Mc- well-established principles of law. This deKee Company. The owner took the cattle fendant, by selling the cattle, was guilty of from plaintiff's pasture without his knowl- conversion, however innocent of plaintiff's edge or consent, and without paying his agis. claim, and however well convinced of the ter's bill, and shipped them to the mortgagee, right of the mortgagees to dispose of them. the McKee Company. The latter company Mohr v. Langan, 162 Mo. 497-502, 63 S. W. shipped the ca to defendant company at 85; Bank v. Morris, 114 Mo. 255, 21 S. W. the National Stockyards, in Illinois, who 511; Lafayette County Bank v. Metcalf, 40 sold them and remitted the money to the Mc- Mo. App. 494; Kellar v. Garth, 45 Mo. App. Kee Company, who shortly thereafter failed 332; Laughlin v. Barnes, 76 Mo. App. 258.

The foregoing considerations lead to an for his unpaid bill for pasturage. The owner affirmance of the judgment. All concur. of the cattle and plaintiff resided in the state of Kansas. The cattle were in that state,

On Rehearing. and were pastured there, and there was PER CURIAM. But it is said, in a mowhere possession was taken from plaintiff. tion for rehearing, that the case of Bank v. The mortgage was given upon them in that Brecheisen, 65 Kan. 807, 70 Pac. 895, ought state and properly recorded there.

to determine the case in defendant's favor. In this state there is no doubt that a prior It is there held that where the lien is one chattel mortgage takes precedence of a subse- which is not enforceable under the statute of quent agister's lien. Stone v. Kelley, 59 Mo. Kansas, but depends for validity upon a conApp. 214; Baskin v. Wayne, 62 Mo. App. 515; tract between the owner and the agister, the Miller v. Crabbe, 66 Mo. App. 660; it was so lien of the prior mortgage is superior. To decided by the St. Louis Court of Appeals. make that case have a bearing upon the presLazarus v. Moran, 64 Mo. App. 239. And so ent controversy, it is said that the plaintiff's the law is in Illinois, where the cattle were lien here arose under an agreement between sold by this defendant. Charles V. Neigel- him and the mortgagor owner that plaintiff sen, 15 Ill. App. 17. But in Kansas the rule would pasture the cattle and be responsible is the reverse, and the agister's lien takes for their return. Such agreement is, doubtprecedence of the prior chattel mortgage. less, no more than is made in most every case Case v. Allen, 21 Kan. 217, 30 Am. Rep. 425. of agistment, and if agreements of that nature It therefore appears that in Kansas, which ousted the statute of application it would be was the seat of the plaintiff's contract of of little practical use. A contract for feeding agistment and of the owner's and mortgagee's or pasturage does not prevent a statutory mortgage contract, the agister bad a lien su- lien. There may be contracts for a lien in perior to the mortgagee's lien. This was a instances where the statute would not apply, right of which he could not be divested by in which cases, of course, the lien would desurreptitiously or forcibly taking the posses- pend wholly upon the contract. But, where sion from him. Possession is generally nec- the facts concerning the agistment make a essary to unwritten liens, but a parting with demand for which the statute gives a lien, a possession against one's will and consent will contract between the owner and the agister not affect his lien,

that the animals are to be pastured or fed in Nor does the fact that the cattle were ship- the manner, for the time, and at the price ped to Missouri, and thence to Illinois, and agreed upon, will not affect the lien for the there sold, in neither of which states, as we reasonable charge provided for in the statute. have said, does the Kansas rule as to priority between liens obtain, affect plaintiff's priority or his right to enforce it. It is quite true, as

HENSON V. ARMOUR PACKING .CO.* stated by defendant, that the courts of one state will not enforce rights or contracts aris

(Kansas City Court of Appeals. Missouri.

June 5, 1905.) ing in another state, when it is against mor

MASTER AND SERVANT-INJURIES TO SERVANT ality or the public policy of such state. But

-ASSUMPTION OF RISK-REPAIR OF UNSAFE this is not that character of case. We en- PLACE. force in this state contracts for interest, good An experienced carpenter, who was sent to where made, but usurious here. Bank v.

re-enforce the shoring of a bank of earth which

was obviously unsafe unless and until the shorCooper, 85 Mo. App. 383. If that can be done,

ing should be re-enforced, assumed the risk of there ought not to be any scruple in enfor- doing the work, and could not hold his master cing a right of the character of plaintiff's.

liable for injuries sustained in so doing, on the That the states do enforce rights existing un

ground that the place in which he was working

was unsafe. der the laws of another state which would

[Ed. Note.-For cases in point, see vol. 34, not be enforced in the state itself is a funda- Cent. Dig. Master and Servant, 88 551, 610-624.) mental rule of comity, many examples of

Appeal from Circuit Court, Jackson Counwhich will be found in plaintiff's brief.

ty; W. B. Teasdale, Judge. It is finally insisted that the defendant was

Action by George Henson against the Arbut an innocent commission firm, with no in

mour Packing Company. From a judgment terest in the property, and no notice of plain

for plaintiff, defendant appeals. Reversed. tiff's claim. That feature makes this a hard case, but it cannot be allowed to overcome *Rehearing denied June 26, 1905

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