opposite rule in Missouri

1915Our own courts have adhered to the opposite rule. [George v. Railroad, 214 Mo. 551 .] But inasmuch as the Supreme Court of the United States have construed the Hepburn Act, as amended, to mean that every question of the validity of stipulations. in hills of lading covering interstate shipments is a Federal question, we must follow the rule obtaining in the Federal courts, though it is contrary to that heretofore recognized in the jurisprudence of this State.” The Federal decisions do not recognize as applicable ' to interstate shipments the rule that such contractual provisions must be reasona

1914Our own courts have adhered to the opposite rule. [George v. Railroad, 214 Mo. 551 .] But inasmuch at the Supreme Court of the United States have construed the Hepburn Act, as amended, to mean that every question of the validity of stipulations in bills of lading' covering interstate shipments is a Federal question, we must follow the rule obtaining in the Federal courts, though it be contrary to that heretofore recognized in the jurisprudence of this State.

2020W.D. 2009) (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147 , 120 S.Ct. 2097 , 147 L.Ed.2d 105 (2000)).

2020W.D. 2009) (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147 , 120 S.Ct. 2097 , 147 L.Ed.2d 105 (2000)).

2018See Romeo , 86 S.W.3d at 433 (citation omitted); Wells , 670 S.W.2d at 533 .

2015Rather, “set off” is “an independent action . . . generally found on a liquidated debt and used to discharge or reduce plaintiff’s claim by an opposite claim arising from a transaction extrinsic to the plaintiff’s cause of action.” Id. (emphasis added). 20 sought to be avoided differs.

1988Id.

1956Thus in Hill-Dodge Banking Co. v. Loomis, 140 Mo.App. 62 , loc. cit. 70, 119 S.W. 967 , loc. cit. 969, Judge Goode, speaking for this court, said: “But prior to an inquest sanity is presumed, and the burden of proving insanity rests upon him who relies on that state of mind.” In First Christian Church in Salem v. McReynolds, supra, 241 P.2d loc. cit. 138, the Supreme Court of Oregon said: “The first rule to which we now refer presumes the existence of mental competency prior to an adjudication to the contrary.” And see 28 Am.Jur., Insane and Other Incompetent Persons, § 121, p. 751, and Schind

1956Thus in Hill-Dodge Banking Co. v. Loomis, 140 Mo.App. 62 , loc. cit. 70, 119 S.W. 967 , loc. cit. 969, Judge Goode, speaking for this court, said: “But prior to an inquest sanity is presumed, and the burden of proving insanity rests upon him who relies on that state of mind.” In First Christian Church in Salem v. McReynolds, supra, 241 P.2d loc. cit. 138, the Supreme Court of Oregon said: “The first rule to which we now refer presumes the existence of mental competency prior to an adjudication to the contrary.” And see 28 Am.Jur., Insane and Other Incompetent Persons, § 121, p. 751, and Schind

1942The proposition seems to be entirely just, while the opposite rule would often bring about manifestly inequitable results.” In Smith v. Lewis et al., 20 Wis. 350 , a second mortgagee purchased on foreclosure of his mortgage.

1915That rule still obtains in this State in intrastate shipments. [Richardson v. Railroad, 149 Mo. 311 ; Holland v. Railroad, 139 Mo. App. 702 ; McKinstrey v. Railroad, 153 Mo. App. 546 ; Burns v. Railroad, 151 Mo. App. 573 .] But the Federal courts hold that where a stipulation for notice provides a reasonable time for giving it, “the failure to give the notice is fatal to plaintiff’s right to recover.” [Clegg v. Railroad, 203 Fed. 971 , and cases cited.] When plaintiff permitted five days to pass after each horse was unloaded without compliance with the stipulation, he lost his right to recover

1915That rule still obtains in this State in intrastate shipments. [Richardson v. Railroad, 149 Mo. 311 ; Holland v. Railroad, 139 Mo. App. 702 ; McKinstrey v. Railroad, 153 Mo. App. 546 ; Burns v. Railroad, 151 Mo. App. 573 .] But the Federal courts hold that where a stipulation for notice provides a reasonable time for giving it, “the failure to give the notice is fatal to plaintiff’s right to recover.” [Clegg v. Railroad, 203 Fed. 971 , and cases cited.] When plaintiff permitted five days to pass after each horse was unloaded without compliance with the stipulation, he lost his right to recover

1915That rule still obtains in this State in intrastate shipments. [Richardson v. Railroad, 149 Mo. 311 ; Holland v. Railroad, 139 Mo. App. 702 ; McKinstrey v. Railroad, 153 Mo. App. 546 ; Burns v. Railroad, 151 Mo. App. 573 .] But the Federal courts hold that where a stipulation for notice provides a reasonable time for giving it, “the failure to give the notice is fatal to plaintiff’s right to recover.” [Clegg v. Railroad, 203 Fed. 971 , and cases cited.] When plaintiff permitted five days to pass after each horse was unloaded without compliance with the stipulation, he lost his right to recover

1915That rule still obtains in this State in intrastate shipments. [Richardson v. Railroad, 149 Mo. 311 ; Holland v. Railroad, 139 Mo. App. 702 ; McKinstrey v. Railroad, 153 Mo. App. 546 ; Burns v. Railroad, 151 Mo. App. 573 .] But the Federal courts hold that where a stipulation for notice provides a reasonable time for giving it, “the failure to give the notice is fatal to plaintiff’s right to recover.” [Clegg v. Railroad, 203 Fed. 971 , and cases cited.] When plaintiff permitted five days to pass after each horse was unloaded without compliance with the stipulation, he lost his right to recover

1915That rule still obtains in this State in intrastate shipments. [Richardson v. Railroad, 149 Mo. 311 ; Holland v. Railroad, 139 Mo. App. 702 ; McKinstrey v. Railroad, 153 Mo. App. 546 ; Burns v. Railroad, 151 Mo. App. 573 .] But the Federal courts hold that where a stipulation for notice provides a reasonable time for giving it, “the failure to give the notice is fatal to plaintiff’s right to recover.” [Clegg v. Railroad, 203 Fed. 971 , and cases cited.] When plaintiff permitted five days to pass after each horse was unloaded without compliance with the stipulation, he lost his right to recover

1913Our decision was based on the prior case of State v. Oliphant, 128 Mo. App. 252 , wherein we held that when a defendant in a criminal case offers himself as a witness his credibility as a witness may be assailed by proof of the fact that he bears the reputation in the community of being guilty of offenses against the law analogous to that for which he is being tried.

1912“If a party by his silence directly leads another to act to his injury, he will not be permitted, after the injury has happened to then allege anything to the contrary, for he who will not speak when he should will not be allowed to speak when he would. ’ ’ [Riley v. Insurance Co., 117 Mo. App. 229 ; Hackett v. Underwriters, supra; Cagle v. Ins Co., 78 Mo. App. 431 ; Polk v. Ins.

1912“If a party by his silence directly leads another to act to his injury, he will not be permitted, after the injury has happened to then allege anything to the contrary, for he who will not speak when he should will not be allowed to speak when he would. ’ ’ [Riley v. Insurance Co., 117 Mo. App. 229 ; Hackett v. Underwriters, supra; Cagle v. Ins Co., 78 Mo. App. 431 ; Polk v. Ins.

1912“If a party by his silence directly leads another to act to his injury, he will not be permitted, after the injury has happened to then allege anything to the contrary, for he who will not speak when he should will not be allowed to speak when he would. ’ ’ [Riley v. Insurance Co., 117 Mo. App. 229 ; Hackett v. Underwriters, supra; Cagle v. Ins Co., 78 Mo. App. 431 ; Polk v. Ins.

1911Lawson, in his work on The Law of Presumptive Evidence, p. 248, states as a rule that “One who is proved to have been unmarried when last known to be alive will be presumed to have died childless but it is otherwise when he or she was married when last known to be alive.” The Supreme Court in Johnson v. Johnson, 170 Mo. 34 , do not recognize such rule but declare the opposite rule that “there is no presumption of law of fact that a man or woman is single, nor any presumption to the contrary.” Judge Sherwood says: “At best it can only be said that there is no presumption at all on the subject;

1911Lawson, in his work on The Law of Presumptive Evidence, p. 248, states as a rule that “One who is proved to have been unmarried when last known to be alive will be presumed to have died childless but it is otherwise when he or she was married when last known to be alive.” The Supreme Court in Johnson v. Johnson, 170 Mo. 34 , do not recognize such rule but declare the opposite rule that “there is no presumption of law of fact that a man or woman is single, nor any presumption to the contrary.” Judge Sherwood says: “At best it can only be said that there is no presumption at all on the subject;

1910Louis Court of Appeals in Pettingill v. Jones, 30 Mo. App. 280 , and it meets with our approval.

1906The Supreme Court, in the recent case of Reynolds v. Transit Co., 189 Mo. 408 , 88 S. W.50, in the consideration of this subject, reaffirmed the general principle here stated as controlling the assessment of damages, but, after deprecating the employment of the word “may” for the purpose under discussion, held that it should be construed as defining the proper rule.

1894As early as Davis v. Scripps (1830), 2 Mo. 187 , it was said that: “If the court erred as a jury, the mode of redress is to ask for a new trial, and, if that is improperly refused, the wrong may be redressed by this court.

1877Holman v. Johnson, Camp. 341; Lloyd v. Johnson, 1 Bos. & Pul. 340 ; Hodgson v. Temple, 5 Taunt. 181; Michael v. Bacon, supra. The opposite doctrine has led, in its necessary limitations, to making the plaintiff’s right to recover depend on whether the plaintiff expected to be paid out of the proceeds of the illegal or immoral act; but the absurdities attendant on this inquiry have resulted in overturning, in England, this feature of the rule.

1877Myers v. Davis, 22 N. Y. 489 .