Tbe rule in Missouri

1954Tbe issue was not decided in In re Poe’s Estate, 356 Mo. 276 , 201 S.W. (2d) 441, 445 , where tbe court'said: “Whether tbe matter of apportionment of tbe tax is for tbe legislature or for tbe courts in a proper case is a matter we may not decide in tbis proceeding.” Nor was tbe issue decided in Priedeman v. Jamison, supra, 202 S.W. (2d) 900, 903 , where tbe court said:' “* * * absent a clear (statutory) direction on tbe subject of taxes, tbe interpretation of■ provisions of tbe will relied upon to exonerate legatees or devisees from tbe estate tax or to make an apportionment of tbe tax among t

1954Tbe issue was not decided in In re Poe’s Estate, 356 Mo. 276 , 201 S.W. (2d) 441, 445 , where tbe court'said: “Whether tbe matter of apportionment of tbe tax is for tbe legislature or for tbe courts in a proper case is a matter we may not decide in tbis proceeding.” Nor was tbe issue decided in Priedeman v. Jamison, supra, 202 S.W. (2d) 900, 903 , where tbe court said:' “* * * absent a clear (statutory) direction on tbe subject of taxes, tbe interpretation of■ provisions of tbe will relied upon to exonerate legatees or devisees from tbe estate tax or to make an apportionment of tbe tax among t

1954Tbe issue was not decided in In re Poe’s Estate, 356 Mo. 276 , 201 S.W. (2d) 441, 445 , where tbe court'said: “Whether tbe matter of apportionment of tbe tax is for tbe legislature or for tbe courts in a proper case is a matter we may not decide in tbis proceeding.” Nor was tbe issue decided in Priedeman v. Jamison, supra, 202 S.W. (2d) 900, 903 , where tbe court said:' “* * * absent a clear (statutory) direction on tbe subject of taxes, tbe interpretation of■ provisions of tbe will relied upon to exonerate legatees or devisees from tbe estate tax or to make an apportionment of tbe tax among t

1954Tbe issue was not decided in In re Poe’s Estate, 356 Mo. 276 , 201 S.W. (2d) 441, 445 , where tbe court'said: “Whether tbe matter of apportionment of tbe tax is for tbe legislature or for tbe courts in a proper case is a matter we may not decide in tbis proceeding.” Nor was tbe issue decided in Priedeman v. Jamison, supra, 202 S.W. (2d) 900, 903 , where tbe court said:' “* * * absent a clear (statutory) direction on tbe subject of taxes, tbe interpretation of■ provisions of tbe will relied upon to exonerate legatees or devisees from tbe estate tax or to make an apportionment of tbe tax among t

1954Tbe issue was not decided in In re Poe’s Estate, 356 Mo. 276 , 201 S.W. (2d) 441, 445 , where tbe court'said: “Whether tbe matter of apportionment of tbe tax is for tbe legislature or for tbe courts in a proper case is a matter we may not decide in tbis proceeding.” Nor was tbe issue decided in Priedeman v. Jamison, supra, 202 S.W. (2d) 900, 903 , where tbe court said:' “* * * absent a clear (statutory) direction on tbe subject of taxes, tbe interpretation of■ provisions of tbe will relied upon to exonerate legatees or devisees from tbe estate tax or to make an apportionment of tbe tax among t

1951It is the appellant’s contention that there is no evidence in this record that would support the trial court’s finding of laches. “ ‘The doctrine of laches will prevent relief to one who has stood idly by with knowledge of his rights and allowed the situation to so change that it would be an injustice to others to grant the relief that was tardily sought.’ Klebba v. Streumpf, 224 Mo. App. 193 , 23 S. W. 2d 205 , loc. cit. 207. *729 “ ‘Tbe doctrine of laches is an equitable concept and finds its particular field of application in equity cases.

1951It is the appellant’s contention that there is no evidence in this record that would support the trial court’s finding of laches. “ ‘The doctrine of laches will prevent relief to one who has stood idly by with knowledge of his rights and allowed the situation to so change that it would be an injustice to others to grant the relief that was tardily sought.’ Klebba v. Streumpf, 224 Mo. App. 193 , 23 S. W. 2d 205 , loc. cit. 207. *729 “ ‘Tbe doctrine of laches is an equitable concept and finds its particular field of application in equity cases.

1941It contends that tbe letter of September 30, 1932, is nothing more tban an admission against interest and as such may be explained away. [Citing: Kimball v. New York Life Insurance Co., 108 Atl. 92 .1; Duncan v. Matney, 29 Mo. 368 ; Bailey v. American Life Insurance Company, 96 S. W. (2d) 903 .] Whether this letter be considered an “admission against interest,” or as a direct representation of an existing fact, all tbe cases bold that under similar situations, facts may be presented which, if believed, would estop tbe defendant from escaping liability because of its mistake.

1941It contends that tbe letter of September 30, 1932, is nothing more tban an admission against interest and as such may be explained away. [Citing: Kimball v. New York Life Insurance Co., 108 Atl. 92 .1; Duncan v. Matney, 29 Mo. 368 ; Bailey v. American Life Insurance Company, 96 S. W. (2d) 903 .] Whether this letter be considered an “admission against interest,” or as a direct representation of an existing fact, all tbe cases bold that under similar situations, facts may be presented which, if believed, would estop tbe defendant from escaping liability because of its mistake.

1937“Tbe rule is, that when tbe allegations of tbe petition are denied, and evidence is submitted to sustain tbe issues joined, tbe defendant is entitled to have tbe jury pass upon tbe evidence, tbougb tbe defendant offers no evidence on his own part.” [Milliken v. Commission Co., 202 Mo. 637 , 100 S. W. 604 ; Wolff v. Campbell, 110 Mo. 114 , 19 S. W. 622 ; Gregory v. Chambers, 78 Mo., l. c. 298.] Tbe same rule is announced in tbe ease of Reynolds v. Hood, 209 Mo. 611 , 108 S. W. 86 .

1937“Tbe rule is, that when tbe allegations of tbe petition are denied, and evidence is submitted to sustain tbe issues joined, tbe defendant is entitled to have tbe jury pass upon tbe evidence, tbougb tbe defendant offers no evidence on his own part.” [Milliken v. Commission Co., 202 Mo. 637 , 100 S. W. 604 ; Wolff v. Campbell, 110 Mo. 114 , 19 S. W. 622 ; Gregory v. Chambers, 78 Mo., l. c. 298.] Tbe same rule is announced in tbe ease of Reynolds v. Hood, 209 Mo. 611 , 108 S. W. 86 .

1937“Tbe rule is, that when tbe allegations of tbe petition are denied, and evidence is submitted to sustain tbe issues joined, tbe defendant is entitled to have tbe jury pass upon tbe evidence, tbougb tbe defendant offers no evidence on his own part.” [Milliken v. Commission Co., 202 Mo. 637 , 100 S. W. 604 ; Wolff v. Campbell, 110 Mo. 114 , 19 S. W. 622 ; Gregory v. Chambers, 78 Mo., l. c. 298.] Tbe same rule is announced in tbe ease of Reynolds v. Hood, 209 Mo. 611 , 108 S. W. 86 .

1937“Tbe rule is, that when tbe allegations of tbe petition are denied, and evidence is submitted to sustain tbe issues joined, tbe defendant is entitled to have tbe jury pass upon tbe evidence, tbougb tbe defendant offers no evidence on his own part.” [Milliken v. Commission Co., 202 Mo. 637 , 100 S. W. 604 ; Wolff v. Campbell, 110 Mo. 114 , 19 S. W. 622 ; Gregory v. Chambers, 78 Mo., l. c. 298.] Tbe same rule is announced in tbe ease of Reynolds v. Hood, 209 Mo. 611 , 108 S. W. 86 .

1937“Tbe rule is, that when tbe allegations of tbe petition are denied, and evidence is submitted to sustain tbe issues joined, tbe defendant is entitled to have tbe jury pass upon tbe evidence, tbougb tbe defendant offers no evidence on his own part.” [Milliken v. Commission Co., 202 Mo. 637 , 100 S. W. 604 ; Wolff v. Campbell, 110 Mo. 114 , 19 S. W. 622 ; Gregory v. Chambers, 78 Mo., l. c. 298.] Tbe same rule is announced in tbe ease of Reynolds v. Hood, 209 Mo. 611 , 108 S. W. 86 .

1937“Tbe rule is, that when tbe allegations of tbe petition are denied, and evidence is submitted to sustain tbe issues joined, tbe defendant is entitled to have tbe jury pass upon tbe evidence, tbougb tbe defendant offers no evidence on his own part.” [Milliken v. Commission Co., 202 Mo. 637 , 100 S. W. 604 ; Wolff v. Campbell, 110 Mo. 114 , 19 S. W. 622 ; Gregory v. Chambers, 78 Mo., l. c. 298.] Tbe same rule is announced in tbe ease of Reynolds v. Hood, 209 Mo. 611 , 108 S. W. 86 .

1936Lime & Gypsum, 290 Mo. 170, 175, 176 ; Shores v. Bowen, 44 Mo. 396 ; Jeude v. Sims, 258 Mo. 26, 44 .] Tbe case of Wallace v. Underwood, 32 Mo. App. 473 , merely bolds that there cannot be a complaint made in tbe appellate court of error committed in tbe trial of tbe case on tbe motion without a bill of exceptions.

1936Lime & Gypsum, 290 Mo. 170, 175, 176 ; Shores v. Bowen, 44 Mo. 396 ; Jeude v. Sims, 258 Mo. 26, 44 .] Tbe case of Wallace v. Underwood, 32 Mo. App. 473 , merely bolds that there cannot be a complaint made in tbe appellate court of error committed in tbe trial of tbe case on tbe motion without a bill of exceptions.

1936Lime & Gypsum, 290 Mo. 170, 175, 176 ; Shores v. Bowen, 44 Mo. 396 ; Jeude v. Sims, 258 Mo. 26, 44 .] Tbe case of Wallace v. Underwood, 32 Mo. App. 473 , merely bolds that there cannot be a complaint made in tbe appellate court of error committed in tbe trial of tbe case on tbe motion without a bill of exceptions.

1936Tbe defendant was in jail at tbe time, and bis interview was with tbe prosecuting attorney and tbe sheriff — persons in authority — and tbe law presumes that a confession thus induced is involuntary.” In Searcy v. State, 28 Tex. App. 513, 13 S. W. 782 , 19 Am.

1935Had the motion been sustained upon the latter ground, it would be upheld on appeal without a review of the evidence, in the absence of a showing that *373 tbe trial court bad abused its discretion in granting one new trial. [Somerville v. Stockton, 178 Mo. 121 , 77 S. W. 298 .] Tbe motion having been sustained upon tbe former ground, ■ we are required to review tbe evidence in order to determine if there was offered any substantial evidence on behalf of plaintiff to support tbe verdict. [Gates v. Dr. Nichols’ Sanatorium, 55 S. W. (2d) 424 , 331 Mo. 754 .] First referring to tbe pleadings, tbe

1935Had the motion been sustained upon the latter ground, it would be upheld on appeal without a review of the evidence, in the absence of a showing that *373 tbe trial court bad abused its discretion in granting one new trial. [Somerville v. Stockton, 178 Mo. 121 , 77 S. W. 298 .] Tbe motion having been sustained upon tbe former ground, ■ we are required to review tbe evidence in order to determine if there was offered any substantial evidence on behalf of plaintiff to support tbe verdict. [Gates v. Dr. Nichols’ Sanatorium, 55 S. W. (2d) 424 , 331 Mo. 754 .] First referring to tbe pleadings, tbe

1935Had the motion been sustained upon the latter ground, it would be upheld on appeal without a review of the evidence, in the absence of a showing that *373 tbe trial court bad abused its discretion in granting one new trial. [Somerville v. Stockton, 178 Mo. 121 , 77 S. W. 298 .] Tbe motion having been sustained upon tbe former ground, ■ we are required to review tbe evidence in order to determine if there was offered any substantial evidence on behalf of plaintiff to support tbe verdict. [Gates v. Dr. Nichols’ Sanatorium, 55 S. W. (2d) 424 , 331 Mo. 754 .] First referring to tbe pleadings, tbe

1935Had the motion been sustained upon the latter ground, it would be upheld on appeal without a review of the evidence, in the absence of a showing that *373 tbe trial court bad abused its discretion in granting one new trial. [Somerville v. Stockton, 178 Mo. 121 , 77 S. W. 298 .] Tbe motion having been sustained upon tbe former ground, ■ we are required to review tbe evidence in order to determine if there was offered any substantial evidence on behalf of plaintiff to support tbe verdict. [Gates v. Dr. Nichols’ Sanatorium, 55 S. W. (2d) 424 , 331 Mo. 754 .] First referring to tbe pleadings, tbe

1934S. Mo. 1929.] (c) Failure of respondent to bring bis suit immediately was not a waiver, since under the statutes of Missouri, tbe limitations therefor are ten years, and tbe mere delay to bring suit was not a waiver of bis claim. [Curtis v. Sexton, 201 Mo. 217 , 100 S. W. 17 .] Tbe contract upon which plaintiff (respondent) bases bis right to recover in this case is in our opinion a clean statement of tbe premises, which authorizes such recovery.

1934S. Mo. 1929.] (c) Failure of respondent to bring bis suit immediately was not a waiver, since under the statutes of Missouri, tbe limitations therefor are ten years, and tbe mere delay to bring suit was not a waiver of bis claim. [Curtis v. Sexton, 201 Mo. 217 , 100 S. W. 17 .] Tbe contract upon which plaintiff (respondent) bases bis right to recover in this case is in our opinion a clean statement of tbe premises, which authorizes such recovery.

1934Tbe rule is that where tbe vendee pays more than be 'should pay under the contract, whether such payment be by mistake, fraud or duress, tbe excess may be recovered in an action for breach of contract and plaintiff’s instruction No. 2 was properly given. [39 Cyc. 2016; Porter v. Citizens Bank, 73 Mo. App. 513 ; Pemberton v. Williams, 87 Ill. 15 .] (b) Plaintiff was likewise entitled to interest on tbe items so paid from tbe date of tbe breach of tbe contract, being January 1, 1928. [Goodrich-Lockhart Co. v. Sears, 270 Fed. 971 ; Sec. 2839, R.

1934Tbe rule is that where tbe vendee pays more than be 'should pay under the contract, whether such payment be by mistake, fraud or duress, tbe excess may be recovered in an action for breach of contract and plaintiff’s instruction No. 2 was properly given. [39 Cyc. 2016; Porter v. Citizens Bank, 73 Mo. App. 513 ; Pemberton v. Williams, 87 Ill. 15 .] (b) Plaintiff was likewise entitled to interest on tbe items so paid from tbe date of tbe breach of tbe contract, being January 1, 1928. [Goodrich-Lockhart Co. v. Sears, 270 Fed. 971 ; Sec. 2839, R.

1934Tbe rule is that where tbe vendee pays more than be 'should pay under the contract, whether such payment be by mistake, fraud or duress, tbe excess may be recovered in an action for breach of contract and plaintiff’s instruction No. 2 was properly given. [39 Cyc. 2016; Porter v. Citizens Bank, 73 Mo. App. 513 ; Pemberton v. Williams, 87 Ill. 15 .] (b) Plaintiff was likewise entitled to interest on tbe items so paid from tbe date of tbe breach of tbe contract, being January 1, 1928. [Goodrich-Lockhart Co. v. Sears, 270 Fed. 971 ; Sec. 2839, R.

1933Louis v. Christian Brothers College, 257 Mo. 541, 552 , 165 S. W. 1057 , the court said: “On this point we will say that in construing laws it is permissible in arriving at the intent of the law maker to either expand or limit the meaning of his words when it becomes necessary to make the law harmonize with reason. [Kane v. Railroad, 112 Mo. 34 , l. c. 39; Keeney v. McVoy, 206 Mo. 42 , l. c. 68.] *1053 ‘1 Tbe rule of reason is quite firmly rooted' in. the jurisprudence of oür State and can be traced back to the early, case of Fanny v. State, 6 Mo. 122 , l. c. 142.

1933In other cases where the instruction for plaintiff failed to limit the jury to the amount claimed in the petition it was shown by the evidence that the damage proven was either in excess of the amount claimed in the petition, or no showing whatever was made as to the amount of such special damage. [Finley v. Rail *1040 way, 238 Mo. 6 , 141 S. W. 866 ; Tinkle v. Railroad, 212 Mo. 445 , 110 S. W. 1086 .] Tbe rule is well established that where the amount of the special damages proven is less than the amount of such damages alleged in the petition, an instruction for plaintiff on the measure of d

1933In other cases where the instruction for plaintiff failed to limit the jury to the amount claimed in the petition it was shown by the evidence that the damage proven was either in excess of the amount claimed in the petition, or no showing whatever was made as to the amount of such special damage. [Finley v. Rail *1040 way, 238 Mo. 6 , 141 S. W. 866 ; Tinkle v. Railroad, 212 Mo. 445 , 110 S. W. 1086 .] Tbe rule is well established that where the amount of the special damages proven is less than the amount of such damages alleged in the petition, an instruction for plaintiff on the measure of d

1933Louis v. Christian Brothers College, 257 Mo. 541, 552 , 165 S. W. 1057 , the court said: “On this point we will say that in construing laws it is permissible in arriving at the intent of the law maker to either expand or limit the meaning of his words when it becomes necessary to make the law harmonize with reason. [Kane v. Railroad, 112 Mo. 34 , l. c. 39; Keeney v. McVoy, 206 Mo. 42 , l. c. 68.] *1053 ‘1 Tbe rule of reason is quite firmly rooted' in. the jurisprudence of oür State and can be traced back to the early, case of Fanny v. State, 6 Mo. 122 , l. c. 142.

1933In other cases where the instruction for plaintiff failed to limit the jury to the amount claimed in the petition it was shown by the evidence that the damage proven was either in excess of the amount claimed in the petition, or no showing whatever was made as to the amount of such special damage. [Finley v. Rail *1040 way, 238 Mo. 6 , 141 S. W. 866 ; Tinkle v. Railroad, 212 Mo. 445 , 110 S. W. 1086 .] Tbe rule is well established that where the amount of the special damages proven is less than the amount of such damages alleged in the petition, an instruction for plaintiff on the measure of d

1933In other cases where the instruction for plaintiff failed to limit the jury to the amount claimed in the petition it was shown by the evidence that the damage proven was either in excess of the amount claimed in the petition, or no showing whatever was made as to the amount of such special damage. [Finley v. Rail *1040 way, 238 Mo. 6 , 141 S. W. 866 ; Tinkle v. Railroad, 212 Mo. 445 , 110 S. W. 1086 .] Tbe rule is well established that where the amount of the special damages proven is less than the amount of such damages alleged in the petition, an instruction for plaintiff on the measure of d

1933Louis v. Christian Brothers College, 257 Mo. 541, 552 , 165 S. W. 1057 , the court said: “On this point we will say that in construing laws it is permissible in arriving at the intent of the law maker to either expand or limit the meaning of his words when it becomes necessary to make the law harmonize with reason. [Kane v. Railroad, 112 Mo. 34 , l. c. 39; Keeney v. McVoy, 206 Mo. 42 , l. c. 68.] *1053 ‘1 Tbe rule of reason is quite firmly rooted' in. the jurisprudence of oür State and can be traced back to the early, case of Fanny v. State, 6 Mo. 122 , l. c. 142.

1933Louis v. Christian Brothers College, 257 Mo. 541, 552 , 165 S. W. 1057 , the court said: “On this point we will say that in construing laws it is permissible in arriving at the intent of the law maker to either expand or limit the meaning of his words when it becomes necessary to make the law harmonize with reason. [Kane v. Railroad, 112 Mo. 34 , l. c. 39; Keeney v. McVoy, 206 Mo. 42 , l. c. 68.] *1053 ‘1 Tbe rule of reason is quite firmly rooted' in. the jurisprudence of oür State and can be traced back to the early, case of Fanny v. State, 6 Mo. 122 , l. c. 142.

1933Co., 235 S. W. 91 .] These eases are bottomed on the theory that where the evidence shows the amount of the special damages to be less than the amount claimed in the petition, the jury will be presumed to do their duty and follow the evidence and allow less than the amount claimed although the instruction places no such limitation upon them.

1933In other cases where the instruction for plaintiff failed to limit the jury to the amount claimed in the petition it was shown by the evidence that the damage proven was either in excess of the amount claimed in the petition, or no showing whatever was made as to the amount of such special damage. [Finley v. Rail *1040 way, 238 Mo. 6 , 141 S. W. 866 ; Tinkle v. Railroad, 212 Mo. 445 , 110 S. W. 1086 .] Tbe rule is well established that where the amount of the special damages proven is less than the amount of such damages alleged in the petition, an instruction for plaintiff on the measure of d

1933Louis v. Christian Brothers College, 257 Mo. 541, 552 , 165 S. W. 1057 , the court said: “On this point we will say that in construing laws it is permissible in arriving at the intent of the law maker to either expand or limit the meaning of his words when it becomes necessary to make the law harmonize with reason. [Kane v. Railroad, 112 Mo. 34 , l. c. 39; Keeney v. McVoy, 206 Mo. 42 , l. c. 68.] *1053 ‘1 Tbe rule of reason is quite firmly rooted' in. the jurisprudence of oür State and can be traced back to the early, case of Fanny v. State, 6 Mo. 122 , l. c. 142.

1931In State v. .Berry, 21 Mo. 504, 507 , it is said “there must be three or more persons charged, in order to constitute the offense under our statute. ’ ’ Clearly there is no charge that the three or more persons assembling intended, or agree mutually, to assist one another in advocating the abolition of all forms of government or in declaring that the time had come when all classes should rise in rebellion, etc. The only intent with which the assembly is charged is that of advocating the Communist Party, etc. This cannot logically be claimed to be an effort toward abolishing all forms of -gover

1928It was also held that the. defendant could not. both demur and answ'er, and to question the corporate character the, issue w'ould have to be raised by affidavit. *359 Tbe rule applies to school districts. [School District v. Young, 152 Mo. App. 304 , l. c. 312.