place where they received it, and provided that no agent, general or special, had power to waive or alter that or any other condition of the contract; that no person, other than an officer of the company, had such authority. It is not contended, and could not successfully be contended, that the appliance was utterly worthless for any purpose, for it was used during the season. It is out of the question that defendants should thus use the machine and escape liability for the purchase price.

In explanation of the letter, defendants insist that it was written to please White, and with no intention of conceding the machine could be used, or waiving any claim for breaches of the warranties. This tes timony indicates the reason why plaintiff had provided against waiver by a local agent. According to the defendants, White said plaintiff would refuse to pay a large amount it owed him for commissions, and his business would be ruined, if the defendants allowed themselves to be sued on their note in October, asked them to get a renewal, and said he would sell the machine and get defendants' notes from plaintiff. White was a local agent, and desirous of protecting his own interest, which was adverse to the plaintiff's in this affair. Therefore defendants' only offer to return the machine was made to White, who opposed its return and agreed to dispose of it. Defendants, either from yielding to his persuasion or from some other motive, never returned the stacker, or notified plaintiff of a wish to do so. Their letter, far from signifying such a wish, conveyed exactly the opposite impression, namely, that the defendants intended to keep the stacker, but wanted an extension of the matured note. In view of that letter, the plaintiff was justified in regarding the defendants as having elected to stand by their purchase, notwithstanding the delay the letter said they had experienced in getting the stacker to work properly.

We have said nothing about the failure to notify the plaintiff of the defects of the machine by a registered letter, because we consider defendants' failure to comply with their stipulation to return it a sufficient reason for rejecting their defense.

The judgment is affirmed. All concur.

evidence upon motion for a new trial, and cannot be considered by the appellate court unless his testimony is opposed to reason or physical law.

2. In order to support a recovery for double damages for injury to a horse, under Rev. St. 1899, § 1105, requiring railroads to fence their tracks, and making them responsible for injuries to stock caused by failure to fence as required, the evidence must, either directly, or by facts and circumstances which rise above the plane of possibility or conjecture, show that the injury was caused by actual contact with defendant's, train.

3. In an action for double damages for injury to a horse caused by defendant railroad's failure to fence its track as required by Rev. St. 1899, § 1105, evidence held sufficient to show that the horse was injured by defendant's train,

4. Rev. St. 1899, § 1105, requiring railroads to maintain lawful fences where their roads pass through or along "inclosed or cultivated fields, or uninclosed lands," imposes on a railroad a duty toward all stock owners to fence uninclosed lands, while the duty to fence inclosed lands is for the particular protection of an adjoining owner, who may waive the same so far as his own rights are concerned; and if he erects a lawful fence, in conformity to the requirements of Rev. St. 1899, § 3295, around his own lands, a stranger whose stock breaks through that fence, and is injured on the railroad's right of way by reason of its failure to maintain a fence, cannot recover from the railroad; but if he fails to maintain a lawful fence around his lands, so that they are uninclosed, the railroad becomes responsible for injuries to stock of a stranger which strays over the land of the adjoining owner, and from thence gets on to the railroad track, and is injured because of the railroad's failure to fence along its right of way.

5. A horse which travels down a road, and from thence into a lane, and from thence onto a railroad's right of way, without encountering a fence, goes upon the right of way where the same passes through "uninclosed lands," within the meaning of Rev. St. 1899, § 1105, requiring a railroad to fence its tracks where the same pass through uninclosed lands.

6. A variance between a petition under Rev. St. 1899. § 1105, requiring a railroad to maintain lawful fences through inclosed fields or uninclosed lands, in charging that the railroad at the place in question ran through "uninclosed" lands, and evidence showing that the animal injured came from grounds not adjoining the right of way, and reached the right of way by traveling along a public road, and thence into a lane, and thence onto the right of way, without encountering any intervening fence, was not material. and not ground for reversal, under Rev. St. 1899, § 865, forbidding the reversal of judgments in the absence of error materially affecting the merits.

7. In an action against a railroad for failure to fence its track as required by Rev. St. 1899, $1105, a charge requiring the jury, in order to find for plaintiff, to believe that his horse got on defendant's railroad track at a point where the same ran through uninclosed lands, and that the track was not fenced at such point, and that the horse was struck and injured by defendant's engine, sufficiently required a finding that the failure to fence was the proximate cause of injury.

Appeal from Circuit Court, Lafayette County; Samuel Davis, Judge.

Action by Joseph P. Reed against the Chicago & Alton Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Richard Field and Scarritt, Griffith & Jones, for appellant. John Welborn and Chas. Lyons, for respondent.

JOHNSON, J. Action to recover double damages, under section 1105, Rev. St. 1899, for injuries inflicted upon a horse, and which resulted in its death. A verdict was returned for plaintiff in the sum of $200, upon which judgment was entered for $400. Defendant

appealed.

Complaint is made of the action of the trial court in refusing to instruct the jury to find for defendant. It is urged that, under the facts disclosed by the evidence, the inference that the injury to the horse resulted from a kick delivered by another horse is more reasonable than the conclusion attributing it to a collision with one of defendant's trains. Therefore it is said the jury was left to conjecture, and the rule is invoked that, "when the injury complained of may have resulted from either of two causes, for one of which the party sued is liable, and the other he is not, it is for the plaintiff to show with reasonable certainty that the cause for which the party is liable produced the result." Smart v. Kansas City, 91 Mo. App. 592.

The facts in evidence upon which the case was submitted to the jury may be stated as follows: Plaintiff, engaged in the horseracing business, kept several horses-among them, the one injured-at the fair grounds, a short distance west of Higginsville. The grounds were inclosed by a high board fence. Immediately to the north was a public road running east and west, communication between which and the inclosed grounds being afforded by a gateway provided with a suitable gate. Several hundred feet north of the road, running parallel thereto, was defendant's railroad. A fence separated the public road from the intervening land, which was in cultivation and occupied by a Mr. Haeder. An open wagon road or lane, about 20 feet wide, ran north from the public road to defendant's tracks, and opened into defendant's right of way. No fence separated Haeder's land from defendant's right of way for a distance of about 350 feet, and it was possible for stock to pass from the public road into and along the lane, and from there onto defendant's right of way and Haeder's land, without encountering any fence to obstruct the way. On the evening of April 11, 1903, plaintiff turned three horses into the pasture contained within the circle of a half-mile race track in the fair grounds. There were several openings in the interior fences which inclosed the track. The gate in the outside fence was closed, but unlocked, and it was customary for persons having business in the grounds to use this gate. Early next morning, on going to the horses, plaintiff found them in the race-track pasture, where they were left the night before, but one of them had his left hind leg broken in two places. As the other two animals were unshod on their hind feet, plaintiff supposed that other horses kept in the fair-grounds stables had been turned into the pasture without his

knowledge, and that one of these, shod behind, had kicked his horse, as the character of the wound indicated such a blow. This theory was supported by the presence of a number of hoof prints plainly appearing in the turf. Upon investigation, plaintiff learned that no other horses had been put into the pasture, but all of them were kept in the stables that night, and were found in their respective places the following day. Receiving information during the day from one of defendant's section foremen that horses had been found by him on defendant's right of way the night before, one of which was in a crippled condition, plaintiff, accompanied by the witness Fortner, made investigation along the tracks of defendant, and found at a point near the entrance of the lane to the right of way, to and across the main track of defendant's road, the hoof prints of horses. The injured horse was entirely unshod, and plaintiff claims he could identify some of the hoof prints as having been made by the feet of that animal. Blood also was found upon the main track about three inches from the north rail. Hoof prints led out from the right of way through the lane into the public road. Plaintiff claims to have noticed blood stains at intervals along this line of tracks, but in this he is not corroborated by his companion, who testified to observing nothing but hoof prints near defendant's main-line track, both on the north and south sides thereof, and a blood stain about the size of a man's hand some three inches north of the north rail. The witness Bell (defendant's section foreman) said that on the night of the accident his attention was called by the station agent to the presence of horses on the right of way. With the help of a section hand (the witness Dierking), he found two horses there, and drove them down through the lane to the public road. these horses was limping. Dierking testified to the same facts. Several trains passed this point during the interval between the turning of the horses into the pasture and their expulsion from defendant's right of way by Bell and Dierking. From these facts, it is evident the case was submitted to the jury upon the theory that some one, in passing in or out of the fair grounds, left the gate open, permitting the horses to escape into the public road, and from there through the lane upon defendant's right of way; that the injured horse was struck by a passing train, was afterwards driven into the public road by the sectionmen, and from there it returned through the open gate to the pasture.

One of

We are asked by defendant to discard entirely from our consideration the testimony of the plaintiff, for the reason that by his own admissions he has shown himself to be dishonest and untruthful-dishonest because he admits being a "fixer of races," and untruthful because he admits making a false statement under oath to defendant regarding

the ownership of the horse-and for the additional reason that his testimony relating to the facts tending to show the cause of the injury is at variance with physical conditions. The reasons based upon the moral turpitude of plaintiff are not for our consideration. They go to his credibility as a witness a fact the determination of which belongs exclusively to the jury, and to the trial judge in weighing the evidence upon motion for a new trial. In our consideration, we must accept plaintiff as a credible witness, unless the facts testified to by him are opposed to reason or physical law. But should it appear that such contradiction exists, we will not hesitate to discredit the testimony with respect to statements which cannot be reconciled to natural law. As was well said in State v. Dettmer, 124 Mo. 435, 27 S. W. 1119: "When witnesses attempt to establish a certain theory by their testimony, they must first look to it well that their testimony must not go counter to the physical facts in the case, for, if it does, neither courts nor juries are required to stultify themselves by disbelieving the immutable facts in the case." Weltmer v. Bishop, 171 Mo. 119, 71 S. W. 167, 65 L. R. A. 584. But we are unable to perceive wherein plaintiff has overtaxed credulity with respect to any essential fact. It is said that he could not identify hoof prints; but we are not prepared to declare, as a matter of law, that an experienced horseman, knowing the condition of his horse's feet, could not do this. Also, it is claimed that plaintiff, in tracing the animal's course by blood stains, described a condition which involved the shedding of too much blood, considering the fact that the injury was near the hock, a place nearly devoid of muscular tissue. We are at a loss to say how much such a wound should have ble 1 during the course of several hours. Defendant's own expert testified that "the blood had run on the ankle and dried on the horn. It indicated some small amount of hemorrhage." These questions were for the consideration of the jury.

It

No one saw the injury inflicted, but, notwithstanding inferences had to be drawn by the jury, they were such as naturally arose from the facts and circumstances shown. may be conceded, and it is the law, that it must appear from the evidence that the injury was caused by actual contact with defendant's train. Foster v. Railway, 90 Mo. 116, 2 S. W. 138. And when this elemental fact is not shown by direct evidence, the facts and circumstances relied upon must constitute substantial evidence, and pass beyond the pale of mere possibility or conjecture. Hesse v. Ry. Co., 36 Mo. App. 163; Perkins v. Ry. Co., 103 Mo. 52, 15 S. W. 320, 11 L. R. A. 426; Yeager v. Ry. Co., 61 Mo. App. 594; Peffer v. Ry. Co., 98 Mo. App. 292, 71 S. W. 1073.

In our opinion, plaintiff has satisfied every reasonable rule, and has sustained his bur

den. Blood and hoof prints were found near defendant's track; trains had passed along; the sectionmen found a lame horse near by, and drove it away-convincing facts that a horse had been injured at that place by a train. The imprints were identified by plaintiff, and, with the gate left open, the way was clear from the fair grounds to the point of injury. Such facts require nothing more than the simplest process of reasoning to supply the cause of injury. On the other hand, while the wound was such as might have followed a kick from the shod hoof of another horse, the presence of such in the pasture, under the evidence, could not be accounted for. Conjecture would have to be resorted to in the entertainment of that theory. The same must be done if an attempt is made to account for the horses found by the sectionmen on the right of way, upon the hypothesis that they were other than plaintiff's horses. It readily appears that there is no room for applying the rule invoked which prohibits permission being given the jury to choose between two producing causes, for one of which defendant would not be liable. An unbroken chain of circumstances points to a collision between the animal and defendant's train. The conclusion that a kick caused the injury, if accepted, must be reached by a resort to speculation-by supplying substantive facts not in evidence. We held in Shore v. Bridge Co. (not yet officially reported) 86 S. W. 905, that conjecture will not be indulged to aid the contentions of either party.

Defendant also presses upon our consideration the point that the demurrer to the evidence should have been sustained because of a material variance between the allegation and proof in this particular: The petition charges that the railroad at the place in question ran through "uninclosed" lands, while it is said the proof was to the contrary. The materiality of the departure is predicated upon the fact that the fair grounds do not adjoin the right of way. They are bounded on the north by the public road, between which and the right of way lie cultivated lands inclosed by fence, with the exception that no fence divided intervening land from that of defendant. Defendant assumes the position that "when the road runs through inclosed fields, and the plaintiff is not an adjoining proprietor, he must not only prove that the right of way fence was not a lawful fence, but that the fence on the other side of the adjoining field was not a lawful fence." Citing Harrington v. Ry. Co., 71 Mb. 384, and Rinehart v. Ry. Co. (Mo. App.) 80 S. W. 910. Section 1105, Rev. St., requires a railroad company to erect and maintain lawful fences "on the sides of the road where the same passes through, along or adjoining inclosed or cultivated fields or uninclosed lands," etc. The duty imposed to fence uninclosed lands obviously is for the protection of stock owned by anybody, re

gardless of the place of its location. The duty to fence through inclosed lands, while inuring to the benefit of the general public, is for the particular protection of the adjoining owner. He may waive the performance of that duty so far as his own rights are concerned, but he cannot waive the right of other stock owners to have the statutory barrier interposed to prevent the straying of their stock upon the right of way. If the adjoining proprietor erects and maintains lawful fences (Rev. St. 1899, § 3295) around his place, and the stock of a stranger breaks through and is injured, the absence of a fence on the right of way line will not raise a liability on the part of the railroad company. This is the most that can be drawn from the cases cited in favor of defendant's position. But if the adjoining owner fails to erect and maintain a lawful fence, and the stock of strangers is injured by reason of straying to the railroad track through such intervening land, then the absence of a statutory right of way fence will fix a liability upon the company. In other words, a railroad company cannot escape liability by a delegation of its duty. It is responsible in such case for the failure of the adjoining proprietor to build and maintain a statutory fence. Rinehart v. Ry. Co., supra.

In the case before us, plaintiff's horse did not reach the right of way by breaking through any fences, nor by passing over adjoining land. He traveled over open roadways, and reached the track because there was no fence between the lane and the right of way, and none between the land and public road. Therefore the questions arising from delegated duty are not in this case. At the place of entrance the land was uninclosed. But whether it was inclosed or uninclosed, within technical definition, the error, if any, involved in the use of the latter word, was harmless, for, under the facts detailed, it could have no possible bearing upon any of the essential issues. The merits of the action were not affected. Rev. St. 1899, section 865; Morgan v. Ry. Co., 159 Mo. 284, 60 S. W. 195.

We conclude that no error was committed in overruling the demurrer to the evidence.

The criticism made of plaintiff's instruction No. 1, that it omits to require the finding that the failure to fence was the proximate cause of injury, is not well founded. The jury was required to believe that the horse "got on defendant's railroad track * ** at a point on said track where the same runs through uninclosed lands, and that said track was not fenced at said point or place, and that said horse was struck and injured by the engine or cars of defendant," etc. This was sufficient to meet all reasonable requirements. Scruggs v. R. Co., 69 Mo. App. 298; Terry v. Railroad, 77 Mo. 254; Vaughan v. Railroad, 34 Mo. App. 141; Jenkins v. Railroad, 27 Mo. App. 578.

Defendant misinterprets and misapplies the

opinion in Montgomery v. Ry. Co., 90 Mo. 446, 2 S. W. 409. There, the issue was as to the sufficiency of the fence and gate, and the instruction was condemned because it failed to confine plaintiff's right to recover to injuries directly resulting from the defects claimed. Evidence was introduced tending to show that the animals got through because somebody left the gate open, and yet the jury was told to find for plaintiff if they found the fence and gate failed to meet statutory requirements; ignoring entirely the facts brought out by defendant that the gate had been left open, which, if true, would have made the insufficiency of the fence and gate immaterial, because not the proximate cause of the injury. The distinction between that case and the one in hand is apparent.

The judgment is affirmed. All concur.

STATE ex rel. SWEANEY ▼. GENTRY, County Treasurer.

(Kansas City Court of Appeals. Missouri. May 8, 1905.)

SCHOOL DISTRICT DIRECTORS - EXISTENCE OF OFFICE JUDICIAL QUESTION-COUNTY TREAS

URER-PAYMENT OF WARRANTS-MANDAMUS. Where school warrants were issued by persons claiming to be acting as the board of directors of an established school district, and the county treasurer was notified by other persons asserting title to the offices of the same school district, under an alleged reorganization thereof, not to pay the warrants, and the treasurer was also notified by the persons who drew the warrants not to pay any of the funds of the school district on warrants issued by the new board, the legal existence of each board being denied by the other, so that an issue was raised as to whether the office of director existed in the new or the old board, a judicial question was presented, which the treasurer had no authority to decide, and hence mandamus would not lie to compel him to pay the warrants.

Appeal from Circuit Court, Jackson County; James Gibson, Judge.

Proceeding by the state, on the relation of James Sweaney, against O. H. Gentry, treasurer of Jackson county, for writ of mandaFrom a finding for respondent, relator appeals. Affirmed.

mus.

H. A. Kerr, for appellant. John A. Sea, for respondent.

BROADDUS, P. J. This is a proceeding to obtain a mandamus commanding the respondent treasurer of Jackson county to pay two school warrants issued by John Sweaney, as clerk, and J. W. Gault, as president, of an alleged school distict, viz., District No. 4, township 48, range 33, Jackson county. The warrants are for $50 each-one dated October 30, 1903, and the other dated November 27, 1903. Prior to May 29, 1903, said school district was duly organized as such, and funds belonging to it came into the hands of the respondent as county treasurer, on which date there was an effort made to reor

ganize it under article 2, c. 154, §§ 9860, 9861, Rev. St. 1899, relating to city, town, and village schools, as the "School District of the Village of Dallas," and a new board of directors were elected and organized, with James Lipscomb as president, and E. H. Matney secretary. On the 3d day of June, 1903, the respondent, as county treasurer, was notified of said change and reorganization, and was also notified by E. H. Matney, secretary of the new board, not to pay out any funds in his hands standing in the name of said District No. 4, unless on the order of the new board of directors. Said Matney was a member of the old board at the time of said alleged change and reorganization of the school district. The respondent was also notified by J. W. Gault and John W. Sweaney, claiming to act for the old board, not to pay any funds in his hands as aforesaid on any warrant issued by the new board of directors, nor to pay any of said funds to the new board of the village district. In June, 1903, said John Gault, with one Johnson Young, instituted quo warranto against the members of the board of directors of the district of Dallas, alleging that since the 29th day of May, 1903, and at that time, the said respondents in said proceeding, without any authority of law, had been and were exercising and usurping the duties, powers, and privileges belonging and appertaining to the offices of school directors of the school district of Dallas, when in fact there was no such school organization; that the relators therein were on the said 29th day of May, 1903, and still were, the duly elected and qualified directors of what was known as School District No. 4, which was coextensive in territory with said alleged school district of Dallas. The object of the proceeding was to declare that there were no such officers as respondents therein of the Dallas school district, and no such district. At the time the proceeding was begun, said quo warranto was still pending in the circuit court of Jackson county, but prior to the time when this case was tried it had been determined by said court in favor of the respondents, and appealed to the Supreme Court, where it is now pending. In September, 1903, school was opened in said territory, over which the respective school directors claimed jurisdiction by consent of both boards. A warrant was issued for the first month's pay by the old board, which the new board consented the respondent might pay, and he paid it accordingly. The two warrants in controversy were issued subsequently, as stated, and assigned to the relator. The matters detailed were set out in respondent's return to the writ, and were in evidence, with other things which are not necessary for the purposes of this case to state.

On the hearing the court found for the respondent, and relator appealed. The testimony at the trial was voluminous,

the printed record containing 145 pages. Much of the evidence was directed to the question of the organization of the new or Dallas school district, or, in other words, had it been legally organized, and were the new board of directors officers? Those were questions of a judicial character, which the respondent, as treasurer of Jackson county, was not required to decide, as he was not a judge, but only a ministerial officer. And a writ of mandamus will not lie to compel him to exercise a judicial function. The rule governing such cases is stated in High on Extraordinary Remedies, § 230, as follows: "That, as to all matters of a judicial nature resting within the limits of judicial discretion, mandamus is not an applicable remedy, and the courts uniformly refuse to interfere by this species of relief either to control or regulate in any manner the discretion of inferior courts as to matters properly presented to them in a judicial capacity." If a disposition of the matter involves the exercise of judicial discretion, the writ will not lie. State ex rel. v. St. Louis Circuit Court, 1 Mo. App. 543; State ex rel. v. Thayer, 10 Mo. App. 543; Gamble v. Gibson, 10 Mo. App. 329; Hurck v. Erskine, 45 Mo. 484; State ex rel. v. Oliver, 116 Mo. 188, 22 S. W. 637. As a matter of course, the writ will not lie to compel a mere ministerial officer to perform a judicial act. There can be no question of doubt but what the matter respondent is asked to determine requires the exercise of judicial discretion. There are two rival bodies claiming to be the legal directors under two different organizations in the territory included in the school district. It is not

a question as to which of the two constituted the board of directors of an admitted schooldistrict organization. On the contrary, the legal existence of both is denied; the old board of directors denying that the new organization was established by law, and the new board asserting that the old organization has gone out of existence by the establishment of the new. In other words, there is an issue as to whether the office of director exists in the new or the old board. Had it been only a question of the right to the office of school directors, the respondent had only a ministerial duty to perform. He would have been bound to recognize the incumbents in the office of school directors, and he would have been compelled to pay warrants properly issued by them. He would not be permitted to contest the rights of the incumbents in office in this proceeding. That is a question that can only be reached by proceedings in quo warranto. The incumbent of an office, as a rule, is either an officer de facto or de jure. But if the office does not exist, there can be neither a de facto nor a de jure officer. It follows that a peremptory writ of mandamus will not lie to compel the defendant, a mere ministerial officer, to assume the exercise of judicial functions, and