Mo. App. 67, 128 S. W. 226; Field v. Barber
Co. (C. C.) 117 Fed. loc. cit. 928.

It is well said by McPherson, J., in the case last cited: "If this be so [i. e., if special rebate were offered], it would be bribery and corruption, as fully as if money were paid directly to prevent protests, and, in my judgment, ought to and would defeat the special tax bills."

And in the Kurtz Case this court, speaking through Ellison, J., observed: "The inevitable effect of his (the contractor's) action is to increase the price to general property holders so that he may be enabled to decrease it to those he had favored. Such scheme is founded either in corruption, or some unfair advantage, or for some improper purpose."

In 2 Elliott on Roads & Streets (3d Ed.) § 729, the rule thus is stated: "Where a contractor makes a private contract with part of the property owners, wherein he agrees to do the work at a specified price, his conduct has been deemed such a fraud upon the other owners as will preclude him from enforcing the assessment against them."

Obviously the vice of such conduct lies in its tendency to increase the cost of the work to honest property owners, to corrupt such property owners as might be seduced into participation in a scheme that would give them an undue advantage over their neighbors and frequently to result in the doing of unnecessary public work that would not be done if honest opposition were given its rightful opportunity.

In the present case we must infer that the court sitting as a jury found as a fact that the offer to the protesting property owner was that of a small discount for the prompt payment of the tax bill that would be issued against his property, and that this offer was not secret or special, but was general and open to all interested property owners who might wish to avail themselves of it. Such inference finds ample support in the testimony of Mr. Motter and of plaintiff's agent, and, since no declarations of law were given or asked, we are warranted in assuming that the judgment before us was based on facts found by the court of which those stated were a part. We think these facts are not consistent with the view that the offer was the result of a corrupt or improper purpose, though made at a time when the board of public works had authority to reject the proposal of plaintiff. What benefit was offered to Mr. Motter that was denied or withheld from defendant or from any other property holder? All were placed in the same position, and no one was offered any special privilege or benefit. The fraud in such offers consists in the attempt to take money out of the pockets of some of the property owners without their knowledge or consent and to put it into the pockets of a favored few, to the spoliation of one class, the corruption of the other, and the defeat of the true purposes and objects of the taxing power of government. The opposition of Mr. Motter had proved ineffective to change the purpose of the board to let the contract to plaintiff, and he had shot his last bolt; but, had he been in position to go on with his contest, we say that the offer of plaintiff that put him out of action was one he could accept with honor, since it accorded no special benefit or privilege to his company, but was for the equal benefit of all interested property holders. We know of no law or rule of morals that would denounce as improper a general offer of a bidder made before the letting of the contract to allow a reasonable cash discount to all property holders who paid their tax bills within a specified time.

The judgment is affirmed. All concur.

[3] But in instances where a discount or rebate is offered at a time and under circumstances preclusive of the idea that it could have such evil and vicious tendency, the rule we have been discussing has no application. Thus, where the offer is that of a cash discount for the prompt payment of a tax bill and is not made until after the contract has been let and the work completed, it cannot be said to be founded in corruption. We had that question before us in the Kurtz Case, where we say: "The most that can be said was done in this case was that, after the work was finished and the apportionment made, a small discount was allowed one person upon his payment of a bill amounting to more than $700. There is no evidence that this was in pursuance of any previous understanding, or that it was connected with any improper or unfair purpose, or that it could possibly have affected the public bid or the rights of other property holders. The 1. DIVORCE (§ 105*) - PETITION - VERIFICAtransaction was not connected with any phase of the case which could directly or indirectly affect the other property holders. It appears to be no more than the contractor for some reason, not at all connected with letting the contract or doing the work, concluded to allow a small discount for payment."

STEVENS v. STEVENS. (Kansas City Court of Appeals. Missouri. April 21, 1913. Rehearing Denied May 5, 1913.)

TION.

that the causes pleaded were true according to An affidavit verifying a divorce petition, affiant's "best knowledge, information, and belief" was a sufficient compliance with Rev. St. 1909, § 2371, requiring that the affidavit shall state that the facts "are true according to the best knowledge and belief of the plaintiff."

[Ed. Note.-For other cases, see Divorce, Cent. Dig. §§ 340-343; Dec. Dig. § 105.*]

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

Where defendant assaulted her husband many times, tore his clothes from him, struck him in the face, and on one occasion spit in his face, frequently called him coarse names, and offered him indignities of such a gross character as to render his condition intolerable, he was properly awarded a divorce.

[Ed. Note. For other cases, see Divorce, Cent. Dig. §§ 27, 62-83; Dec. Dig. § 27.*] Appeal from Circuit Court, Jackson County; Thos. J. Seehorn, Judge.

Action by George A. Stevens against Flora Stevens. Judgment for plaintiff, and

fendant appeals. Affirmed.

I. J. Ringolsky, of Kansas City, for appellant. Charles L. Shannon and Sparrow, Page & Rea, all of Kansas City, for respondent.

ELLISON, J. This is an action for divorce. A decree was entered for plaintiff in the trial court.

2. DIVORCE (§ 27*)-GroundS-CRUEL AND IN-120 S. W. 422, the following is said relative HUMAN TREATMENT. to an affidavit: "The peace and happiness of society largely depend upon maintaining the marriage relation, and the policy of the state is to encourage and maintain that relation. For the protection of society against the manifold evils that would necessarily flow from the wanton and indiscriminate severing of that relation, the Legislature has declared that divorces shall not be granted, except for certain causes, which are distinctly set out in the statute; and has prescribed what de-allegations shall be made in the bill or petition for divorce, and how the bill or petition shall be verified. All of these requirements of the statute are for the benefit of society, and not for the benefit of the parties. They are intended to guard against the bad faith and collusion of the parties. The application must show a clean and meritorious case under the statute before the court can take jurisdiction of the cause. The statutory affidavit is an essential part of the [1] The affidavit to the petition is stated application, and without it there is no juby defendant to be insufficient and jurisdic-risdiction." The particular defect in the aftion of the court is denied. It is made on fidavit in Hopkins v. Hopkins, 132 N. C. 22, 43 the plaintiff's "best knowledge, information, S. E. 508, is not stated. It was probably that and belief." The statute (section 2371, R. S. nothing was said as to levity or collusion or 1909) requires the petitioner to state that of length of knowledge of charges or time the facts set forth in the petition "are true of residence. See syllabus in 43 S. E. 508. according to the best knowledge and belief Burgess v. Martin, 111 Ala. 656, 20 South. of the plaintiff." So the question is, Is an 506, did not involve divorce proceedings, but affidavit that certain causes for divorce it discusses the nature of an affidavit like pleaded in a petition are true according to the one under review. There a bill in equity the affiant's knowledge, information, and be was verified by the affiant as "true to the lief a compliance with a statute requiring an best of his knowledge, information and beaffidavit of knowledge and belief? If the in- lief." In stating its meaning the court said: sertion by the affiant of the word "informa- "This, upon the construction most favorable tion" qualifies the affidavit which the stat- to complainants, means that the affiant has ute requires, such affidavit is, of course, in- knowledge that some of the averments of sufficient. The evident purpose of the stat- the bill are true, that while he does not know ute is to prevent any one from applying for he has been informed and believes that otha divorce unless he knows the causes he al-er of the averments are true and that, as leges are true, or believes they are true. If to yet other averments, he has neither knowlhe has information of causes which he does not believe, such causes cannot be a ground for divorce. One party may be informed that the other is a thief, or has committed adultery, and may not believe it, either on the ground of confidence in the accused or lack of confidence in the informant. In order, as near as possible, to guard against any evasion of the law, great particularity is required in the oath complying with the direction of the statute a mandatory statute-giving the right to bring an action for divorce only on strict compliance with conditions. The Supreme Court in Hinkle v. Lovelace, 204 Mo. 208, 102 S. W. 1015, 11 L. R. A. (N. S.) 730, 120 Am. St. Rep. 698, 11 Ann. Cas. 794, states that: "The verification required to be made and annexed to the petition in divorce proceedings is a matter of substance, so much so that the court acquires no jurisdiction of the cause without it."

edge nor information, but, without knowing the facts or ever having been informed of their truth, he believes them to be true, and whether any particular allegation of the bill is within one or the other of these three categories is wholly uncertain and unascertainable from his verification." It is not necessary for us to say whether that is a fair construction of the affidavit in that case. But, recognizing fully the jurisdictional importance of an affidavit in conformity to the divorce statute as forcibly stated by our Supreme Court in Hinkle v. Lovelace, supra, and condemning all useless and unnecessary innovations, we have yet concluded the one in controversy is sufficient. As has been already said, the statute requires the petitioner to have knowledge of the facts he sets up, or a belief of them; and, as one frequently cannot have knowledge of all his charges, the statute allows a belief. Belief of a thing, as distinguished from knowing it, is

In De Armond v. De Armond, 92 Tenn. 40, based on information. But, as one may have

information he does not believe, the statute | inal is valid, though the renewal note bears no requires him to state his belief of it. The additional security for the payment of the debt. word "information" shows how the affiant [Ed. Note.-For other cases, see Bills and Notes, Cent. Dig. §§ 1251-1256; Dec. Dig. § 430.*]

An agreement that a renewal note shall defendant. No declarations of law were askbe given and accepted in payment of the orig-ed or given. Plaintiff appealed.

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

[1] There is evidence in the record, in- releasing Mr. Pemberton.' So he took the troduced by plaintiff, which tends to sup- note and went down to see Mr. Meredith. I port his contention that when the first note don't remember whether we gave a notice was renewed all the parties to the transac- or not when the last renewal note fell due. tion agreed that the original note should not I don't remember how we notified the gentlebe regarded as paid and extinguished, but men named on the notes. I don't remember this evidence is met by strong contradictory whether I ever gave Mr. Pemberton any noevidence. tice that last renewal note fell due at the time it was due. When I gave Mr. Boone this note made payable to the bank, he took it to Mr. Meredith and got his signature and brought it back to us, and the bank accepted it. He brought it back in the course of an hour or so, I suppose. I don't remember. It was all in the same afternoon. I knew Mr. Pemberton's name was not on the note. I didn't know anything about whether it would be on the note. I didn't object to it being on the note. Didn't consider it was necessary. We didn't consider it a renewal. We considered it a payment. I don't remember that we stamped the last renewal note, signed by Mr. Boone and indorsed by Pemberton and Meredith, 'Paid.' I stated that we took the last note, signed by Mr. Boone and Mr. Meredith, as payment of the last renewal note indorsed by Pemberton, so far as we were concerned. We were the owner of the last renewal note, and the only one who had a right to demand this note, and took it as payment of the last renewal note."

The cashier of the bank, introduced as a witness, testified on direct examination: "When Meredith came and this renewal note was given, they agreed I should hold the original note. That agreement was between the parties that signed it, indorsing the note to the bank. It was between Mr. Meredith, Mr. Boone, and Mr. Pemberton. The agreement about my holding it, and what was said was for me to hold the note, as I remember it, Mr. Meredith suggested it, and the other two said that was all right-that I hold the original note until the renewals were paid. They at that time understood there was likely to be more. They said at that time they expected it would have to be renewed again. It was to be held until the renewal notes were paid. I was to hold it for Mr. Meredith. It was at his suggestion."

On cross-examination he said: "When it [the original note] fell due, we took a renewal note, signed as the original note, for the same amount, plus the interest. I don't remember the amount, but if there was anything added to it, it was nothing only the interest. It was for the principal of the original note and accrued interest. Took a renewal note, payable in 90 days, as I remember. Took it in payment of the original note, so far as we were concerned. We considered the old note, the original note, was paid and discharged as to us. It is stamped on the face of the note. That is our stamp." Speaking of the transaction relating to the giving of the last note, the witness said: "When the last renewal note fell due, I don't remember what notice I gave. It is not a fact that I told Mr. Boone Mr. Pemberton had moved away from that vicinity, and I would no longer look to him for pay on that note. We made that note out to ourselves. All the others had been made out payable to Pemberton and the Meredith Lumber Company, but this last note I wrote out myself and made it payable to the Bank of Gibbs, and gave it to Mr. Boone in person. I told Mr. Boone Mr. Pemberton had- As I remember, we had sent notice to both of them, and Mr. Boone came in, and I told him Mr. Pemberton had traded off his farm and moved to Brashear, and we didn't care to carry the note any longer in that condition. As Mr. Pemberton had sold his farm and moved to Brashear, he was too far off from us. And he said he wanted it, and I told him: 'If it is all right with Mr. Meredith to leave Mr. Pemberton's name off, we will still carry the note on Mr. Meredith's indorsement, or he can sign the note with you

Defendant, in his testimony, denied the existence of any agreement between the parties that the bank should hold the original note until the payment of the debt, and stated that the first time he knew that note had not been returned to Boone was after plaintiff had paid the last note. Without going further into the details of the evidence, we find abundant evidentiary support for the position of defendant that the parties intended the first renewal note should be given in payment and full discharge of the original note, and that this understanding applied to all of the subsequent renewals.

[2] The rule in this state is that the acceptance of a renewal note, to amount to payment of the original, must be taken expressly as payment by the agreement of the parties. Appleton v. Kennon, 19 Mo. 637; Leabo v. Goode, 67 Mo. 126; Keys v. Keys, 217 Mo. 48, 116 S. W. 537.

[3] In the case last cited the view is expressed that the acceptance of a renewal note bearing additional security will be considered, of itself, as a payment of the original note. But the Supreme Court does not say in that decision that an agreement that a renewal note shall operate as a payment of the original note must be supported by a new consideration, and our understanding of the law is that where such agreement is clearly expressed it is valid, though the renewal note bears no additional security for the payment of the debt.

The testimony of the cashier of the bank, the holder of the note, instead of aiding the

he states that the parties liable on the note | action is founded on that note it follows that as maker and indorsers agreed among them- the court did right in giving defendant the selves that the old note should be retained judgment. by the holder (for what purpose he does not [5] In the absence from the record of any state), he further says, in substance, that the declarations of law, it becomes our duty to bank was not a party to that understanding, consider the case on the evidence most fabut accepted the new note, not as a mere re-vorable to the party in whose favor the judgnewal of the old, but as payment thereof. ment was rendered. Consequently we are The maker and indorsers acquiesced in this justified in accepting the hypothesis presentposition of the holder, and it is difficult to ed by the testimony of the cashier of the perceive any legal ground on which an argu- bank, which, as we have shown, calls for an ment could be based that the old note might affirmance of the judgment. be considered as paid and extinguished, so far as the holder was concerned, by the acceptance of the new note, but still be kept alive for the use of an indorser who had not

The judgment is affirmed. All concur.

paid the debt, but had merely renewed his CLARK v. MODERN WOODMEN OF AMERliability by indorsing the renewal note accepted as payment by the holder.

[4] The only cause of action an indorser can have against the maker is one founded on the note, and such cause can inure to him only from payment of the note by him. The nature of the relation an indorser sustains to the maker of a note thus is stated in Keys v. Keys, supra: "There is a vast difference between an indorser and a surety in this respect. With the surety, when payment is made by him, a cause of action arises for the amount so paid, and he can sue upon the implied promise to repay what he has been out. Different, however, with an indorser of a note. There is no contract, either express or implied, with him and the maker that he will pay any sum upon the obligation to another. The only contract is that the maker will pay to the payee the amount of the note as per its terms. In other words, the contract of indorsement is an independent contract, by the terms of which the maker of a note is not bound. If the payee of a note chose to indorse the note, and thus enter into this independent contract, which in law is to the effect that he will pay the

amount of the note if the maker does not, and he does so pay such amount, he is entitled to have back from his grantee the note, which is his evidence of debt against the maker, but no more. In other words, he is left just where he was before he made the contract on his own responsibility-the contract of indorsement. The two cases above

cited have not been overruled nor criticised; nor should they be overruled. When the indorser pays the amount of a note to his indorsee, he does so upon the independent contract of indorsement, and thus reacquires the

note which he had sold."

Since the original note was not paid by plaintiff, but as a matter of law was paid by Boone, the maker, its extinguishment as to the rights of the holder had the effect of discharging the indorsers. As to them the renewal note was as much a new and independent contract as it was between the maker and the holder. The old note was dead when this suit was brought, and since the

ICA. (Kansas City Court of Appeals. Missouri. April 7, 1913. Rehearing Denied May 5, 1913.) INSURANCE (§ 748*)-FRATERNAL INSURANCE -FORFEITURE. A fraternal benefit certificate, which provides that it will become void if the member engages in the liquor business, and which makes a part of the contract the by-laws, which prohibit a member from engaging in such business on pain of forfeiture of the certificate, issued on an application wherein the member stated that he was not engaged in such business and agreed not to become so, and that he understood that the society did not indemnify against death "resulting from occupations prohibited by the by-laws," is enforceable, though the member became engaged in the liquor business, and so continued until his death, where it did not result from such occupation.

[Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 1893, 1894; Dec. Dig. § 748.*]

Appeal from Circuit Court, Adair County; Nat M. Shelton, Judge.

For ther cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes