Volume 100 — Kansas Reports

<p>Appeal from Kiowa district court; Gordon L. Finley, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Executive Officers — Not Personally Liable for Errors in Judgment. Rule followed that executive officers are not liable for errors in the performance of duties involving discretion and judgment, in the absence of malice, oppression in office or willful misconduct. (Railroad Co. v. Nation, 83 Kan. 237, 109 Pac. 783.)</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Sale — Fruit—Subject to Inspection — No Implied Warranty. On a sale of a carload of fruit subject to inspection and acceptance, if acceptance follow inspection, there is no implied warranty that the fruit was in good condition and merchantable, and the full price must be paid.</p> <p>2. Same — Spoiled Fruit — No Agreement to Pay Dmmges. Oral negotiations between a buyer of fruit, accepted and paid for after inspection, and the seller’s agent, considered, and held to contain no agreement on the part of the agent for an allowance to the buyer of any sum on account of spoiled fruit.</p>

<p>Appeal from'Morris district court: R'oswell L. King, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Promissory Note — General Verdict — Special Findings — Judgment. Judgment may not be rendered contrary to the general verdict sustaining several defenses to an action, on special findings of fact, unless the special findings defeat each defense.</p> <p>2. Same. Special findings of fact considered, and held to be in harmony with the general verdict.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Negligence — Automobile—Railroad Crossing — Cars Standing Still— Negligence a Question of Fact. The rule that it is negligence as a matter of law for the driver of an automobile to attempt to cross a railroad track without stopping, where without doings so he can not assure himself that no train is approaching, does not apply where, as the automobile approaches the crossing, the train is standing still, the rear car being near the highway, and a collision results from a sudden starting of the engine.</p> <p>2. Same. Where á freight car is standing near a crossing it can not be said as a matter of law that the driver of an automobile is guilty of negligence in attempting to cross the track without assuring himself that no train is about to run into the car and force it over the highway.</p> <p>3. SAME — Evidence. The evidence held not to show conclusively that the car by which an automobile was struck while the driver was attempting to cross the track was in motion as he was approaching the crossing.</p> <p>4. Same — Findings. The findings of negligence held to show a sufficient basis of liability.</p> <p>5. Trial — Misconduct of Counsel — Not Prejudicial. The misconduct of counsel in bringing irrelevant matter before the jury held not to be so manifestly prejudicial as to warrant a reversal.</p>

<p>Appeal from Sedgwick district court, division No. 2; Thornton W. Sargent, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Abstract op Title — Extending Abstract — Liability of Abstracter. “Ordinarily an abstracter who is employed to bring up to date an abstract previously made is only expected and required to examine and certify as to matters which have been brought on the records during the intervening period, and in such event his liability would be limited to such errors as were made in the extension of the abstract.” (Arnold & Co. v. Burner, 91 Kan. 768, 772, 139 Pac. 404.)</p> <p>2. Same. When an abstract of title to real estate is presented to an abstracter to be brought down to date and he enters therein such matters as are of record affecting the title since the date of the last abstracter’s certificate, or verifies the fact that the public records do not disclose any change in the status of the title, and he appends to the abstract the recital: “Posted from February 9, 1909, to April 22, 1909,” or the like, followed by his name and official title, such recital is a certificate guaranteeing that the abstract contains all the necessary entries to show any changes in the title between the dates mentioned in the recital, but it does not mean that he verifies or re-certifies the accuracy of earlier entries in the abstract prior to those dates.</p> <p>3. Same: — “Posting” of an Abstract. The posting of an abstract between certain dates is the process of transferring to it such data shown by the public records as may affect the title to the property between those dates.</p> <p>4. Same — Errors in Abstract — Limitation of Actions. When a cause of action is in fact barred by the statute of limitations, but the allegations of the petition are so broad that they can not be met by demurrer, the defendant may enter a general denial, and may then await a failure of proof which will strip the cause of action down to the bare facts where the pertinency of the statute of limitations will become apparent, and may then interpose a demurrer to the evidence.</p>

<p>Appeal from Reno district court; Frank F. Prigg, judge.</p>

<p>Appeal from Finney district court; George J. Downer, judge.</p>

<p>Appeal from Washington district court; John C. Hogin, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Pleadings — Alleging. Execution of Deed — Assumption of Mortgage-— No Verified Denial — Allegation Taken as True. Under the provision of the code that an allegation of the execution of a written instrument is taken as true unless denied under oath, the omission to verify the denial of a statement in a petition that the owner of mortgaged real estate had conveyed it to the defendant by a deed containing a clause by which the grantee assumed and agreed to pay the incumbrance is equivalent to an admission that such a deed was executed, and the execution in this sense includes the delivery to and acceptance by the defendant.</p> <p>2. Deed — Assumption of Mortgage — Statute of Frauds. The assumption by a grantee of an incumbrance upon the property conveyed is not a promise to pay the' debt of another in such sense as to bring it within the statute of frauds.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Sale of Land — Deed and Deposit of Money in Escrow — Grantor in Possession — Duty to Pay Taxes — Tax Deed. A contract for the sale* and purchase of a tract of land was entered into in 1905. A warranty deed from the grantor to the purchaser and the. purchase money were placed in escrow, to be held until the grantor perfected his title as against a third party. The land was.sold for the taxes of 1906, and in 1910, while the litigation between the grantor and the third party was pending, a tax deed issued which, cut off the rights of all the parties. In a controversy over the ownership of the fund deposited in escrow the. case turned upon the question upon which of the parties to the contract rested the obligation to pay the taxes of 1906. Held, there was sufficient evidence to the effect that the grantor continued in possession to sustain a judgment that it was his duty to pay the taxes.</p> <p>2. Evidence — Admissions—Pleading in Other Litigation. Although admissions contained in a pleading of a party in other litigation aré admissible against him in a subsequent action between him and a stranger, they are not conclusive of the facts alleged, but are open to explanation or rebuttal. They are admissible as statements against the present interest of the party who made them;</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Insurance — No Completed Contract. The evidence and findings show that the minds of the parties never met, and hence no contract between them was ever entered into.</p> <p>2. Insurance — Vacancy Clause of Policy — Violated. The policy submitted to but not accepted by the plaintiff, contained a thirty-day vacancy clause. The findings and evidence indicate that this clause was violated by leaving the property vacant for more than thirty days, thereby avoiding the policy had it been accepted.</p>

<p>Appeal from Cherokee district court; James N. Dunbar, judge.</p>

<p>Appeal from Allen district court; OSCAR Foust, judge.</p>

<p>OPINION ON PETITION FOR REHEARING.</p> <p>Appeal from Atchison district court; William A. Jackson, judge.</p>

<p>OPINION DENYING A REHEARING.</p> <p>Appeal from Lyon district court; William C. Harris, judge.</p>

<p>OPINION DENYING A REHEARING.</p> <p>Appeal from Shawnee district court, division No. 1; Alston W. Dana, judge.</p>

<p>Appeal from Sedgwick district court, division No. 2; Thornton W. Sargent, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Personal Injuries' — Boy Trying to Board a Motor Truck — Motor Truck Not an “Attractive Nuisance.” An ordinary motor truck moving along a public street can not be regarded as an attractive or alluring vehicle to an intelligent boy about fifteen years old who is accustomed to the traffic of the streets, and the doctrine of the turntable cases is not applicable in an action brought by the boy to recover for injuries sustained while trying to board the moving truck.</p> <p>2. Same — No Invitation for Boys to Board a Moving Truck. The fact that the plaintiff and other boys had previously boarded or clung to the defendant’s trucks did not amount to an invitation from the defendant to the plaintiff to board a moving truck, and evidence of that character was inadmissible in the case.</p> <p>3. Same — Defendant Not Chargeable with Acts of Nonemployee. Testimony that a person who chanced to be' riding with the driver in charge of the truck and who was not an employee or agent of the defendant, waved his hand in the direction of the plaintiff did not tend to prove negligence on the part of the defendant and was not admissible.</p> <p>4. Same • — • Plaintiff Trespassing — Duty of Motor Car Driver. The plaintiff, an intelligent young man who was accustomed to street traffic, who undertook to board the defendant’s motor car which was moving at a speed of from six to ten miles an hour, was a conscious trespasser and responsible for his own negligence unless the driver of the motor car wilfully and wantonly failed to protect him after he learned of his peril.</p> <p>5. Evidence — Insufficient to Uphold Findings. The evidence examined and it is held not sufficient to uphold the finding that defendant was negligent toward the plaintiff.</p>

<p>Appeal from Sedgwick district court, division No. 1; 'Thomas C. WILSON, judge.</p>

<p>Appeal from Reno district court; Frank F. Prigg, judge.</p>

<p>Appeal from Geary district court; Roswell L. King, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Coal Mining — “Miner’s Working Place" — “Troweling Way” — Construction of Statute. The whole of the room in which a coal miner works while mining coal and while pushing cars used by him in his work is the miner’s working place; and no part of it is a traveling way within the meaning of section 6276 of the General Statutes of 1915.</p> <p>2. Same — Making “Miner’s Working Place” Safe — Custom. Evidence is admissible to show that it is the custom for mine operators to put a room in a safe condition when starting a coal miner to work in the room after it has been partially worked out by another miner.</p> <p>8. Coa-l Mining — “Miner’s Working Place” — Placing Props — Evidence— Instructions. A coal miner who is directed to work in a room that has been partially worked out by another miner may be employed to prop the room and make it safe before he commences to mine the coal therefrom; and where there is evidence tending to show such employment, an instruction should be given submitting the question of such employment to the jury.</p>

<p>SYLLABUS 'BY THE COURT.</p> <p>1. Evidence — Motion to Strike Out — Denied—No Error. It is not error to overrule a motion to strike out evidence when the objection to it is not disclosed and when its impropriety or insufficiency is not apparent.</p> <p>2. Trial — Findings of Fact — Conclusive on Appeal. Rule followed that where questions of fact have been determined by the trial court upon substantial and competent evidence, such determination is conclusive on appeal.</p> <p>3. Boundary Line — Hedge Fence — When Estoppel May be Invoked. The doctrine of estoppel can not be invoked to settle the ownership of a hedge fence when the issues of fact raised by the parties are so determined by the evidence and the findings of the court as to preclude the operation of estoppel.</p> <p>4. Same. Before the doctrine of estoppel can be invoked to settle a boundary line or the ownership of a fence as a boundary line, it must first be established that the parties have recognized the boundary line, or recognized the fence as the division line, and when the facts are resolved to the contrary, the doctrine of estoppel can not operate.</p> <p>5. Trial — Determination of Facts. Duty of trial court or jury in determining the facts from conflicting testimony discussed.</p> <p>6. Boundary Line — Hedge Fence — Rights of Adjoining Owners to Hedge Trees. Where a person has planted hedge trees on her own land and cultivated and cared for them they are her property; and although they are growing near the boundary line of a neighbor, such neighbor has no property in them, and unless the trees are doing him an injury he may be enjoined from meddling with them.</p> <p>7. Section 580 op Civil Code Discussed. Certain constitutional limitations of the scope of section 580 of the civil code discussed.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Maintenance and Support — Contract Between Uncle and Nephew— Partial Performance — Equitable Judgment. Where an uncle enters into an agreement that a nephew is to live with him and care for him during his life and in return is to receive his property at his death, and the arrangement is acted upon for a time and then abandoned for reasons not chargeable to one party more than to the other, the nephew upon a settlement should receive some compensation for his services already rendered, and in the absence of circumstances suggesting a different basis may be allowed the proportion of the value of the property that the time the contract was in force bears to that period with the addition of the then remaining life expectancy of the uncle.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Lease — -Gas Land — Annual Rental — Duration of Lease — Not Indefinite or Uncertain. A city entered into a lease with the plaintiff by which it acquired the gas rights to a tract of land and agreed to pay therefor an annual rental of $200. The lease provided that it should remain in force for the same length of time as another lease covering gas rights to an adjoining tract upon which the city was then operating gas wells. Held, the lease is not void on the ground that ' its duration is indefinite and uncertain.</p> <p>2. Same — Attempted Cancellation Ineffective. After making the annual payments of rental for seven years the city, while still operating gas wells on the adjoining lands under the other lease, attempted to cancel its lease with plaintiff by executing and recording a release thereof, and refusing to make further payment of rentals. Held, the attempted cancellation was of no effect, and so long as the lease remains in force the city can not avoid its liability thereunder on the ground that the rights obtained are of no value.</p>

<p>Appeal from Neosho district court; James W. Finney, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Attachment — Interplea Filed — Judgment Binding on Interpleader —Res Judicata. A judgment on an interplea .filed in an attachment proceeding under section 45 of the code of civil procedure is binding on the interpleader and on the parties to the action, and is a bar to another action by the interpleader for the recovery of the possession of the property in controversy.</p> <p>2. Same — Entry on Justice’s Docket — Valid Judgment. An entry on the docket of a justice of the peace as follows: “Demurrer to evidence filed by plaintiff, N. M. Bisel, Court sustained demurrer, and rendered judgment against claimant for costs,” shows that judgment was rendered against the claimant for costs.</p>

<p>Appeal from Sedgwick district court, division No. 1; Thomas C. Wilson, judge.</p>

<p>Appeal from Labette district court; Elmer C. Clark, judge.</p>

<p>Appeal from Montgomery district court; Thomas J. Flannelly, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Fire Insurance — Loss—Equitable Assignment of Claim of Insured Under Policy. A written order signed by the holder of an insurance policy after a loss thereunder has been sustained, which is addressed to the local agent of the insurance company issuing the policy and which directs the payment of the loss to a third party, is competent evidence of an equitable assignment of the claim of the insured under such policy; and where it is shown that the order was executed in payment of a preexisting indebtedness of the insured, it will constitute an equitable assignment of his interest in the policy.</p> <p>2. Evidence — Book Entries — Made in Regular Course of Business. A witness who was shown to have been in charge of the city credits of a wholesale grocery company testified that certain entries on the books of the company were made under his supervision, though not in his presence. Held, the entries were made in the regular course of business and were admissible under section 384 of the civil code.</p> <p>3. Equitable Action- — No Jury Demandable. Under the facts stated in the opinion, the cause was an equitable one, and neither party was entitled to a jury.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Partition Fence — Trespassing Cattle — Damages—Liability. The provision relating to partition fences in section 4806 of the General Statutes of 1915 does not imply that if the stock of one party passes through a defective fence which he was to maintain and injures the property of another he can escape liability for the injury because the other had not kept his part of the fence in good repair and up to the legal standard.</p> <p>2. Same — Findings Sustained by Evidence. The evidence in the ease is held to be sufficient to sustain the finding that the cattle which caused . the injury passed through that part of the fence which defendants had agreed to maintain.</p>

<p>SYI/LABUS BY THE COURT.</p> <p>Judgment — Modification After Lapse of Term. Rule applied that after lapse of the term at which judgment was rendered the district court has no power to change the judgment, except in accordance with the provisions of the civil code.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Mortgage — Mortgagee Trustee for Third Person — Mortgage Released by Mortgagee — Release Binds Cestui que Trust in Favor of Innocent Purchaser. Where a mortgage is executed by the owner of land to secure a note payable to the mortgagee, and also to secure a note to another person who is not named as a mortgagee, and the condition of the mortgage is stated to s be the payment to the mortgagee of the entire indebtedness secured, and the mortgagee is authorized to declare all the indebtedness due in case of a default, and to pay off any other incumbrances and add the amount to the mortgage lien, the instrument is to be construed as a mortgage to the mortgagee for his own benefit, and as a trustee for the other creditor, and a recorded release executed by such mortgagee, purporting to eifect a full discharge of the mortgage, will protect a buyer, who has bought the land in reliance thereon, against the claim of the other creditor, although his note has not in fact been paid to any one.</p>

<p>Appeal from Scott district court; Albert S. Foulks, judge..</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Pleadings — Motion to Strike Out Allegations of Petition Denied — No Error. An order denying a motion to strike' unnecessary allegations from a petition will not cause a reversal of a judgment, where the defendant was fully informed of the nature of the plaintiff’s cause of action.</p> <p>2. Action — Determining Ownership of Property — When Judgment is Conclusive. In an action to determine the ownership of the residue of property left after paying the debts of a deceased person, which action is prosecuted by one to whom the -deceased person had contracted to leave the property at his death, against the beneficiary under a will executed by the deceased person, a judgment against the beneficiary is final and conclusive and will be binding on the executor in the final distribution of the estate, where the beneficiary is also the executor.</p> <p>3. Exclusion op Evidence — Evidence Not Produced — Revieiv. Error in the exclusion of evidence will not be considered on appeal, where the excluded evidence was not produced on the hearing of the motion for a new trial.</p> <p>4.'Evidence — Transaction with Person Since Deceased — Competent Witness. In such an action as is mentioned in section 2 of this syllabus, the plaintiff’s husband, who is not a party to the action, is a competent witness by whom to prove the contract between the plaintiff and- the deceased person, although the plaintiff and her husband may be occupying a part of the land in controversy as a homestead.</p> <p>5. Petition- — -Stated One Cause of Action — No Election Required. Where a petition states one cause of action and the evidence tends to establish that cause of action, it is not error to refuse to require the plaintiff to make any election between different phases of the evidence.</p> <p>6. Evidence — Established Plaintiff’s Cause of Action. The evidence has been examined. It was sufficient to establish the plaintiff’s cause of action, and defendant’s demurrer to the plaintiff’s evidence was properly overruled.</p> <p>7. Trial — .Findings of Court Cover All the Issues Involved. A judgment will not be reversed because of the failure of the court to make detailed special findings of fact, where no findings are presented by the parties, and where the court makes special findings which are somewhat general in their nature, but which cover all the issues in- ' volved in the action.</p> <p>8. Contract — To Leave Property at Death — May be Performed by Deed or Will. In such an action as is mentioned in section 2 of this syllabus, the contract may be performed by deed or will.</p> <p>9. —Former Decision Followed. Cathcart v. Myers, 97 Kan. 727, 156 Pac. 751, followed.</p> <p>10. Action — Ownership of Property — Certain Conversation Between Plaintiff and Defendant Competent Evidence. In such an action as is mentioned in section 2 of this syllabus, where the defendant testifies that he never heard of such a contract until after the action was commenced, the plaintiff may, in rebuttal, testify to a conversation had by him with the defendant, in which the conversation with the deceased person was detailed.</p> <p>11. Secondary Evidence. No secondary evidence of the contents of a letter was offered or admitted.</p> <p>12. Action — Ownership of Property — Evidence—Nature of Judgment to be Rendered. In such an action as is mentioned in section 2 of this syllabus, judgment should be rendered in favor of the plaintiff for all the property, where the contract and its performance on the part of the plaintiff are proved and are found by the court, notwithstanding that the defendant has claims which mas'' be allowed by the probate court against the estate of the deceased person; and a judgment decreeing the defendant to be the owner of a part of the property, based on such claims, will be reversed.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Automobile — Crossing Railroad Track — Duty of Driver — “Look and Listen.” Where the jury finds that there is nothing to obstruct the view of a person approaching a railway crossing, nothing to prevent him seeing g, train for a quarter of a mile or more, such finding in eifect is an expression of the jury’s disbelief of his evidence that he looked and listened and saw no train approaching.</p> <p>2. Same — Crossing Railroad Tracks — Findings Show Contributory Negligence Barring Recovery. Where a person attempts to drive an automobile over a railroad crossing in front of a fast speeding train which he could have seen approaching for a distance of a quarter of a mile or more, and the crossing grade is muddy, steep and slippery, and has a depression of three inches between the rails, whereby his engine loses power and stops in the depression between the rails, and the train is then so near that it can not be stopped in time to avoid 'a collision, such person is guilty of contributory negligence which bars his recovery for damages notwithstanding the negligence of the railway company in maintaining the defective crossing.</p>

<p>Appeal from Labette district court; Elmer C. Clark, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Written Instruments — Deed, Written Agreement, and Will — Parts of Single Transaction. A deed from a father to a son, a written agreement on the part of the son to pay an annual sum to his father during his father’s lifetime, and a will of the father’s property, real and personal, to his son, providing, however, that the daughter should receive the sum of $2500, which was a part of the consideration for the deed, all the instruments having been executed at the same time and place, should be considered as parts of a single transaction.</p> <p>2. Deed — Consideration—Parol Evidence. Parol evidence as to the true consideration for the deed, as to the situation of the parties, and as to •the circumstances under which the instruments were executed, was admissible.</p> <p>3. Written Instruments — Created Obligation in Favor of Plaintiff. The written instruments construed in the light of the parol evidence, and held that the son was under an obligation to pay the daughter the sum of $2500 after their father’s death.</p>

<p>Appeal from Washington district court; John C. Hogin, judge.</p>

<p>Appeal from Cherokee district court; James N. Dunbar, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Criminal Trial — Indorsement of Names on Information — Judicial Discretion. The belated indorsement of names of witnesses upon an information charging a criminal offense is a matter within the sound discretion of the trial court; and, where it does not clearly appear that the defendant was prejudiced thereby, the granting of permission to indorse the names of witnesses on the information when the case is called for trial is not error.</p> <p>2. Same — Statutory Rape — Incompetent Evidence. When direct, positive and legally sufficient testimony to support the criminal charge stated in an information has been introduced in evidence, the fact that certain' features of some merely corroborative evidence, also introduced over objection, were incompetent is not ordinarily of such gravity as to necessitate a reversal of the judgment.</p> <p>3. Same — Not a Fair and Impartial Trial — New Trial. The evidence urged in support of a motion for a new trial examined and held to show that parties interested in the prosecution prevented the defendant from making effectual preparation for his defense and that the result deprived him of a fair and impartial trial.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Adoption — Statutory Method Must be Followed — Unperformed Agreement to Adopt — Child Not Within Compensation Act. The term “legal adoption” found in the following provision of the workmen’s compensation act, “children and parents include that relation by legal adoption” (Gen. Stat. 1915, § 5903, subdiv. j), means adoption according to the statute governing that subject, and does not extend to a child taken into a family and treated as natural offspring under an agreement to adopt which was not performed.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Federal Employer’s Liability Act — Negligence—Injury to Employee— Assumption of Msic. A laborer was cutting boards in two with an ax, when he was directed by his foreman to break them by fastening one end of eách in a tripod and stamping on the other end. Theretofore he had cut them with an ax provided by his employer. In breaking, as thus directed, he was, in a few minutes, injured by a splinter from one >of the boards flying and striking him in the eye. The foreman testified that he did not want the plaintiff to break them that way because he was liable to hurt himself. The jury, in addition to a general verdict for the plaintiff, found among other things that the method thus directed and used was more dangerous than the one the workman had been following, that he did not know the method directed was dangerous, and that its danger was not apparent and obvious to a man of his intelligence. Held, that as he did not realize and appreciate the danger of obeying the order he is not barred of recovery on account of assumption of risk.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Draft —■ Fraudulently Procured —• Indorsed ly Payee Without Consideration — Indorsee Not an “Innocent Holder in Due Course.” A debtor of one bank fraudulently procured another bank to issue to him a draft payable individually to the president of the bank to which he was indebted. The president took the draft from the debtor and delivered to him the evidences of his indebtedness and securities, at the same time indorsing the draft individually and delivering it to the bank. He had paid nothing for the draft and received no consideration for indorsing it. Held, the bank was not, under these circumstances, a holder in due course.</p> <p>2. Same. When the creditor bank learned that the draft had been protested, it negotiated with the debtor and secured from him a restoration of the securities and evidences of debt which it had surrendered. Held, that in any event, having' lost nothing by the transaction, it could not claim the protection afforded a holder in due course.</p>

<p>Appeal from Dougias 'district court; Charles A. Smart, judge.</p>

<p>Appeal from Rice district court; Daniel A. Banta, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Trial — Cross-examination of Witness. For reasons stated in the opinion an objection to a question on cross-examination is held to have been properly sustained. “-</p> <p>2. Negligence.— Loss of Cattle in Transit — Negligence Found — Not Charged in Petition. In an action founded upon negligence where the jury find generally for the plaintiff, but in a special finding declare that the negligence of the defendant consisted of something not charged in the-petition, it is the duty of the court to render judgment in defendant’s favor. (McBeth v. Railway Co., 95 Kan. 364, 148 Pac. 621; Spinden v. Railway Co., 95 Kan. 474, 148 Pac. 747.)</p>

<p>Original proceeding in mandamus.</p>

<p>Appeal from Lincoln district court; Dallas Grover, judge.</p>

<p>Appeal from Crawford district court; Andrew J. Curran, judge.</p>

<p>Appeal from Seward district court; George J. Downer, judge.'</p>

<p>SYLLABUS BY THE COURT.</p> <p>Live Stock — Interstate Shipping Contraot — Written Notice of Claim for Damages May Not be Waived. Where parties stipulate in a contract for an interstate shipment of live stock that before there can be a recovery against the carrier for loss or injury to the stock occurring during transportation or previous to the loading thereof the shipper or his agent in charge of the cattle must give written notice of his claim to an officer of the company or the station agent before the stock are removed from the place of destination or before they are slaughtered or intermingled with other stock, the carrier may not, under the federal law, waive the requirement of written notice of such claim by the shipper nor dispense with notice of a claim from one shipper and require- it from another, and without such written notice there can be no recovery-although the carrier may have had actual and complete notice of the claim of the shipper.</p>

<p>Appeal from Sherman district court; Charles I. Sparks, judge.</p>

<p>Appeal from Bourbon district court; Charles E. Hulett, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Telegram — Nondelivery—Negligence—Contract Limiting Liability for Damages — Valid. Under the Carmack amendment (Part 1, 36 U. S. Stat. at Large, ch. 309) an interstate telegraph company may by contract limit its liability for nondelivery of an unrepeated message to the amount paid for its transmission even in case of gross negligence.</p> <p>2. SAME — Negligence of Connecting Carrier. The initial carrier is liable for the negligence of any of its connecting carriers.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Pleadings — Allegations Stricken from Petition — No Error. A judgment will not be reversed because allegations are ■ stricken out of a petition, where the evidence to prove those allegations was properly-introduced under the remaining allegations.</p> <p>2. Trial — Placing Burden of Proof. Ordinarily a judgment will not be reversed because of error in placing the burden of proof in a trial by the court without a jury, where each party has ample opportunity to introduce evidence to support his contentions.</p> <p>3. Gas Lease — Provision' for Cancellation — Bona Fide Sale of Land. An oil and gas lease provided:</p> <p>“It is agreed that should said Beck make a bona fide sale of said 160 acres before lessee commences operations to drill on said land and refunds to lessee all money paid Beck, then lessee is to cancel this lease.”</p> <p>An absolute sale of the property was made. One of the purposes of the sale was to defeat the rights of the lessee. Held, that the lessee was -deprived of its right to drill on the premises, since the sale was made before the lessee commenced operations to drill.</p> <p>4. Same — No Drilling Operations Commenced — Lease Canceled. The driving of a stake locating a gas well and of another stake locating a place to set a boiler to drive drilling machinery does- not constitute a commencement of operations to drill, under the provisions of the lease set out in the third section of this syllabus.</p>

<p>Appeal from Reno district court; Frank F. Prigg, judge.</p>

<p>Appeal from Rice district court; Daniel A..Banta, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Damages — Injury to Land — Enlargement of Railroad Ditch — Limitation of Actions. The action was one for damages for injury to a tract of 140 acres of land, caused by enlargement through operation of the forces of nature of a ditch rightfully and properly dug by the railway company on its right of way to drain its roadbed. The ditch had deprived the plaintiff of the use of three and 'one-quarter acres of land adjoining the right of way. Damages were claimed for this injury, and for depreciation in' the market value of the entire tract occasioned by the ditch. Held, a cause of action accrued when the ditch invaded the plaintiff’s land, damage's for permanent injury were then recoverable if desired, and the action was barred because not commenced within two years after the cause of action accrued.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Arrest op Judgment Debtor — For Examination before Probate Judge —Wrongfully Imprisoned in Jail. In a proceeding supplemental to execution, a sheriff holding a warrant issued under the provisions of section 7429, General Statutes of 1915, authorizing him to arrest the debtor and bring him before the probate judge, has no power to imprison the debtor in the county jail, even temporarily for safe-keeping; and this is true although the arrest be made at a distance from the county seat, which the sheriff, returning with the debtor in custody, can not reach until late at night, when the probate judge wquld not be at his office.</p> <p>2. Trial — Instructions — Findings. An instruction to the jury complained of was properly given and findings of fact returned by the jury were sustained by the evidence.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Will — Life Interest to Wife- — -Remainder to Children — Construction of Will. Where a will devises a life interest to the testator’s wife, with a remainder in equal shares to their five children, a provision that, if any of the children should die before the inheritance passed to them, the issue, if any, of such deceased child should take his share, even if construed to relate to the situation arising from the death of a child after that of the testator and before that of the mother, does not prevent the spouse of a deceased child, who died after the father and before the mother, from inheriting the share of such child.</p>

<p>Appeal from Shawnee district court, division No. 1; Alston W. Dana, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Chattel Mortgage — Defective Description of Property Intended to be Mortgaged: A chattel mortgage on growing corn described as “our undivided three-fourths interest in 100 acres of corn now growing on” a described quarter section of land does not include the growing corn owned by the mortgagors on the remaining quarter sections of land in the same section, as against a subsequent attaching creditor, although there are but ten acres of corn growing on the quarter section described, and there are ninety acres of corn owned by the mortgagor ■ growing on the other quarter sections in the same section.</p> <p>2. Attachment — Third, Party Claiming Property — Right to Appeal. In an action before a justice of the peace, third parties claiming attached ' property, who, on their application, are made parties defendant, have a right to appeal from a judgment rendered by the justice of the peace denying their claims to the property.</p>

<p>Appeal from Cowley- district court; Allison T. Ayres, judge pro tem.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Replevin — Gar of Wheat — Bill of Lading Transferred — Title and Ownership of Wheat Determined. The plaintiff acquired the title to a car of wheat by the payment of a draft with the bill of lading attached and shortly afterwards transferred the same to another bank. Payment of the draft being refused by the purchaser of the grain, the draft and bill of lading were reassigned to the plaintiff. Before that time the wheat had been attached by a third party. Upon the retransfer of the bill of láding to the plaintiff, which in the meantime had gained possession of the wheat, plaintiff sold and transferred it to another party and under that transfer the wheat was delivered. After the latter transfer the plaintiff brought an action of replevin against the officer who had levied the attachment upon the wheat. Held, that the plaintiff having transferred its interest in the wheat before its action was commenced, it was not entitled to recover possession of it.</p> <p>2. Same — Title io Property Transferred After Attachment. The fact that an attachment had been levied on the wheat did not prevent an effectual transfer of whatever interest the plaintiff had in the grain by the transfer of the bill of lading.</p> <p>3. SAME — Judgment in Replevin — Modified at Subsequent Term, When the plaintiff which had obtained possession of the property' replevied fails to show a right to its possession the defendant is entitled to judgment in the alternative for the return of the property, or the value thereof if a return can not be had, and where through inadvertence a general judgment in favor of the defendant is rendered at the end of the trial instead of in the alternative, it may be corrected and proper judgment entered on the motion of the defendant after .the term at which it was first rendered.</p>

<p>Appeal from Franklin district court; Charles A. Smart, judge.</p>

<p>Appeal from Wyandotte district court, division No. 1; Edward L. Fischer, judge.</p>

<p>Appeal from Anderson district court; Charles A. Smart, •judge.</p>

<p>SYLLABUS BY THE'COURT.</p> <p>1. Nonresident Minors — Publication Service — Title—Lands in Another State — Effect of Judgment. In an action against nonresident minors, where the only service obtained is by publication, no judgment can be rendered by any court in this state that will affect the title of the minors to land situated in another state.</p> <p>2. Same — Misconstruction of Will — Effect on Minor’s Interest in Lands. Relief will not be granted against a mistake in the construction of a will where that relief must be given at the expense of minors, beneficiaries under the will, who had nothing to do with the mistake and whose interests can not be adequately protected by any judgment that the courts of this state can render.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Mechanic’s Lien — Written Release Construed. A recítala in writing purporting to release a mechanic’s lien, that the “owner” has paid for the construction of the house involved, is held to refer to payments made by the person in possession under a contract entitling him to a deed upon the completion of the purchase price, and not to the holder of the legal title.</p> <p>2. Same — Waiver of Mechanic’s Lien — Inures to Whose Benefit. A waiver of a mechanic’s lien expressed to be made in favor of any mortgagee of the property inures to the benefit of one who had lent money to the purchaser of the property under an arrangement that the original owner should hold, the title as security both for the balance due on the purchase price, and the amount of such loan. And held, that the pleadings and evidence justified a finding that such an arrangement had been made in this case.</p> <p>3. Same. Such a waiver is held to preclude the signer from asserting a lien except in subordination to that of the mortgagee.</p> <p>4. Building Contract-»-Abandonment by Owner of Property — Mortgagee in Possession May Complete Building- — Lien. Where the owner of property on which there is a mortgage begins the construction of a house thereon, but before its completion abandons the work and disappears, the mortgagee who takes possession and completes the building according to the original plans is held to have a lien for the amount so expended superior to a mechanic’s lien for material sold to and used by the owner, where the value of the property at the time work was abandoned, including the improvements, was less than the amount of the mortgage.</p> <p>5. Same — Costs of Improvements. The lien of the mortgagee can not be increased, as against such lien holder, by the cost of improvements made by him, which were not contemplated in the original plan.</p> <p>6. Mechanic’s Lien — Priority Over Mortgage. The rule announced in McCrie v. Lumber Co., 7 Kan. App. 39, 51 Pac. 966, that a mechanic’s lien has priority over a preexisting mortgage, so far as relates to the structure erected, apart from land, is doubted, and held in any event not to be applicable to the present case.</p>

<p>Appeal from Gray district court; Littleton M. Day, judge.</p>

<p>Appeal from Stafford district court; Daniel A. Banta, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Fraternal Insurance — Presumptions of Death — Evidence — Prima Facie Case. Where a demurrer to evidence is sustained, error in excluding material and competent evidence will compel a reversal of the judgment if the evidence excluded, together with that admitted, is sufficient to make a prima fade case as against the demurrer.</p>

<p>Appeal from Kearny district - court; George J. Downer, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Sewer — Special Assessments■ — Injunction. In an action to enjoin the collection of a special assessment for the cost of a sewer, on the ground that the amount is too large, the question whether by the adoption of a different plan the same benefits might have been obtained for the property in question at a less cost is not open to inquiry.</p> <p>2. Same — Fcdlure of City to Supply Water. The fact that the city has not supplied water for use in flushing is not a bar to the collection of special assessments for the cost of a sewer.</p> <p>S. Same — Special Assessments — Inequality of Apportionments — Injunction. In an action to enjoin the collection of assessments against the property in a subdistrict for the cost of a lateral sewer no relief can be had because of any inequalities in the apportionment of the cost of the main sewer, which has become final and unassailable.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Deed — Lots Described as “in Jones’ Addition to City” — Plat of “Jones’ Addition” Becomes Part of Deed. • A general warranty deed conveyed twenty-four lots described by numbers and as fronting on certain streets “all in Jones’ addition to the city of Salina, Kansas.” Held, the plat of the addition mentioned being then on record became a part of the deed for the purpose of identifying the property and for certainty in the description to the same effect as if the reference to the addition had been followed by the phrase “according to the recorded plat thereof.”</p> <p>2. Deed — Reference to Recorded Plat — No Guarantee of Dimensions of Lots as Stated in Plat. A general warranty deed described the property conveyed as twenty-four lots, by numbers and as fronting on certain streets, “all in Jones’ addition to the city of Salina, Kansas, according to the recorded plat thereof.” Held, the recorded plat became a part of the deed as fully as though incorporated therein, but only for the purpose of identifying the property and rendering the description more certain, and the grantor did' not by such reference to the plat thereby represent or guarantee the courses, distances, measurements or quantity of the lots to be as set forth in the recorded plat.</p>

<p>Appeal from Sedgwick district court, division No. 2; Thornton W. Sargent, judge.</p>

<p>Appeal from Clay district coürt; Fred R. Smith, judge,</p>

<p>Appeal from Sedgwick district court, division No. 1; Thomas C. Wilson, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Workmen’s Compensation Act — Death of Minor Son — “Dependency” of Parents. In an action under the workmen’s compensation act by the father and mother of a deceased workman for compensation for his death, a finding of partial dependency is sustained by evidence that the parents did in fact depend in part on the son’s earnings, so that they suffered injury by being deprived of what they.had relied on; and this is true, although the father owns a home for which he paid $1450, owns land from which he derives an income of $400 nr $500 a year, owns shares of stock in a corporation on which he has paid $5000, and is employed at a salary of $125 a month.</p>

<p>Appeal from Rush district court; Albert S. Foulks, judge.</p>

<p>Appeal from Franklin district court; Charles A. Smart, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Agency — Exchange of ■Real Estate' — Purchaser Found — Commission Earned. An agent for the exchange of real estate has earned his commission where, after finding a purchaser able and willing to trade, he brings the parties together and they agree to an exchange on terms satisfactory to his principal.</p>

<p>Appeal from Shawnee district court, division No. 1; Alston W. Dana, judge.</p>

<p>Appeal from Hamilton district court; George J. DOWNER, judge.</p>

<p>Original proceeding in mandamus.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Government op Cities — “City Manager Plan” — Statute Constitutional and Valid. The act of the legislature entitled “An act relating to the government of all cities in Kansas, and to establish an optional form of government,” approved February 17, 1917, is a valid and constitutional enactment, so far as its operation and effect is challenged in this action.</p> <p>2. Same — City Election — Requisites of Petition Therefor. The provision in the act which requires the mayor to call a special election to submit to the electors the question of the adoption of the new form of government upon the filing of a petition “signed by not less than “twenty-five per cent of the total number of legally qualified electors voting for mayor at .the last preceding city election” is construed to mean that the petition must be signed by twenty-five per cent of the number of legally qualified votes cast for mayor at the last election, without reference to the individuals who cast them.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Trial — Instructions—Waiver. In this case it was not error to refuse an instruction touching the matter of waiver.</p> <p>2. Same — Inconsistency of Special Findings. Under the rule requiring the harmonization of special findings with themselves and with the general verdict, the one returned by the jury touching knowledge of the circumstances under which the note sued on was obtained by the plaintiff did not constitute sufficient inconsistency to warrant a reversal.</p> <p>8. Promissory Note — Fraudulent Representations — Evidence. ■ When a party is charged with having made fraudulent representations, others of a similar character made about the same time to other persons may be shown in order to shed light upon the question of motive, but such statements made by others in the absence of the person charged are incompetent.</p> <p>4. Failing Bank — Transfer of Stock — Statute Construed. The statute prohibiting the transfer of shares of stock in a failing bank (Gen. Stat. 1915, § 570) is for the protection of creditors, but as between the buyer and seller of stock the transfer may be binding.</p> <p>5. Same — Sale of Stock — Promissory Note — Consideration. The stock of a bank in a failing condition may still be a sufficient consideration for a note given for its purchase, and in this case it was error to instruct that no legal sale could be made if the bank was in a failing condition and that the note given therefor would be without consideration if such stock could not at the time be legally transferred-</p>

<p>Appeal from Woodson district court; OSCAR Foust, judge.</p>

<p>Original proceeding in mandamus.</p>

<p>Appeals from Dickinson district court; Roswell L. King, judge.</p>

<p>SYLLABUS by the court.</p> <p>Interurban Railway' — Personal Injuries — No Actionable Negligence Shown. The evidence considered, and held insufficient to establish actionable negligence on the part of an interurban railway company'^ toward a passenger who was injured by coming in contact with a trolley pole at the side of the track, while riding on the bottom step of a car.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Will — Action to Set Aside — Conflicting Evidence — Findings of Trial Court Conclusive. The supreme court accepts as true the trial court’s findings of fact when they are based upon competent evidence; and on appeal it is of no consequence that there may have been much contradictory evidence adduced at the trial, which, if believed by the trial court, would have compelled entirely different findings of fact and an entirely different judgment. (Bayer v. Cockerill, 3 Kan. 282, Syl. ¶ 7; Wideman v. Faivre, 100 Kan. 102, Syl. ¶¶ 2, 5, 163 Pac. 619.)</p> <p>2. Same. When the error assigned is that the findings and judgment are contrary to the evidence, it is only necessary on appeal to consider whether there is some competent and sufficient evidence upon which the judgment is based; and a consideration or recital of the contradictory' evidence can not aid in correctly determining that question.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Contract — Purchase of Gas — Gas Not “Merchantable” — Refusal to Accept. The rights of one who had contracted to purchase certain gas, but .refused to accept that which was tendered on the ground that it did not conform to the requirements, held not to be affected by his refusal to sign a writing authorizing the seller to dispose of it elsewhere.</p> <p>2. Same — Federal Constitution Not Violated. A decision that gas tendered under a contract was not merchantable within the meaning of that term as there employed held not to involve a violation of the 14th •amendment to the federal constitution.</p>

<p>opinion denying a rehearing and modifying ' JUDGMENT.</p> <p>Appeal from Saline district court; Dallas Grover, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Agency — Exchange of Realty — Fraud of Agent — Forfeiture of Commissions — Agent’s Additional Liability. The plaintiff contracted with the defendant for one hundred dollars to procure for her an exchange of her property for that of another, and fifteen hundred fiollars to' boot. He arranged with the other party to pay the plaintiff five hundred dollars and the defendant one thousand dollars, but reported to the defendant that a thousand dollars was the most boot he could get such party to pay, assuring her that he was working for her interest. The defendant contracted to exchange for one thousand dollars. Before final delivery of the' papers she learned that this party was to pay the plaintiff the five hundred dollars, but went ahead with the trade. The plaintiff sued for his commission of one hundred dollars. The defendant set up the fraud and counterclaimed for five hundred dollars damages. Held, that by his conduct the plaintiff lost all right to his commission and became liable to the defendant for the five hundred dollars.</p>

<p>Appeal from Bourbon district court; CHARLES E. Hulett, judge.</p>

<p>OPINION DENYING A REHEARING.</p> <p>-Appeal from Greenwood district court; Allison T. Ayres, judge."</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Dynamite — Negligent Storage — Evidence. Evidence examined and held sufficient to fix responsibility for the negligent storage of dynamite.</p> <p>2. Dynamite — Negligence—Explosion—Death—Proximate Cause. Where dynamite is stored in a building in violation of a city ordinance, and the dynamite is exploded by a fire in the building, and a fireman on duty at the building is killed thereby, such negligent storage of the dynamite is a proximate cause of the death of the fireman.</p> <p>3. Trial — Instructions. Requested instructions examined and held properly refused, and. appellants’ rights duly recognized in those given.</p>

<p>SYLLABUS BY THE COURT.</p> <p>School Lands — Island Lands — Settlement Thereon — Preliminary Proceedings to Acquire Title Fatally Defective. In a proceeding by a settler under chapter 295 of the Laws of 1913 to acquire title to a tract of island land the survey which he caused to be made, the affidavit of settlement which he filed and the notice of the proceeding given by the county .clerk described land other than that settled upon and which constituted no part of an island, and no statement was made by the surveyor as to the nature and flow of the water in the stream which surrounds the lands sought to be appropriated. Held, that the noncompliance of the settler with the statutory requirements justified the court in dismissing the proceeding.</p>

<p>Appeal from Butler district court; Allison T. Ayres, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Workmen’s Compensation Act — Injuries — Partial Incapacity to Work. The evidence in an action under the workmen’s compensation act held to warrant a finding- that permanent partial incapacity resulted from the loss of the ends of the second and third fingers of the' left hand of a workman who had already lost a part of the thumb and first finger of the same hand.</p> <p>2. Same — Partial Incapacity — “$S a Week” — Statute Construed. The provision of the statute that in case of partial incapacity periodical payments shall not be less than $3 a week relates to the amount of recovery, and not merely to the manner of its payment; it means that the workman shall be entitled to receive at least that amount for every week that the incapacity continues until the statutory limit of eight years is reached.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Pleadings — Motion to Petition — Properly Overruled. Where the only purpose of a motion to make the petition more definite and certain is to require plaintiff to plead his evidence, it should be overruled.</p> <p>2. Partnership — Accounting—Pleading and Proof — No Variance. In a suit for an accounting between partners, held, there was no variance between- the petition and the evidence which changed the cause of - action to one to recover damages for defendant’s failure to carry out the terms of a settlement. •</p> <p>3. Same — Findings<—Conclusions of Law — Evidence. The findings of fact and conclusions of law are found to be sustained by sufficient evidence.</p>

<p>Appeal from Franklin district court; Charles A. Smart, judge.</p>

<p>Appeal from Saline district court; Dallas Grover, judge.</p>

<p>Appeal from Wyandotte district court, division No. 3; Hugh J. Smith, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Liquor Nuisance — Abatement—Injunction. Rule of law announced in the syllabus of The State v. Order of Eagles, 98 Kan. 793, 161 Pac. 903, adhered to.</p> <p>2. Same — Insufficient Evidence — Demurrer—Practice in District Court. Where the plaintiff’s evidence does not show that it sufficiently established the facts alleged in its petition to entitle it to judgment, and tends to show that the defendants are entitled to judgment, it is not prejudicial error to sustain a demurrer to the plaintiff’s evidence instead of rendering judgment for defendants on that evidence, and section 581 of the civil code forbids the reversal pf a judgment which is only affected by nonprejudicial error.</p>

<p>Appeal from Norton district court; WILLIAM S. Langmade, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Highway — Records of Inferior Tribunals — Collateral Attack. The general rule that silence of the record of a tribunal of inferior jurisdiction on a jurisdictional point is fatal applies in cases of collateral attack to those jurisdictional facts only which the law directs the tribunal to enter upon its record.</p> <p>2. Same — To be sufficient against collateral attack, the recitals of records relating to the establishment of a road need not exhibit technical precision. They should be liberally construed, and however informal, should be upheld whenever enough appears to show with reasonable certainty that the requirements of the law were complied with.</p> <p>3. Highway — Meeting of Vietvers — Valid Service of Notice Shown. Recitals of the journal of the proceedings of the board of county commissioners in establishing a road, and of the road record, considered, and held to show valid service of notice of the meeting of viewers.</p> <p>4. Highway — Report of Viewers, Survey and Plat Recorded — Road Prima Facie Established. Under the provisions of section 6, chapter 108, Laws of 1874, providing that when the viewers' report, the survey and the plat of a road have been recorded pursuant to order of the board of county commissioners, “from thenceforth said road shall be considered a public highway,” the record indicated is prima facie evidence that the road was legally established, and a landowner attacking1 collaterally the existence of the road has the burden of establishing the nonexistence of jurisdictional facts.</p> <p>5. Same — Discrepancies in Road Record — Not Fatal. Discrepancies in the road record regarding the time and place of the meeting of the viewers considered, and held insufficient to impair the prima facie validity of the proceedings.</p> <p>6. Same — Road Lawfully Opened. The evidence considered, and held sufficient to sustain the finding that a road was opened in fact by travel within seven years from the time it was established.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Inheritance Tax Law — Effect of Repealing Statute. The repeal of the inheritance tax act of 1909 (Laws 1909, ch. 248; Gen. Stat. 1909, §§ 9265-9291) by chapter 380 of the Laws of 1913 did not relieve the executor of an estate nor the probate court of any unperformed duties imposed upon them by the act.</p> <p>2. Same — Laches—No Bar to Action by the State. Rule followed that no inaction, procrastination or delay on the part of public officers will prevent the state from recovering its due, nor bar the state’s right thereto.</p> <p>3. Inheritance Tax — Collection—Statute of Limitations. A statute requiring certain public officials within six months to commence proceedings to collect a sum of money due the state is a mere legislative direction to those officers; and it is not a statute of limitations in favor of the debtor, by the invocation of which he can defeat the state’s claim.</p> <p>4. Inheritance Tax — Discharge of Executor Without Payment — Error. Where the inheritance tax under the act of 1909 was not paid by an executor of an estate having ample funds with which to pay the tax, an order of a probate court approving his final account and discharging the executor before he had paid the tax is invalid, and should be set aside on motion of the state.</p> <p>5. Same — Earlier and Later Statutes — Construction. Rule followed that older statutes must be read in the light of later legislative enactments, and are subordinated thereto and must be harmonized therewith. Otherwise the older statutes must give way to the later enactments, and by implication are repealed thereby.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Employers’ Liability Act — Death of Employee — Action for Damages ■ — Action Not Removable to Federal Court. An action for damages against a railway company engaged in interstate commerce for the wrongful death of a workman employed in that commerce, which is sought to be maintained by the deceased workman’s administratrix for the benefit of his widow and infant children, is not removable as , 'a matter of law merely because the petition does not contain a specific allegation that the widow and children are dependent upon the deceased workman for their support, when the petition otherwise clearly discloses that the action is sought to be maintained under the federal -employers’ liability act, and clearly discloses that the recovery for damages is not demanded under state law.</p> <p>2. Same — Trial—Demurrer to Evidence Properly Overruled. Evidence to support a cause of action against an employer for the wrongful death of its workman examined, and held’ that a demurrer thereto was properly overruled.</p> <p>3. Same — Trial—Proper Impeaching Testimony. Certain impeaching testimony examined, and held to be relevant to the issues, pertinent to the antecedent testimony sought to be impeached, not collateral, properly restricted to purposes of impeachment, and admissible.</p> <p>.4. Same — Trial—Instructions. It is not error to refuse an instruction limiting the scope and purpose of certain evidence admitted, when it is requested as one of thirty instructions handed up to the court at the conclusion of the evidence, and when the court, at the time of the introduction of the evidence, explained to the jury the purpose of the evidence and limited its application thereto. '</p> <p>5. Same — Trial—Admission of Deposition Not Error. It is not prejudicial error to admit in evidence a deposition of a resident of the county, whose usual employment is outside the state, when the deposition contains the cross-examination of the deponent, when both plaintiff and defendant had caused the issue and service of subpoenas for his personal attendance as a witness without avail, when an attachment for the deponent had been issued and a bona fide effort had been made to serve it, and when the trial court made a finding that both plaintiff and defendant had used their best efforts to procure his attendance, and that the deponent was either absent from the jurisdiction or that the sheriff could not find him in time to secure his personal testimony.</p> <p>6. Same — Trial—Evidence. Other matters of evidence examined, and held admissible.</p> <p>7. Same — Trial—Refused Instructions. Examination of a refused instruction, and held the subject sufficiently and favorably covered by instructions given.</p> <p>8. Same — Trial—Instructions. Instruction touching matters to be taken into account in estimating damages under the federal employers’ liability act considered, and held within the fair intendment of the act, and in harmony with pertinent, authoritative precedents pertaining thereto.</p> <p>9. Same — Verdict—Not Excessive. Verdict and award of damages considered, and held not excessive under the circumstances.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Fraternal Beneficiary Corporations — Merger—Statutory Authority. Chapter 210 of the Session Laws of 1918 (Gen. Stat. 1915, §§ 5418-5420) authorizes the consolidation or merger of fraternal beneficiary corporations under the supervision of the superintendent of insurance and with his approval.</p> <p>2. Quo .Warranto — Legality of Merger of Two Corporations — Proper Parties to Bring Action. A fraternal insurance corporation of Kansas and a fraternal insurance corporation of Colorado effected a merger pursuant to the statutes of Kansas and Colorado under the supervision of the insurance departments of both states and with their approval. Certain members and insurance certificate holders of the Kansas corporation filed an action charging irregularities, fraud, etc., in bringing about the merger, praying for the appointment of a receiver and for a segregation of the assets and affairs of the merged corporations, and to restore the independence of the Kansas corporation. Held, that where there is no powerful and peculiar equity involved, an action of such gravity can only be commenced in the name of the state on the relation of its responsible legal representative, and that the plaintiffs as private individuals can not maintain it.</p>

<p>Appeal from Leavenworth district court; James H. Wendorpf, judge.</p>

<p>Appeal from Republic district court; John C. Hogin, judge.</p>

<p>SYLLABÜS BY THE COURT.</p> <p>1. Registration — Pedigreed Stallion — Construction of Statute. In this state registration of breeding animals is registration conformably to the statute, which adopts as the standard the stud books of the various horse pedigree registry associations recognized -by the United States department of agriculture, and none others.</p> <p>2. Sale — Pereheron Stallion — False Representation as to Registration. A representation made to induce the sale of a stallion, that lie was a registered Pereheron, was a representation that he was a Pereheron regularly registered conformably to the statutory standard.</p> <p>3. Trial — Instructions. Criticism of instructions to the jury considered, and held to be without substantial merit.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Damages — Verdict for Defenda/rit — Order Granting a New Trial Affirmed. Where a new trial is granted after a verdict for the defendant, this court will not ordinarily undertake, upon an appeal from such order, to determine whether the plaintiff failed to make a prima facie ease, inasmuch as the trial court may have thought a new trial advisable even if that were true, regarding the failure as excusable and remediable.</p>

<p>Appeal from Douglas district court; Charles A, Smart, judge.</p>

<p>SYLLABUS BY. THE COURT.</p> <p>1. Electricity — Death—Contact with Electric ' Wire — Findings. Refusal to set aside certain findings complained of held proper.</p> <p>2. Same — Judgment on Special Findings. The refusal to render judgment for the defendant on the special findings was not error.</p> <p>S. Same — Instructions. The instructions given fully and correctly covered the law of the case, and the trial court committed no error in the refusal of those requested by the defendant.</p> <p>4. Same — Verdict Sustained by Evidence. The plaintiff’s right to recover rested on the circumstances ’ shown; the defense, on the testimony of one youthful witness naturally and admittedly frightened by the tragedy out of which this case arose. Held, that the verdict, which was manifestly reached by force of the circumstances shown, having been approved by the trial court, can not be disturbed.</p> <p>5. Same — New Trial Properly Denied. No error appearing to have been committed during the trial, the motion for a new trial was properly denied.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Common Carrier — Connecting Carrier — Deviation from Contract Route — Liability for Damages. A railroad company undertook by a stipulation in a bill of lading to carry grain to a certain point and there deliver it to another carrier, by which it was to be transported to destination; but the company failed to transport and deliver the grain to the connecting carrier, as it had agreed to do. It forwarded the grain in another way, which occasioned loss to the shipper. Held, in an action brought by the shipper against the railroad company for breach of contract, that the company is liable for the loss resulting from its failure to comply with the agreement stipulated in the bill of lading.</p> <p>2. Same — Evidence—Findings. The evidence is held to be sufficient to' sustain the findings and judgment of the trial court.</p>

<p>Appeal from Sedgwick district court, division No. 1; Thomas C. Wilson, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Mineral Lease — Expiration—Extension on Condition — Evidence of Extension. Where a mineral lease, by its terms, expires within a definite period unless oil or gas is discovered, in which event it is to be extended so long as either can be produced in paying quantities, the fact that after the expiration of the period named the lessor executed a deed purporting to be subject to the lease, and the lease itself was assigned, constitutes no evidence, in an action for rent, of the extension of the life of the lease.</p> <p>2. Same — Still of Record — Evidence of Extension of Lease. The fact that such a lease has not been released of record is no evidence of its being still in force, the matter not being affected by the statute requiring the lessee to discharge an oil and gas lease that has become forfeited.</p> <p>3. Same — Possession of Lease — Evidence. The execution of an ordinary oil and gas lease creates no presumption of subsequent possession by the lessee. '</p>

<p>Appeal from Franklin district court; Charles A. Smart, judge.</p>

<p>Appeal from Morris district court; Roswell L. King, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Sale — Engine■—Mutual Mistake in Contract — Oral Evidence. Where a mutual mistake in a written contract is alleged and reformation is asked, oral evidence may be introduced to prove the mistake and the contract as it should have been.</p> <p>2. Same — Trial—Demurrer Properly Overruled. Where a mutual mistake in a written contract is alleged and reformation is asked, and where the evidence is sufficient to show the mistake and the contract, a demurrer to the evidence should not be sustained.</p> <p>3. Same — Motion to Set Aside Finding. A motion to set aside a finding of the jury should not be allowed where the evidence fairly tends to prove the fact found.</p> <p>4. Same — Mutual Mistake — Instructions. The law of mutual mistake, as applied to the issues and the evidence in this case, was correctly set out in the instructions.</p> <p>5. Same. It is not error to refuse to give an instruction on a matter that is immaterial.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Warehouseman — Goods Received — Goods Destroyed by Fire — Liability of Warehouseman — Burden of Proof.. Where goods are delivered in good condition to a warehouseman for hire and it is shown that they have not been delivered on demand and payment of charges by the depositor, but have been destroyed by fire while in the custody of the warehouseman, the burden is upon him to absolve himself from negligence by showing a lawful excuse for his failure to deliver the goods in compliance with the demand.</p>

<p>Appeal from Riley district court; Fred R. SMITH, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Insurance — Loss—Award of i Appraisers — Not Void. In an action upon an award of appraisers appointed to determine a loss under policies of fire insurance, held upon the facts stated in the opinion that the award was not void because the appraisers failed to comply strictly with a provision in the agreement of submission that “the appraisers shall then determine the actual cash value of each article, and place the damages on each at a definite sum per yard, pound, bushel or gallon, etc., as the case may require, in their proper columns.”</p> <p>2. Same — Award by Two Appraisers Valid. The agreement for submission provided for the appointment of two appraisers, who should appoint an umpire, and that an award signed by any two of the three should be binding upon the parties. Held, that one of the appraisers could not by withdrawing from the appraisal prevent the other two from completing the award.</p> <p>3. Same — Amount Claimed in Proof of Loss — Not Conclusive. The amount claimed in the proof, of loss will not preclude the assured from showing a greater loss, where the insurer has not been misled or induced to change its position by the statements in such preliminary proof.</p> <p>4. Same — Fraud Pleaded in Answer — Burden of Proof. In such an action where the answer pleads that the award was false and fraudulent the defendant has the burden of proof, but on the facts stated in the opinion it is held that a ruling’ placing the burden of proof on the plaintiff, and depriving defendant of the right to open and close, can not be regarded as error which justifies a reversal.</p>

<p>Appeal from Reno district court; FRANK F. Prigg, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Indemnity Insurance — Fraud and Mistake — Statute of Limitations. Where a policy of insurance different from that applied for has been fraudulently issued, the recipient of the policy may, without reading it, assume that it conforms to the application; and an action thereon is not barred until two years after the fraud is discovered.</p> <p>2. Indemnity Insurance — Fraud and Mistake — Reformation of Policy— Judgment. Where fraud in issuing a policy of insurance and a mistake in the policy are alleged and reformation is asked, and where the evidence supports the allegations, the court is justified in reforming the policy and in rendering judgment thereon.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Divorce Refused — Division of Property — Pleadings. If the court refuses to grant a divorce to parties it may under section 668 of the civil code make an equitable division and disposition of their property, although no demand for such division and disposition had been made by either of the parties in the pleadings originally filed by them.</p> <p>2. Same. After refusing a divorce in such a case, the court may in its discretion direct the parties to set forth their claims as to property rights, and what each would regard to be an equitable division of their property, but as such a division is incidental to the divorce proceedings such written statements or additional pleadings are not essential to the authority of the court to make a division.</p> <p>3. Same — Judgment Sustained by Evidence. The evidence examined and held to be sufficient to sustain the findings and judgment of the trial court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Liquor Prosecution — Evidence Warranted Conviction. In a prosecution for the sale of intoxicating liquor the evidence held sufficient to sustain a conviction, although the witnesses who drank it professed not to be certain as to the character of the beverage sold.</p> <p>2. Same — Circumstantial Evidence — Instructions. The omission to give an instruction regarding circumstantial evidence held not to have constituted error.</p> <p>3. Same — Opinion Evidence. Testimony regarding a fact is not to be characterized as opinion evidence because the witness undertakes to give only his belief in the matter.</p> <p>4. Same — Remark of Trial Judge — Not Prejudicial Error. A remark by the trial judge suggesting a doubt of the candor of a witness held to have had a sufficient basis to prevent its constituting error.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Liquor Nuisance — Conviction ■ — Sufficient Evidence. The evidence examined, and held sufficient to sustain a judgment convicting defendant of maintaining a nuisance in violation of the prohibitory law.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Gas Companies — Right to Change Schedule of Charges — Consent of Utilities Commission. The receiver of the Kansas Natural Gas Company and the Olathe Gas Company have no right to change the rate, schedule of charges, rules, regulations or practice pertaining to the supply of natural gas to the patrons of the Olathe Gas Company without the consent of the Public Utilities Commission.</p> <p>2. Same — Decision of United States District Court Construed■ — Mandamus — Writ Issued Conditionally. The suit recently decided by the United State district court for the district of Kansas (Landon, as Receiver, etc., v. Public Utilities Commission et al., filed ,April 21, 1917, not reported), while involving among other things the validity of the contract under which the Kansas Natural Gas Company and the Olathe Gas Company have for several years been supplying the customers of the latter company, has not yet resulted in any decision as to the validity of such contract, jurisdiction having been expressly reserved over the issues involved which are not covered by the recent decision. Held, that a writ requiring the defendant companies to continue according to the terms of the contract until such contract be duly and legally set aside or superseded will issue, unless within a time named such consent to depart from the terms thereof be obtained from the Public Utilities Commission.</p> <p>3. Gas Company, — Sale of Gas to Kansas Consumers — Rates Under Control of Utilities Commission. Notwithstanding the decision in the federal case referred to, touching the interstate character of the business conducted by the receiver, we adhere to the decision in The State, ex rel., v. Flannelly, 96 Kan. 372, 152 Pac. 22, that when selling natural gas to consumers thereof in this state the receiver is not engaged in interstate commerce.</p>

<p>Appeal from Franklin district court; Charles A. Smart,judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Compensation Act — Trial — Instruction Refused ■— Not Reversible Error. It is not reversible error to refuse to give an instruction stating in detail the law covering an issue submitted to the jury, where the court clearly states the same rule in general language in the instruction given.</p> <p>2. Same — Evidence—Cross-examination refused — No Error. The refusal of the court to permit the cross-examination of a witness to establish a defense, will not cause a reversal of the judgment, where the witness, who was a party to the action, could have been produced by the party seeking to cross-examine him, and where the evidence sought to be introduced by cr'oss-examination was shown by records introduced in evidence by the party cross-examining.</p> <p>3. Compensation Act — Trial by Jury — Not Demanded. Under the workmen’s compensation act, a jury trial is waived unless demanded, and where it is not demanded, a court may call a jury to find the facts and may render judgment on the findings of the jury.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. School District — Condemnation of Land for Schoolhouse Site — Proceedings Regular. Under section 9409 of the General Statutes of 1915 a record of a school-board meeting showing an order by the board describing certain land and declaring that the appropriation of such land is necessary for the purposes of a schoolhouse site and playgrounds is sufficient to authorize a proceeding for the condemnation of the land, where it appears that a survey of the land has been made and a plat has been filed with the clerk.</p> <p>2. Same — Condemnation Proceedings — Statutes Controlling. Where a school district in which is situated a city of the third class has voted to change its schoolhouse site under section 8915 of the General Statutes of 1915, the school board may then proceed, under sections 9408-9414 of the General Statutes of 1915, to condemn the new site.</p> <p>3. Same. A'school board acting under sections 9408-9414 of the General Statutes of 1915 may condemn more than one and one-half acres for a schoolhouse site and playgrounds.</p> <p>4. Same — Condemnation of Land — Effort to Purchase. Where land has been selected for a schoolhouse site it is not necessary for the school board to try to purchase the land at a reasonable price or procure it by donation or otherwise, before instituting condemnation proceedings, if the owner of the land refuses to convey or donate the land to the school district.</p>

<p>Appeal from Allen district court; Oscar Foust, judge.</p>