Volume 101 — Kansas Reports

<p>SYLLABUS BY THE COURT.</p> <p>Divorce — Cancellation of Deeds — Equitable Division of Property. In a suit by the husband for divorce the petition alleged that the defendant had induced him by means of threats and duress to convey his real estate to her and asked that the deeds be canceled. The court canceled the deeds, granted plaintiff a divorce, and divided the real estate between the parties. Held, regardless of whether the evidence justified the cancellation of the deeds, the court on granting the divorce had the power to make an equitable division of the property, and that the division, appearing to be fair and equitable, will not be disturbed."</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Contract — Sale of Land — Claim of False Representations — Findings— No Fraud Shown — No Error in Record. The proceedings examined, and held, that special findings of fact show that the plaintiff’s claim respecting the nature of the transaction out of which the action arose was rejected by the jury, and the defendant’s claim was accepted; that the effect of the findings was not impaired by any matter made the basis of an assignment of error, and that they are conclusive upon the rights of the parties.</p>

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

<p>Proceeding in mandamus in an appeal from McPherson district court; Roswell L. King, judge pro tern.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Note and Mortgage — Oral Evidence — Competent to Show Extent of Maker’s Liability Thereon. Although the terms of a written obligation, assumed to be valid, can not be varied by parol, it may be shown by parol what caused the party thus to obligate himself, and thereby test the question whether he is legally bo'und, as the writing imports, or whether he is by any cause wholly or partially freed from liability thereon.</p> <p>2. Same — Foreclosure—Accommodation Paper — Want of Consideration— Parol Evidence Competent. In a foreclosure suit between the immediate parties to the note and mortgage parol evidence is always admissible to show a failure of consideration or that the note and mortgage were given merely as accommodation to the payee.</p> <p>3. Same — Deed Intended as Gift — Note and Mortgage Without Consideraation — Evidence Supports Findings. The evidence examined, and held sufficient to support findings to the effect that a warranty deed from plaintiff to his nephew, one of the defendants, conveying certain real estate, was intended by the plaintiff as a voluntary gift, and that a note and mortgage executed to him at the same time by the nephew for the amount stated as consideration for the deed were given without consideration and intended as an accommodation to the payee.</p>

<p>Appeal from Shawnee district court, division No. 2; Geokge H. Whitcomb, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Promissory Note — Effect of Payment Indorsed Thereon — Evidence— Instruction. An instruction that an indorsement of a payment, placed on a note by the payee thereof, or with his knowledge or consent, is evidence of such payment, is not an instruction that the indorsement is conclusive evidence of payment, and is not so misleading as to warrant the reversal of a judgment based on- a general finding that the payment was made as shown by the indorsement.</p> <p>2. Same — Payments—Burden of Proof. The trial court correctly instructed the jury as to the burden of proof concerning the indorsement of payments made on the note in controversy in this action.</p> <p>3. Evidence — Incompetent Witness — Instmction.' The error committed in admitting the testimony of an incompetent witness was cured by striking out the testimony and instructing the jury not to consider it.</p> <p>4. Same — Witness—Transaction with Person Since Deceased. A witness, incompetent under section 320 of the code of civil procedure, may testify to all matters in controversy which did not concern any transaction or communication had personally by the witness with the deceased person.</p> <p>5. Same — Witness—Transaction with Person Since Deceased. A wit- • ness, incompetent under section 320 of the code of civil procedure, may testify to the details of a conversation had by him with another witness who, in behalf of the personal representative of the deceased person, has testified to the conversation, although in that conversation the incompetent witness detailed a transaction had by him personally with the deceased person.</p> <p>6. Same — Witness—Transaction with Person Since Deceased. The wife of a person incompetent to testify as a witness under section 320 of the code of civil procedure may testify to a conversation between her husband and the deceased person, but in which she took no part.</p> <p>7. Trial — Evidence Sustains Verdict. The evidence, as shown by the abstracts, has been examined, and though conflicting, was sufficient to sustain the verdict of the jury.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Live Stock — Diseased Cattle — Appradsed and Killed — Certificate of Live-stock Commissioner — When Open to Attack. In an action against a county- founded upon a certificate issued by the state live-stock commissioner, reciting the condemnation of certain cattle as infected with tuberculosis, and ordering payment to their owner of the amount fixed by the appraisement, such certificate is not open, to attack except on account of fraud, collusion or similar misconduct. (Following Cory v. Graybill, 96 Kan. 20, 149 Pac. 417.)</p> <p>2. Same — No Fraud in Appraisement. In such a case evidence that the appraisers, by advice of the live-stock commissioner, appraised the cattle at their sound value, has no tendency to show fraud or its equivalent.</p> <p>3. Same — Excluded Evidence — No Error. A ruling excluding certain evidence held not to be reviewable because it was not produced at the hearing of the motion for a new trial.</p> <p>4. Same — Pleadings•—Necessary Proof. In such a case it was not necessary for the plaintiff to plead that the cattle were not within certain excepted classes for which no compensation is allowed, nor to prove in the first instance any fact other than the issuance of the certificate.</p>

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

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

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

<p>Appeal from Sumner district pourt; Oliver P. Fuller, j udge.</p>

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

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Judgment — Motion for, Sustained — Amended Answer Allowed — Judgment Set Aside. Where a defendant is permitted to file an amended answer after his adversary’s motion for judgment has been sustained, the granting of such permission is, in effect, an informal setting aside of the order sustaining the motion for judgment.</p> <p>2. Redelivery Bond — Fraud—Sufficient Pleading. An answer pleading a defense to an action on a redelivery bond examined, and held sufficient against a motion for judgment.</p> <p>3. Redelivery Bond — Fraudulent Representations — Trial — Insufficient Instructions. Where the terms of a written redelivery bond are simple and easily understood, and the defense sought to be made against it is one of fraud and misrepresentation in that the bondsman could not read, and that he had signed it in reliance on the explanation of its terms made to him by the agent of the party seeking to enforce it, and that the bond contained terms not explained.to him, the trial court should instruct the jury that the evidence to maintain such a defense should be clear, decided and satisfactory (Bank v. Reid, 86 Kan. 245, 120 Pac. 339), and the ordinary stereotyped instruction that a “preponderance of the evidence” will defeat a recovery is insufficient where a more precise statement of the law of evidence relating to a defense based on allegations of fraud and misrepresentation to defeat a written instrument is requested.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Bank — Contract with Customer — To Manage Exchange of Land— Breach by Bank — Damages—Charter Poivers — Ultra Vires — Estoppel. Where a national bank undertakes through its officers to assist a customer in the financial transaction of exchanging her land for certain lien notes and other property, and agrees to hold the deed conveying the land of the customer until the lien notes should be properly indorsed by the other party guaranteeing their payment, and the officers of the bank, after receiving compensation for their services, accept the notes without the proper indorsement and then deliver the customer’s deed to the land, in violation of their agreement, by reason of which the customer suffers loss, the bank may not, when sued for the loss so occasioned and after enjoying the benefits of the transaction, set up the defense that the agreement made and the business done was in excess of its charter powers, nor escape liability upon the ground that the acts of its officers were ultra vires.</p> <p>2. Same — Act of Bank Officers — Binding on the Bank. Under the evidence it is held that the officers of the bank in making and carrying out the agreement were acting for the bank' and not for themselves individually.</p>

<p>Appeal from Marshall district court; Robert B. Spilman, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Replevin — Threshing Machine — Rescission of Sale Not Proven — Debt Not Paid — Evidence. The evidence considered, and held, the defense of rescission on the ground of fraud was not established, because of failure to return or offer to return the property sought to be replevined, to the plaintiff at the place of sale.' Held further, the defense that the debt for which the property was claimed as security had been paid was not sustained.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Interurban Railway — Personal Injuries — Duty Owed to Licensee by Railway Company — Wanton Negligence. In an action against an -interurban electric railway company the plaintiff’s evidence tended to show these facts: He came-to the company’s station about dusk with friends who were leaving. . After they had boarded the car and before it started he went down into the space between it and the station platform to look for a coin his little daughter had dropped. The platform was about two feet above the ground and five feet from the track. Passengers were received and discharged by a gangplank laid to the rear steps. As the defendant was stooping over, facing away from the car, it started without any signal being given, and as the front wheels turned in the other direction on a curve the rear step protruded and struck him. Held,</p> <p>1. In the aspect most favorable to the plaintiff, he was but a licensee while in t^e place between the platform and the track, and the company owed him no duty to give him warning of the starting of the car.</p> <p>2. If such a duty had been owing to him the- omission to perform it would have constituted mere negligence and not wanton misconduct.</p> <p>3. In that case his own failure to use reasonable care for his safety would bar a recovery.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Change op Venue — Disqualification of Trial Judge — Counsel in Relation to Subject Matter of Litigation. Where the judge of the district court has been of counsel in the case or subject matter thereof he is disqualified to sit, and it is error to refuse to grant a change of venue as provided in section 57 of the civil code (Gen. Stat. 1915, § 6947).</p>

<p>Appeal from Cowley district court; Oliver P. Fuller, judge.</p>

<p>OPINION ON MOTION TO MODIFY JUDGMENT AND DENYING A REHEARING.</p> <p>Appeal from Anderson district court; Charles A. Smart, judge.</p>

<p>Appeal from Miami district court; Jabez O. Rankin, judge.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Public Toll Bridge — Duty Toward a Drunken Pedestrian — Instructions. Instructions defining the duty of a public toll bridge toward a drunken pedestrian examined, and held favorable to plaintiff.</p> <p>2. Same. • A public-service corporation owes no higher duty to a drunken patron than to a sober one, unless it knows or has reason to believe that such patron is so much incapacitated with intoxicants that he can not take care of himself.</p> <p>3. Same — Train Approaching — Alloiving Pedestrians on Bridge — Evidence — Custom—No Previous Accidents. Where a plaintiff who is injured while crossing a toll bridge by being struck by a passing train bases his charge of negligence against the bridge company on the ground that custom and reasonable care required the defendant not to allow pedestrians on the bridge while trains were crossing it, it was competent for the defendant to prove that there was no such custom, that there was no danger to persons exercising ordinary prudence in passing trains on the bridge, and that hundreds of people had met and passed trains on the bridge daily for twenty years, and that no previous accidents had been occasioned thereby.</p> <p>4. Same — Evidence on Issue of Custom. Under an issue of custom and a question as to the requisite requirements of reasonable care, negative evidence which does not tend to raise collateral or impertinent issues is admissible under the rules and limitations announced in Field v. Davis, 27 Kan. 400; City of Topeka v. Sherwood, 39 Kan. 690, 18 Pac. 933; Cunningham v. Clay Township, 69 Kan. 373, 76 Pac. 907.</p> <p>5. Appeal — Excluded Evidence Not in Record — Not Reviewable. Rule followed that excluded evidence which is not brought on the record in conformity with section 307 of the civil code can not be considered on appeal.</p> <p>6. - Evidence — Photographs. Where no prejudice is disclosed, a ruling that photographs offered in evidence might be admitted “for what they are worth” is not error.</p>

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

<p>Appeal from Cowley district court; Oliver P. Fuller, judge.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Lease — Lessee to Live wpon Land — Partial Performance — Lessee Convicted and Incarcerated in Jail — Rescission of Contract — Compensation to Lessee. Where a written contract in the form of a three-year lease of farm land provides that the lessee shall reside upon it and cultivate it in a good and careful manner, raising wheat and delivering one-third of the crop to the lessor, and the lessee after doing considerable work on the place, but before sowing any wheat, is arrested on a charge of having committed a felony, and on conviction imprisoned in the county jail for about six months, the lessor is entitled to rescind the contract and take and retain possession of the land, notwithstanding the contract contains no provision giving a right of forfeiture or reentry for any fault of the lessee.</p>

<p>Appeal from Miami district court; Jabez O. Rankin, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Contract — Purchase of Property — Installments—Default—No Waiver —Rescission. In a contract for the purchase of property on installments, time being- made the essence, the acceptance of payment of second installment five days late did not operate as a waiver of prompt payment of the next and last installment.</p> <p>2. Same. The last payment having been due five days the vendor notified the bank through which the payment was to be made not to receive it, and proceeded to notify the purchaser that he would cancel the contract. Held, that he had a right to rescind.</p> <p>3. Same — Default—Notice of Rescission — Tender Back of Payments Received. Having within a few days after such notice and refusal offered to return the money received on the contract and demanded possession which was refused, and having in his petition tendered back all payments less rent, the plaintiff thereby sufficiently offered to place the purchaser in statu quo although the notice contained nothing on that subject.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Jurisdiction — Probate Court — Voluntary Partition of Beal Estate. The probate court has authority to approve a voluntary partition of real estate which is, just and equal, agreed upon by the guardian of an insane person and his ward’s cotenants.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Cotenancy — Possession of One Cotenant — Adverse Possession. The ordinary rule that the possession of one tenant in common is the possession of his cotenant in common does not apply where the one holding the title and possession openly and notoriously asserts and exercises such acts of exclusive ownership and exclusive right of disposition as to show clearly and convincingly that the property is being held adversely to any claim of his cotenant to an interest therein.</p> <p>2. Cotenancy — Acts of Cotenant Showing Adverse Possession — Limitation of Actions. Where one tenant in common conveys his interest in real estate to his fellow tenant in common, upon an oral agreement that if the grantee should sell the property the grantor was to receive his share of the proceeds, and the latter bequeaths the property to his wife by will, in which testament he asserts that it was exclusively the fruits of his own" and his wife’s labors, and charges the property with a bequest in favor of a church to be paid when she sells the property, and the will is probated, and the wife enters into possession and remarries, and conveys part of the property to her second husband, and later she and her second husband convey part of the property to a third party — all these acts and circumstances constitute open and notorious notice to the grantor that the property is being held adversely to his claim of interest in it; and where he takes no steps to assert his interest or to maintain his rights for more than fifteen years thereafter his, action is barred by the statute of limitations.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Paving — Taxing District — Special Assessments — Statute Must be Followed. The statute having prescribed what shall constitute a taxing district in the matter of paving a 'street, and also the mode of making special assessments upon private property to pay for the paving, it must be closely followed, and a substantial departure from the method prescribed by the legislature will invalidate the assessment..</p>

<p>Appeal from Edwards district court; Albert S. Foulks, judge; W. E. Broadie, judge pro tern.</p>

<p>Appeal from Wyandotte district court, division No. 2; Frank D. Hutchings, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Note — Secured by Mortgage — Land Sold — Credit to be Allowed Debtor■— Presumptions. Where one holding property as security for a debt ':; • sells it under such circumstances that the debtor is entitled to credit v for1 its actual’ value, there is no presumption that it was worth the ,. ;£ull amount owed, and a finding to that effect can be sustained only where, there is substantial evidence in its support.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Baseball Association — Indebted to Bank — Contracts to Indemnify Bank — Individual Liability of Indemnitors. One of a number of parties who each contracts to indemnify a bank against loss to the amount of a certain share of that part of an obligation left after the application of the proceeds of a sale of certain property, or to deposit a sufficient sum to assure the payment of that share of the obligation, is not discharged by reason of the fact that the amount deposited in good faith by another of the contractors finally turns out to be insufficient to pay his share.</p> <p>2. Same. A baseball association was indebted to a bank. Directors of the association individually indemnified the bank against loss, each to the amount of one-seventh of the indebtedness remaining after the application of the proceeds derived from the sale of the assets of the association. The sale contemplated was a private sale. All the assets had been mortgaged to the bank. They were sold to the bank at chattel-mortgage sale for $1000. About five weeks later the bank sold the assets for $7500. Held, that in an action against the indemnitors the $7500 should be credited on the debt of the association to the bank, and judgment should be rendered against the indemnitors for the remainder of the debt, in accordance with the terms of their contracts.</p>

<p>Appeal from Kingman district court; George L. Hay, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Negligence — Ice on Sidewalk — Personal Injuries — Written Statement of Claim for Damages. Under section 1460 of the General Statutes of 1915, before commencing an action for personal injuries against a city of the first class conducted under commission government, it is necessary, within four months, to file a written statement with the city clerk, giving the time, place and circumstances relating to the injuries sustained.</p> <p>2. Same. The written statement of injuries, which is required by statute as a condition precedent to the maintenance of an action against a city for such injuries, must be sufficiently accurate that the city will not be misled thereby.</p> <p>3. Same — Personal Injuries — Defective Statement of Claim for Damages. Where a petition alleged that plaintiff sustained injuries by a fall on a public sidewalk, and alleged that the accident occurred on January 19, 1916, and a copy of the statutory written statement attached to the petition recited that the injuries were sustained on January 12, 1916, the discrepancy between the dates is one of substance tending to mislead the city and not a mere defect in the form of the statement, and a demurrer to the petition should be sustained.</p>

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

<p>Appeal from Chase district court; William C. Harris, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Homicide — Voir Dire Examination of Juror — Objection to Question Properly Sustained. On the voir dire examination of jurors in a prosecution for murder, counsel for defendant asked a juror whether, in case the evidence showed that about six months before the crime was committed the defendant was intoxicated and made a threat against the deceased, that would be “evidence in your mind that he was guilty of the crime charged against him.” Held, that an objection to the question was properly sustained.</p> <p>2. Same — Instruction—Weight to be Given Defendant’s Testimony. Besides giving the usual instruction that the jury might properly consider the interest of any witness in the result of the trial as affecting his credibility, the court also instructed:</p> <p>“You are further instructed that the defendant is a competent witness in this casé, and you must consider his testimony in arriving at your verdict; but, in determining what weight and credibility you will give to his testimony in making up your verdict, you may take into consideration, as affecting his credibility, his interest in the result of the case, and that he is the accused party on the trial, testifying in his own behalf.”</p> <p>Held, that while ordinarily the giving of such an instruction under such circumstances is not approved, it can not be regarded as error since it was natural for the jury to consider the defendant’s interest in the result, as well as their duty to consider it in determining the credit to be given to his testimony.</p> <p>3. Same — Instruction Relating to Alibi. The instructions relating to the defense of an alibi examined and held sufficient.</p> <p>4. Same — Failure to Instruct Relative to Defendant’s Crippled Condition — Not Error. In a prosecution for murder defendant offered evidence tending to show that, because of the crippled condition of his right hand, it was a physical impossibility for him to hold and discharge an automatic pistol in the manner charged in the information, and as testified to by witnesses for the state. No special instruction submitting this defense was asked. Held, that it was not error to fail to give an instruction directing the jury’s attention specially thereto.</p> <p>5. Same — Motion for New Trial — Properly Overruled. On the facts stated in the opinion there was no error in overruling the motion for a new trial.</p>

<p>Appeal from' Sedgwick district court, division No. 2;' Thomas C. Wilson, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Arson in Third Degree — Sufficient Information. In a prosecution . for arson in the third degree an information is not fatally defective because it fails to allege that the property was at the time insured against loss or damage by fire.</p> <p>2. Same — Motion to Quash Information — Properly Denied. In a prose- ■ ■■ cution under section 57 of the crimes act (Gen. Stat. 1915, § 3425) for arson in the third degree the information charged that defendant burned certain personal property which was insured in The Sun Insurance Office, with the intent to defraud the insurer. A motion to ■ quash the information on the ground that it did not allege that the property was insured against loss by fire is held to have been properly ' overruled.</p> <p>3. Same — Charge of Conspiracy — Sustained by Evidence. The evidence examined, and held sufficient to sustain the charge of conspiracy to burn and the burning of the property charged in the information.</p> <p>4. Same — Motion for New Trial — Properly Denied. For reasons stated in the opinion the action of the trial court in denying the motion for a new trial is approved.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Compensation Act — Failure to Present Claim for Compensation — No Waiver. The pleadings and agreed facts considered, and held that presentation of a claim for compensation had not been waived or rendered unnecessary, and was a matter in issue.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Compensation Act — On, In or About a Coal Mine — Injured Workman Not Within Provisions of Act. The defendant operates two open-pit coal mines, known as the east mine and the west mine, which are about a quarter of a mile apart. They are separated by an • interurban railway, which passes within about thirty yards of the west mine. A workman in the east mine was ordered by his foreman to go on a necessary errand to the west mine. When crossing the railway track the workman was struck by a car, and sustained injuries which proved fatal. In an action for compensation under the workmen’s compensation act, the petition, which was otherwise sufficient, presented the foregoing facts. Held, a demurrer to the petition was rightfully sustained, because the accident did not occur on or in or about a mine, within the meaning of section 6 of the act (Gen. Stat. 1915, § 5900).</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Limitation op Actions — Employer’s Liability Act and Death Statute (Civil Code, §H9) Construed — Action for Death Barred After Two Years. The statute authorizing the maintenance of an action to recover damages where the death of one results from the wrongful act or omission of another, and which provides a limitation as to the time an action must be brought and as to the amount of recovery (Civ. Code, §419), was not repealed by the employers’ liability act (Laws .1911, ch.'239, Gen. Stat. 1915, §§ 8480-8485), and as the latter act contains no provisions limiting the time within which actions shall be brought under it to recover damages for death negligently and wrongfully caused, the limitation prescribed in the death statute governs; and where the action is not brought within two years after the cause of action, accrues It is barred.</p> <p>2. Same — Agreement Inducing Delay Will Not Stay Running of Statute. As the provision of the death statute referred to is a limitation, not only upon the remedy, but also upon the right, and as the right is lost if the action is not brought within the prescribed time, any representation or agreement of an agent of the defendant which may have induced delay will not estop the defendant from claiming the benefit of the limitation.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Cities Repaving Street — Contract to Keep Pavement in Repair— Method of Defraying Expense Thereof — Statutory Authority. Under section 1237 of the General Statutes of 1915, a city of the first class may contract for repaving a street, and in the contract provide that a part of the contract price shall be retained in the city treasury as a guarantee that the contractor will keep the pavement in repair for a period of fifteen years after its construction; and- may provide that annually there shall be paid to the contractor, to pay for keeping the pavement in repair, a certain portion of' the amount retained.</p> <p>2. Same. Section 1237 of the General Statutes of 1915, giving to cities of the first class the powers named in paragraph.1 of this syllabus, is not unconstitutional.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Title of Act — Authorizing Issue of Bonds for Extension of Waterworks — Authorizes Extension to After-acquired Waterworks System,.. A title to an act which describes it as authorizing cities of a certain, class “now” owning a system of waterworks to issue bonds for their-extension is broad enough to cover a provision for the issuance of.' such bonds by cities which owned no waterworks at the time of the; enactment, but which acquired them thereafter. ’</p>

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

<p>Appeal from Gove district court; Jacob C. Ruppenthal, judge.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Sale — Hay—Measurements—Evidence—Issues Involved. In view of the issues involved, and attitude of the parties, it was error to exclude proffered testimony as to the correctness of the defendant’? method of measuring the hay involved herein.</p> <p>2. Same — Fraud. Under the circumstances of this case the issue of fraud is practically negligible — the vital question being the amount of hay actually purchased.</p> <p>3. Trial — Manner of Selecting Jurors — Not Approved. The issuance of a subpoena for certain jurors not called as witnesses, although no substantial prejudice is -shown in this instance, not approved.</p>

<p>Appeal from Wyandotte district court, division No. 2; Frank D. Hutchings, judge.</p>

<p>OPINION ON REHEARING.</p> <p>SYLLABUS BY THE COURT.</p> <p>1-. Building Contract — Indemnity Bond — Real Party Contracting. C. E. Easter contracted under the name of C. E. Easter & Co. to build a residence for F. H. Woodbury, and gave bond signed by C. E. Easter & Co., C. E. Easter, R. H. Agard, and The United States Fidelity & Guaranty Company. Held, that the bond was the bond of C. E. Easter.</p> <p>2. Same — Indemnity Bond — Surety’s flame Not Recited in Bond — Liability of Such Surety. In the bond described in the first paragraph of this syllabus, C. E. Easter & Co. was named as principal and The United States Fidelity & Guaranty Company as surety. The name of R. H. Agard was not recited in the bond. Held, that R. H. Agard was a surety on the bond.</p> <p>3. Appeal — Cause Reversed with Directions'to Trial Court. Under the circumstances disclosed in the opinion, and to prevent an injustice being done, the judgment of the trial court is reversed, and that court is directed to ascertain certain facts and to render judgment accordingly.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Fraud — False Representations — Verdict for Plaintiff- — -New Trial Ordered. Upon evidence tending to show that false representations had been made by the defendant, that plaintiff had relied upon them, and had sustained a substantial loss, a verdict awarding plaintiff the sum of one dollar can,,not be treated as a finding in favor of the defendant; but the court, not being satisfied with the result, should have set aside the verdict and granted a new trial on the motion of plaintiff.</p> <p>2. BANKING — Unauthorized Actions of Officers — Liability. A bank can not be held liable for the unauthorized transactions of its officers unless it actually receives and retains the benefit of such transactions.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Watercourse — Rights of Railway Company as Riparian Owner — Reasonable Use. A railway company as a riparian owner has the right to make reasonable use of the water of a stream for the purpose of supplying its engines and operating its railroad, reasonable use meaning such use as is consistent with the equal rights of other riparian owners.</p> <p>2. Same — Findings—Evidence. Findings of fact considered, and held, to be sustained by sufficient evidence.</p> <p>3. Same — Injunction—Grounds for, Ceased to Exist — Action Dismissed'.. Soon after the commencement of an injunction suit between riparian, owners respecting use of the water of a stream greatly depleted by unprecedented drought, the drought came to an end and the normal flow of the stream, sufficient for all uses, was restored. A preliminary injunction granted the plaintiff was .dissolved, an injunction in favor of the defendant was not granted, and the action was dismissed. Held, the discretion of the court was not abused.,</p>

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

<p>Appeal from Jackson district court; OSCAR Raines, judge.</p>

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Contract — Agency to Sell Land — Two Agents Appointed — Sale Made by Both Agents — Specific Performance. Forgetting that he had granted an agent exclusive authority to sell his land within a stipulated period, a landowner authorized another agent to sell the land. Both agents made sales within the period. Held, the court did not abuse its discretion in denying specific performance of the sale made by the agent last appointed.</p>

<p>Appeal from Jewell district court; Richard M. Pickler, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Action — On Promissory Note — Pleadings—Demurrer—Practice. The ' pleadings examined and held that instead of sustaining a demurrer to plaintiff’s reply and rendering judgment in favor of defendants for costs, the demurrer should" have been carried back to the answer and sustained thereto, and judgment given in plaintiff’s favor for the amount due on the note sued upon.</p>

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Agency — Commissions — Matters Res Judicata. The proceedings examined, and held, that the matters complained of were determined by the decision of this court on the occasion of a former appeal.</p>

<p>Appeal from Shawnee district court, division No. 2: George H. Whitcomb, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Telegram — Dictated Over Telephone — Nature of Contract — Error in Transmission — Liability. Where a telegraphic message is dictated over a telephone and is thus received by a telegraph company for transmission it will not be presumed that any preferential or discriminatory service in violation of law is intended, and the message will be considered as if it were written on the ordinary blank forms furnished by the telegraph company, and the company’s liability for an error in transmission is neither greater nor less nor different than if the message were delivered in the usual and more formal mode of sending telegrams.</p> <p>2. Same — Intrastate Business — Contract Limiting Liability. In conducting its intrastate business a telegraph company may make reasonable stipulations limiting its liability, but in the absence of positive or permissive statutes governing the subject, the reasonableness of any such stipulation is a question for judicial determination.</p> <p>S. Same — A stipulation limiting a telegraph company’s liability in damages for an error in transmission of a telegram to a mere return of the rate Exacted for sending it is unreasonable. '</p> <p>4. Telegram — Partly, in Code ■ — ■ Liability for Error in Transmission. Where a telegram is partly in code, but bears enough plain English on its face to apprise the telegraph company that it is a business message, and the company’s manager in charge where the telegram was received knew it was a business message, although he did not know its details, the company was charged with sufficient notice of its importance and with notice that a failure to transmit the message correctly would probably lead to consequential damages, and the telegraph company is liable therefor.</p> <p>5. Same. The damages attendant on a failure to transmit a business message examined and held to be certain and proximate, and that a recovery can be had thereon.</p>

<p>SYLLABUS BY THE COURT.</p> <p>I. Partnership — Liability of Each Partner. One who is a partner of a business firm may not escape his liability as such partner merely because he declares that he will not be responsible for the partnership acts, when he does nothing to alter the business conduct of the partnership, and remains a member of the firm, and suffers it to continue the policy to which he objects.</p> <p>2. Banks — Overdrafts—Construction of Statute. Section 3471 of the General Statutes of 1915, which makes it unlawful to draw a check or draft on a bank when the drawer has neither money nor credit in such bank, does not apply to the drawing of an overdraft by a customer ,who has credit at that bank.</p> <p>3. Same — Overdrafts—Not Unlawful to Honor. Section 558 of the General Statutes of 1915, which declares that any officer of a bank who honors an overdraft shall be personally liable to the bank therefor, is a precautionary measure of security for the bank, but it does not render the transaction itself unlawful.</p> <p>4. Trial — Disobedient Witness. Where a trial court has ordered the witnesses to withdraw from the courtroom, a witness who disregards that order may be disciplined by1 the court, but his disobedience to the order does not disqualify him as a witness. (Davenport v. Ogg, 15 Kan. 363.)</p> <p>5. Same — Excluded Evidence. Certain excluded evidence examined and held to be of such slight relevancy to the issue that its exclusion was nonprejudicial.</p> <p>6. Same — Misconduct of Jury. It is error for a jury to consider facts pertinent to the issues volunteered by one of their number in the jury room; but where it is both affirmed and denied by the jurors that such incident occurred the question whether a juror did commit such impropriety must be determined by the trial court, and its finding that the incident did not transpire can not ordinarily be questioned on appeal.</p> <p>7. Same — Instructions. Prejudicial error can not ordinarily be based upon an instruction which is only subject to an objection that it is somewhat incomplete as an abstract statement of law, when it was not a necessary instruction to be given, and when no error in the result can be traced thereto.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Divorce — Alimony in Monthly Installments — Judgment Not Released. After a decree of divorce and an order for the payment of alimony in monthly installments the defendant sought to obtain from plaintiff’s counsel a release of the order and paid him $25. It appears that counsel did not intend to release the judgment and had no authority so to do, but intended only to receipt for an attorney’s feq. The entry ■on the judgment docket consisted of the two words “Judgment released.” Held, that no lawful release of the order for the payment of alimony was shown. 1</p> <p>2. Same — Alimony in Monthly Installments — Default in Payments — Statute of Limitations. The order for the payment of alimopy in monthly installments did not of itself constitute a lien upon any land of the defendant within the county. Whether or not any part of such order became dormant for failure for twenty years to take any steps toward its enforcement, it can not be held that all the monthly payments required thereby were barred by the statute of limitations.</p> <p>3. SAME — Remarriage of .Wife — Right to Alimony Continues. The general rule is that a divorced wife’s remarriage to another does not of itself operate as a release of the former husband’s obligation to pay alimony, although it may well furnish a ground for discharging him from further payments.</p> <p>4. Same — Laches in Enforcing Payments of Alimony. From the record .it does not appear that the plaintiff by laches has lost her right to all the monthly payments ordered to be made to her by the defendant, mere delay not necessarily constituting laches.</p> <p>5. Same — Alimony—Default in Payment — Pñma Facie Case for Contempt. It is held that the plaintiff made out a prima facie case and it was error to deny her motion to require the defendant to show cause why he should not be held in contempt for failure to obey the order to pay alimony.</p>

<p>Appeal from Shawnee district court, division No. 2; George H. Whitcomb, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Paving Streets — Authority of City Commissioners — Statute. Under a statute (Gen. Stat. 1915, § 1764) which authorizes the mayor and .commissioners of a city of the second class to pave a street when they deem it necessary to'do so, subject to the right of the resident owners of more than one-half of the property subject to taxation for such paving to protest and thus prevent the projected improvement, it is immaterial whether the mayor and commissioners determined the necessity for the paving upon their own initiative or were prompted to consider the matter on a petition of resident property owners.</p> <p>2. Paving Streets — Protest of Resident Owners Not Directly Affected. Seven blocks of a street had been paved; it was proposed to pave three blocks of the same street; and there was one intervening block between the completed and the proposed paving. A protest by the residents of the intervening block against the proposed paving of the three blocks was without legal effect and could not prevent the proposed paving, since such protestants were not affected by the proposed paving.</p> <p>3. Same — Intervening Block- — Discretion of Commissioners. It takes nothing from the force of the proposition announced in paragraph 2 of the syllabus, that when the proposed three blocks of paving are completed the intervening block can be paved to connect the two paved portions of the street under-another statute (Laws 1911, ch. 123) at the discretion of the city, and without the sanction or acquiescence of the property owners of that block.</p> <p>4. Injunction — City Officers — Discretionary Powers. No court can enjoin a city and its officers from the bona fide exercise of official powers clearly conferred upon them by statute, and a court can only interfere where official powers are clearly abused — a fact nonexistent in the instant case.</p> <p>5. Paving Street — Ordinance Submitted by “Initiative” — Ordinance De- ■ feated at Election — Ordinance Dead.' Where'a city and its officials are lawfully undertaking to pave a portion of a street, and the project is interrupted by insufficient protests and later by a proposed ordinance initiated by electors under section 1861 of the General Statutes of 191.5, and the proposed ordinance is submitted to the people at an election and defeated, the proposed ordinance is no longer of any effect, and it does not prevent the city and its officials from proceeding with the project to pave the street as originally undertaken.</p> <p>6. Same — Ordinance — Material of Pavement. An ordinary city ordinance for the paving of a portion' of a street “with vertical fibre brick on concrete base with asphalt filler,” is not a mere amendment to an ordinance proposed and defeated by the people, and which had provided for the paving “with a one-course concrete pavement not less than six inches thick.”</p>

<p>Appeal from Atchison district court; William A. Jackson,* judge.</p>

<p>Appeal from Johnson district court; Jabez O. Rankin, judge.</p>

<p>SYLLABUS BY THE COURT.'</p> <p>Water Company — Rates Fixed by Public Utilities Commission Conclusive. In an action against a city for the services of a utility which is under the control of the state public utilities commission, charges being made at the rate fixed by that body, no defense or partial defense is established by evidence that a lower rate had been agreed upon between the parties1, and that the plaintiff' had served other pesons at a lower rate and had in various ways violated city ordinances and rules of the utilities commission.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Partition — Land Sold — Proceeds Impounded in Court — Jurisdiction Retained to Determine Untried Issues — Claims Against Estate. In a partition suit the lands were partitioned and sold, and, by consent of all the parties, the court ordered a portion of the proceeds impounded in court to abide the judgment afterwards to be rendered on other issues, the proceeds to stand as the land itself, the court retaining jurisdiction of the cause for the determination of all the untried issues. One of the parties who had an interest in the land died before final judgment, and her administrator and persons having claims against her estate were made parties. On the facts stated in the opinion, it is held, that the court had authority to allow the administrator’s claim for services, attorneys’ fees, costs and expenses of litigation, and claims against the estate, and to make them liens against the fund and to apportion costs and attorneys’ fees between the original parties upon an equitable basis.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Mortgage Foreclosure — ■Separate Tracts of Land in Each of ,Two Counties■ — How Lands Must Be Sold. A sale under mortgage foreclosure of two separate tracts of land in each of two counties was made and confirmed. That part of such sale proceedings relating to the lands in the county other’than where the action was brought was void and could be set aside at any time.</p> <p>2. Same — Void Sale — Confirmation—Rulings on Motions to Set Aside Confirmation. It was not error to refuse to set aside such judgment, order, sale and confirmation, on the defendant’s motion filed some sixteen months after such confirmation, and several weeks after the plaintiff had moved to set aside the proceedings as to the land in the other county and issue an order of sale to the sheriff thereof-; nor was-it error to deny the defendant’s motion to set aside such last mentioned order of sale.</p> <p>3. Same — Costs—Adjusted by Motion to Retax. Needless'costs made by irregularities in such proceedings can be adjusted on a motion to re-tax.</p> <p>4. Same — No Appraisement Required. In a mortgage foreclosure sale an appraisement is not required.</p> <p>5. Same — When Unnecessary to Post Notices of Sale. It is not necessary in such sale to post notices thereof in a county where a newspaper is regularly published.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Trial — Evidence—False Representations} Under the circumstances disclosed in the opinion, evidence of false and fraudulent representations was properly admitted.</p> <p>2. Stock op Goods — Exchanged for Land — False Representation as to Goods — Value of Land, Immaterial Under Pleadings. Where land has been taken in exchange for a stock of goods, falsely and fraudulently represented to be merchantable, the land having been first inspected and no false representations having been made concerning it; it is not error to reject evidence to show that the land was not worth the amount at which it was valued in the exchange of properties.</p> <p>3. Trial — Instructions. There was no error in the instructions given nor in refusing to give those requested.</p> <p>4. Trial — Special Findings. The plaintiff was not entitled to judgment on the special findings of the jury.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Common Carriers — Duty to Persons Assisting Passengers. In the absence of any regulation forbidding persons to enter trains to assist a passenger, one who goes upon a train for that purpose has an implied permission or license so to' do, and the carrier owes him the duty of ordinary care for his protection where it has notice of his purpose and intention in entering the train. ’</p> <p>2. Same — Licensee Assisting Passenger--Time to Leave Train. Notwithstanding a finding that a passenger train stopped at a station for a period of five minutes, it is held that it was for the jury to determine under all the facts and circumstances whether one Who entered the train to assist a passenger was given a reasonable time to leave the train before it started.</p> <p>S. Same — Licensee Alighting from Moving Train — Contributory 'Negligence. The special findings examined and held to show that after discovering the negligence of the defendant, the plaintiff was negligent in attempting in the darkness to alight from the train while it was running at eight miles an hour, and therefore the defendant was entitled to judgment on the findings.</p>

<p>Appeal from Lyon district court; WILLIAM C. HARRIS, judge.</p>

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

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Trial — Cross-examination of Witness. On the facts stated in the opinion it is held that there was no error in refusing to sustain an objection to a question on the ground that it was not proper cross-examination.</p> <p>2. Death — Contact with Electric Wires — Finding—Verdict. In an action to recover damages for the death of plaintiff’s husband caused by coming in contact with high-tension electric wires maintained by defendant in one of its waiting rooms, held, it was not error to refuse to set aside the verdict in favor of defendant because of a finding that at the time the deceased came in contact with the wires he was not in full control of his powers of locomotion.</p> <p>3. Same — Contributory Negligence of Deceased — Instructions. The court charged that if the deceased “failed on his part to exercise ordinary care, or in other words was guilty of contributory negligence in the premises and thereby contributed to his own death, then the plaintiff can not recover.” Held, it was not error to fail to qualify the instruction by stating that the deceased was guilty of contributory negligence if he voluntarily or of his own free will failed to exercise ordinary care. It was for the jury to determine under all the circumstances shown in the evidence whether or not the deceased was in the exercise of ordinary care at the time of the accident.</p> <p>4. Same — Trial — Instructions. Requested instructions examined and held, that the court having given instructions which correctly defined the issues, it' was not error to refuse to give other instructions which were merely cumulative.</p>

<p>Appeal from Gray district court; Littleton M. Day, j(udge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Judgment — Adjudication of Title to Land — Collateral Attack. A judgment adjudicating the title to real property, rendered in an action in which the court had jurisdiction of the parties, can not be collaterally attacked in a subsequent ejectment action between the same parties, where the judgment forms a part of the chain of title of one of the parties.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Deceased Persón— Nonresident of County — Probate Court Without Jurisdiction to Appoint Administrator. A probate court is without authority to appoint an administrator of the estate of a deceased person unless the deceased was a resident of the county of the court at the time of his death, and a decision of a probate court that the deceased was a resident of the county of the court at the time of his death is open to collateral inquiry for the purpose of showing a lack of jurisdiction to make the appointment.</p>

<p>Appeal from Ellis district court; Jacob C. Ruppenthal, judge.</p>

<p>opinion denying a rehearing.</p> <p>SYLLABUS BY THE COURT.</p> <p>Workmen’s Compensation Act — Judgment on Special Findings. Under the workmen’s compensation act, where a trial by jury is demanded and special questions are answered, but no general verdict is returned, a judgment compelled by the answers to the questions will not be reversed.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Manslaughter — -Trial—No Reversible Error in Record. Assignments of error relating- to testimony received and rejected, instructions given and refused, and the conduct of the jury considered and held to be without sufficient merit to warrant a reversal of the judgment.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Criminal Law — Interpretation of Statute Copied from Another State. When the courts of a state for many years have given their own interpretation to a statute copied from the laws of another state, it is of no importance that such interpretation does not harmonize with the interpretation given to that statute in the state from which it was adopted.</p> <p>2. Same — Embezzlement—Statute Interpreted. Section 3463 of the General Statutes of 1915, which declares that any carrier or other bailee who embezzles property, etc., in his possession shall be guilty of larceny, is intended not only to cover offenses of carriers and bailees of the nature and class of carriers, but is intended also to cover embezzling offenses of any class of bailees, and it covers the offense of a bailee who embezzles a piano left in his custody by its owner.</p> <p>3. Embezzlement — Information—Includes Crime of Larceny. Where a penal statute declares that one who commits embezzlement shall be adjudged guilty of larceny, a charge of embezzlement which also includes an allegation that the defendant “did steal, take and carry away” the article embezzled is not bad for duplicity.</p> <p>4. Trial — No Error in Record. A miscellaneous assignment of minor errors noticed in the opinion which needs no discussion.</p> <p>5. Embezzlement — Trial—Excluded Evidence — No Prejudicial Error. It is not prejudicial error to exclude evidence tending to show that the prosecuting witness and the defendant in a criminal case had conducted negotiations looking toward a satisfaction of the private wrong committed by the defendant against the witness, in consideration for which the witness was to withdraw the charge .of the public offense involved in the same wrong.</p> <p>6. Same — Instructions. Instructions given and refused examined and no errors disclosed therein.</p> <p>7. New Trial — Impeaching Testimony. Rule followed that the belated presentation of impeaching testimony is not sufficient to compel the granting of a new trial.</p> <p>8. New Trial — Newly Discovered Evidence — Want of Diligence. Rule followed that the trial court must be satisfied with defendant's diligence in preparing his defense before he will be entitled to a new trial on account of evidence which was not on hand at the trial.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Paving — Special Assessments — Method of Appraisement — Good Faith. Under a statute providing that the cost of a local improvement shall be distributed among the pieces of property benefited thereby in proportion to their appraised value, the fact that the body making such appraisement adopts figures which produce the same net result as a prior assessment which was invalid because erroneously made upon the basis of frontage and location, is not conclusive evidence of a want of good faith in the application of the statutory method.</p> <p>2. Injunction — Special Assessments — Certain Evidence Properly Excluded. In an action to enjoin special assessments as excessive, evidence of irregularities in the prior proceedings held to have been properly excluded because not within the pleadings.</p> <p>3. Paving — Paid for in Warrants Instead of Bonds. A property owner is not entitled to an injunction against a special assessment for local improvements because warrants have been issued to the contractor instead of bonds, as contemplated by the statute, where the amount or time of payment of the tax is not thereby affected.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Paving — Addition to City — “A Block” — Special Assessments to Center of Block. An addition to a city of the second class was platted into parcels that were 1296 feet long and 409.5 feet wide, the ends of which abutted upon a street that was about to be paved. The assessment for the pavement was extended by the city authorities to the center of the tract abutting on the street. 'In a controversy as to the validity of the assessment it is held that the addition must be regarded as platted land, and as the tract in question in the addition is surrounded by streets it is held that it constitutes a block within the meaning of the statute relating to assessments, although it is much larger than other blocks within the city, and therefore the extension of the assessment to the center of the block is adjudged to be valid.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. BONDS' — •New Court House — Limit of Outstanding County Indebtedness — Refunding Bonds to be Counted. In estimating the amount of outstanding indebtedness of a county to ascertain the one per cent limit beyond which it may not issue bonds (Laws of 1909, ch. 62, §§ 1, 2, Gen. Stat. 1915, §§ 623, 644), refunding bonds are to be counted as the statute does not authorize their exclusion.</p> <p>2. Same — Limit of Bonded Indebtedness — Certain Bridge Bonds Not to be Counted. Section 1 of chapter 62 of the Laws of 1909, limiting indebtedness in counties to one per cent of the taxable property of the county is to be construed together with chapter 64 of the Laws of 1909 (Gen. Stat. 1915, §§,750-754), relating to public bridges in certain counties, and so construed, it is held that certain bonds issued by Wyandotte county in payment of the cost of raising, lengthening ánd reconstructing bridges over the Kansas river to meet the requirements of the war department of the United States and of the Kaw Valley drainage board are not to be counted in ascertaining the limit of indebtedness which the county may lawfully incur.</p>

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

<p>Appeal from Shawnee district court, division No. 2; George H. Whitcomb, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>T. Will — Minor Beneficiaries — Trusts and Trustees — Duties of ‘Trustees. The will of a testator, in substance, gave to trustees certain lands in Allen county which, at the death of his last surviving child, were to be equally divided between his then surviving descendants per -stirpes and not per capita. Two of the children who were trustees under the will sued the other two, reciting the failure of the widow to take under the will and alleging that complications had arisen and the estate could not he safely administered except under the direction of a court of equity, certain clauses of the will being indefinite, uncertain and contradictory, and praying proper relief. The result was a decree that such land could not be further managed under the trust without manifest prejudice, and that pursuant to certain contracts entered into between the two sons, who were the defendants, it was partitioned between them in fee simple. The sisters resigned as trustees, and the two brothers who had been awarded the Allen county land were appointed their successors. Thereafter, plaintiffs, judgment creditors of one of these sons, sought by this action to subject his part of this land to the payment of their judgments. He filed an interplea setting up his trusteeship under the will, but without avail. Held, that as in none of the proceedings referred to, including the present action, were the grandchildren of the testator, the real beneficiaries under the will in respect to the Allen county lands, made parties, the defendant as trustee should have been permitted to show the actual facts concerning the title.</p> <p>2. Same — Duty of Trustees Toward Minor Beneficiaries. While as between the plaintiffs and the defendant personally the latter might be deemed the owner of the land sought to be applied to the debts of the former, his duties as trustee under the will preclude him from acquiring any interest adverse to his trust, or placing himself in any position where his self-interest conflicts with his duties as trustee.</p> <p>3. Same — Rights of Creditors of Trustees. The plaintiffs have no right to look to any interest in the land belonging to the grandchildren or real beneficiaries under the will, but-they should, if necessary, be made parties in order that their rights may be protected.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Corporation — Stockholder as Creditor■■ — ■ When Entitled to Share Equally With Other Creditors. When a stockholder has satisfied all his obligations as such, and there remains nothing by way of unpaid subscription or liability growing out of his relation as stockholder, and he is in good faith a creditor of the corporation, he stands on an equal footing with other creditors and has the samé right to treat the corporation-as a stranger and adversary as they have. Under such circumstances he is not required to stand back until other creditors are satisfied, but may proceed along with them on equal terms.</p> <p>2. Same. Under all the facts and circumstances shown by the record it is held that the intervenor should be permitted to share equally with the plaintiffs in the proceeds of the corporate property -appropriated and sold by them.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Highway — Obstruction—Injunetion^Title—Parol Evidence.- When the title to real estate is only collaterally involved, the title deeds need not necessarily be produced. Parol evidence of ownership may be received. .</p> <p>2. Same. The evidence has been examined, and it is held that the demurrer thereto was properly overruled; and that the evidence was sufficient to sustain the judgment of the court.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Paving — Street Through Platted and Unplatted Grounds■ — Method of Special Assessments. Under a statute providing that assessments to pay for paving streets shall be made on all lots and pieces of ground to the center of the block on either side, but that when the street runs in part through unplatted ground they “shall be levied on the lots and pieces of ground along said street,, on either side thereof to the same distance on either side of said street as the levy is made where the street to be improved runs through platted ground” (Gen. Stat. 1915, § 1706), the distance to the center of the block on each side of the street regulates the distance to which the unplatted ground on that side of the street is to be assessed.</p> <p>2. Same — Assessing to Center of Block — Constitutional Law. The fact that the blocks on opposite sides of the street are of different depth, as a consequence of which the unplatted ground on one side is assessable fox a greater distance than on the other, does not render the statute, as so construed, obnoxious to the 14th amendment to the federal constitution.</p> <p>3. Same — Tract of Ground Surrounded by Streets — Levying Assessments. The mere fact that a tract of ground lies within a city, and is surrounded on all sides by streets, does not require it to be treated as a platted block for the purpose of levying assessments for the pavement of one of the streets.</p> <p>4. Same — Lots Not Abutting Street — Liable to Assessments. The fact that a part of an otherwise unplatted tract has been platted into lots which do not abut upon the improved street, does not exempt it from contributing to the cost of a pavement, where its distance from the street is less than the distance from the street to the center of a block on the same side of the street which abuts on the improvement.</p> <p>5. Same — Special Assessments — Injunction—Tender. No tender is necessary to enable a plaintiff to present by injunction any objection he may urge against the validity of a special assessment, or any part of it, where one of his. contentions is that the entire charge is void.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Master and Servant — Railroad—Death of Employee — Negligence— Allegations and Findings — No Varicmce. The fact that the negligence of the railroad company, in an action for the death of an engine wiper, was pleaded as the failure to give the decedent notice of an insufficient clearance, while- the finding of the jury was that the negligence consisted of maintaining such insufficient clearance, held not to have been material under the circumstances of the case.</p> <p>2. Same — Employee—Under Direction of Employer — No Contributory Negligence. The evidence held sufficient to support a finding that, notwithstanding a general rule that engine wipers were not to work upon an engine while in motion, the decedent in this case had been specially directed to do so,, and therefore that the effect of the rule was nullified.</p> <p>3. Same — Negligence—Instructions. The instructions with respect to the company’s negligence held to have been nonprejudicial in view of the findings referred to.</p> <p>4. Same — Death—Amount of Recovery — Instructions. The trial court having instructed that an element of damage was the financial loss by the decedent’s wife, not exceeding the probable amount she would have received from his earnings had it not been for his death, it is held that reversible error was not committed in the failure to limit the recovery on this account to the present value of such future earnings, no instruction in that regard having been requested.</p> <p>5. Same — Findings of Fad. The findings of fact held to have been supported by the evidence.</p> <p>6. Same — Death1 of Employee — Verdid Not Excessive. An allowance to the widow of $1250 on account of her estimated pecuniary loss from the death of her husband held not to be large enough to justify interference by this court, although it was not shown that the money sent to her during an'absence of thirteen years exceeded $110, the wife being in Korea and the husband in this country.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Note — Signed by Directors of Corporation — Fraud — Presumptive Knowledge of Directors. Where one assuming to have knowledge of the facts induces the director of a corporation to sign a note by false statements regarding its business, a defense to the note on the ground of such fraud is not rendered unavailable to the signer by constructive knowledge of the company’s transactions imputable to him as one' of - its officers.</p> <p>2. Same — Fraudulent Representations — Evidence. Although one of the persons alleged to have been defrauded did not testify to the making of the false statement relied upon, that omission was supplied by other testimony, and there was room for an inference that he was influenced thereby.</p> <p>S. Same. Where a creditor, for the purpose of inducing a director to sign the note of a corporation, falsely represented to him that the note was secured by assets in the hands o'f the corporation sufficient to meet it, the fact that the director relied upon the statement without further inquiry is not fatal to a defense based on the fraud.</p> <p>4. Same — Instruction Asked — Refused—Not Error. Where' the jury were instructed that a recovery on the ground of fraud could be had only if certain statements had been made, it was not error to refuse an instruction that such a recovery could not be based on a finding that the statement was not made, but that words were spoken which the person addressed believed, with good reason, were intended to be so understood.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Administrator’s Deed — Prima Facie Evidence of Regularity. Under the statute making an administrator’s deed, executed by order of the probate court, presumptive evidence that the “administrator in all respects observed the directions and complied with the requisites of the law” (Gen. Stat. 1915, §4617), such a deed is prima facie evidence that the court’ made an order, which was complied with, requiring the giving of a notice of the hearing of the application for an order of sale, and that in all respects the proceedings on which the deed was based were regular.</p> <p>2. Deed — Death of Grantor — Insufficient Evidence of Delivery. Evidence that the owner of real estate signed and acknowledged a deed thereto purporting to take effect at her death, which she retained in her possession for about three years and then, two weeks before she died, gave to a custodian with other papers, in a sealed envelope, with the ' request that he put them in his safe, giving him no other instructions and no information as to the character of the contents of the envelope, does not establish a delivery of the deed.</p>

<p>Appeal from Wilson district • court; James W. Finley, judge.</p>

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Injunction — Enjoining Execution Sale — Record Title to Property— Judgment Lien. A debtor induced his creditor to accept an indorser by representing that the indorser owned certain real estate. The creditor examined the record and found the record title to be in the indorser. The indorser had previously conveyed the property by warranty deed, which the grantee had not recorded. Held, the owner of the property owed the creditor no duty to record the deed, and was not estopped to enjoin an execution sale of the property about to be made under a judgment in favor of the creditor and against the indorser.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Account Stated — -Pleadings—Itemizing Account. Rulings requiring a plaintiff, who sued upon an account stated, to set out the items of his1 claim, held not to have been prejudicial.</p> <p>2. Same — Compromise and Settlement — Limitation of Actions. Where the statute of limitations has run against a claim the payment of a part of it by way of compromise and settlement, in consideration of a release in full, does not remove the bar of the statute as to the remainder.</p> <p>3. Same. 'A question whether the statute of limitations had run in favor of the county with respect to official fees retained by it, held not necessary to be determined.</p> <p>4. Same — Compromise and Settlement — Limitation of Actions. The acceptance of a part of a claim against a county, which the commissioners in good faith contended to have been barred by the statute of limitations, in consideration of a release in full, held to prevent a recovery of the remainder, irrespective of the legal soundness of their contention.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Insurance Policy — Mistake in Amount of “Concurrent Insurance” Permitted — Reformation of Policy. When the agent of the insurer issuing a policy containing the standard clause against concurrent insurance, unless by agreement added or indorsed, knows that the insured has and will desire to carry other insurance on the property and instead of agreeing with him as to a limit such agent without the knowledge or consent of the insured attaches a slip fixing a limit, the policy should be construed and if necessary deemed reformed so as to provide generally for additional concurrent insurance.</p> <p>2. Same. A policy containing, or deemed reformed so as to contain, such general clause precludes the defense that subsequent insurance was taken out without notification to the insurer, such general clause importing until withdrawn a continuing consent to additional concurrent insurance.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Federal Employers’ Liability Act — Death of Employee — Negligence. Under the circumstances disclosed in the opinion it can not be1 said, as a matter of law, that the defendant was not guilty of any negligence.</p> <p>2. Same — Contributory Negligence — Does Not Defeat Recovery. Under the federal employers’ liability act negligence on the part of an injured employee does not in any case defeat recovery, but only diminishes the amount of damages.</p> <p>3. Same — Contributory Negligence — Amount of Recovery — Question for Jury. Under the federal employers’ liability act, where the plaintiff is guilty of contributory negligence, the reduction of damages on account of that negligence is left to the jury.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Vacation op Judgment — Jurisdiction of Judge at Chambers. Within the duration of a term of court the trial court or judgev has power to vacate an order or judgment dismissing an action at plaintiff’.s cost, and may order the cause reinstated and grant time to file amended pleadings.</p> <p>2. Same — Order of Judge at Chambers — Presumption of Validity. On appeal, where the validity of the judicial acts of a trial judge at chambers depends upon whether they were dispatched within the duration of a term of court, it will be presumed in the absence of proof that the judicial business in question was transacted before the term of court was formally adjourned.</p> <p>3. Same — Jurisdiction—Judge at Chambers. Whatever judicial business a district judge may transact at chambers may be so done although at the time he is formally holding court at a regular term in another county of his judicial district.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Promissory Note — Signature that of Maher — Liability. If a person placing his name on a promissory note do not clearly indicate by appropriate words an intention to be bound in a special capacity, and sign as maker, his liability to the holder is that of maker, although his relation to a comaker be that of surety.</p> <p>2. Same — Comaker—Disposition of Proceeds of Chattel Security. By making a promissory note the maker engages to pay it according to its tenor, and he is not interested in the manner in which the proceeds of chattel security, given by a comaker to secure the note and other indebtedness of the comaker, are applied.</p>

<p>Appeal from Kingman district court; Littleton M. Day, judge pro tem.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Shipping Wheat — Bill of Lading- — -Provision’ for Determining Value in Case of Loss Upheld. A provision in a bill of lading that the amount of any loss or damage for which the carrier is liable shall be computed on the basis of the value of the property (being the bona fide invoice price, if any, to' the consignee, including the freight charges, if prepaid) at the place and time of shipment is held to be reasonable and valid and intended merely to establish a rule for determining the value of the property in case of loss, and not to limit or diminish the carrier’s liability.</p> <p>2. Same — Wrongful Delivery — Measure of Damages. In this case it is . held that such a provision in the bill of lading precludes the recovery by the shipper for the difference between the market value of wheat at the place of delivery and the contract price at which he had sold the same, the measure of damages being the difference between the price which the wheat sold for at the place where it was delivered and the invoice price or fair market value at point and time of shipment.</p>

<p>SYLLABUS BY THE COURT. -</p> <p>Attorney’s Lien — Notice—Sheriff’s Return — Amendment. After final judgment has been rendered in an action the sheriff’s return on a notice of attorney’s lien, given at the commencement of the action, may, on the application of the sheriff, be amended so as to make it speak the truth concerning the service of the notice.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Creditor’s Bill — Garnishment—Petition States Cause of Action. The petition involved herein examined and held to state a cause of action as against the defendant bank.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Public Utility — Right of Railway Company to Issue Bonds and Stock —Discretion of Utilities Commission. Under the provisions of section 8353 of the General Statutes of 1915, a public utility has the right to issue whatever bonds and stock may be necessary to carry out corporate powers, acquire property, construct and extend facilities, and maintain and improve service, and the public utilities commission has no general discretion to refuse to certify such securities.</p> <p>2. Public Utility — Application for Certificate Validating Bond Issue — • Power of Utilities Commission. The public utilities commission has full power to ascertain the truth of all statements made by a public utility in its application for a certificate validating a bond and stock issue, including the required statement that the capital stock to be secured is necessary for a specified statutory purpose and will be used therefor.</p> <p>3. Same — Issuance of Bonds — “Necessary" Defined. The word “necessary” as used in the statute means needful under all the conditions attending the enterprise.</p> <p>4. Same — Issuance of Bonds — Utilities Commission May Require Proof of Necessity. The public utilities commission has authority to require proof of need for the issuance of bonds and stock beyond the proof afforded by the verified application.</p> <p>5. Same — Issuance of Bonds — Writ of Mandamus Denied. Under the facts stated in the opinion the public utilities commission did not arbitrarily refuse to certify an issue of-bonds and stock.</p>

<p>SYLLABUS BY THE COURT.</p> <p>County Prisoners — Employment on Public Works — Statute Constitutional. Chapter 168 of the laws of 1917, directing county commissioners to compel prisoners to work on streets, highways, poor farms, or public works, under certain circumstances, does hot violate either section 6 of article 6 or section 1 of article 11 of the constitution of this state. '</p>

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

<p>HEADNOTE BY THE REPORTER.</p> <p>Mandamus — Transfer of Bank Stock — Issues Properly Joined. A demurrer to an answer to arr alternative writ of mandamus can not be sustained where the answer puts in issue material allegations of the writ.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. New Trial — Affidavit—Witness Changing His Testimony. In the circumstances stated in the opinion, it is held that it was not error to grant a new trial upon the strength of an affidavit of a witness qualifying certain testimony given by him at the trial.</p> <p>2. Executory Contract — Sale of Land — Rescission by Parol — Not Within Statute of Frauds. An agreement to rescind an executory contract for the sale of lands is not within the statute of frauds, and may be proved as any other simple contract.</p> <p>3. Same — Valid Parol Contract. When the contract rests only in parol, partial or full performance is necessary to its validity.</p> <p>4. Same — Agreement to Rescind Contract — Consideration—Surrender of Mutual Rights. The consideration for such an agreement may consist in the mutual promises of the parties by which they agree to surrender their mutual rights under the original contract.</p> <p>5. Same. In this ease, while the answer pleaded a consideration for the agreement which would not in law be sufficient, a. promise to do that which the defendant was already bound to do, it is held that there was a sufficient consideration because the agreement could have no other effect or result than the surrender of mutual rights acquired under the original contract.</p> <p>6. Same — Former Decision Disapproved. Certain expressions in the opinion in Carr v. Williams, 17 Kan. 575, are disapproved.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Automobile — Collision with Bicycle — Injuries—Contributory Negligence —Question for Jury. The evidence on behalf of the plaintiff touching his alleged contributory negligence presented a question of fact which he was entitled to have submitted to the jury, and it was error to sustain a demurrer to such evidence.</p>

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

<p>Appeal from Smith district court; Richard M. Pickler, judge.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Fraternal Insurance — Nonpayment of Assessments — Neglect of Member. The evidence held to support findings that the failure to pay assessments to a fraternal beneficiary association was due to the neglect of the member.</p> <p>2. Same — Instructions — Findings — Inconsistency. Instructions which are claimed to be inconsistent with the findings are held to have been so explained and modified by other instructions as to avoid any conflict.</p> <p>3. Same — Independent Club Formed — Protection of Members against Nonpayment of Dues — Dues Not Paid — Policy Forfeited. Where some of the members of a local lodge of a fraternal beneficiary association voluntarily form a club for the purpose of protecting one another against suspension for nonpayment of dues, reliance on the action of the club will not excuse the default of a member in the payment of his assessments, where the club is really a separate and independent organization, notwithstanding it has been maintained with the knowledge and encouragement of the officers of the association.</p> <p>4. Same. Findings of fact examined' and found not to be in substantial conflict.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Illegitimate Children — Minor Defendant — Appointment of Guardian Ad Litem. In a bastardy proceeding the defendant, a minor, made no application to have a 'guardian ad litem appointed, and on the plaintiff’s application after the jury was impaneled and sworn, the court appointed the defendant’s father as guardian under the provisions of the eivjl code (§ 32). Held, not error.</p> <p>2. Same — Material Evidence in Rebuttal — Defendant’s Right to Rebut the Same. It is within the discretion of the trial court to admit in rebuttal facts which should have been offered in chief, and even to reopen the case at any time before final submission and permit either side to offer evidence. Whether in a bastardy proceeding it is material error for the court to permit the prosecution to introduce in rebuttal evidence which should have been. introduced in chief depends upon whether the defendant’s rights have been prejudiced. In this case it is held, upon the facts stated in the opinion, that it was reversible error to permit the prosecution to prove material and relevant facts of its case by way of rebuttal and to deny defendant the right to introduce testimony to rebut such material and relevant matter.</p> <p>3. Same — Cross-examination—Relating' to Distinct Offense — Collateral Issue — Answer Conclusive on State. The defendant in a bastardy proceeding was asked on cross-examination, in substance, if he had been guilty of improper conduct with a young girl, not the relatrix, at a time subsequent to the offense upon which the action was based. He denied that he had. Held, that the matter was purely collateral, and that the state was bound by his answer, and that it was reversible error to permit the state to contradict his denial by evidence of another and distinct offense.</p> <p>4. Same — Alibi—Instruction. The defendant having offered some evidence to show that he was away from the neighborhood at and near the date fixed by the relatrix, an instruction upon that issue would have been proper.</p> <p>5. Same — Instruction. An instruction upon the law with relation to the period of gestation would not have been improper in this case. -</p> <p>6. Same — Evidence in Rebuttal. There was no abuse of discretion or error in permitting the state to offer evidence to rebut the defense of an alibi.</p>

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

<p>Appeal from Shawnee district court, division No. 2; George H. Whitcomb, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Statute of Frauds — Oral Promise to Pay Debt of Another — Not Enforceable. Section 6 of the act for the prevention of frauds and perjuries (Gen. Stat. 1915, § 4889) forbids the courts of this state to entertain an action based upon a mere oral promise of one person to pay the debt of another person.</p> <p>2. Same — The statute of frauds declares the public policy of this state to be, that unless a promise of one person to pay the debt of another is in writing and signed by the promisor an action on that promise can not be maintained in a Kansas court, although the contract may be valid in the state where it was executed.</p>

<p>Appeal from Wyandotte district court, division No. 2; Frank D. Hutchings, judge.</p>

<p>Appeal from Sumner district court; Oliver P. Fuller, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Negligence — Personal Injuries — Finding Construed. In a personal-injury case in which the negligence of the defendant and contributory negligence of the plaintiff were in issue, the jury were asked whether the injury would have been avoided if either of the parties had exercised due care, and answered: “Yes, the plaintiff.” Held, that this amounts to a special finding in favor of the defendant on both issues.</p> <p>2. Same — Evidence. The evidence held to support findings in favor of the defendant on the issue of negligence.</p> <p>3. Same — Instructions. Instructions asked regarding this issue held to have been properly refused.</p> <p>4. Negligence — Rejected Evidence — Relevancy Must be Shoivn. The requirement, that in order to preserve for review a ruling sustaining an objection to a question the party offering the evidence must at the time inform the trial court what was desired to be shown by the answer, is not dispensed with by the provision of the present code that rejected evidence to be available on appeal must be produced at the hearing of the motion for a new trial.</p> <p>5. Same — Evidence. Evidence admitted over objection held to have been nonprejudicial.</p> <p>6. Same — Instructions. Instructions given and refused regarding contributory negligence held not to have been erroneous.</p> <p>7. Same — Contributory Negligence — Burden of Proof — Instructions. The failure to instruct that upon the issue of contributory negligence the burden of proof was on the defendant held to have been erroneous, but to have been rendered nonprejudicial by the finding against the plaintiff on the issue of the defendant’s negligence.</p> <p>.8. Same — Findings—Inconsistency. The fact that the jury return an affirmative answer to the question whether the plaintiff’s injury was the result of an unavoidable accident, and also find that it could have been avoided by the exercise of due care on the part of the plaintiff, does not necessarily involve a fatal inconsistency, as the jury may Kave supposed that the word accident was used to denote the absence •of intention rather than of negligence.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Damages — Cattle Drinking Polluted Water — Liability of Railway Company Not Shown. The facts relied upon to fix liability on a. railway company for damages to cattle which had drunk water polluted by a dipping fluid which had been splashed from a dipping vat belonging to a private citizen and established by the latter on property leased from the railway company examined, and held to show no liability on the part of the railway company.</p> <p>2. Same — Individual Liability of Person Who Polluted Water. The facts relied upon to fix liability for damages for the injury and death of cattle which, had drunk water polluted by the splashing and overflow of an arsenic solution from a dipping vat maintained by a defendant for disinfecting cattle examined, and held sufficient to establish a prima facie case when tested by a demurrer to the evidence.</p> <p>8. Public Officer — When Personally Liable for Wrongful Conduct. The rule that a public official is not personally liable for errors, mistakes or omissions in the discharge of his duties which call for the exercise of judgment or discretion unless such official shortcomings are willful, corrupt, or malicious, has no application to personal acts or omissions which do not pertain to his official duties.</p>

<p>Appeal from Miami district court; Jabez O. Rankin, judge.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Libel — Petition—Unwarranted Innuendoes. The petition in an action for damages for libel examined, and held that certain innuendoes were properly stricken out because they undertook to extend the meaning of words beyond their natural signification. .</p> <p>2. Same — Public Officer — Dereliction of Duty — Misconduct in Office. The matter complained of as libelous charged the plaintiff with dereliction of duty and misconduct as a public official.</p> <p>S. Same — Privileged Publication. The allegations of the petition are such that the privileged character of the published matter may not be inferred.</p> <p>4. Same — Change of Venue — Application Premature. The issues of fact not having been made up, an application for change of venue on the sole ground that the district judge -will necessarily be a material witness for the plaintiff was properly overruled as premature.</p>

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

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

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

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>'1. Replevin — Chattel-mortgaged Property • — Sold by Mortgagor ■ — Liability of Purchaser. The defendant having purchased and disposed of the wheat in controversy from the mortgagor while the instrument was on record, he may be required by the mortgagee to answer for the value of such wheat.</p> <p>2. Same — Tender of Check — Not Tender of Payment. An offer by the mortgagor to the plaintiff of the check of the purchaser made to such mortgagor was not a tender of payment of the mortgage debt.</p> <p>3. Same. Such offer being the only evidence to show tender, it was error to charge that if the jury found an offer of actual payment the defendant would be entitled to recover.</p> <p>4. Same — Wheat—Measure of Damages. In such action, brought a long time after the purchase and disposal of the wheat by the defendant, its value when so purchased- is the proper basis for the measure of damages.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>I. Automobile — Injuries While Operated by Other than Owner — Owner’s Liability. An owner of an automobile is not liable for injuries caused in its operation by others, unless such others were servants or' agfents of the owner and acting in furtherance of his business.</p> <p>2. Same. Nor is he liable for injuries negligently caused by persons to whom he ioaned the automobile to be used for their own purposes, where it was not being used at the time of the ’injury under his direction or control or in any way connected with his business.</p> <p>3. Same — Auto Operated by Owner’s Minor Son — Owner’s Liability. The mere fact that the son of the owner accepted an iiivitation from the borrowers of an automobile to accompany them on a trip, and did so.on his own initiative, operated the machine a part of the time, and was operating it when the injury was caused, does not render the owner liable for injuries negligently caused on the trip.</p> <p>4. Same — Negligence—Injuries—Proof of Ownership Alone Not a Prima Facie Case Against Owner. A prima facie case was not made out by plaintiff when he showed that the defendant was the owner of the automobile which caused the injury, where the evidence offered by him in the same connection showed that at the time of the injury the automobile was being used in the business of the borrowers and not that of the owner, and that those operating the machine were not in any way under the direction or control of the owner.</p> <p>5. Same. To recover against the owner it devolved upon the plaintiff to show that the persons in charge of the machine were in some sense the servants or agents of the owner and that they were engaged in the owner’s business.</p> <p>6. Same — Lending Car with Defective Muffler — Owner’s Liability. Under the circumstances shown, the owner is not liable for injuries inflicted by the persons in charge of the automobile because at the time he loaned the machine it had a broken muffler and was noisy in operation.</p> <p>7. Same — New Trial — When Duty of Court to Grcmt. If a trial court ' can not approve the verdict of a jury it is its duty to set it aside, and an order granting a new trial herein without indicating the grounds of the ruling, where two of six grounds of the motion for a new trial were that the verdict was contrary to the evidence and the result of passion and prejudice of the jury, should not be reversed on this appeal. ,</p>

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

<p>OPINION DENYING A REHEARING.</p> <p>SYLLABUS BY THE COURT.</p> <p>Exchange op Property — False Representations■ — When Noxtiee to Agent is Binding on Principal. Notice to an agent, to be notice to the principal, must be of some matter connected with the business in which the agent is engaged for the principal. (Roach v. Karr, 18 Kan. 529, followed.)</p>

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

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

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

<p>Appeal from Shawnee district court, division No. 2; George H. Whitcomb, judge.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Check — Forged Indorsement by Agent — Liability of Bank. The plaintiff’s agent having in his possession a check payable to the order of the plaintiff, indorsed the plaintiff’s name on the- back of the check without authority, presented the check to the defendant bank, and was given credit for it on his account. The defendant collected the check of the bank on which it was drawn. The agent subsequently exhausted his deposit with the defendant and did not account to the plaintiff for the . check. Held, the defendant is liable to the plaintiff for the proceeds of the check.</p> <p>2. Same — Evidence—Good against Demurrer. The evidence, including the facts stated, examined, and held to be sufficient in other respects to warrant recovery by the plaintiff.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Attachment — Forthcoming Bond — Amount Left Blank — Reformation of Bond. A sheriff returned a writ of attachment with a forthcoming bond in which the space for the statement of the amount of liability was left blank. The plaintiff moved for an order permitting the amount to be inserted. The signers were served with notice and resisted the motion. Evidence was taken showing that the omission was á mere oversight. Held, that the bondsmen aré not entitled to a reversal because of the informality of the proceedings.</p> <p>2. Same — Forthcoming Bond — Liability of Signers. The bond above referred to, without being otherwise reformed, was interpreted as making the signers liable for the payment of a personal judgment against the defendant. Held, that the ruling was erroneous.</p> <p>3. Same — Forthcoming Bond — Does Not Dissolve Attachment. The giving of a forthcoming bond does not have the effect of dissolving an attachment.</p> <p>4. Same — Forthcoming Bond — Rights of Signers — Estoppel. The signers of a forthcoming bond in attachment, in virtue of which the defendant retains possession of the property, are precluded from questioning the fact that a levy was made.</p> <p>5. Same — Order of Attachment — Amendment to Sheriff’s Return. The sheriff’s return to an order of attachment showed that the property had been levied upon, and had been returned to the defendant upon the giving of a forthcoming bond, but omitted to describe the property. Held, that an amendment should have been allowed for that purpose.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Building and Loan Association — Note and Mortgage of Borrowing Stockholder — Oivnership. A borrowing member of a building and loan association procured through the association a loan secured by mortgage on real estate and an assignment of her shares of stock. The note and mortgage were made payable to an individual, who was at that time secretary of the association, and the shares of stock were assigned to him. Held, there was sufficient evidence in this case to support,a finding that at the time the action was commenced the original payee named in the note and mortgage had no interest therein and that it belonged to an association which had taken over the assets and business of the original association.</p> <p>2. Building and Loan Association — Transfer of Assets — Liability of Absorbing Company to Stockholders of Former Association. Where a building and loan association transfers all its assets to another association, with the approval of the state bank commissioner, the absorbing association or company becomes liable under section 2230 of the General Statutes of 1915 for all obligations to stockholders of the former association existing at the time of such consolidation; and where it notifies the borrowing shareholders of the former company that they may continue to make their payments to it upon their loans and stock, no written acceptance is required on the part of a borrowing shareholder, and the payment to and acceptance by the absorbing company of payments will constitute an acceptance.</p> <p>3. Same — Transfer of Assets — Obligations Assumed by Transferee — Evidence. In this case it is held there was no error in admitting in evidence the written propositions relative to the transfer of the assets of the one company to the other, including the. correspondence accompanying the same and circular letters sent out to the shareholders of the original company.</p> <p>4. Same. Certain language in the circular letters sent out to shareholders of the old company is construed not to mean that the absorbing company agreed to pay six per cent interest per annum upon all subsequent monthly payments made by borrowing shareholders of the old company.</p>

<p>OPINION DENYING A REHEARING.</p> <p>Appeal from Ellis district court; Jacob C'. Ruppenthal, judge.</p>

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

<p>Appeal from Wyandotte district court, division No1. 3; William H. McCamish, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Compensation Act — Personal Injuries — Failure to Procure Proper Medical Attention — Evidence. In an action under the workmen’s compensation act, the defense relied upoji was that plaintiff’s injuries were the result of his own negligence in failing to procure proper medical attention. Held, that there was no substantial basis in the evidence for this claim, and further, that the instructions upon this issue were ■ not prejudicial to the defendant.</p>

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

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

<p>Appeal from Shawnee district court, division No. 2; Geokge H. Whitcomb, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Maintaining Gambling Resort — Insufficient Evidence to Convict. Evidence examined and held insufficient to sustain a conviction under section 295 of the crimes act (Gen. Stat. 1915, §3622), charging defendant with keeping and maintaining a gambling resort.</p>

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

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

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

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Damages — Claim Against City — No Statement Filed Within Four-Months — Action Barred. An action against a city of the first class for damages for obstructing a property owner’s ingress and egress can not be maintained without first filing the statement required by section. 1460 of the General Statutes of 1.015.</p> <p>2. Same — Obstructing Ingress to City Lots — Action Barred by Statute of Limitations. When the street, by means of which a property owner has ingress to and-egress from his property, is by ordinance vacated for the benefit of railroad companies for the purpose of constructing thereon an elevated structure for railroad tracks to a union station, and such ordinance has been accepted by the beneficiaries, and the work of construction begun, and the city has put up a sign “Street Closed, Ordinance No. 4066,” held that a cause of action has accrued for the permanent appropriation of such means of ingress and egress and the two-year statute of -limitations has begun to run.</p>

<p>SYLLABUS by'THE COURT.</p> <p>1. Cities — Classification by Population — Poll Tax. Although it has been determined that the legislature may exempt residents of cities of the first class from a poll tax for road purposes to which other citizens of the state are subject, it does not follow that a similar distinction may be made between cities having- more than 80,000 inhabitants, and other cities governed by the same laws and differing from them only in having less than that population.</p> <p>2. Poll Tax — Construction of Statute of 1917• — Residents of Cities of First Class' — Not Liable to Poll Tax. Where a section of the statute is reenacted as an incident to its amendment in certain particulars the portions thereof which remain unchanged are to be given the same intérpretation they had previously received, excepting as a different meaning is indicated by the changes made.</p> <p>S. Same. Although the decision of this court that the poll-tax law of 1911 did not apply to cities of the first class was to some extent influenced by language used in another statute enacted at the same session, the repeal of such other statute did not change the interpretation of the poll-tax law in that regard.</p> <p>4. Same. The amendments made in 1917 to- the section imposing a poll tax for road purposes do not show a purpose to make any change in the classes of persons who are liable to such tax, and therefore the amended section is to be regarded as having no application to residents of cities of the first class, that construction having already been placed upon the section as it existed prior to that time.</p> <p>5. Same. In that situation the addition of a proviso declaring that the act shall not apply to cities having a population of over 80,000, being , essentially negative in its character, can not be regarded as having the afiirmative effect of making a change in the class of persons liable for the tax.</p>