Volume 102 — Kansas Reports

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

<p>Appeal from McPherson district court; Roswell L. King, judge pro tem.</p>

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

<p>SYLLABÚS BY THE COURT.</p> <p>1. Trial — Motion for Continuance — Absent Witness — Judicial Discretion. No abuse of discretion is shown in refusing the application of a corporation defendant for a continuance in order to procure the attendance of its president, who had absented himself with knowledge that the case had been set for trial.</p> <p>2. Lease — Landlord’s Promise to Repair. Where a ■written lease provides that repairs are to be made by the tenant, the landlord’s subsequent promise to make them is not enforceable, unless supported by a new consideration.</p> <p>3. Same — No Implied Obligation to Make Repairs. The landlord is not under any implied obligation to make repairs.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Note and Mortgage — Relationship of Parties — Presumptions of Fraud. Failure of consideration and fraudulent purpose in the giving of a note and chattel mortgage will not be presumed because of the relationship of the parties.</p>

<p>Appeal from Wyandotte district court, division No. 3; William H. McCamish, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Damages — Obstructing Access to City Property — Instructions'—Findings. In an action for damages for the obstruction of access to property based on but one ground, it was error to permit proof of another ground and to give instructions and submit findings pertaining thereto, but as the jury separated the amounts allowed on account of each, the error was rendered practically harmless as that part of the judgment might have been eliminated.</p> <p>2. Same — Elements of Damages — Instructions. Damages were permitted to be proved on the basis of the plaintiff’s right to occupy a part of a certain street, but this proof was eliminated by an instruction given and the error, if any, was thereby neutralized.</p> <p>8. Same — Special Questions — No Error in Submission. Certain special questions, which the defendants assert were not within the range of the testimony, were submitted, but having been answered in accordance with inferences fairly to be drawn from physical facts shown by the record no error in their submission is disclosed.</p> <p>4. Same — Joint Liability of Defendants. The finding that one of the defendants rearranged certain railroad tracks, thereby obstructing travel in the street, did not relieve the other defendant from responsibility therefor in view of another finding to the effect that such rearrangement was a part of the general enterprise in which they were both engaged.</p> <p>5. Same — Inconsistent and Contradictory Findings. The jury expressly found that a certain depression in one street rendered the passage of teams and vehicles thence into another street impossible, and by another finding stated with equal perspicuity that notwithstanding such depression it would have been practicable for teams, wagons and other vehicles to pass from the one street into the other. Held, that such inconsistent and contradictory findings cannot be permitted to stand.</p> <p>6. Same — Cause of Damages as Alleged Not Proven. It appearing from the entire record and from the testimony of the plaintiff himself that the cement wall complained of as a barricade did not have the effect to increase the obstruction to travel, it is held that the plaintiff cannot recover on account of the erection of such wall.</p> <p>7. Same. From the location of different avenues of approach shown by the record and from the space in the street occupied by the plaintiff with a platform or a loading dock in front of his own buildings, it is held that he is not shown to have been damaged by the rearrangement of railroad tracks complained of.</p> <p>8. Same — Claim against City — Not Filed in Statutory Time. The claim for damages not having been filed with the city clerk in the time required by the statute, the judgment in favor of the city must for this reason, regardless of others, be affirmed.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Evidence — Affidavits—Notice of Their Intended Use on Trial — Service on Nonresident. Under section 350 of the civil code, which authorizes the use of affidavits as evidence under certain limitations, andi provides that copies of such affidavits must be served upon the adverse party or his .attorney at least ten days before the trial, service of copies of affidavits is sufficiently made when they are delivered to the adverse litigant 'personally, at his principal place of business, even although that may be outside the state.</p> <p>2. Deeds — Deposited in Escrow — Rescission of Contract — Fraud—No Title Passes. When deeds to real estate are deposited in escrow, to be delivered to the grantee upon completion of. payment therefor, the title to the property does not pass unless full payment is made; and where the grantee has a good defense to an action for the balance due on the purchase price, based on the fraud and misrepresentation of the grantor, and rescinds the contract of purchase, no formal offer to reconvey the property is required.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Negligence — Action Dismissed — New Action Begun — New Causes of Action — Statute of Limitations. A plaintiff whose action is disposed of otherwise than on the- merits cannot in a new action brought within a year engraft causes that are barred upon causes pleaded in the first action that are not barred.</p> <p>2. Same. Herein it is held that the cause of action stated in the second action is substantially the same as that pleaded in the first.</p> <p>3. Same — Findings Contrary to Evidence — New Trial. A verdict of the jury must be'set aside where special findings material to its support are determined by the court to be contrary to the evidence.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Electricity — Uninsulated Wires — Contact with Boy — Death—Negligence for Jury. Following Snyder v. Light Co., 98 Kan. 157, 157 Pac. 442, it is held that where a company transmits high-voltage electricity along the streets of a city by wires on which insulation is not maintained, the question whether it ought to anticipate that loose wires, or other articles capable of serving as a. conductor, might come in contact with its lines, so as to endanger persons on the street or sidewalk, is a question of fact to be determined by the court or jury trying the case ' in which it arises.</p> <p>2. Same — Duty of Company to Anticipate Danger — Instruction. An instruction which taken alone might seem to indicate that as a matter of law the company was bound to such anticipation held not to have been prejudicial because of other explicit instructions covering the matter.</p> <p>8. Same — Evidence—Finding. A finding of fact held to have been supported by the evidence.</p> <p>4. Same — Finding Not Supported by Evidence. A finding to the effect that a loose wire had been in contact with the wires of an electric-light company so long that it ought to have discovered it before the occur- ■ rence of an accident, held not to have been supported by the evidence, but to have been non prejudicial.</p> <p>5. Same — Finding of Negligence Construed. A finding that the company’s wires would not have injured any one using the streets in an ordinary way, or in a way reasonably to have been foreseen, held not to mean that the throwing of a loose wire across them could not have been anticipated by the exercise of ordinary caution.</p>

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

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

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Lease op Hotel — One-year Period — Nonpayment of Rent — Termination of Lease — Notice. Under the statute, to terminate a lease of property for a period of one year on account of the nonpayment of rent, a ten-days notice in writing to quit must he given to the tenant, and such a notice will not terminate the tenancy if the rent is paid before the expiration of the ten days.</p> <p>2. Same — Covenant Not to Underlet — Oral Consent of Landlord ■ — ■ Waiver. Where a hotel is leased with the condition that the premises shall not be underlet without the writtén consent of the landlord, and the tenant temporarily rents a room of the hotel to a printer in which to set up a small printing outfit, without obtaining* such written consent, and before it is done the landlord informs the printer that he has no objection to the use of the room for that purpose, he thereby waives the right to terminate the lease because of the underletting of the room, if that be a ground of forfeiture.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Criminal Prosecutions — In Control of County Attorney. While the • ' county attorney' is not required to take part in a preliminary examina- • tion in a felony case unless requested to do so by the magistrate, . if he does appear he is entitled to have full charge of the prosecution, and the case should be dismissed if he so directs.</p> <p>2., Same — County Attorney May Dismiss Action. Where a justice of the peace sitting as an examining magistrate refuses to dismiss a criminal prosecution on the motion of the county attorney, the district court, by ' -an order in the nature of a writ of prohibition, may compel such action.</p> <p>3. Same — Refusal of Justice to Dismiss Action — Writ of Prohibition. Where a county attorney asks the dismissal of a criminal case pending before a justice of the peace, and his request is denied, no further challenge of the right of the justice to proceed therein is necessary to give a basis for asking relief by prohibition.</p> <p>-4. Same — Transcript—Recitals of Justice’s Docket — Jurisdiction of District Court. A transcript of the docket of a justice of the peace, which .recites that after a preliminary examination a defendant was required to give bail for his appearance in the district court to answer -the charge against him, is sufficient (together with the recognizance : given by the defendant) to confer jurisdiction on the district court, ¡although it omits a recital that it was found that an offense had been committed and that there was probable cause to believe the defendant guilty.</p> <p>5. SAME’ — Unwarranted Prosecutions — Injunction. Injunction against the maintenance of vexatious and unwarranted criminal prosecutions may be allowed against individuals even where no property rights are threatened.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Hail Insurance — Oral Contract of Agent — Premium Retained by Company — Contract Valid — Estoppel. In an action on an alleged oral contract for insurance, it is held, on the facts stated in the opinion, that the insurance company by retaining control and exercising ownership over the premium paid to its local agent is estopped to deny that it contracted to insure plaintiff’s wheat crop against loss by hail, notwithstanding its local agent had no authority to make án oral contract for insurance.</p> <p>2. Same — Amount of Loss — Incompetent Evidence Admitted. Evidence of the amounts paid by the defendant to other persons in settlement of losses to wheat crops occasioned by the same storm is held, in the circumstances stated in the opinion, incompetent; and because of the failure of plaintiff to establish by competent evidence the amount of his loss, the judgment is reversed and the cause remanded for trial of that issue.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Insurance — Loss—Inconsistent Special Findings — Evidence—New Trial. The court refused to order judgment for defendants upon the evidence or upon the special findings of the jury, but granted a new trial be cause the verdict returned by the jury was not supported by the evidence and because the special findings were inconsistent with each other and with the general verdict. Held, not error.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Exchange op Property — Relief on the Ground of Fraud — Evidence. In an action for relief on the ground of fraud, the evidence held to have been sufficient to warrant submitting to the jury the matter on which the verdict was based.. Í</p> <p>2. Same — Motion to Separately State Causes of Action — Judicial Discretion. The overruling of a motion to require different causes of action to be separately stated and numbered, being a matter of discretion, is ordinarily not subject to review.</p> <p>3. Same — Demurrer to• Petition — Misjoinder of Parties. Where a demurrer to a petition on the ground of misjoinder is based upon the claim that one of the defendants is not affected by one of the causes of action, the sustaining of a demurrer to the evidence as' to that defendant prevents the overruling of the demurrer on that ground from being • material on appeal.</p> <p>4. Same — Motion to Strike Matter from Petition. The overruling of a motion to strike matter from a petition held not to have been prejudicial.</p> <p>5. Same — Evidence. Rulings admitting evidence held not to have been erroneous.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Reference' — Findings^of Referee Confirmed — Findings of Fact Conclusive. Where a defendant files a motion asking the court to approve and confirm the findings of fact made by a referee, and to set aside the referee’s conclusions of law, and the court confirms and ap- ; proves both the findings of fact and conclusions of law, the defendant •cannot question the correctness of the findings of fact.</p> <p>2. School Warrants — Drawn on Empty Treasury — Warrants Became Floating Debt. The fact that at the time a school warrant is issued there are no funds in the hands of the treasurer with which to pay it, does not render the warrant illegal or void. When the warrant is presented for payment, it becomes the duty of the treasurer to indorse it “Not paid for want of funds,” and it then becomes a floating debt of the district.</p> <p>3. Same — Action on Warrants — Pleadings—Departure. Where the answer of a school district to an action upon school warrants pleads that the warrants were unlawfully issued and are without consideration and void, a reply which alleges that the defendant received and used the property and services for which the warrants were issued, that the acts of its officers in issuing the warrants were ratified by the electors' of the district, and that defendant is estopped to question the validity of the warrants, does not set up a new cause of action nor constitute a departure.</p> <p>4. Same — Assignment—Rights of Assignee. By the assignment of a school warrant the assignee becomes the owner of whatever claim the original holder had against the district for the indebtedness evidenced by the warrant.</p> <p>5., Same — Amount of Judgment. In an action on a school warrant which has been issued for a sum in excess of the amount due the creditor, but which is otherwise legally issued, the court may properly give judgment for the amount actually due on the indebtedness evidenced by the warrant.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Construction op Will — Life Estate — Remainder to Children. The former opinion (Postlethwaite v. Edson, 98 Kan. 444, 155 Pac. 802) remains as the deliberate holding of this court.</p> <p>2. Same — Judgment against Testator — Homestead — Land Subject to Payment of Testator’s Debts. A husband and wife mutually willed their property, including a homestead, to their survivor for life with power of disposal, remainder to their children. It was occupied by the devisors, and by the surviving wife until her decease, the children then having homes elsewhere and not occupying the land devised. A judgment obtained against the father was kept alive as to his estate by revivor against his administratrix. Held, that the children took the land freed from its homestead character, and it could by this suit be subjected to the payment of the judgment.</p> <p>3. Same. The homestead character of real estate depends on family occupancy — not on the source of title.</p> <p>4. Same — Judgment Lien — Interest of Judgment Debtor in Land. Only ' the interest of the judgment debtor could be appropriated, and it was error to sustain a demurrer to that part of the amended answer setting up that the homestead was acquired by the joint efforts and money of the husband and wife, and held by them as tenants in common.</p> <p>5. Same — Unambiguous Will — How Construed. The will not being ambiguous the trial court correctly refused evidence explanatory of the devisor’s intentions, and properly struck from the answer allegations of what such intentions were.</p> <p>6. Will — Not Alienation of Homestead. The will was not an alienation or conveyance of the homestead.</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>Appeal from Trego district court; Jacob C. Ruppenthal, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Fraternal Insurance — Suspension—Reinstatement—Acceptance of Back Dues — Evidence of Custom. In an action upon a fraternal benefit certificate where the defense was that the assured had been suspended for nonpayment of dues and had not been legally reinstated at the time of her death, it is held, it was not error to admit evidence of a custom of the local officers of the defendant to accept dues and assessments from members who were delinquent and to reinstate them.</p> <p>2. Same — Financier of Local Lodge — Agent of Insurer — Void By-law. Instructions are approved which charged that the acts of the officers of the local lodge, although unauthorized in the first instance, if ratified with the knowledge of the superior officers having authority, amount to a waiver of any right or forfeiture then existing in favor of the society and against the member; that notice given to the officers qf the local lodge is notice to the national council; that in receiving payments of dues and assessments the local financier was, in fact and in law, an agent of the defendant and not of the member, and that a by-law making the financier of the subordinate lodge the agent of the members, is void.</p> <p>3. Same — Payment of Back Dues — Warranty of Good Health — Instruction. By reason of a special finding that at the time she was reinstated the member was not in bad health, it is held, that an instruction respecting the provision of the by-laws that payment of back dues and assessments constitute a warranty that the member’s health is good, could not have prejudiced the defendant and became immaterial.</p> <p>4. Same — Effect of Acceptance and Retention of Dues after Suspension. After accepting from the beneficiary the dues and assessments for the months of December and January, and retaining them until after the death of the assured, it was too late for the defendant to question the authority of the beneficiary to make the payments.</p> <p>5. Same — Verdict—Judgment—Interest. Where the jury return a verdict in plaintiff’s favor for the amount of a benefit certificate with interest at six per cent, and the court without having the verdict corrected, renders judgment for the amount with six per cent from the date of the assured’s death, held, there was no error or irregularity of which the defendant can complain.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Mandamus — To Compel Employment of Additional Teacher — Writ De- ■ nied. A writ of mandamus will not issue to compel the board of education of a city of the second class to employ an additional teacher in any particular school in the city.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Oil and Gas Company. — Lease—Forfeiture—Garnishment of Assets— Rights of Creditors. An oil and gas company obtained leases, purchased a rig, tools and appliances, and began the drilling of a well on the land of a lessor. In the lease was a clause that upon a failure of the lessee to drill or complete a well in a certain time or make certain payments the lessor could declare a forfeiture after ten days’ notice. Before the well was completed the lessee became insolvent, allowed its leases to lapse, left its rig, tools and appliances on the farm of the lessor, and abandoned the enterprise. Persons who performed labor for the company obtained judgments against it and procured the service of a garnishee summons upon the lessor on whose land the rig, tools and appliances of the company were left. In a controversy between creditors it is held, that although the lessor had not declared a forfeiture of the lease, he is to be regarded as in possession and control of the property left on his farm, for the purpose of garnishment, and that he was a proper garnishee in the actions brought by the laborers.</p> <p>2. Same — Lease — Abandonment — Notice of Forfeiture Unnecessary. Since the lease had been allowed to lapse and the lessee had abandoned the enterprise and is not claiming any right under the lease, a formal forfeiture by the lessor after giving notice -was not necessary to his liability as a garnishee in the actions brought by creditors of the company.</p>

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

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Oil Repinery — Escaping Oil and Poisonous Substances — Material Injury to Another — Nuisance. If the ownex of a xefinery permits oil, refuse and poisonous substances in large quantities to escape from the refinery and flow over and upon the land of his neighbor, causing material injury to the neighbor, the use of the refinery will be deemed to be unreasonable and to constitute a nuisance.</p> <p>2. Same — Conducting Lawful Business — Liability for Damages to Adjoining Property. The fact that the business of the refinery is in itself a lawful one, and that the owner of it operates it carefully, will not exempt him from liability for casting oil, refuse and poisonous substances on the land of the plaintiff in such quantities as to cause him substantial injury.</p> <p>3. Same — Injury to Adjoining Property — Measure of Damages. The liability of the defendant in such a case is measured by the rules in relation to a nuisance instead of those governing cases of negligence.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Attorney’s Lien — Application for Allowance — Affidavits as Evidence. An application for the distribution of a fund against which several attorneys’ liens are claimed is a motion, and the code permits the use of affidavits at the hearing thereof.</p> <p>2. Same — Evidence—Affidavits—Cross-examination of Affiants. An attorney whose claim of lien is denied at such a hearing, because the court is convinced from his own. testimony that he has performed no services entitling him thereto, has no standing to complain of the refusal to allow him to cross-examine the makers of affidavits used in behalf of other claimants.</p>

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

<p>Original proceeding of ouster.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Sale op Jack — Breach of Warranty — Petition State's Cause of Action. Ordinarily, a petition which narrates several distinct breaches of a valid contract states a cause of action with sufficient precision against the party who -breached the contract, although the prayer may be. for alternative relief, and a cause of action so pleaded is good against a demurrer.</p> <p>2. Same — Breach of Warranty — Petition — Prayer for Relief. The prayer of a petition is merely the pleader’s idea of the relief to which he is entitled; it is not a part of the statement of the cause of action; and if the cause.of action is sufficiently stated and sufficiently proved, the court will adjudge and decree the proper legal redress, which may or may not conform in whole or in part to the relief prayed for by the pleader. •</p> <p>3. Same — Breach of Warranty — Burden of Proof. Where a vendor sells a chattel to a vendee upon a warranty that the chattel will measure up to a certain standard- of usefulness, and agrees to accept a return of the chattel if it fails in the matters covered by the warranty, and where the facts touching the alleged failure under the warranty are within the knowledge of the vendee, or readily ascertainable by him, and not within the knowledge of" the vendor, nor readily accessible to him, it is proper for the court to impose on the vendee the burden of showing that the chattel did not measure up to the warranty.</p> <p>4. Same — No Prejudicial Error in Record. Errors assigned on instruct tions, incompetency of evidence, and its insufficiency to sustain a verdict, examined, and not sustained.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Note — Conditional Promise to Pay — Condition Impossible of Performance — Liability. Whenever subsequent impossibility of meeting the conditions of a contract might readily have been foreseen by the party obligated to perform, he will not be excused from performance on the ground of impossibility.</p> <p>2. Same. The maker of a note for the debt of another executed it on condition that he was to pay the portion of the debt which a sale of chattel security lacked of paying, and was to be responsible for that difference only. After default of the principal debtor the creditor discovered that the chattel mortgage was void, and that no sale could be made under it, because the property was’ exempt and the mortgagor’s wife had not joined in executing the instrument. No sale was attempted, and the creditor undertook to recover on the note. Held, the principle stated in paragraph 1 applies, and the maker is not liable because the condition of his liability has not been performed.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Compensation Act — Assignment of Judgment. The question whether an injured workman may assign a judgment under the workmen’s compensation act to a trustee for the benefit of his children, considered but not determined.</p> <p>2. Same — Lump Sum Judgment — Death of Employee — Revivor of Judgment. A lump sum judgment in favor of an injured workman under the workmen’s compensation act, although the statute forbids its assignment, does not abate by his death, but may be revived in the name of an administrator.</p> <p>3. Same — Injury Occurred on Premises of Employer. The evidence in an action under the compensation statute held to support a finding that the plaintiff was injured on the premises where he was employed, by having to wade through flood water which had overflowed the defendant’s car works; an old wound on his foot being thereby infected, requiring an amputation.</p> <p>4. Same — Injury “By Accident.” Such an injury is one “by accident,” within the meaning of the phrase as used in the statute.</p> <p>5. Same — Injury Arose “In Course of Employment.” Such an injury is one arising out of and in the course of the plaintiff’s employment, within the meaning of the statute.</p> <p>6. Same — Hypothetical Question. Objections to the form of a hypothetical question held not to justify a reversal.</p> <p>7. Same — Petition for New Trial — Proceeding on Appeal. ‘ The situation held not to require a withholding of the determination of the case by this court to give opportunity for a hearing on a petition for a new trial.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Negligence — Street-oar Track — Buggy Overturned — Death—Trial— Findings. In an action for damages for the death of the driver of a horse, occasioned by negligence of a city in the care of its streets and negligence of a street-car company in the operation of a car, the jury returned special findings to the effect that the horse was in the habit of taking fright at street cars, and in the habit of bolting, that the deceased was aware of the habit, and that he had been cautioned about . it by acquaintances, but that the horse was reasonably safe for use for driving where likely to meet street cars. Held, the findings were not inconsistent with each other nor with the verdict for the plaintiff in the action, when considered in the light of the purpose of the special interrogatories and the evidence bearing on the subject.</p> <p>2: Same — No Prejudicial Error in Record. Various assignments of error considered, and held to be without substantial merit.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Patents — Use of Patented Invention — Infringement—Jurisdiction of State Courts — Pleadings. An action by the owner of a patent to recover upon an implied contract of defendant to pay him the reasonable value of the use, with the plaintiff’s knowledge and consent, of the patent invention, is not an action for the infringement of the patent, and the state courts have jurisdiction, notwithstanding the answer • pleads the invalidity of the patent as one of the defenses.</p> <p>2. Jurisdiction — Amount Involved. The district court having jurisdiction of the cause, and the amount being for less than $100, the appeal is dismissed.</p>

<p>syllabus by the court.</p> <p>1. Contracts — Written Contract — Contemporaneous Verbal Contract— Verbal Contract Disregarded. To the petition to recover on a written contract for the payment of money the answer set up an additional written contract made at the same time, and also a verbal contract varying the terms of the written instruments. Held, that under the primer and horn-book rule such oral agreement was properly disregarded.</p> <p>2. Same — Petition — ■ Answer — Judgment on Pleadings Improper. The petition alleged ownership by the plaintiffs of a certain lease, a part of the consideration for the written instrument sued on. The. answer pleaded failure of consideration, and contained a general denial. Held, that it was error to render judgment for plaintiffs on the pleadings.</p> <p>3. Same — Motion to Make Definúe — Properly Overruled. The motion to make the petition more definite and certain was properly overruled.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Chattel Mortgage — Possession by Mortgagee — Conditional Sale by Mortgagee — Not Determinative of Value of Property. Where a mortgagee takes charge of mortgaged chattel property on the default of the mortgagor and endeavors to sell it, but only succeeds in making a conditional and abortive sale, the price fixed in the conditional and abortive sale is not necessarily a fair and reasonable basis for determining the true value of the property.</p> <p>2. Same — Invalid Sale by Mortgagee — Conversion of Property. Where a mortgagee takes charge of chattel property, owing to the default of his debtor, the mortgagor, it is the privilege of the mortgagee under the expressed terms of the mortgage to sell the mortgaged property outright, but the mortgagee has not the right to make a conditional sale of the property; it is technically a conversion of the property to make such conditional sale of it, and the mortgagee is liable to the mortgagor for the fair and reasonable .value of the property at the time of such conversion.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Note and Mortgage — Deed—Merger of Title in Mortgagee• — Note Canceled — Mortgage Lien Kept Alive. For the purpose of accom- . plishing an equitable result, a mortgage lien may be kept alive and enforced after the lien claimant has placed himself in a position which precludes him from resorting to the personal obligation of the mortgagor, or of any one else, for satisfaction of the debt.</p> <p>2. Same. The holder of a mortgage on real estate took a quitclaim deed of the premises, in lieu of his mortgage. The deed was made by a grantee of the mortgagor, who .had not assumed payment of the debt. The mortgagee took possession -under the deed, canceled the mortgagor’s note, and surrendered it. The debt was not satisfied by any one, and the mortgage was not released. The mortgagee then discovered that the maker of the quitclaim deed had given a mortgage on the premises. This mortgage recited that it was subject to the other. The holder of the second mortgage sought to foreclose it as a first lien. Held, the principle stated in paragraph 1 applies, and the junior mortgagee’s position was not bettered because the first mortgagee canceled and surrendered the note secured by his mortgage.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Written Instrument — Purporting to Transfer Real Estate — Testamentary in character. An instrument which described itself as a “will testament,” by which the signer undertook to “will” a part of his .property to his sons, and the remainder at his death to his widow, who was named as administratrix, no word being used appropriate to a present grant, held to have been wholly testamentary in character, although acknowledged and recorded and not witnessed.</p> <p>2. Trial — Stipulation—Judgment on Pleadings and Stipulation — Error. When a cause was called for trial the parties filed a stipulation that certain statements were facts in the case, a right to introduce further evidence being expressly reserved. The plaintiffs then moved for judgment in their favor on the pleadings and findings. Held, that such a motion could only be rightfully sustained if the answer failed to state a defense, or if it or the agreed statement of facts contained something fatal to the defendant’s recovery. For the purpose of such motion the allegations of the answer, unless contradicted by the agreed statement, must be assumed to be true, although not referred to in the stipulation. „</p> <p>3. Written Instrument — Pleadings—Issues—Title—Gifts. The answer, although characterizing as a deed the instrument described in the foregoing paragraph number one, and relying on it as conveying title to the land therein referred to, held to have presented also the issue of the passing of title by an oral gift, followed by possession and lasting and valuable improvements.</p>

<p>SYLLABUS BY THE COURT.</p> <p>City Court — Illegally Established — Judgment—Jurisdiction of District Court on Appeal. The case was taken by appeal from the city court to the district court, where both parties without objection filed amended pleadings and the case was tried, resulting in a judgment for the plaintiff. Subsequently the act creating the city court was declared unconstitutional and void. ('State, ex rel, v. Deming, 98 Kan. 420, 158 Pac. 34.) Held, that the district court having jurisdiction of the subject matter and of the parties, it was too late for defendant to question its jurisdiction either to entertain the appeal or to permit amendments to the pleadings.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Will — ¡Construction—Interest of Devisees. The will involved herein devised, the testatrix’s property to her husband for life and provided that at his death—</p> <p>“the property is to be sold and divided as follows: Among my Brothers & Sisters children and David R.-Neil and Andrew Neil, also Lulu Keith equally.”</p> <p>Held, that the three persons last named take equally with each of the nephews and nieces per capita.</p> <p>2. Same — Evidence—Statements of Testatrix. It was not error to exclude evidence of statements made by the testatrix to the scrivener, that she wanted each of the devisees to share equally with the others.</p>

<p>Appeal from Rawlins district court; W. S. Langmade, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Compensation Act — Injuries'—Voluntary Settlement — Written Release— Inadequate Compensation. The workmen’s compensation act (Laws 1911, ch. 218, and amendments, Gen. Stat. 1915, § 5896, et seq.) recognizes the legality of a voluntary settlement and release of a workman’s claim against his employer for injuries sustained in the service of the latter; and, in the absence of fraud or mutual mistake, the satisfaction and release of such a claim, pursuant to such voluntary settlement, cannot be set aside on the ground of gross inadequacy of compensation, following Odrowski v. Swift & Co., 99 Kan. 163,162 Pac. 268; Weathers v. Bridge Co., 99 Kan. 632, 162 Pac. 957.</p>

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

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

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

<p>Appeal from Lyon district court: William C. Harris, judge.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Automobile — Crossing Railroad — Trolley Car Violating Speed Ordinance — Negligence. A breach of a speed ordinance of a city by an interurban trolley car is negligence per se; but to subject the owner of the trolley car to liability for the violation of the city ordinance, in a damage suit by a private litigant, it must appear that the disobedience of the ordinance caused or aggravated the damages.</p> <p>2. Same — Railroad Crossing — Obstructions to View — Duty of Driver. It is not required in this state in all cases that one about to cross a railway track must stop, look and listen to assure himself that he can cross in safety; but where obstructions to his view prevent him from otherwise ascertaining the fact of safety, then it is his duty to stop to make sure of his safety before crossing.</p> <p>3. SAME. Rule followed that a driver of an automobile cannot recover, .damages for injury to himself and his machine in a collision with a trolley car occasioned by the driver’s attempt to cross a railway track without stopping to ascertain that he could cross in safety, when, owing to obstructions to his view, that fact could not have been otherwise ascertained.</p> <p>4. Same — Railroad Crossing — Obstructions to View — Failure to “Stop, Look and Listen” — Contributory Negligence. Plaintiff was driving his automobile along a public street and approached a railway crossing, but owing to obstructions to his view he could not ascertain whether there was any car coming on the railway track, and he did not stop to ascertain that fact. At fifteen feet from the track nothing prevented him from seeing an approaching car, but he did not see it until the front end of his automobile was eight feet from the track, and he was then unable to stop his automobile in time to prevent a collision. Held, that plaintiff was guilty of such contributory negligence as will bar a recovery of damages against the trolley-car company.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Oil and Gas Lease — Executed to One of Group of Buyers — Title for Benefit of All — Innocent Purchaser. Where an oil and gas lease is executed to a member of a group of buyers, who takes title for the benefit of. all, one who buys from the trustee with notice of the trust acquires "no beneficial title against the actual owners.</p> <p>2. Same — Oral Contract Concerning Land — Statute of Frauds — Estoppel. Where an oil and gas lease negotiated by several lessees is made to one of them for the benefit of all, he by agreement advancing the purchase price and drawing upon the others for their respective shares, the drafts being paid, their claims thereto cannot be defeated on the ground that the transaction amounts to an oral contract for the sale of an interest concerning lands.</p> <p>3. Same — Trust in Beal Estate — Created by Parol. Where without any fraudulent intent an oil and gas lease is executed to one of several purchasers, all of whom join in paying the consideration, under an agreement that he is to hold it for the benefit of all, neither the trustee, nor any purchaser from him with notice of his fiduciary capacity, can defeat the trust on the ground that it was not created or evidenced by writing, even assuming that a trust in relation to such lease is one concerning real estate.</p> <p>4. Same — Sale of Lease — Ratification—Estoppel. Where such a trustee makes a sale of the lease and receives the proceeds thereof, one of the beneficial owners who, with knowledge of the facts, elects to look to the trustee for his share of the purchase price, thereby ratifies the sale and precludes himself from claiming title to the lease as against the purchasers.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Quieting Title — Bond to Quiet Title — Demurrer to Evidence Properly Sustained. A testator who had purchased certain land, including the triangular piece in the northwest corner of a certain section north of a certain road, devised such land to his two sons, one to have the east half and the other the west half o'f the entire tract, as it was described in the deed. One of the brothers gave a bond in the sum of $1,500 to quiet in the plaintiff the title'to the triangular strip “containing 122 acres, more or less.” The testimony showed that the defendant Snodgrass brought a suit in his brother’s name against himself and another, resulting in findings to the effect that in the deed to the ancestor and in the will the strip in question was bounded on the south by the wrong road, leaving 46 acres between the two roads, and making 76.45 acres instead of 122 acres comprised in the triangular strip. Instead of a decree quieting title to the 76.45 acres, the obligor in the bond tendered to his brother, the plaintiff, a quitclaim deed, he having asserted a mineral lease covering the strip in question and other lands. The plaintiff testified that he was not certain of the number of acres, but he was to take whatever number there were for the consideration named in the bond. Held, that the court committed no materially prejudicial error in sustaining a demurrer to the plaintiff’s evidence.</p> <p>2. Same — Tender of Quitclaim Deed — Title Quieted. While the tender of the quitclaim deed was on condition that it be accepted in satisfaction of the bond, which condition had no proper place in such tender, still as the deed itself effected the quieting of the title in the plaintiff to all the land he could rightly claim, such wrongful condition is held not to have rendered the tender void.</p> <p>3. Same — Bond—Misdescription of Land — Reformation. While no reformation of the bond was sought or made in this action, defendants were not materially harmed or prejudiced by the fact that the trial court treated the instrument as if reformed, so that the description of the tract in question would correspond to the deed to, and the will by; the ancestor.</p> <p>4. Same — Evidence of Vahie of Certain Land Properly Rejected. As the testimony showed that the plaintiff is not entitled to the forty-six acres between the two roads, it was not error to reject evidence of its value or evidence of the value of the land deeded in consideration of the bond sued on.</p>

<p>SYÍLABUS by the court.</p> <p>1. Negligence — Railroad Crossing — Special Findings — Instructions. Where a jury has been properly instructed concerning negligence, and reasonable and ordinary care and diligence, the answers to special questions which depend for their^ interpretation on the definition of those terms, state facts and not conclusions of law.</p> <p>2. Automobile — Negligence of Driver- — No Imputed Negligence to Minor Son. The negligence of a father in driving an automobile across a ‘ railroad track, without stopping, looking, or listening, cannot be imputed to his ten-year-old son who is riding with him.</p> <p>S. Negligence — Railroad Crossing — Obstructions to View. Liability of a railway company for injuries to those riding in an automobile, sustained in a collision with a train at a highway crossing, may be founded on the company’s negligence in allowing weeds, grass, and brush to grow on its right of way; so as to obstruct the vision of those riding in the automobile while they are approaching the railway track.</p> <p>4. Negligence — Verdict — Findings Interpreted. The general verdict must stand where the answers to special questions, when properly interpreted so as to support that verdict, are consistent therewith and do not contradict each other.</p>

<p>SYLLABUS BY THE COURT. '</p> <p>Interstate Commerce — Injuries to Workman — Workmen’s Compensation Act Does Not Apply. The workmen’s compensation act does not extend to the case of a workman engaged in interstate commerce who, without his employer’s fault, is injured in the course of his employment — following New York Central R. R. Co. v. Winfield, 244 U. S. 147.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Malicious Assault — Damages—Instructions. The instructions given, none being requested by the defendant, sufficiently covered the issues between the parties and fairly stated the law.</p> <p>2. Same — Evidence—Findings—“Smart Money.” The findings, in accordance with the evidence of the plaintiff, convicted the defendant of such malicious and oppressive conduct as justly to render him liable to the imposition of smart money.</p> <p>3. Same — Actual Damages — Mental and Physical Suffering. The allowance of actual damages was properly based on physical and mental suffering caused by the defendant’s conduct, and not alone on nervous shock.</p> <p>4. Same — Injuries Result of Assault. While the plaintiff received from the defendant no wound or bruise, the result of his conduct was a miscarriage accompanied with very severe pain. Held, that such result cannot be classed as mental suffering.</p> <p>5. Same — Financial Condition of Defendant — Proper Subject of Inquiry. It was proper to inquire into the financial condition of the defendant to the end that the finding as to punitive damages might be intelligently made.</p>

<p>Appeal from Wyandotte district court, division No. 3; Al-. bert J. Herrod, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Application for Continuance — Bad Faith. Record examined, and held sufficient to justify the trial court’s decision that an application for a continuance on account of sickness of a litigant was not made in good faith; that the pretended sickness was only feigned; and that the purpose of the application was merely to hinder and delay the administration of justice.</p>

<p>SYLLABUS iBY THE COURT.</p> <p>Divorce — Decree—Property Rights Determined — Res Judicata. Following the rule stated in Roe v. Roe, 52 Kan. 724, 35 Pac. 808, it is held that a judgment in a divorce action, making a division of property and reciting that it was a final and full adjustment of all property rights and claims between the parties, is a bar to a recovery upon an allowance previously made by the probate court to the wife against the estate of the husband for expenses that were incurred and paid while the marriage relation existed and while she was guardian of his person and estate, and before the divorce was granted.</p>

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

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

<p>Original proceeding in quo warranto.</p>

<p>Original proceeding in habeas corpus.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Moving-picture Films — Decision of Board of Review — Review by the Courts. Under the act relating to motion-picture films (chapter 308 of the Laws of 1917) the Kansas state board of review is given full power and discretion to determine whether films and reels offered for its examination and decision are moral and proper for exhibition, and its determination is conclusive and not open to review or interference by the courts unless its action is fraudulent, arbitrary, or in excess of its authority.</p> <p>2. Same — Censorship by Board of Review — Redress of Aggrieved Party. The redress for an aggrieved party provided for in section 15 of the act is not a reexamination of the picture by the court nor the exercise of an administrative and non judicial power, but is such redress as a court may give.</p> <p>3. Same — Petition to Court for Review — No Cause of Action Stated. In the absence of allegations or proof that the board acted arbitrarily or dishonestly, it must be presumed that it acted in good faith and that its determination was an honest exercise of its best judgment.</p>

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. False Arrest — Pleadings—Damages—Necessary Allegations. In an action to recover damages for false arrest, where the petition alleges that by reason of the false arrest the plaintiff’s business greatly declined and was damaged in the sum of fl,000, it is not reversible error to require the plaintiff to set out' in his petition specifically and in detail how he was thus damaged.</p> <p>2. Same — Officer May Arrest Without a Warrant. An officer may arrest a person without a warrant where the officer has reasonable grounds to believe that a felony has been committed by the person arrested.</p> <p>3. False Arrest — Receiving Stolen Goods — Evidence of Other Similar Offenses. In an action to recover damages for false arrest, where the defendant seeks to justify the arrest by proving that the plaintiff had knowingly received feloniously stolen goods, evidence is admissible to prove that the plaintiff had on other occasions knowingly committed a similar offense.</p>

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

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

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

<p>Appeals from Sherman district court; Jacob C. Ruppen-THAL, judge pro tern.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Promissory Note. — Pleading—Onvission of Indorsement on Copy of Note —Amendment of Petition. In an action upon a promissory note, where it had been alleged that the note had been purchased and transferred to plaintiff-in due course, but the copy of the note set forth in the petition failed to show a written indorsement of the note, and where upon the trial evidence was received, without objection, of a transfer of the note by a written indorsement before maturity, and the case was tried by the parties as if the plaintiff was a holder in due course, the court, on objection to the sufficiency of the petition at the close of the evidence, should have allowed plaintiff to amend his petition to conform to the proof.</p>

<p>SYLABUS BY THE COURT.</p> <p>Reference — Findings of Referee — Tardy Motion for New Trial Denied— No Appeal Therefrom — Judgment. The judgment responds to findings of fact and conclusions of law stated by a referee. The findings of fact respond to the issues made by the pleadings, and the conclusions of law merely state the legal liability arising on the findings of fact. Grounds for a new trial were not presented to the district court in time, and no appeal was taken from the order overruling the motion for a new trial which was filed. Held, the judgment must be affirmed.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Negligence — •Substitution of Gasoline for Coal Oil — Fire in 'Cook Stove — Evidence. Whether or not the plaintiff was negligent in using what he supposed to be coal oil in starting a fire in his cook stove, was a question of fact properly submitted to the jury.</p> <p>2. Same — Agency of Oil Company — Sufficiently Established. The agency of the seller of the fluid from the wagon was sufficiently established by the evidence of the defendant company’s manager.</p> <p>3. Same — Proximate Cause of Injury. The substitution of gasoline for coal oil held to have been the proximate cause of the injury complained of.</p> <p>4. Same — Motion for New Trial — Properly Denied. The affidavit filed by the defendant Propes, even if available by the defendant company, was not sufficient to require the granting of a new trial, under the rule that such evidence must be such as would likely work a different result from that already reached by the jury.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Note and Mortgage — Foreclosure—Defense of Payment. The evidence abstracted has been examined, and it is held that there was sufficient evidence to sustain the judgment of the court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Negligence — Unguarded Excavations in City Street — Child Drowned. When a city street which is little used for travel, and in which the children of the adjacent residents, are accustomed to play, is torn up with excavations for laying a water main and lateral connections, and the excavations become filled with rain water, it is the duty of the city to exercise reasonable care to keep the children from going into the street to wade and play, and thus to prevent them from being drowned in such flooded excavations; and the question whether the city has exercised such reasonable care is ordinarily for the jury’s determination.</p> <p>2. Same. A three-year-old child was drowned in a flooded ditch in a street not much used for travel, but much used as a playground for children. The parents knew of the existence of the street excavations in front of their residence, and that the excavations were filled with rain water, and that their child was in danger of drowning therein, and diligently watched their child and tried to keep her off the street, but' during a few minutes when the attention of the parents was diverted to domestic duties, the child eluded their vigilance and rail out into the street to wade and play, and was drowned. Held, that in an action brought by the parents against the city for the wrongful death of the child, the question of the parents’ contributory negligence was one for the jury’s determination.</p> <p>3. Same — Judgment Not Excessive. A judgment for $3,500 against a city for the wrongful death of a three-year-old child is not excessive to such an extent as to warrant its reduction by an appellate court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Attorneys’ Lien — Enforcement—No Formal Pleadings Required. An. application to enforce a lien of attorneys upon the proceeds of a judgment obtained by their services may be made in the case wherein the judgment was rendered, without formal, pleadings, as is provided in section 485 of the General Statutes of 1915. ,</p> <p>2. Same — Neither Party Entitled to Jury. Being a special statutory proceeding of an equitable nature, neither party is entitled to a trial by jury as a matter of right.</p> <p>8. Same — Value of Legal Services — Hypothetical Questions. A party may not complain of a ruling on an objection to a hypothetical question as to the value of legal services, which was not made when the evidence was offered.</p> <p>4. Same — Value of Services — Expert Testimony — Personal Knowledge of Court. While the court should give due consideration to the opinions of experts and the evidence of other witnesses as to the value of legal services, it is not controlled by such evidence, as the court itself is an expert as to the value of attorneys’ services and may apply its own knowledge and professional experience in determining the value of the services rendered.</p> <p>5. Same — Elements Entering into Value of Legal Services. The elements entering into the value 6f legal services are ordinarily the character and importance of the litigatioh, the time and labor necessarily involved, the expense incurred in the performance of the services, the results obtained, and, where such is the agreement, that the recovery of compensation depends upon the contingency of the success achieved.</p> <p>6. Same — Findings and Judgment Sustained. The testimony, examined, and held to be sufficient to sustain the findings and judgment of the trial court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Assumption op Risk — Federal Employers’ Liability Act — Death of Fireman — Falling from Moving Train. The engineer of a freight train started the train on an interstate journey while the fireman was in a lunch room' eating a lunch. The fireman came out of the lunch room, and seeing the train in motion, climbed on top of a car to go forward to his place in the engine cab. While going forward over the car tops he stumbled and fell between cars and was killed. He was an experienced and competent fireman, and knew, or should have perceived, the dangers which he would normally and necessarily encounter in passing over the train. Held, under the federal employers’ liability act he assumed the risk.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Oral Promise — To Leave Share of Property to Heir — Not Within Statute of Frauds. A promise of an ancestor that he will at his death leave to an heir presumptive the share of his estate to which such heir, in the event of his then dying intestate, would be entitled under the statutes of descents and distributions, is not a contract for the sale of an interest in lands within the meaning of the statute of frauds, notwithstanding the ownership of real estate by the ancestor when the promise was made and at the time of his death.</p> <p>2. Same — Capable of Performance WitMn a Year. Such a contract is not one that is not to be performed within a year, within the meaning of the statute of frauds.</p> <p>3. Same — To Leave Property to Heir — Consideration Release of Interest in Life Insurance — Specific Performance. The holder of a life insurance policy in which his wife, who had since died, was named as beneficiary, desired to collect its surrender value, and for this purpose was required by the insurance company to obtain a release from her heirs. To induce the daughter of a deceased son to sign such release, he promised that if she would do so she should receive at his death one-third of his estate, which was the share she would have inherited had he then died intestate. She accepted the proposition and signed the release. He died leaving a will which had been executed before the transactions referred to, giving the entire estate to others. Held, in an action by the granddaughter of the testator against the beneficiaries under the will to recover a third of the estate, that whether or not the plaintiff’s signature was necessary to give her grandfather a valid claim against the company .for the whole value of the policy, her affixing it to the release at his request was a sufficient consideration to support a contract, and notwithstanding that any -possible interest she had in the insurance policy was trivial in comparison with the value of i the property she claimed, it cannot be said (in view of the fact that what her grandfather promised her was what she would have received had he made no will, and that her controversy, is not with him, but with those whose claims are based on her disinheritance) that a court of equity should refuse to enforce the contract as against good conscience.</p> <p>4. Same — Rejected Evidence — Nonprejudicial. Rejected evidence held not to have been of sufficient importance to warrant a reversal, assuming that it should have been admitted.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Bankruptcy — Discharge as Affecting Debts and Chattel-martgaged Property o-f Bankrupt. The maker of notes gave a chattel mortgage to secure their payment, and afterward filed a petition in bankruptcy. The holder of the notes procured their allowance as a claim against the estate of the bankrupt. All the property covered by the chattel mortgage, except certain exempt property, was sold by the trustee under an agreement between the trustee, the bankrupt, and the holder of the notes. The bankrupt was finally discharged, although the notes were not paid in full. Held, that the discharge released the bankrupt from further payment on the notes, and released all the unsold mortgaged property from the lien of the chattel mortgage.</p> <p>2. Same — -Discharge as Affecting a Co-debtor. 'A discharge in bankruptcy does not releasé a co-debtor with, or surety for, the bankrupt from liability on a debt, unless that debt has been paid.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Insurance — Loss Payable to Mortgagee as Appointee — Change of Title to Insured Property — Policy Void. A mortgagee sued to recover on an insurance policy issued to his mortgagor. The mortgage clause merely constituted the mortgagee an appointee to receive the proceeds of the policy for and on account of the assured, subject to all the terms and conditions of the policy. The mortgagor-sold and conveyed the property, which act, by the terms of the policy, rendered it void. Application was made to the insurance company to substitute the purchaser of the property as the assured in the policy. The insurance company imposed certain reasonable' conditions, which were not complied with until after loss had occurred, when the insurance company canceled the policy, and returned the unearned premium to the mortgagor. Held, the mortgagee cannot recover.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Personal Injuries — Findings—Contributory Negligence. In an action against a city for injuries sustained by a pedestrian striking her foot against the end of a plank, which at a street corner extended from the pavement to a curb at the edge of the sidewalk, it is held that the plaintiff, in whose favor a general verdict has been'returned, cannot be said as a matter of law to be convicted of contributory negligence by findings that she was familiar with the conditions, knew the plank was there, and by the exercise of ordinary care could have seen it immediately before reaching it.</p> <p>2. Same — Neto Trial — Granted at Succeeding Term — Error. Where at - a subsequent term the court granted a new trial because of such findings, no motion therefor having been filed by either party, such ruling is reversible on appeal.</p> <p>3. Same — Sufficiency of Evidence. The question of the sufficiency of the evidence, while not presented by a motion for a new trial, held to be involved in the decision on, the effect of the findings.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Constructing City Sewer — Injury to Workman Not within Terms of Compensation Act. While constructing a sewer, a city is not engaged in an enterprise involving any element of gain or profit, and does not come within the terms or operation of the workmen’s compensation act.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Gift — Execution of Deed-HJndue Influence — Evidence. Evidence relating' to the validity of a deed to a farm examined, and held sufficient to show that the deed was a lawful gift, that the grantor acted intelligently, independently-, and of her own volition, and free from undue ^ influence on the part of the grantee.</p> <p>2. Same — Incompetent Witness■ — Deposition Taken by Opposite Party— Incompetency Waived. Where the plaintiffs take the deposition of the defendant grantee of a deed which is assailed on the grounds that the grantor was mentally incompetent to make it and that she had made it through the undue influence of the grantee, and where such deposition is filed in court by the plaintiffs, but not offered in evidence by them, the taking of defendant’s deposition by the plaintiffs is a waiver of objections to his testimony, and the deposition may properly be read in evidence on behalf of the defendant grantee.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Paving — Special Assessments — Injunction—Limitation of Actions. The statutory limitation that an action cannot be maintained to enjoin or contest a special assessment for .the improvement of a street, unless it is begun within thirty days after the amount due on each lot or piece of ground assessed is ascertained (Gen. Stat. 1915, § 1217), applies to invalidity as well as irregularity in the proceedings, including objections that the taxing district extends over too much ground, and also where the land assessed included abutting ground not platted, and also lots and blocks lying beyond the unplatted part which did not abut on the improved street. Invalid proceedings of the kind named, which would defeat an assessment if attacked in time, are not open to attack if the time limit has expired.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Illegitimate Child — Presumption of Defendant’s Innocence — Instruction. In a bastardy proceeding, the infraction given to the jury that “the law presumes morality and uprightness until the contrary is made to appear from the evidence, and you are instructed that defendant in this case is presumed to be innocent of the charge made against him and that presumption xemains with him through all stages of the trial and until overcome by the evidence of the state by a preponderance of the credible evidence,” is held not erroneous.</p> <p>2. Evidence — Not Directly Contradicted — Province of Jury. A jury is not warranted in arbitrarily 'or capriciously rejecting the testimony of a witness, but neither are they required to accept and give effect to testimony which they find to be unreliable, although it may be un- ' contradicted.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Extradition — Nonsupport of Child — Absence of Accused from State —Jurisdiction of Kansas Courts. Although the federal law does not provide for the surrender by a state as a fugitive from justice of one who has violated the criminal laws of another state without having been present therein, and although in the absence of state legislation no authority exists for such surrender, nevertheless, where, in the absence of any local statute, a person is surrendered by one state to another as a fugitive from justice, the fact that the accused had not been in the demanding staté at the time of the alleged offense, or since then, does not deprive its courts of jurisdiction to try him therefor, nor does it show such an abuse of process as to warrant the dismissal of the case against him.</p> <p>2. Same. A person who has never been in this state may, under some circumstances, be rightfully convicted here of a violation of the statute making it a felony for a parent,' without lawful excuse, to neglect or refuse to provide for 'the support of his children under the age of sixteen years, who are in destitute circumstances.</p> <p>3. Divorce — Deserted Child in Kansas — Husband in Missouri — Jurisdiction of Kansas Courts. Where by the misconduct of a husband and father in another state his wife and children are compelled to leave him, and they come to Kansas, and where in an action in which personal service has been had upon him she obtains a divorce and a decree awarding her the custody of the children, and requiring him to make periodical payments for their support, he may thereafter, while in another state, be guilty of a violation of the statute referred to, by failing to provide in any way for the children, notwithstanding that they were brought into this state without his knowledge or consent.</p> <p>4. Criminal Law — New Trial — Evidence Must be Produced on Motion. The provision of the civil code that, in order to preserve for review a . ruling excluding evidence, the evidence must be produced at the hearing of the motion for a new trial, applies as well in criminal cases, inasmuch as the criminal code makes such a ruling, if erroneous, a ground of new trial only by the adoption of the civil procedure in relation thereto.</p> <p>5. Trial — Statement of Tfrial Judge Nonpre,judicial. A statement by the trial judge held not to be shown to have been prejudicial to the defendant.</p> <p>6. Nonsupport of Child — Child Cared for by Others — No Defense of Pwrent. In a prosecution under the statute making it a criminal offense for a parent to neglect or refuse, without lawful excuse, to provide for the support of his children in destitute or necessitous circumstances, it is not a defense for a father upon whom rested the duty of providing such support to show that the necessities of the children were relieved by the interposition of others.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Compensation Act — Personal Injuries — Written Release — Mutual Mistake. The paper relied on as a release appears to have been signed when the parties were mutually mistaken as to the extent of plaintiff’s injuries. The sum therein named being manifestly inadequate, such,instrument is not binding.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Workmen’s Compensation Act — PdAn from Injuries Received — Right to Compensation Therefor. Under the workmen’s compensation act, compensation can be recovered where inability to labor is caused by pain resulting from an injury received in an accident arising out of and in the course of the employment.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Constitutional Law — Amendment of Statute by Implication. The provisions of section 16 of article 2 of the state constitution that “no law shall be revived or amended unless the new act contain the entire act revived or the section or sections amended, and the section or sections so amended shall be repealed” has no-room for application to an amendment by implication. {Parker-Washington Co. v. Kansas City, 73 Kan. 722, 85 Pac. 781.)</p> <p>2. Appeal Bonds — Misdemeanor Cases — Not Bail Bonds. Chapter 188, Laws of 1915 (Gen. Stat. 1915, §§8201-8204), providing for appeals from convictions in misdemeanors, and which requires the defendant to give a bond conditioned upon the payment of the fine and costs, and also a bond conditioned that he will not violate the law under w-hich the conviction was obtained, is not obnoxious to section 9 of the bill of rights, which provides that “excessive bail shall not be required.”</p> <p>3. Appeals — Power of Legislature to Impose Terms. It is wdthin the power of the legislature to impose additional requirements upon the exercise of the right to appeal to the supreme court from a 'criminal conviction, notwithstanding the provisions of section 8197 of the General Statutes of 1915, which gives such an appeal “as a matter of right.”</p> <p>4. Same — Appeal Bonds for Protection of State. The provisions of section 8206 of the General Statutes of 1915 (Crim. Code, § 287), that the bond to stay the judgment of conviction shall be approved by the trial court or the judge thereof, or the supreme court or any justice thereof, is for the protection of the state alone, and not for the benefit of the defendant or his surety, and may be waived by the state; and the failure to have the bond approved cannot be taken advantage of by the principal, or thb surety in an action to recover on a bond.</p>

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

<p>Appeal'from Elk district court; Allison T. Ayres, judge.</p>

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Shipper op Stock. — Dangerous Position Voluntarily Taken, — Injuries— Railway Company Not Liable. One who was traveling on a shipper’s pass, accompanying stock being transported to market, got off the caboose at a station where the train was stopping to unload other stock, and while waiting at the station was ordered or directed by the station agent and a brakeman to take a key and deliver it to the train crew at the cattle pens and to ride back on that part of the train. He voluntarily obeyed the order or direction, and while getting upon the side of a car to ride back, was caught between the side of the car and the cattle chute and received injuries from which he died. Held, that as he voluntarily placed himself in a position of obvious danger and was not engaged in looking after or caring for the stock in his charge, the railroad company is not liable in an action to recover for his death. (A. T. & S. F. Rld. Co., v. Lindley, 42 Kan. 714, 22 Pac. 703.)</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Agency — Commissions—Fraud—Separate Trials. The court properly exercised its discretion in refusing- separate trials of the issues.</p> <p>2. Same — Fraud—Burden of Proof. The burden of proving fraud was properly placed on the party alleging it.</p> <p>3. Same — Instructions—Neto Trial. There was no error respecting instructions or in refusing a new trial. / '</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. .Appeal — No Transcript of Evidence — Scope of Review. Failure to provide a transcript of the evidence does not necessarily require the dismissal of an appeal; it merely excludes from the scope of the review those features of the lawsuit dependent thereon.</p> <p>2. Wills — Rule against Perpetuities. The rule against perpetuities is that no future interest in property can lawfully he created which does not necessarily vest within twenty-one years after some life or lives presently in being, excluding from such computation of years the incipient life of infants in ventre 'sa mere.</p> <p>3. Same. Provisions of a will which direct that no disposition of certain property shall be made “within twenty-one years after the death of my beloved wife” are void under the rule against perpetuities.</p> <p>4. Same — Offends Rule against Perpetuities — Descent of Estate. When a future estate, attempted to be created by a will, fails because it offends the rule against perpetuities, the property thus ineffectually disposed of vests at once in the heir or heirs at law; and a rent charge on the' abortive future estate during the illegal interim of suspension fails therewith.</p>

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

<p>OPINION ON REHEARING.</p> <p>Appeal from Cherokee district court; JAMES N. Dunbar, judge.</p>

<p>OPINION DENYING A REHEARING.</p> <p>Appeal from Wyandotte district court, division No. 3; Albert J. Herrod, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Promissory Note — Makers Primarily Liable. Those who sign a promissory note as makers are primarily liable thereon.</p> <p>2. Same — Negotiability Not Destroyed. A note signed by five joint makers contained this language:</p> <p>“We, the makers, sureties, endorsers and guarantors of this note, hereby severally waive presentment for payment, notice of nonpayment, protest and notice of protest and consent that time of payment may be extended without notice thereof to any of the sureties of this note.”</p> <p>Held, that such note is negotiable.</p> <p>3. Same — No Surety Indicated on Note. Under the law as expressed in the negotiable-instruments act there was nothing on such note to indicate that any party thereto was a surety, and the quoted sentence was meaningless and did not render the instrument a courier impeded with luggage.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1.Automobiles — Collision—Verdict—Judgment. Rule followed that a verdict and judgment supported by substantial though conflicting evidence cannot be disturbed on appeal.</p> <p>2. Same — New Trial — Cumulative Evidence — Judicial Discretion. Rule followed that the production of cumulative evidence in support of a motion for a new trial is addressed to the sound discretion of the trial court and does not require the granting of a new trial as a strict matter of right.</p> <p>3. Same — Evidence—Verdict and Judgment. Evidence examined, and held sufficient to support a verdict and judgment for damages arising from a collision of automobiles on the public highway.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Quo Warranto — Drainage District Supervisors — Tenure of Office■ — Constitutional Law. The provision in chapter 168 of the Laws of 1911 fixing the tenure of office of the supervisors of a drainage district at five years is violative of section 2 of article 15 of the constitution; but as the term of office named in the act is void, the tenure is not in fact fixed, and the office is held subject to the appointing power, and therefore the invalid part -does not render the whole act void.</p>

<p>SYLLABUS by the court.</p> <p>1. Vendor and Purchaser — Nonmwrketable Title — Specific Performance Refused. A vendor agreed to make abstracts of title and perfect title to the satisfaction of the vendee. The vendee took the opinion of able lawyers, who advised him the abstracts furnished were insufficient and the title tendered was not marketable, and refused to complete the purchase. Held, specific performance should not be decreed.</p> <p>2. Same. The evidence relating to the title of real estate in the state of Arkansas considered, and held, the title is not marketable under . the laws of that state.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Foreclosure Sale — Confirmation Set Aside — Redemption Allowed. In a suit by the holder of a junior judgment to set aside the confirmation of a foreclosure sale and permit him to redeem from the prior judgment, held, on the facts stated in the opinion, it was error to deny the relief prayed for.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Agency — Bank Loaning Plaintiff’s Money. The record justified the conclusion that the defendant bank acted as the agent of the plaintiff in loaning the money sued for herein.</p> <p>2. Same — Fraudulent Conduct — Talcing Worthless Security. The petition set forth conduct clearly fraudulent without using that particular adjective. Held, that it was proper to instruct on the fraud thus alleged.</p> <p>3. Same — Bank Profited, by Transaction. The evidence tended to show that 'the bank profited by the transaction.</p> <p>4. Trial — Evidence. No error appears touching the admission or rejection of evidence.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Jurisdiction — Calling in Judge of Another District. Berry v. Dewey, 102 Kan. 392, is followed on the question of the jurisdiction of the trial judge.</p> <p>2. Continuance — Insufficient Grounds. The defendants applied for a continuance on the ground that one of their attorneys was a member of the legislature and could not be present at the trial because the legislature was in session. The application was properly denied.</p> <p>3. Continuance — Insufficient Showing. It is not error to deny an application for a continuance made on the ground that the person making the application is a party to the action and desires to attend the trial as a witness and is prevented from so doing by the sickness of a member of his family, where that sickness is shown by the' unverified certificate of-attending physicians, and no one having knowledge of the sickness swears to either the certificate or the application.</p> <p>4. Wrongful Death — Damages—Competent Evidence. In an action to recover damages for wrongful death, it is proper to prove the amount of property owned by, and the wage-earning capacity of, the deceased person.</p> <p>5. Same — Trial—Competent Evidence Withdrawn — No error. A judgment will not be reversed on account of the withdrawal of evidence tending to impeach persons who are neither parties to the ■ action nor witnesses therein, where the evidence withdrawn is on matters wholly collateral and cannot assist the jury in determining the issues on trial.</p> <p>6. Conspiracy — Evidence. There was evidence sufficient to show a conspiracy on the part of the defendants.</p> <p>7. Same — Instructions. The instructions concerning conspiracy were fair, and they fully protected the rights of the defendant.</p> <p>8. Same. Of the instructions requested by the defendant, those that were proper were, in substance, given by the court, and those that were refused were properly refused.</p> <p>9. Wrongful Death- — Damages—Verdict Not Excessive. In an action brought by a mother to recover damages for the wrongful death of her son, a verdict and judgment for $5,000 is not excessive, where the deceased was 38 years old at the time of his death, was in good health and vigorous, was accumulating property, and was able to earn about $1,000 a year. '</p> <p>10. Same — Certain Deductions from Damages Properly Denied. Financial benefits derived by the heir of a person who has lost his life by the wrongful act of another cannot be deducted from the damages sustained and the verdict and judgment be reduced by the benefits received.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Contracts — Partly Valid — Partly Invalid — Enforcement. If a contract contains provisions some of which are valid and some of which are invalid, and the lawful matter can be readily severed from that which . is unlawful, the lawful portion of the contract will be upheld. (Fachler v. Ford, McMahon 21, 1 Kan. [Dass. ed.] 463, syl. ¶ 2.)</p> <p>2. Landlord and Tenant — Valuable Improvements by Tenant — Reimbursement — When Due. Where a tenant makes lasting and valuable improvements on a farm which the landlord agrees to pay for when the tenancy is terminated, the tenant’s right to reimbursement for the improvements is sufficiently mature to justify his cause of action when the landlord .leases the farm to another tenant and the latter is let into possession of part of the property.</p> <p>3. SawE — Limitation of Actions. The statute of limitations does not begin to. run until an obligation is due.</p> <p>4. Same — Limitation of Actions — Statute of Frauds. Where the time fixed for payment of an oral obligation is uncertain, but its maturity might have arrived within one year, and the promisee had fully performed his part of the obligation, the statute of limitations did not begin to run until the obligation matured, and the obligation was not repugnant to the statute of frauds.</p> <p>5. Same — Measure of Recovery. Where parties, by agreement, fix the measure of recovery due from the one to the other, their agreement governs, and abstract principles of law relating to the measure of recovery when agreements are wanting are inapplicable.</p>

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

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

<p>Appeal from Montgomery district court; Joseph W. Holdren, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Contract — Sale of Land — Interest on Payments — Title. A contract for the sale of land provided that the buyer should pay interest at seven per cent on the agreed price from the date the title was approved; it also contained'a provision that he should pay the interest on an existing mortgage on the land for $4,000, bearing eight per cent, until the date named' for the payment of $5,000 on the purchase price; in an action in which the sole controversy was as to the date when, by the approval of the title, the buyer became liable for interest, held, that the existence of such mortgage could not be regarded as an obstacle to the approval of the title, at least where by oral evidence an understanding was shown to the effect that the mortgage was to be satisfied out of the $5,000 payment.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Life Insurance — Physical Appearance of Applicant — Testimony of Neighbors. Testimony of neighbors as to physical appearance of the insured was properly received touching his good faith in making the statements contained in the application.</p> <p>2. Same — Statements in Application — Repi’esentations Not Warranties. The policy provided that the statements made by the insured should, in the absence of fraud, be deemed representations, and not warranties. Held,-that good faith in making such statements was sufficient, although they may have been incorrect in fact.</p> <p>3. Same — Verdict—Instructions. The evidence supported the verdict, and there was no error in the giving or refusing of instructions.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Jurisdiction — Appeal—Amount Involved Less than $100. In an action for the recovery of money only, in which a party is resisting the recovery of any amount and a judgment is rendered for $62, from which such party attempts to take an appeal, the amount in controversy as to such party is fixed by the amount of the judgment, and it being less than $100, no appeal lies, to the supreme court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Negligence — Automobile Driver — Contributory Negligence of Plaintiff. A pedestrian, arriving at a street intersection which he desires and attempts to cross, is not necessarily guilty of contributory negligence because'- he does not look behind him for approaching automobiles.</p> <p>2. Same — No Reversible Error in Record.. Various assignments of error" relating to evidence, instructions, special findings, and the general verdict, considered, and held,,none of them is sufficient to warrant a reversal.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Action on Tort — Action on Contract — Not Same Causes of Action-Statute of Limitations. An action for compensation for property of the plaintiff destroyed through the negligence of the defendant is not brought upon the same cause of action as one to recover an amount agreed to be paid in compromise of a claim of that character, and the pendency of an action founded on such an agreement does not suspend the running of the statute of limitations against an action on ' the tort.</p>

<p>Appeal .from Montgomery district court; JOSEPH W. Holdren, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Assault — Conspiracy — Order of Proof — Judicial Discretion. The order in which proof of a conspiracy is received rests to a large extent in the discretion of the court, and in this case it is held that defendants were not prejudiced by the admission in evidence of declarations made by one of the defendants before proof of the conspiracy, it being followed up by sufficient evidence to establish the existence of the conspiracy as alleged.</p> <p>2. Same — Instructions to be Construed as a Whole. An instruction is not to be condemned by separating from its context language.in one part of it and ignoring the instruction as a whole.</p> <p>3. Same. Objections to certain instructions examined, and held to be without merit, the abstract making no reference to the other instructions given.</p> <p>4. Trial — Witness Rebuked by Court before Jury — No Error. While testifying as a witness, one of the defendants made a voluntary statement outside of the case which called for a rebuke by the court and an admonition not to repeat the offense. Held, that the incident was not likely to have prejudiced defendants, but if it did they cannot complain. '</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Mandamus — Approval of Appeal Bond, by Probate Judge. The supreme court cannot require a probate judge to approve an appeal bond which does riot satisfy the probate judge as to its sufficiency, when the judge’s good faith is not challenged.</p> <p>2. Same — Writ Should Not Issue. Some other simple reasons showing why writ of mandamus should not issue, discussed.</p> <p>3. Insane Person — Cannot Conduct Litigation. A person who has been adjudged insane, and who is under guardianship, cannot conduct litigation without the supervision, control, and protection of his guardian.</p> <p>4. Same. When it clearly appears that a person who has been adjudged insane is the plaintiff in an action, and that he is seeking to maintain that, action independently of his guardian and without the approval of the latter, the action should be dismissed.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Master and Servant — Tortiotis Acts of Servant — Liability of Principal. A master or principal is responsible for the tortious acts of his servant or agent where such acts are incidental to and done in furtherance of the business of the master or principal, even if such acts are done willfully or in excess of the authority conferred.</p> <p>2. Same — Agent of Detective Agency — Assaulting Suspected Criminal— Extorting Confession. Where one representing a detective agency is authorized to obtain a confession -from a suspect, and in executing that authority commits an assault and battery upon the subject, the principal is responsible for the manner of the agent in the execution of the authority and fo-r the wrong of the agent in selecting the means by which the authority was executed.</p> <p>3. Assault — Damages—Trial—Counsel Reading Magazine to Jury. The reading of a short article from a magazine in the course of the argument of counsel, which was- argumentative and illustrative in character, condemning such methods as were employed by the agent of the defendant in the present case and containing statements which would have been unobjectionable if they had been original with counsel, is held not to he a ground of prejudicial error.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. “Bone-dry Law” — Information—Negative- Allegations. In an information charging the violation of section 1 of the “bone-dry law” (Laws 1917, ch. 215), making it unlawful “for any person to keep or have in his possession . . . any intoxicating liquors ... or to give away or furnish intoxicating liquors to another, except druggists or' registered pharmacists as hereinafter provided,” it is not necessary to allege that the defendant was not a druggist or registered pharmacist.</p> <p>2. Same. A negative averment of the matter of an exception oh proviso in a penal statute is hot necessary in an information, unless such matter enters into and becomes a material part of the description of the offense.</p>

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

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

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

<p>SYLLABUS BY THÉ COURT.</p> <p>1. Quo Warranto — Action Dismissed — No Appeal within Six Months. When an action is dismissed as to certain defendants, all orders which were made prior to the order of dimissal, and of which complaint is made by those defendants, must be appealed from within six months after the order of dismissal is made.</p> <p>2. Same — Regulation of Rates of Natural Gas Companies — State Courts No Jurisdiction to Change Legal Rates. The courts of this state have no jurisdiction to appoint receivers for the purpose of regulating the rates of public-service corporations, and neither the courts nor the receivers of such corporations have jurisdiction to change legal rates without the consent of the public utilities commission; but when the legal rates charged by the receiver of a public-service corporation have been enjoined by 'a court of competent jurisdiction, the receiver may put into effect rates to be charged until the commission establishes a new rate.</p> <p>3. SaMe — Issues Disposed of by Stipulation. An appeal may be dismissed when it appears that all the orders from which the appeal is taken were made under a stipulation signed by the party appealing.</p> <p>4. Same — Appeal Dismissed. An appeal may be dismissed when this court cannot make any order that will affect the rights of the parties thereto.</p>

<p>SYLLABUS BY THE COURT.,</p> <p>1. Homestead — Conveyance Executed by Wife Alone — Void. Upon the facts stated in the opinion it is held that the instruments relied on by the defendants, affecting the plaintiff’s homestead, are void because executed by her alone, the husband not joining therein or consenting thereto.</p> <p>2. Limitation of Actions — Defendant’s Absence from State. The finding that on account of the defendant’s absence from the state the plaihtiff’s action was not barred, held to be supported by the evidence.</p> <p>3. Homestead — Occupied by Family of Owner — Voluntary Absenc'e of Husband. The homestead provided for by the constitution is one occupied as a residence by the family of the owner. The title being in the wife, who remained in possession with her children, the homestead • character of the property in question was not destroyed or impaired by the voluntary absence of the husband.</p> <p>4. Same — Occupied by Wife and Children — Effect of Husband Acquiring Another Homestead in Oregon. The fact that the husband entered and proved up on a homestead in Oregon, describing himself as single and unmarried — the law of that state requiring that a homestead be occupied only by some member of a family — did not of itself have the effect to deprive him of his husband’s interest in the homestead occupie'd by the wife and children, so as to validate the instruments in question.</p> <p>5. Samis — Conveyance by Wife Alone — Estoppel. Having in good faith explained to the grantees concerning the long absence of her husband, the plaintiff is not estopped, either by such instruments or by her conduct or acquiescence, from maintaining this action.</p> <p>6. Appeal — No Merit in Cross Appeal. ' The cross appeal of the plaintiff examined and found to present no substantial error.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Written Contract ■— Provisions for its Termination — Cannot Be Varied by Parol Evidence. A written contract between a manufacturer of tractors and the distributors that either party might terminate the contract relation at any time by giving the other thirty days’ notice in writing of his intention to do so, which is definite and complete, cannot be contradicted, altered, or added to by parol evidence of concurrent or prior negotiations or understandings.</p> <p>2. Same — Sufficient Notice, of Termination Given. The notice given by one of the parties to the contract in question is held to be sufficient and effective to end the contract relation, and such party did not become liable to the other for damages through the exercise of the option provided .for in the contract.</p> <p>3. Written Order — By Employee to Employer — Created No Liability against Employer. A party may bind himself in writing to pay the debt of another and may make a binding promise to a debtor to pay his debt to a third person, but a written order by an employee to his employer to pay his creditor a sum of money out of the salary account of the employee does not create a liability against the employer and in favor of the creditor unless the employer agrees to honor the order or to make the payments.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Mortgage Foreclosure — Irregularities in Decree — Motion to Set Aside Confirmation and to Amend Decree Made Too Late. On September 25, 1913, in a foreclosure suit where the defendants were served with summons, judgment was entered'by default, and with a provision barring defendants from all right of redemption. The sheriff’s sale, at which the plaintiff purchased, was confirmed December 16, 1913, the decree of confirmation reciting that the mortgage was for purchase • money, that less than one-third thereof had been paid, and fixed the period of redemption at six months from the sale. On September 23, 1916, the defendants moved to have the sale and. confirmation set aside and the judgment modified, but stated no defense to the action, and made no offer to redeem. Held, that the original judgment, though erroneous, is not void; the error in the judgment could be taken advantage of only by appeal; other irregularities complained of were cured by the confirmation; and the defendants’ application was made toó late to entitle them to relief.</p>

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

<p>SYLLABUS BY .THE COURT.</p> <p>1. Benefit Insurance — Claim First to be Presented to Tribunal ' Designated by Association. It is competent for a mutual benefit association to require that claims against it upon its certificates shall be submitted in the first instance to a tribunal designated by it, and that the remedy so provided ■ shall be exhausted before recourse is had to the courts.</p> <p>2. Same — Nonpayment of Dues■ — Forfeiture—Custom. In order for a member of a mutual benefit association who, according to the terms of his certificate, has lost his rights thereunder by a failure to make a payment of dues at the time specified, to avoid such forfeiture by reason of a reliance upon an established practice of accepting delinquent payments within a definite period after the default, he must show an offer to make payment within the limit as so extended.</p> <p>3. Same — Rule Not Changed by Entry of Record of Forfeiture or Expulsion. Where, notwithstanding a written rule that a loss of member- - ship in a mutual benefit association results automatically from the failure to pay dues before the first of the month, a practice has been ■ established of accepting them if offered before the sixth, the entry on the records that the expulsion of a member-has resulted from his failure to make payment, followed by a notice given him to that effect between the second and the fifth, does not excuse an omission on his part to offer the money before the sixth, if he is to rely upon the extension of time growing out of the practice.</p> <p>4. Same — Nonpayment of Dues — Expulsion—No Waiver by Reason of Clerical Error in Notice. Where the expulsion of a member of a mutual benefit association has resulted' from his failure to pay his December dues within the prescribed time, and proper entries of the fact have been made upon the records, the association is not precluded from relying upon such expulsion as a defense to a claim made by him, by the unintentional error of a general officer in referring to the expulsion as having taken place in October, in a letter denying liability on account thereof.</p>

<p>SYLLABUS BY THE COURT. .</p> <p>Automobile — Operated by One Partner — -Injury to Third Party — Liability of Other Partner. On the trial of an action for damages caused by a collision between automobiles, the evidence introduced proved that a father and his 23-year-old son, with the wife of the father, lived together as one family, and that the father and son jointly owned an automobile which was used for family purposes, and, when so used, was ordinarily driven by the son. The evidence also proved that the' son used the automobile in his private business; that in the absence of the father, and without his knowledge, the son took the automobile to make a trip of his own; that the mother got into the automobile to ride with him; and that an accident then occurred, which resulted in an injury to the party bringing the action. Held, that the evidence was not sufficient to establish the relation of master and servant between the father and the son.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Homestead — Occupied by Widow Alone — Not Subject to Partition. A homestead occupied by a childless testator and his wife at the time of his death, and thereafter occupied by the widow, who elects to take under the law rather than under the will, cannot be partitioned without her consent at the suit of collateral heirs who were never members of the testator’s family.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Tort-feasors — Contribution Between Joint Tort-feasors. A person who voluntarily commits an actionable wrong, either at the instigation of others or by acting jointly with them, for which wrong a judgment is afterward rendered against him, cannot recover from those who induced him to commit the wrong, or with whom he acted in its commission, any loss or damage sustained by him by reason of the rendition of the judgment.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Negligence — No Buffer Appliances on Cars — No Liability Established. A railroad company is not required to equip its ears with buffers or bumpers for the protection of brakemen in coupling or uncoupling cars. Hence, the findings that the negligence in this case consisted in the failure to equip with buffer and buffer appliances do not establish liability.</p> <p>2. Same — Equipment of Cars Required for Protection of Brakemen in Coupling and Uncoupling Cars. A train is required to have eighty-five per cent of its cars equipped with air brakes, so that it can be operated by the engineer, thus rendering it necessary to have certain of the cars connected by air hose. While in the complete process of uncoupling, the coupler itself and also the air hose and safety chains may have to be disconnected, there is no requirement that the cars be so equipped that such air hose or safety chains can be disconnected without going between the cars.</p> <p>3. Same — Allegations—Proof. Two of the three alleged grounds of negligence being based on matters not required of the defendant, and the ■other having failed of proof,.the plaintiff cannot prevail.</p>

<p>Appeal from Montgomery district court; Joseph W. Holdren, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>City School District — Annexing Adjacent Territory — Proceedings Regular. Under section 9129 of the General Statutes of 1915, territory outside a city of the second class, but adjacent thereto, may be annexed to the city school district on application of a majority of the electors in the territory proposed for annexation; and it is not necessary to exclude from such annexation any particular tract in such territory merely because no person owning or residing thereon joined in the application for annexation; nor is the validity of thei proceedings affected by the fact that the school district from which the territory was detached had no notice of the application nor of the resolution annexing it to the city .school district.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Malicious Prosecution — A ction Barred — Statute of Limitations. In an action for malicious prosecution, the first count of the petition is held subject to demurrer because the action was barred by the one- , year statute of limitations. (Civ. Code,, §17, subdiv. 4.)</p> <p>2. Same — Action Barred — Statute of Limitations. The second count of the petition is held barred because an amendment alleging that defendants gave false testimony at the trial which resulted in plaintiff’s conviction, brought in a new and different cause of action, and, having been filed more than one year after the cause of action accured, it was too late.</p> <p>3. Same — Conviction in Police Court — Conclusive of Probable Cause. The third count of the petition is held to state no cause of action, because it shows that the prosecution of plaintiff resulted in his conviction; notwithstanding his' appeal and acquittal in the district court, the conviction in the police court is conclusive of probable cause.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Promissory Note — Oral Agreement Va/rying Written Indorsement — . No Defense. A claim by the payee and indorser of certain negotiable promissory notes, that it was orally agreed that if she sold the notes for fifty cents on the dollar — which she did — she would never be called on to pay or be held responsible, is a variance from the written indorsement and constitutes no defense.</p> <p>2. Same — Bill of Particulars — States No Cause of Action. A bill of particulars setting out such notes with proper allegations to show liability, except an averment of notice of dishonor or waiver thereof, states no cause of action against the indorser.</p> <p>3. Same — Erroneous Judgment. It was error to render judgment for the plaintiff on such bill of particulars and a statement of the oral agreement referred to in the first paragraph hereof.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Sale — Fa/rm Tractor — Agency of Salesman Established. Record' examined, and the evidence held sufficient to prove that the vendor, of a farm tractor was the plaintiffs’ agent; that the agent received from the purchaser the-price of the machine; and plaintiffs’ action against defendant to collect payment a second time was properly defeated.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Reference — Report of Referee — Motion—Appeal Taken in Time. The defendant, having filed a motion addressed to the district court within three days after the decision of the referee, which motion was overruled less than six months before the appeal was taken, is entitled to a review of the rulings mentioned in that motion, although the referee previously disposed of a motion for a new trial filed before him more than six months prior to the taking of the appeal.</p> <p>2. Arbitration — Partiality of Arbitrator — Decision Not Binding. An arbitrator is the agent of both; parties concerned, and where he misconceives the functions of his agency and proceeds on the theory .that he i§ the special agent of one of them and endeavors to secure a result favorable to that one at the expense of the other his decision is not binding, however honest his motives may have been.</p> <p>3. Contract — Building Tunnel — Payment for “Extras” Demanded. The • contract for building a tunnel provided that if extras were furnished for which prices were not fixed in the contract no payments should be made for them unless they had been ordered in writing by the chief engineer of the defendant. Under the plans, the framework of the roof of the tunnel was to be supported by posts resting on the floor. The parties decided that it would be better to have short posts niched into the walls of the tunnel instead of using longer ones resting on the floor of the tunnel, it being agreed that the cost of the work of cutting the niches for the short posts was equal to the difference between the cost of the long and the short posts and should be paid for as lumber. Held, that such .work was not an extra within the meaning of the contract.</p> <p>4. Same — Orders for “Extras” to be in Writing — -Blueprint Sufficient. When the chief engineer ordered that posts should be reset in trenches with concrete foundations, instead of on the floor of the tunnel, and furnished a blueprint showing the plan of that work, it is deemed to be sufficient to meet the requirement that extra work must be done on a written order.</p> <p>5. Same — Engineer’s Estimate — Objections to be Presented in Ten Days —Eailure Excused. One of the provisions of the contract was that if the contractor claimed that the chief engineer in his final estimate had failed to consider or allow for work or material, objections should be presented by the contractor in writing within ten days after the estimate was made, and it is held that in view of the things said and done by the chief engineer the failure of the contractor to present formal objections in writing within the ten-day period does not preclude a recovery on such items.</p> <p>6. Same — Partial Payment Made — Not Accord and Satisfaction. A final estimate with a voucher attached was sent by the chief engineer of the defendant to the contractor, without any accompanying statement, which voucher was signed by the contractor as “received on account.” No check or money was tendered with the statement, and after the indorsement of the contractor qualifying the acceptance the defendant paid and the contractor received the amount named in the estimate. Held, that the payment and acceptance of the money cannot be regarded as an accord and satisfaction.</p> <p>7. Same — Amendment to Petition — No New Cause of Action Stated. The several breaches of the entire contract upon which the action was brought constitute only a single cause of action, and an amendment to the petition made more than five years after the tunnel was finished, setting up an additional item furnished under the contract, is not barred by the statute of limitations.</p> <p>8. Same — Ambiguous Contract — Explained by Circumstances. The terms of a contract being ambiguous and, open to more than one interpretation, testimony of the circumstances surrounding the execution of the contract may be admitted to aid in its interpretation and in ascertaining the intended' meaning.</p> <p>9. Same — Findings and Judgment Sustained. The evidence examined, • and held to be sufficient to support the special findings upon which the judgment is founded.</p>

<p>Appeal from Kush district court; Albert-S. Foulks, judge:</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. School Land — Islands—Findings of Jury■ — New Trial Granted — No Error. In an appeal from an order granting a new trial the appellant contends that the ruling was based solely on the ground that error was committed in giving a particular instruction. It is held that . upon the whole record it appears that the new trial was ordered because the trial judge disagreed with the jury in their view of the facts, and therefore the decision is not reviewable.</p> <p>2. Same. The fact that the trial cotirt in granting a new trial specifically and formally sets aside, as without any support in the evidence, only a part of the special findings which are attacked, and states that there was some evidence to support the others, does not necessarily show that such approval was given to the latter findings as to justify this court in ordering judgment on them, even if they would be in themselves, if regarded as establishing the facts to which they relate, conclusive of the rights of the parties.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Interstate Commerce — Bill of Lading — Acceptance by Consignee— Implied Contract to Pay Established Freight Rates. Where an interstate bill of lading contains any provision authorizing the consignee to pay the freight, an implied contract by the consignee to pay the freight charges arises from his acceptance of the delivery of the goods under the bill, into which contract there will be read the provisions of the Elkins act requiring payment of the full charges in compliance with the duly established rate; and where the consignee pays the charges demanded, which are less than the established rate, the carrier may maintain an action against him for the unpaid balance of the legal charges.</p> <p>2. Same — Presumption that Schedule of Rates Was Duly Published. In a suit by a carrier to recover from a consignee the unpaid balance due for freight charges, where it is admitted that a schedule of rates has been duly filed with and approved by the interstate commerce commission, the presumption, in the absence of any showing to the contrary, • is that the rates were duly published, and not that the carrier has violated the ■ provisions of the Elkins act subjecting it to severe fines and penalties for failure to publish the same.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Contract- — To Make Plaintiff an Heir — Insufficient Evidence. The evidence did not prove the contract alleged in the plaintiff’s petition.</p> <p>2. Same — Findings—Supported by the Evidence. The findings of fact made by the trial court were supported by the evidence, and no sufficient reason is advanced by the plaintiff for striking out any portion of any finding, or for adding anything thereto.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Reward — Contract for Apprehending Criminal. Evidence examined, and held .sufficient to prove a contract to pay a reward for discovering, locating and apprehending a criminal.</p> <p>2. Same — Right of Public Officer to Claim Reward. The right of a public officer to claim a reward for doing his duty discussed.</p> <p>•3. Same — Nonpay Deputy Sheriff May Earn Reward. A nonpay deputy sheriff who was under no official duty to discover and apprehend a thief is not barred by any rule of public policy from claiming a reward offered for the capture of the thief.</p> <p>4. Same — Trial—Findings of Jury. Findings of a jury examined, and no material inconsistency disclosed therein.</p> <p>5. Same — Evidence. Evidence examined, and held sufficient to support the finding, verdict and judgment that plaintiff had earned the reward offered by defendant.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Contract — To Execute Oil and Gas Lease — Incorporeal Hereditament — Statute of Frauds. A contract to execute an oil and gas lease granting the right to explore, and, if mineral be found, to produce and sever, is a contract for the sale of an incorporeal hereditament, within the meaning of the sixth section of the statute of frauds. (Gen. Stat. 1915, § 4889.)</p> <p>2. Same — When Actionable Though Not in writing. A contract by a husband, whereby for a consideration he agrees to procure his wife to sign an oil and gas lease of the character described, need not be in writing to be actionable.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Conversion of Wheat — Demurrer to Evidence. A demurrer was sustained to the plaintiff’s evidence which entitled him to go to the jury. Held, error.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Nuisance — May be Both Private and Public. A business may be conducted under conditions which will constitute it a private as well as a public nuisance.</p> <p>2. Same — Petition to Abate Private Nuisance — Stated Cause of Action. On the facts stated in the opinion it was error to sustain a demurrer to the petition in a suit brought by an individual to enjoin the keeping of a horse and mule market in close proximity to his residence.</p> <p>3. Same — Public Nuisance Shown by the Evidence. In an action by the state on the relation of the county attorney, it is held that the evidence was sufficient to justify a fmdifig that a horse and mule market conducted by the defendant constituted a public nuisance.</p>

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

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

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Tort — Exhibition of Photograph in Moving Picture — Rights of Privacy— Damages. The exhibition in a moving-picture theater of the photograph of a person taken without her consent and for the purpose of exploiting the publisher’s business, is a violation of the right of privacy, and entitles her to recover without proof of special damage.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Compensation Act> — Injury to Minor — Presentation of Claim — Statute of Limitations. The action of a minor by his next friend to recover under the workmen’s compensation act is not barred because the written claim for compensation was not served within three months from the date of the injury — no guardian having been appointed. (Gen. Stat. 1915, § 5904.)</p>

<p>SYLLABUS BY THE COURT.</p> <p>Venue — Action to Compel Reconveyance of Land — Deed, Procured by Fraud — Action TransitOry. An action to compel the defendant to re-convey land claimed by him under a deed alleged to have been procured through his fraud is transitory and not local, and may be brought in any county where personal service can be had upon him. The statute requiring actions “for the determination in any form” of an' interest in real property to be brought in the county where it is situated relates only to actions in which such result is sought by means operating directly upon the property, and does not apply to those by which the conduct of the defendant is sought to be controlled, although the title to the property may thereby be affected.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Descents and Distributions — Widow’s Interest in Her Deceased Husband’s Real Estate. Section 3831 of the General Statutes of 1915, providing that under certain circumstances a widow shall be entitled to one-half in’value of real estate in which' her husband in. his lifetime had a legal or equitable interest, refers to, legal or equitable interest capable of inheritance, and does not apply to interests in land which were extinguished by the husband’s death. •</p> <p>2. Same — Widow No Interest in Husband’s Life Estate. A widow has no interest, under the statute, in lands purchased by her husband with his own funds and deeded to him “and at his death to his sons,” his interest being a life estate only.</p> <p>3. Same — Gift by Husband — Without Wife’s Consent. The rule stated in the decisions in the cases of Small v. Smaill, 56 Kan. 1, 42 Pac. 323, and Poole v. Poole, 96 Kan. 84, 150 Pac. 592, regarding the unlimited power of a husband to give away his money or personal property, although the intention or known effect be to deprive his wife of her statutory share should she survive him, followed.</p> <p>4. Same — “Colorable” Transaction by Husband. A colorable transaction is one presenting an appearance which does not correspond with the reality, and in the sense ordinarily contended'for, an appearance intended to conceal or to deceive.</p> <p>5. Same. Deeds of real estate conveying to a married man life estates and to his sons the remainders in fee, considered, and held not to be colorable.</p> <p>6. Same — Sale of Husband’s Land. — Proceeds Belong to Husband. Money paid a married man as the consideration, for a conveyance of his real estate, in which his wife joins, belongs to him, unless it be definitely agreed that a specific portion shall belong to her individually.</p> <p>7. Same — Action by Widow — No Actionable Contract Alleged. ' The petition considered, and held to contain no allegation of a contract whereby, in consideration of the surrender of the wife’s marital interest in land sold by her husband, he agreed to invest her with a substituted marital interest in other land.</p> <p>8. Same — Action by Widow — No Fraud Alleged. The petition considered, and held not to charge the husband with perpetrating a fraud on his wife with respect to the surrender of her marital interest in land belonging to him, which he sold.</p> <p>9. Same — Personal Property of Husband — Rights of Widow. Without actual fraud in procuring a wife to join in a conveyance of her husband’s land, giving- her a clear right to impound thé consideration received by him or to control its use, she cannot pursue the fund.</p> <p>10. Same — Widow May Recover Only Under Statute. In order to recover under a petition claiming a widow’s statutory interest in real estate, the widow must claim under the statute and through her hus- ' band.</p>

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

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

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