Volume 103 — Kansas Reports

<p>SYLLABUS BY THE COURT</p> <p>1. Grade Crossing — Two Railroads — Interpretation of Contract Concerning Gate. A contract between the plaintiff and the defendant relating to the erection, operation, and function of a gate at a grade crossing of their railroads at a station, and the operation of trains over the crossing, provided that the normal position of the gate was to be across the plaintiff’s track, the purpose being to block the plaintiff’s track and allow the defendant’s trains to run over the crossing without stopping, except when the gate should be turned across the defendant’s track. In that event, the defendant’s trains were to respect the signal, and stop. Held, the gate might properly be turned in favor of one of the plaintiff’s trains after it arrived at the crossing, and against an on-coming train of the defendant, provided sufficient distance were allowed to give timely warning, by means of the gate, so that the oncoming train could be stopped by the exercise of reasonable care.</p> <p>2. Same — Finding—Passenger Train Came to “Full Stop ” The contract required the plaintiff’s trains to come to a full stop before passing over the crossing. The jury were asked whether or not the passenger train of the plaintiff, run into while on the crossing by the freight train of the defendant, first came to a full stop. The jury answered, “Yes, approximately so.” The answer was based on evidence to the effect that the purpose of a full stop was accomplished. Held, the contract was complied with.</p> <p>3. Same — “Employees" to Open and Close Gate at Crossing. The contract required “employees” of the plaintiff to open and close the gate. Evidence was introduced to show that “employees” meant trainmen, or a trained signal man. Some evidence to the same effect was rejected. The gate was opened by a hackman, acting under authority of the plaintiff’s station agent. Held, it was not material who performed the physical act of manipulating the structure, and in view of special findings showing the gate was turned against the defendant’s train in ample time, it was not material what employee of the plaintiff authorized the signal.</p> <p>4. Same — Company’s Rules — Abrogation. To support its interpretation of the contract, the defendant introduced in evidence a rule of the plaintiff requiring trainmen of the plaintiff to open the gate. Held, evidence of abrogation of the rule by the plaintiff, long before the collision, was properly received.</p> <p>5. Same — Interpretation of Company’s Rules by Court — Expert Evidence. The plaintiff introduced in evidence a rule of the defendant requiring its trains to approach grade crossings under full control. Evidence offered on behalf of the defendant that full control had a special, technical meaning, as applied to crossings gated normally ■ against a foreign road,-was rejected. Ordinarily, rules of this kind, containing no term the meaning of which is not perfectly clear, are to be interpreted by the court. Sometimes genuinely technical ex- ; pressions are used, and sometimes the practical application of a rule to a particular state of facts may not be clear. In such cases evidence of how those governed by the rule understand it may be helpful. The court must determine in each instance whether it needs any testimonial aid to interpret the word or phrase in dispute.-</p> <p>6. Same — Rules—Evidence, Not Standard of Duty Rules of the kind referred to are limitations placed by the employer on the conduct of his employees, evidencing what the employer considers proper conduct, and do not establish the legal measure of duty to third persons, which may be> greater or less than the rule prescribes.</p> <p>7. SAME — Trains App'roaching Crossing “Under Full Control" — Instruction. The court instructed the jury that trains were required to approach the crossing under proper control, and prope'r control was defined as such control that the train could be stopped promptly if need arose. Under control, under full control, and under proper control, are all relative and not absolute terms', and as applied to the approach of the defendant’s freight train, under the circumstances disclosed by special findings of fact, the instruction was not erroneous.</p> <p>8. Same — Special Findings — •Liability of Defendant. Special findings of fact considered, and held to be sustained by the evidence, and to fasten responsibility for the collision on the engineer of the freight train.</p> <p>9. Same — Settlement by Plaintiff of Personal-injury Claims — Reimbursement by Defendant. The plaintiff paid, for the account of the company at fault, sums of money in settlement of claims for personal injuries arising from the collision, and for other purposes. Held, the letters and telegrams passing between the officials of the two companies authorized the settlements; certain expenditures were incidental to personal-injury claims; the duty of the defendant to reimburse the plaintiff was implied; and the duty arose as soon as settlements were made, so that the sums paid drew interest.</p> <p>10. Same — Duty toward Passengers Not Owed to Other' Railroad.’ The duty of the plaintiff to exercise extraordinary care toward its passengers was not owed to the defendant, and the principles governing the liability of a carrier to its passengers do not apply to the accountability of the defendant to the plaintiff.</p> <p>11. Same — No Errors in Record. Other claims of error considered, and decided adversely to the defendant.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Highway — Location of Road — Official Sv/rvey Competent Evidence. In a suit by a plaintiff landowner to enjoin township officials from grading and ditching a public road, the official record of a county surveyor, who established the corners and boundaries of the section in which the plaintiff’s land lies, twenty years ago, is competent evidence to determine the true location of the road.</p> <p>2. Same — Agreement of Landowners■ Pending Suit — Incompetent Evidence. An agreement of adjacent and- neighboring landowners touching their land corners and boundaries, made after the institution of a suit to enjoin township officials from grading and ditching a public road, was properly excluded from consideration in such injunction suit.</p> <p>3. Same — Injunction Denied. Evidence examined and found sufficient to Sustain a judgment denying an injunction against township officers who were about to grade and ditch a public road.</p>

<p>OPINION DENYING A REHEARING.</p> <p>SYLLABUS BY THE COURT.</p> <p>Agent’s Commission — Action—Compromise. A defendant in an action without merit may compromise the litigation without making himself liable in any way to any third party.</p>

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Injunction — Sale under Mortgage Foreclosure — Petition States Cause of Action. The petition examined, and held to state a cause of action to enjoin the foreclosure sale therein mentioned, no misjoinder of causes or parties appearing-.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Sale op Land — Conveyance in September — Liability for Taxes of Current Year. Where a contract for the sale of a farm Was made on September 23, 1913, whereby the purchaser paid $1,000 thereon and was immediately let into possession for the purpose of sowing wheat, and the vendor at the same time executed a deed to the farm in favor of the purchaser, which deed was by agreement deposited with a bank for delivery to the purchaser on the payment- of the balance of the purchase price, which sum was to be paid on the first day of the following March, and where the contract was complied with in every respect by both vendor and purchaser, but no express agreement had been made between them as to which should pay the taxes due in November, 1913, the purchaser is liable for such ‘.taxes under section 11349 of the General Statutes of 1915.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Deed — Procured by Fraud— Subsequent Purchaser — Security for Debt. A defrauded vendor may recover the real estate conveyed, from a grantee of the vendee who took title from the vendee merely as security for a preexisting debt.</p> <p>2. Decree — Motion to Modify Stricken from Files — Res Judicata. One who succeeded in having stricken from the files a motion to modify a decree made by one not a party to the suit, on the ground that the decree did not bind the mover, cannot afterwards assert that the decree is res judicata against the mover.</p> <p>3. Trial — No Prejudicial Error. The proceedings examined, and held to be free from prejudicial error.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Jurisdiction' — Oil cmd Gas Lease — Land in a/nother County — Appointment of Receiver. A receiver may be appointed by the district court for an oil and gas lease of land beyond the jurisdiction, when the instrument merely creates an incorporeal hereditament, and in any event when the court has jurisdiction of the persons of the interested parties.</p> <p>2. Oil and Gas Lease — Mining Partnership. Unless an ordinary partnership has been created, a mining partnership between cotenants of an oil and gas lease may exist only while they actually engage in working the property.</p> <p>3. Same — Receiver Properly Appointed. The evidence considered, and held, a receiver was properly appointed for an oil and gas lease, although the interested parties were merely cotenants.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Moving Picture — Approved by Board of Review — Recall for Reexamination. The Kansas board of review, when approving a motion picture film, does so subject to subsequent recall for, reexamination.</p> <p>2. Same — Recall Enforced by Mandamus. Upon such recall, a duty of the producer arises to return the film for reexamination, the performance of which duty may be required by mandamus.</p> <p>3. Same — Recall—No- Presumption of Bad Faith. The evidence examined, and found not to raise the presumption that in the work of such reexamination the members of the board'will act in bad faith.</p>

<p>Appeals from Marshall district court; Fred R. Smith, judge.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Promissory Note — Payment Guaranteed without Maker’s Knowledge— Payment by Guarantor — ■Rights of Guarantor — Statute of Limitations. One who guarantees the payment of a note by a contract made with the payee, without the request or knowledge of the maker, and by reason of such guaranty is required to make payment, may thereby acquire a valid claim against the maker for reimbursement; but in such a case his attitude is that of a virtual purchaser of the note, rather than of a surety in the ordinary sense, and if five years elapse after the maturity of the note without the maker recognizing the guaranty, or even being informed of it, the statute of limitations may bar the guarantor’s claim, notwithstanding that action is brought upon it shortly after his payment was made.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Guardian and Ward — Contract, for Maintenance of Ward — Contract Performed — Additional Compensation Refused. The guardian of the plaintiff’s brother made a contract with plaintiff by which the latter was to board and care for his brother for $2.75 per week. He presented each month for several years his bill for compensation at this rate, which the guardian paid him during the time the brother remained with him. His brother died, and an administrator was appointed for the estate, when the plaintiff filed a demand against the administrator for additional compensation, claiming that the services rendered were worth more than he had been paid. Held, on the facts stated in the opinion, that thé court should have sustained a demurrer to the evidence.</p>

<p>SYLLABUS BY THE COURT.</p> <p>TAXATION' — Mausoleum Exempt from Taxation. A mausoleum, erected and used exclusively as a place for the permanent interment of the dead, is exempt from taxation under the second subdivision of section 11151 of the General Statutes of 1915, which exempts from taxation all lands used exclusively as graveyards.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1: Judgment — Motion to Correct Judgment Nune pro Tunc — Final Order — Appeal. An order refusing to consider a motion to correct a judgment nune pro tunc, and striking such motion from the files, is a final order from which an appeal is allowed by the civil code.</p> <p>2. Same — Motion to Correct Judgment — Technical Errors Disregarded. The provisions of the- code and the rules of court concerning the presentation of appeals must be read and applied in the light of section 581 of the code, which commands that mere technical errors and irregularities not affecting substantia] rights nor causing any uncertainty in the matter under review are to be disregarded.</p> <p>3. Same — Motion to Correct Judgment Should be Heard. Matters of evidence and estoppel which may be sufficient to defeat a motion to correct a judgment considered, and held insufficient to justify a refusal to consider the motion on its merits and insufficient to justify an order'to strike the motion from the files.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Highway — Surface Oil Pipe — Pipe Broken — Damages. A company which maintains an oil pipe on the surface of a highway, through which inflammable oil is flowing, is liable in damages to one who without negligence on his part breaks the pipe by driving a threshing outfit over it and sustain's injury and loss from the escaping oil.</p> <p>2. Same — Surface Oil Pipe — Rights of User of Road. In taking their threshing outfit into a field adjoining the highway, in order to thresh a crop, the plaintiffs were entitled to use not only the worn part of the highway but also the whole width of the same so far as it was necessary.</p> <p>3. Same — Surface Oil Pipe — Damages—Evidence for Jury. In an action to recover damages resulting from the breaking of an exposed oil pipe a demurrer to plaintiffs’ evidence was sustained, and upon an examination of the evidence it is held to have been sufficient to take the case to the jury as to the negligence of the defendant, and also as to the plaintiffs’ contributory negligence.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Garnishment — What Property May be Reached. Rule followed that a garnishment reaches only the property which actually belongs to the debtor, and does not lawfully reach that which the debtor has already assigned in good faith to other creditors.</p> <p>2. Same — Property Lawfully Assigned — Not Subject to Garnishment by Other Creditors. Where a creditor in a garnishment proceeding gets possession of the proceeds of an insurance policy which had already been lawfully assigned to other .creditors, he holds such proceeds as trustee for the benefit of such other creditors; and, in an action where all parties concerned are brought into court and all the pertinent facts are pleaded and proved or conceded, a judgment may properly be entered against such creditor in favor of the other creditors for the sums due them from the debtor in conformity with the terms of the assignment.</p>

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

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

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

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

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Homicide — Trial—Qualification of Jurors. Two jurors, after examination by the parties, stated to the court that they knew nothing about the facts of the case and their minds were in such condition that they could sit and try it as properly and impartially as though they had heard nothing about it. The trial court decided that they were free from bias, and overruled challenges for cause. Held, that, disqualification or abuse of discretion not appearing, such ruling must be sustained.</p> <p>2. Same. ,One juror stated that he had heard that the deceased made a dying statement, and was asked whether he had an opinion that when making it she believed she would not recover. An objection to this question was sustained. Held, that as the question itself was improper, and the juror testified that he was not acquainted with the deceased, knew no reason why he could not be a fair and impartial juror, did not entertain an opinion that she had been assaulted, and did not remember having talked with anybody about the crime, no error was committed in sustaining the objection. '</p> <p>g. Same — Reputation of Defendant — Cross-examination of Defendant. The defendant, having offered the testimony of numerous witnesses as to his reputation for being a peaceable and 'law-abiding citizen, was asked on cross-examination if he did not state at one time that he was the father of the unborn child of a certain person, to which he replied, “I certainly did not.” Another witness was' permitted to testify that at the time mentioned he did make such statement. Held, that the state was bound by the answer of the defendant on cross-examination as to this collateral issue, and it was error to admit the rebutting testimony;, but, in view of the crime charged, the character testimony, and the remoteness of the statement testified to, the error was not of sufficient importance to constitute material prejudice requiring a reversal.</p> <p>4. Same — Defense of Suicide — Evidence. One theory of the defense was suicide, and the defendant testified to curses and abuse of the deceased by her husband on the morning before the tragedy. Testimony was received that on the same morning she waved good-bye to the husband, and that on his return that day from his journey there was in his grip a note from her expressing affection and congratulations on his birthday. Held, competent and proper.</p> <p>5. Same — Evidence — Screams of Deceased — Cross-examination. A neighbor who testified that the screams from the deceased seemed to come all from the same place, was asked' if on the preliminary examination she had not testified that they did not sound as if they came all from the same place, to which she replied that she did not know what she had said at that time. A question from the preliminary examination was then read, and she was asked if she did not answer as there shown, but an objection to the question was sustained. Held, that, while such objection might properly have been overruled, the matter was not of sufficient consequence or materiality to work prejudicial error.</p> <p>6. Same — Evidence of Physician. A physician who had attended on the deceased different times and treated her, was asked the nature of her ailments at such times, but was not permitted to answer. Held, that the defendant cannot complain.of not being permitted to prove his theory of suicide by the cross-examination of the state’s witness.</p> <p>7. Same — Evidence—Spots on Hands of Defendant. Testimony as to spots or discoloration on the hands of the defendant, together with the statements of the deceased concerning them, was properly received.</p> <p>8. Same — Instructions. No error was committed in refusing or giving instructions touching the dying declaratioii of the deceased.</p> <p>9. Same — Various Assignments of Error Without Merit. No error was committed touching the admission of evidence concerning the finding of a carbolic-acid bottle, in permitting certain witnesses to testify whose names were not spelled exactly right on the back of the information, in sustaining objections by the state to questions asked the husband of the deceased as to various matters touching his relations and correspondence with her before their marriage, in respect to the conversation between the deceased and another party who called at her home, nor to a conversation had by another witness with the deceased touching such visit.</p> <p>10. Same — Evidence—Dying Declaration. Testimony in respect to the dying declaration examined, and found to be sufficient to go to the jury on the question of the declarant’s fear of impending death and as to th'e credibility of such declaration.</p> <p>11. Sam '^-Evidence — Dying Declaration. The recital by certain wit- ■ nesses of one or two items not contained in the written declaration, ' but probably contained in a verbal statement made the day before, held, in view of an instruction strictly limiting the dying declaration to the written statement admitted in evidence, not materially prejudicial.</p> <p>•12. Same — Evidence—Dying Declaration. While a dying declaration, to be admissible, must be made under a sense of impending death, it is not necessary that it so state, nor is it necessary to show that the deceased was apprehensive of immediate dissolution, it being sufficient to show that he had abandoned all hope, and regarded his death as impending and certain as the result of the injury inflicted.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Injunction — Oil and Gas Lease of School Site — Injunction Brought by Taxpayers — No Cause of Action Proven. Under section 265 of the code, before taxpayers of a school district can maintain a suit to set aside an oil and gas lease of the school site executed by the school board and enjoin the lessee from entering upon the school premises and exploiting for oil and gas, it must appear that the contract and the acts complained, of may result in imposing some burdens of taxation upon the plaintiffs.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Highways — Improvements—Apportionment of Costs — Power of Legislature. Where proceedings for the improvement of a highway are begun under a statute providing that one-fourth of the cost shall be paid by the township and the remainder charged against the land in a benefit district, it is competent for the legislature thereafter to change the distribution so that the cost shall fall one-fourth on the township, one-half on the county, and the remainder upon the land in the benefit district. The owner of the specially benefited land is not prejudiced, for his burden is lightened, and the general taxpayers of the county have no legal ground of complaint, because it is within the discretion of the legislature to impose any part of the cost of a highway upon the county.</p> <p>2. Same — Improvements—Apportionment of Costs — Notice to Taxpayers. In such a statute no provision is necessary for notice to the owners of property other than land in the benefit district, for as to them the tax is general; or if it is regarded as special, they are conceived as having notice through their representatives in the legislature, that body having itself determined the apportionment of the burden.</p> <p>3. Same — Bids for Construction of “Hard-surface Road” — No Departure from Petition. A call for bids for the construction of “a hard-surface road of ‘bituminous macadam’ ” shows no departure from the requirements of a petition for a roadway of “crushed stone or macadam with a top surface of Burmudez asphalt, or other asphalt equally as good, employing what is known-as the ‘penetration method.’ ”</p>

<p>OPINION ON REHEARING.</p> <p>Appeal from Saline district court; Dallas Grover, judge.</p> <p>Former opinion of reversal adhered to.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Real-estate Agent — Commissions — Compromise and Settlement. The law favors the compromise and settlement of disputes, and when parties without fraud enter into an agreement settling and adjusting a dispute neither is permitted afterward to deny it.</p> <p>2. Same. It having been found that an agreement, based on a good consideration, settling the amount to which the plaintiff was entitled for services rendered towards finding a purchaser for the defendant’s land was made without fraud or concealment, it is binding upon the parties,, regardless of the merits of the controversy.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Forcible Detention — Termination of Controversy — Dismissal of Appeal. The court will not consider the merits of an appeal from a judgment of forcible detention, rendered against a tenant claiming under a lease, after the lease has expired; and the fact that in the course of the litigation the tenant has given bond not to commit waste and to pay double value of the use, and damages, does not give him a continuing right to a decision on the merits.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Pleading — Verified Account — Affidavit on Belief Sufficient. Although a positive affidavit to its correctness is necessary in order that an account may be regarded as duly verified, the denial thereof is sufficient if supported by the oath of the affiant that he believes it to be true.</p> <p>2. Trial — No Error in Record. Various trial rulings held not to have been erroneous.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Divorce and Alimony- — Divorce Refused — Evidence Supports Decree. The evidence is examined and found to be such that the conclusions reached by the trial court and the decree rendered should not be disturbed.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Cities — Negligence—Performance of Governmental Duty — Personal Injuries — City Not Liable. In an action against a city by a minor to recover damages caused by the explosion of dynamite caps left upon the grounds of a detention hospital of the city through the negligence of a city’s employees, held, following a former decision in the same case (Frost v. City of Topeka, 98 Kan. 636, 161 Pac. 936), and Butler v. Kansas City, 97 Kan. 239, 155 Pac. 12, that the petition fails to state a cause of action.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Agency — Commission—Evidence. The evidence examined, and held to have been sufficient to require its submission to the jury.</p> <p>2. Same — Agent.Acting in Dual Capacity — Commission. One who in a loan transaction acts as agent for both borrower and lender, with ' their full knowledge and approval, is entitled to any commission agreed by either of them to be paid to him.</p> <p>3. Same — Sufficient Motion for New Trial. The motion for a new trial (even if such motion were necessary or proper) held to be sufficient in form to call attention to the alleged error in sustaining a demurrer to the plaintiff’s evidence.</p>

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Purchase of Bank Stock — False Representations — Evidence Sufficient as against Demurrer. The evidence adduced by plaintiff to support .his cause of action for damages sustained through defendant’s false and fraudulent representations touching the financial condition of a bank, whereby the plaintiff was induced to purchase defendant’s stock — a controlling interest — in the bank, examined, and held sufficient against a demurrer.</p> <p>2. Promissory Note — Obtained by Duress — Evidence Sufficient as against Demurrer. The pleadings and plaintiff’s evidence to support a cause of action for rescission of a contract made under duress for the purchase of land and for the return and cancellation of plaintiff’s note given therefor examined, and held sufficient against a demurrer to plaintiff’s evidence; and held, also, that the issue of duress and consequent illegality of the note raised by the pleadings and established prima facie by plaintiff’s evidence made it improper to render judgment for defendant on his cross petition, although plaintiff’s answer to the cross petition was not verified.</p> <p>3. Financial Responsibility — Opinion Evidence Competent. The opinions of well-informed bankers and business men touching the financial reliability of persons of their community and the promptness and ability of such persons to pay their debts may be of some evidentiary assistance to a jury in determining the worth or worthlessness of such persons’ notes as assets of a bank.</p> <p>4. Sale of Bank Stock — False Representations — Evidence. Plaintiff’s evidence tended to prove the following facts: The defendant organized a bank, controlled its stock, and conducted its business for several years. He represented to plaintiff that the bank was prosperous; that the book value of its stock was $125 per share or better; that the bank was successfully maintaining a salary list of $5,000 per annum; that its profits for the current year would allow 10 percent for dividends, and would allow the charging off of $1,000 per annum for bad notes and leave $2,000 per annum to carry to undivided profits; that he did not believe there was $500 worth of bad paper in the bank’s assets of $140,000 to $150,000 in loan notes. He sold his controlling interest in the bank to plaintiff after enjoining plaintiff not to make an independent local investigation of the status of the bank and its business, and both orally and in writing defendant told plaintiff: “You will have to take my word for it.” In reliance oh these representations plaintiff paid $23,700 for defendant’s stock. The representations were altogether false — some $45,000 of the bank’s notes were worthless and were mostly mere renewals of uncollectible loans. The state bank commissioner ordered these loans charged off as worthless and gave the stockholders but a few hours in which to collect from among themselves an assessment of $140 per share to avert the closing of the bank, and the plaintiff’s investment was a total loss. These and minor related incidents considered, and held to be competently probative of a cause of action for damages against defendant.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Pleadings- — Leave to Amend, Petition — Amended by Interlineation— No Notice to Defendant — Erroneous Judgment Thereon. Where a plaintiff has been required to make his petition more definite and certain, and has obtained time to do so, and he merely amerids by a slight interlineation, and no entry is made in the docket showing that an amended petition has been filed, or that the original petition amended by interlineation has been refiled, and where the defendant has no notice of such amendment, judgment on such a petition should not be entered against defendant for default of answer.</p> <p>2. Motion — To Set Aside Default Judgment — Right of Appeal. The pendency of a motion in the trial court to set aside a judgment entered by default when a cause was not properly at issue does not deprive the aggrieved party of his right to appeal from that judgment, nor need he imperil his right of appeal by delaying it until such motion is decided in the trial court.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Arson — Trial — Presence of Defendant — Absence of Jury to View Scene of Crime. The statute providing that the defendant in a felony prosecution cannot be tried unless personally present during the trial does not forbid the sending of the jury to view the place of the alleged offense without his accompanying them; and if the provisions 'of the bill of rights that the accused shall be allowed to appear and defend in person and by counsel, and to meet the witness face to face, give him a right to accompany the jury on such a trip,- he waives the right by failing to ask leave to exercise it.</p> <p>2. Same — Absence of Jury to View Premises — No Request by Defendant to Accompany Jury — Waiver. An objection by the defendant in a felony prosecution to the jury’s being sent to view the place of the alleged offense, upon the ground, among others, that he has a right to be present at all the proceedings of the trial and to have the evidence presented by witnesses whom he meets face to face, does not amount to a request to be allowed to accompany them, and does not prevent his omission to make such- a request from effecting a waiver of any' right he may have in that regard.</p> <p>S. Same — Jury Sent to View Premises — Changes in Premises — No Ground for New1 Trial. The act of a prosecuting officer in. making a change in the premises where the offense was alleged to have been committed held not to have been a ground for granting a new trial, inasmuch as’ the defendant testified to having himself restored things to their original condition before the inspection by the jury.</p>

<p>Appeal from Brown district court; William I. Stuart, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Husband and Wipe — Separation Agreement ■ — Division of Property — Subsequent Divorce — Agreement Valid. After entering into a separation agreement which, among other things, required the payment by the husband to the wife of $1,200, the parties, after a separation of about a year, lived together again for some months, when a second separation took place, the wife suing for divorce and alimony on the grounds of extreme cruelty and gross neglect of duty. The court found that the contract was fairly made at the time, was understood by the plaintiff and had been substantially carried out, and that there was nothing said or done touching its abrogation, except the mere fact of living together. The court not only allowed suit money and counsel fees, but also allowed alimony. Held, that alimony was improperly awarded.</p>

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

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Common Carrier — Duty Oped to Passengers. “A carrier is bound to exercise the highest degree of care that is reasonably practical in safely carrying passengers and setting them down safely at their destinations.” (Lynch v. Railway Co., 92 Kan. 735, 142 Pac. 938, syl. 1.)</p> <p>'2. Same — Carrier Not Insurer of Safety of Passenger. But the carrier, is not an insurer of the safety of passengers, and an instruction. which charged that it is the duty of the carrier to provide for the safe entry and exit of its patrons to and from its cars is subject to criticism, because it makes the carrier the insurer of- the safety of the passenger.</p> <p>3. Same — Application of Doctrine of “Res Ipsa Loquitur.” The doctrine of res ipsa loquitur is properly applied in case of injuries to a passenger caused by s derailment, the collision with another train, the breaking of a rail, or by some defect in the equipment of the train which the passenger is presumed to know nothing about, for the reason that he has no way of anticipating or ascertaining, 'either before or after the accident, what occasioned it. It has no application to a case where a passenger is injured by some defect in the floor of the car which is visible to the passenger, and which causes the passenger to fall while attempting to alight from the train at a station.</p> <p>•4. Same — Accident to Passenger — No Presumption of Carrier’s Negligence — Burden of Proof. In an action by a passenger of an' interurban railway to recover damages alleged to have been caused by a defect in the floor of the vestibule .of the car, in which her foot caught while she was in the act of alighting at a, station, it is error to charge that the happening of an accident resulting in injury to a passenger is prima facie evidence of negligence on the part of the carrier, and that “it will be incumbent upon the company or carrier to produce evidence which will excuse the prima facie failure' to do its duty. Or, in other words, it has the burden of proof, in order to rebut the presumption of negligence under the circumstances, that the accident 'could not have been avoided by the exercise of the highest practicable care and diligence.”</p>

<p>SYLLABUS BY THE COURT.</p> <p>Contract — Conveyance of Land — Payment in Installments — Conveyance by Vendor to Third Party — Rights of Vendee. Where a vendor contracts to convey real property on the payment of a certain sum in installments, and is paid a number of installments, and then makes k conveyance to a third party, the damages sustained by the vendee on account of the conveyance may be recovered from the vendor; but, where the third party can be compelled to perform the contract, none of the amounts paid the vendor, and neither the value of permanent improvements made by the vendee, nor the increase in the value of the property, can be recovered from the vendor, unless there is a rescission of the contract.</p>

<p>Appeal from Barber district court; George L. Hay, 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>SYLLABUS BY THE COURT.</p> <p>Promissory Note — Signatures as Makers — Liability as Makers. A promissory note was signed as follows:</p> <p>“F. N. Batchman, W. L. Hiss, G. W. Hart, Members Board of • y Directors Sunflower H. N. McGill, Lead & Zinc Co.” Wm. Gagleman, ^</p> <p>In an action by the payee, the answer denied that the parties executed the note individually or were personally liable thereon, and alleged that it was the obligation of the Sunflower Lead & Zinc Company. On the trial the court permitted them to introduce oral evidence-to show that their intention was to sign the note for the corporation, and not for themselves as individuals, and on this evidence rendered' judgment against the payee. Held, following Bank v. Jelte, 101 Kan. 537, 167 Pac. 1067, that it was error to receive the testimony because, under the negotiable-instruments law (Gen. Stat. 1915, § 6590), “If a person placing his name on a promissory note do not clearly indicate by appropriate words an intention to be bound in a special capacity, and sign as maker, his liability to the holder is that of maker. . . .” (Bank v. Jelte, supra, syl. ¶ 1.)</p>

<p>SYLLABUS BY THE COURT.</p> <p>Taxation — Notes and Securities — “Business Situs” in Foreign State— Npntaxable in Kansas. A resident of this state, having sold a business in Wyoming, placed the proceeds with an investment company in Missouri with full power to invest in notes and mortgages, record, release, collect and reinvest, the securities being at all times in the possession of the agency, the profits only being remitted to the principal. Held, that such securities, being thus dealt with for a number of years, acquired a business situs for the purposes of taxation where the agency is located and are not taxable at the residence of the owner.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Cities of First Class — Power to Extend Boundaries. Property consisting of one body of land may be annexed to a city of the first class, if the whole' of the tract thus annexed is contiguous to the city, although parts of the tract may be owned by different persons. {Htvrla v. Kansas City, 46 Kan. 738, 27 Pac. 143, followed.)</p> <p>2. Same — Extension of Territory — Who May Attack Validity of Proceedings. The validity of proceedings taken by city officers under statutory authority, which proceedings extend the corporate limits of a city so as to annex a tract of land, can be questioned only in a direct proceeding prosecuted at the instance of the state by proper-public officers. • -</p> <p>3. Same — Constitutional Law — Curative Statutes. Section 1 of chapter 104 of the Laws of 1913 (Gen. Stat. 1915, § 1042) cured any defects that may have existed in ordinance No. 8219, annexing certain land to Kansas City. '</p> <p>4. Same — Public Improvements — Error in Levy — Relevy. Where special assessments for public improvements in a city of the first class are levied on property not liable therefor and are enjoined as to that property, the assessments may be relevied on the property liable therefor, and, when relevied, must be levied on that property in each block separately.</p> <p>5. Same — Attacking Special Assessments — Limitation of Actions. If special assessments for public improvements in a city of the first class are attacked, they must be attacked within thirty days from the time when the amounts due are ascertained.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>City Bonds — Combined Water and Electric Light Plants — Construction of Statute — Bonds Valid. Chapter 75 of the Laws of 1913, relating, among other things, to municipal bond issues for the construction of combined water and electric light plants, and chapter 123 of the Laws of 1913, both of which purport to amend an earlier statute, are to be construed together. So construed, the law as it now stands is chapter 123, with the additions to the old law lodged in chapter 75 concerning bond issues of the character stated.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Sale — Advertising Matter — Voting Contest — Notes Given — Default of_ Payment — Contract Interpreted — Set-off. Articles were sold to a retailer to be used as premiums in a voting contest, the vendor undertaking that as a result the buyer’s business should increase to a stated amount, provided he carried out the contest plan and promptly met his own obligations under the contract. Held, that under the language of the agreement the omission of the buyer to pay at maturity the notes he had given for the goods did not result in a forfeiture of his rights under the part of the agreement with regard to the amount of business done.</p> <p>2. Same — Verdict and Judgment. The verdict and judgment held to have been for a wrong amount, but under the circumstances to have constituted an adjudication of the question submitted to the jury.</p> <p>3. Same — New Trial. A new trial ordered upon a particular issue at the option of the defendant.</p>

<p>Appeal from Pottawatomie district court; Robert C. Heizer, judge.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Conditional Sale — Bull Tractor — Failure of Condition — Question of Fact for Jury. The verified answer and cross petition averred that the note sued on was given for a tractor on condition that the tractor should work successfully, and that it failed so to work. The evidence of the defendant, on whom the burden of proof was placed, tended to support such averment. A demurrer to this evidence was sustained, and judgment was rendered for the plaintiff without submitting the matter to the jury. Held, error.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Homicide — Evidence Warranted Verdict. The evidence was sufficient to warrant a verdict of guilty of murder in the second degree.</p> <p>2. Same — Evidence-Repetition of Vulgar and Obscene Language. A conviction of murder in the second degree will not be reversed on account of witnesses not being permitted to -repeat vulgar and obscene language used in threats by the deceased toward the defendant, where the witnesses give the other language used in the threats, repeat the profane language, and describe the vulgar and obscene language.</p> <p>3. Same — Evidence—Improper Cross-examination. On the cross-examination of a witness, it is not error to exclude evidence on matters not testified to in chief, although that evidence concerns transactions connected with the facts in controversy.</p> <p>4. Same — Evidence Properly Rejected. There is no reversible error in refusing to permit a witness to give the substance of a conversation, where the witness states that he cannot give the substance of that conversation.</p> <p>5. Same — Self-defense — Evidence by Defendant. On a murder trial, where the accused testifies that the deceased had threatened to kill him; that he believed the deceased intended to kill him, and was trying to do so; and that the accused was acting in self-defense, it is not error to refuse to permit him to testify further concerning what he believed to he the extent of his danger.</p> <p>6. Same — Evidence—General Reputation of Deceased. One who is on trial charged with murder may show, by general reputation, that the deceased was a quarrelsome, turbulent, and dangerous man, and may show that information of that fact had been communicated to him; but a judgment of conviction will not he reversed for error in excluding evidence of communication of that information, where the whole of the evidence established that the defendant must have known, at the time of the homicide, that the deceased was quarrelsome, turbulent, and dangerous.</p> <p>7. Same — Refusal to Reopen Trial — No Error. It is not error to refuse to reopen a trial for the purpose of permitting the introduction of evidence, where that evidence was known to the party making application, and no sufficient reason is given for not introducing the evidence before the trial closed.</p> <p>8. Same — Proper Admonition to Jurors. On a murder trial, when it becomes necessary to permit one of the jurors to go to his home, it is not error for the court to strictly admonish the jurors concerning their duty while the one juror is away, and it is not error for the court to call the attention of the jurors to the fact that rumors concerning their misconduct have been in circulation.</p> <p>9. Same — Arguments of Counsel. There was nothing in the argument of counsel to justify a reversal of the judgment.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Homicide — Killing of Sheriff — Defendant Resisting Arrest- — Instructions — Self-defense. In a prosecution for a homicide which resulted in a conviction of murder in the first degree, the court instructed the jury that in order to convict they must find, in addition to the other elements constituting that offense, that the defendant killed' the sheriff while he was resisting arrest by him under a warrant charging a felony. Held, that, under the conditions shown, the plea of self-defense was not available to the defendant if he killed the sheriff while resisting arrest, and, inasmuch as the verdict necessarily implied a finding (if the instructions were followed) that such was the case, the omission to instruct upon self-defense was not prejudicial, unless upon the theory that by reason thereof the jury may have been led. to disregard the instruction referred to.</p> <p>2. Same — Omission to Instruct Upon Self-defense and Lesser Degrees of Crime Not Error. Held, that in such a case the omission to instruct upon self-defense, and upon second-degree murder and manslaughter, does not require a reversal, because upon the whole record' the verdict appears to be based upon satisfying evidence, and there seems to be no substantial probability that the jury acted in disregard of the instructions given. The fact that a constable of the same county had already undertaken to take the defendant in custody on a charge of disturbing the peace, and to deputize two bystanders to guard and protect him, did not affect the right of the sheriff to arrest him, even if the conduct of the constable and his assistants was in good faith, and the evidence hardly leaves a doubt that it was collusive.</p> <p>3. Same. In such a case it is not error to instruct that “In every case where one person has a right to arrest or restrain another, 'the other can have no right to resist since the two rights cannot coexist; and where a person thus having the right to arrest another is killed by the latter in the resistance of such arrest, the resistance is a crime, and the killing is a homicide in the commission of an unlawful act. No right of self-defense can arise out of such circumstances.” Such instruction does not negative the right to resist the use of undue force by the officer, and, under the evidence in this case, it does not seem likely that the jury so interpreted it.</p> <p>4. Same — Inf or mation — Verified before Notary Public. The statute authorizing notaries public to “administer oaths pertaining to all matters wherein an oath is required” qualifies them to take the affidavit in verification of an information -in a criminal case.</p> <p>5. Same — Deposition of Absent Witness — Presence of Defendant Waived. Upon the hearing of a motion to quash a jury panel in a felony case, evidence of the county clerk was used which was taken at his house on account of his sickness, the defendant not being present. The attorneys for the defendant were invited to attend the taking of the testimony, but declined. No request to "be allowed to be present was made in behalf of the defendant, nor was any objection made to the proceeding until after the testimony had been read in evidence, and argument on the motion had been invited by the court. Held, that the defendant’s rights to be present at the taking of the testi-' mony were waived.</p> <p>6. Same — Change of Venue Properly Denied. A motion for a change of venue on the ground of prejudice of the judge, held to have been properly overruled.</p> <p>7. Same — Stipulation for Taking Depositions •— Continuance Properly Denied. A stipulation was made by the county attorney for the taking of depositions in behalf of the defendant in a murder case, a waiver of the regular procedure being included. An attorney designated by the attorney-general to conduct the prosecution gave notice that while he would try to be represented at ,the taking of the depositions, if he failed in that he would challenge the validity of the stipulation, on the ground that it was collusive and unauthorized. The depositions were not taken, the defendant’s counsel giving as a reason that, they could not be filed one clear day before the trial and, therefore, could not be used except by agreement. A continuance was asked on behalf of the defendant to enable him to procure the evidence. Held, that it was a fair question for the trial court whether it should be granted, and its refusal did not constitute; error.</p> <p>8. Same — Competency of Jurors. Rulings of the trial court sustaining the competency of challenged jurors held not to have been erroneous.</p> <p>9. Same — Evidence. Rulings admitting evidence held not to have constituted reversible error.</p> <p>10. Same — Evidence. Rulings excluding evidence held not to have been prejudicial.</p> <p>11. Same — Argument of Counsel — Not Reversible Error. The argument of counsel for the prosecution held not to have so far transgressed the proprieties as to require a new trial.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Tax Deed — Procured by Heir of Deceased Landowner — Amounted to Redemption — Benefit of Cotenants. A landowner died after his land had been sold to the county for delinquent taxes. Subsequently a tax-sale certificate was issued and assigned, and a tax deed was issued and recorded. A few days later one of the heirs took a quitclaim deed from the tax-deed holder. Held, the purchase of the tax title amounted to a redemption which inured to the benefit of the purchaser’s cotenants.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Arrest — Released on Bond — Surrender of Defendant by Bondsmen Ineffective. A person who is out on bail under a criminal charge in one county, andi who is arrested by a constable from another county under a criminal charge filed in the latter county, cannot be taken from the custody of the constable, without his consent, by the sureties on the bail of the person charged, and be surrendered to the sheriff of the first county, so as to release such sureties.</p> <p>2. Same. Under the circumstances mentioned in the first paragraph of this syllabus, after being released from the charge filed against him in the latter County, it is the duty of such person to appear at the proper time for trial in the first county, and it is the duty of the sureties on his bail to produce him for that trial.</p> <p>3. Same — Special Questions Refused — No Error. It is not error to refuse to submit to a jury special questions which would not, if answered, elicit any fact that could affect the judgment to be rendered.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Master and Servant — Personal Injuries — Damages—Written Release and Satisfaction — Oral Promises. Where the undisputed evidence and the special findings of the jury show that a written contract for the settlement, release and satisfaction of a claim for damages was executed by the claimant with full knowledge and understanding that the question of his future employment could not be considered in negotiating and effecting the contract 'of settlement, an oral promise of an agent of the wrongdoer assuring the claimant of future employment, which promise was given to induce claimant to make the contract, but which was not kept nor intended to be kept, is insufficient to vitiate the contract of settlement.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Promissory Note — Conditional Obligation — Evidence. The evidence examined, and held not to impeach the certainty of the obligation to’ pay the note sued on, but to show that the note was executed on condition.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Replevin — Chattel-mortgaged Property — Written Agreements — Waiver of Claim for Damages — Binding■ on Defendants. In a replevin action by a chattel mortgagee, held, on the special findings and admitted facts, that certain written agreements, extending notes and chattel mortgages and waiving all claims for damages arising out of the sale and purchase of farm machinery, are binding upon defendants, and the claim that they were signed by one of the defendants without having read them, when he had an opportunity to do so and was not prevented in any way by the other party, is of no avail.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Complaint — Not Duly Verified — Defendant Released on Bond — Waiver. On the ground that the complaint upon which the warrant was issued was sworn to only on information and belief, the defendant filed before the justice' a motion to quash, and five minutes later gave bond for his appearance in the district court, and was released from custody. When the case was called for trial he stood upon his motion to quash, which was overruled. Held, that by voluntarily giving bond for his appearance he waived the defect in the complaint. (The State v. Edwards, 93 Kan. 598, 144 Pac. 1009.)</p>

<p>SYLLABUS BY' THE COURT.</p> <p>Promissory Note — Extension Procured by One Joint Maker — Limitation of Action in Favor of Comaker. Whence one of two makers, by partial payments, procures an extension of time for the payment of a promissory note containing a provision that the makers consent that the note may be extended without releasing either of them, or in any way affecting their liability, the statute of limitations runs from the first maturity of the note in favor of the other maker who is not a'party to .the extension agreement.</p>

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. SALHh — Corporate Stock — False Representations- — Evidence—Findings. In an action for damages for fraud in the sale of property, the evidence is held sufficient to sustain findings that actionable false representations were made by the defendant.</p> <p>2. Same. In such an action there is a prima facie presumption that if the property had been as represented it would have been worth the amount paid for it.</p> <p>S¡ Same — Fraud — Presumptions —- Instructions. The giving of an instruction that fraud is never presumed, but must be proved like any other fact in the case, namely, by a preponderance of the evidence, and the refusal of an instruction that fraud cannot be found from mere conjecture and inference, but must be clearly proven, are held upon the entire record not to require a reversal.</p> <p>4. Trial — No Material Error Disclosed. Various rulings held not to constitute material error.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Cities — Extension of City Limits — Jurisdiction Long .Exercised — Presumptions of Regularity of Proceedings. Under the facts stated in the opinion, the presumption that a certain ordinance adding- to the ■ territory of the defendant city was preceded hy the requisite statutory preliminaries, will not be permitted to be overthrown by the claims of the city to the contrary. ^</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Compensation Act — Provisions for Compensation for Workman and for His Dependents■ — Act Constitutional. The title, “An act to provide compensation for workmen injured in certain hazardous industries,” is broad enough to include compensation for dependents of a work- ! man fatally injured, and the latter topic is germane and pertinent to the main subject covered by the act, and such act does not violate the constitutional provision forbidding the inclusion of more than one subject in one act of the legislature.</p> <p>2. Same — Death—Action for Compensation against Employer — Action for Damages against Third Party — Estoppel. Section 5 of the workmen’s compensation act gives an injured employee a statutory action or proceeding against his employer for compensation, and also for damages against a wrong-doing third party causing his injuries; and where the person entitled to maintain such statutory action is not estopped by her acceptance of compensation already provided for her, nor by her participation in arbitration proceedings to determine her compensation, nor by other acts constituting ratification or acquiescence, she may prosecute her action against both the employer and the wrong-doing third party; and she is not required to choose between the compensation allowed, or which may be allowed, and the damages which she may recover, until her action is tried and determined, but she is not entitled to recover both damages and compensation.</p>

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

<p>Appeal from Leavenworth district-court; James PI. WenDORFF, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Subscription Pledge — Default—Evidence—Instructions—Verdict. The controversy presents merely a question of fact which was determined upon sufficient evidence, and there being no error in respect to the instructions, it is held that the verdict must stand.</p>

<p>Appeal from Sedgwick district court, division No. 1; Richard E. Bird, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Larceny — Obtaining Money by Inducing Betting on Sham Horse Race. An information which charges that the defendants conspired to obtain the property of another with intent to steal the same; that they obtained possession thereof by inducing the other to bet $5,350 on a horse race; and that they made way with, secreted, and stole the $5,350, charges an offense under section 3448 of the General Statutes of 1915.</p> <p>2. Same — Conspiracy to Steal Proven. There was evidence to show that the defendants, Flaherty and Daniels, were guilty of participating with their codefendants in conspiring to steal, and in stealing, the property of George Roth.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Statutory Rape — Assignments of Error IU-founded. Assignments of • error relating to evidence and instructions considered, and held to be ill-founded.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Contract- — False Representations — Instructions—No Error in Record. Instructions to the jury considered, and held to be adequate and correct, and the proceedings held to be free from error in other respects.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Oral Oil and Gas Lease — Incorporeal Hereditament — Within Statute of Frauds. An oil and gas lease granted to the lessee, his heirs and assigns, the right to explore for oil and gas for a period of five years and as long thereafter as oil and gas were produced, with the right to the possession of so much of the surface as was needed for the laying of pipe lines, the erection of tanks, buildings, and other structures for the production, care, and .transportation of the product, the lessor to receive one-eighth of the oil obtained and a certain amount for the gas taken from the premises, and it was provided that if a well was not drilled as specified the lessee was to pay $30 for each ninety-day period of delay. Other stipulations gave the lessee the right to remove machinery, and provided for a surrender of the lease on certain conditions. Held, that the agreement purports to transfer an incorporeal hereditament, and, being oral, was within the statute of frauds and, therefore, invalid.</p>

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Oil and Gas Lease — Not Without Consideration. The lease described in the opinion is held not to be void for want of consideration.</p> <p>2. Same — Fulfillment of Conditions. The plaintiffs’ title is such that they may require the fulfillment of the express and implied conditions of the lease.</p> <p>3. Same — Commencement of Operations. An implied condition was that operations should be begun within a reasonable time.</p> <p>4. Same — Forfeiture by Lessee — Bight of Cancellation. Failure to begin operations for thirteen of the twenty years’ duration of the lease, with a failure to show any intent or purpose to operate, entitle the plaintiffs to a decree of cancellation.</p> <p>6. Same — Damages—Attorney’s Fee. The judgment for damages and ' attorney’s fee was in accordance with the statute. (Gen. Stat. 1915, ■ § 4994.)</p>

<p>SYLLABUS BY THE COURT.</p> <p>Contract — Option to Purchase Real Estate — Offends Rule against Per- ■ petuities. A contract giving an option to purchase real property without limiting the time within which the purchase may be made is void, for the reason that it violates the rule against perpetuities.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Action — “Relief on the Ground of Fraud” — Statute of Limitations. Assuming- that one who has been defrauded of money has the privilege of maintaining an action against the wrongdoer upon an implied contract to restore it, arising out of the fact of the fraud, recovery being dependent upon proof thereof, such a proceeding, unless begun within two years of the discovery of the fraud, is barred by the statute requiring “actions for relief on the ground of fraud” to be brought within that period, notwithstanding that the limitation fixed for an action upon a contract not in writing, express or implied, is three years.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Railroad — Engineer Violating Rules of Company — Personal Injuries— Contributory Negligence. A railroad engineer cannot recover damages for injuries sustained by him in a railroad collision brought about by his negligence in violating the rules of his company made for the government of his conduct, where he knew of the physical conditions in time to have prevented the accident if he had obeyed the rules.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Garnishment. — Nonnegotiable Notes Not Yet Due — Subject to Garnishment. A person indebted to the defendant in a civil action for the recovery of money, on nonnegotiable promissory notes not yet due, and payable on the happening of certain contingencies, is subject to garnishment.</p> <p>2. Separation Agreement — No Trust Created Thereby — Consideration Not Alimony. A separation agreement, whereby for a consideration a xwife releases her claim on her husband’s property and to his support, does not create a trust, and the consideration is not alimony.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Railroad Crossing — Collision—Personal Injuries — Contributory Negligence. A person approaching a railroad crossing in a horse-drawn vehicle at a moderate speed, who is injured as the result of his attempt to cross' in front of an approaching motor car which he is prevented by obstructions from seeing until he is within twenty feet of the track, but which is visible to him from that time on, is chargeable as a matter of law with contributory negligence. The ordinary rule is not affected by the fact that .the motor car is lower than a locomotive, a passenger car or a box ear, so long as it is high enough to be seen.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Railroads — Subscription Notes — Contract to Locate Depot and Station on Subscriber’s Land — Contract against Public Policy. A contract made in consideration of the giving of subscription notes, whereby a railroad company agrees permanently to establish and maintain on the subscriber’s land a passenger and freight depot and station, stockyards, sidetracks, and other shipping facilities, and to refrain from ever establishing or maintaining similar structures or facilities within competing distance of the subscriber’s land, is void as against public policy, and is void as against public policy irrespective of the provision not to establish other stations.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Oil and Gas Lease — Nonpayment of Rentals — No Fault of Lessee — Forfeiture and Cancellation Refused. A judgment of a tral court refusing to cancel a gas and oil lease for failure to pay rentals at a stipulated time will not be reversed where the lessee remits the amount of the rental by registered letter so that it will reach the place of payment five days before the time provided for the payment, and the remittance fails to reach that place in time because of delay in the mails, and where, because of other and additional circumstances, it would be inequitable and unjust to cancel the lease.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Nuisance — Pipe Line 'in Highway■ — Line in Hands of Receiver — Injuries — Liability of Defendant Company. A gas company built its pipe line in a highway more than twelve inches above the ground, in such a way as to constitute a nuisance, and by reason of the defective construction a horse driven by the plaintiff caught his feet under the pipe and in struggling to extricate himself overturned the buggy, throwing the plaintiff out and injuring him. The pipe line and other property of the defendant passed into the hands of a receiver after the line was built and was in his possession when the injury was sustained by plaintiff, but had been restored to the company before the trial of the action begun by plaintiff against the company to recover damages for the injury. Held, that the company having negligently created the nuisance which caused the injury, it is liable although the pipe line was in the control of the receiver when plaintiff suffered the injury.</p> <p>2. Same — Pipe Line in Highway — Liability for Injuries without Proof of Negligence. The building of such a structure was not only negligence, but it w;as a wrong which rendered the party creating it liable without proof of negligence, and the* fact that the court in its instructions placed the burden upon the plaintiff of proving negligence did not materially prejudice the defendant.</p> <p>3. Same — Evidence Pipe Line Buried after Accident. The admission of testimony that the receiver moved and buried the pipe line after the accident did not, under the circumstances, constitute prejudicial error.</p> <p>4. Same — Evidence—Rulings of Court. The refusal of the court to strike out the testimony of a witness upon the alleged grounds that it was contrary to all of the evidence on the question and untrue, is not error.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Injunction — ■Action against Utilities Commissioners — County in Which Action May be Brought. Under the statute requiring ah action against a public officer for an act done by him in virtue of his office to be brought in the county in which the cause or some part of it arose, the county in which the public utilities commission is about to hear an application for a rate increase is a proper one in which to bring an action to enjoin such hearing on the ground of a want of jurisdiction.</p> <p>2. Street Railway — Application for Leave to Increase Charges — Jurisdiction of. Utilities Commission. Where a street railway company applies to the public utilities commission for leave to increase its charges, an action will not lie to enjoin the commission from acting therepn on the grounds that the company is a “one-city” utility, that the existing rate has been fixed by an unexpired contract, and that the business is not subject to local control because of its interstate character. Inasmuch as the commission’s power to allow such application depends upon the particular circumstances of the case, it has jurisdiction to inquire and determine for itself in the first instance the facts in that regard, the remedy of any one aggreived by its decision lying in a subsequent action in the courts.</p>

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Guardian and Ward — Guardian’s Accounts Filed and Approved— Presumptive Evidence of Their Truth — Not Conclusive. The reports and accounts of a guardian of the property of a minor and the orders of the probate court approving them are. evidence of the truth of the statements contained therein, although those statements are not conclusive and may be rebutted in an action on the guardian’s bond.</p> <p>■2. Same. Trial to Court — Admission of Immaterial Evidence. A judgment will not necessarily be reversed for the admission of immaterial evidence; it must also appear that the error was prejudicial.</p> <p>3. Same — Judgment Not Erroneous. Under the findings of the court, whether general or special, the judgment rendered was not erroneous.</p>

<p>OPINION DENYING PETITION FOR A REHEARING.</p> <p>Appeal from Wyandotte district court, division No. 2; Frank D. Hutchings, judge.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Habeas Corpus — Custody of Minor Child — Demurrer to Respondents’ Evidence Sustained. The record shows that the case was considered and correctly decided on its merits after all the evidence was in, hence no material error appears from a ruling sustaining a demurrer to the respondendents’ evidence.</p>

<p>Appeal from Montgomery district court; Charles D. Shu-KERS, judge pro tern.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Libel — Imputing Unchastity — Mistake of Publisher No Legal Excuse. A false charge in a publication that a woman, specifically named, is immoral and unchaste, constitutes a libel, and the fact that an honest mistake was made by the publisher in the use of plaintiff’s name is not a legal excuse, as the law looks to the tendency and consequences of a publication rather than to the intention of the publisher.</p> <p>2. Same — Identity of Party Libeled Sufficiently Shown. As the publication containing the charge of unchastity, and conceded to be false, specifically named the plaintiff as the wrongdoer, and as no one else of her name resided in the community, the provisions of section 126 of the civil code (Gen. Stat. 1915, § 7018) did not apply, and formal proof that the defamatory matter was published of' the plaintiff was not necessary.</p> <p>3. Same — Libel per se — General Damages Inferred. General damages from such a false publication arise by inference of law and need not be proved.</p> <p>4. Same — Question of Damages for Jury. As no valid defense of the libel was made herein, the only question left for submission to the jury was the amount of damages sustained by the plaintiff.</p> <p>5. Same — No Settlement Proven. Certain facts relied on by. the defendant are held not to constitute a settlement.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Mutual Fire Insurance — On Live Stock — Construction of Policy— Risk on Each Animal Separately. A by-law of a mutual fire insurance company is held to mean that where a policy is written on live stock, and the risk on each head is not otherwise stated, each is to be* regarded as separately insured for a numerically proportional part of the entire amount named.</p> <p>2. Same — Oral Agreement Contradicting Contract Inadmissible. The rule which denies effect to an oral agreement so far as it contradicts a written contract entered into at the same time or later, is one not merely of evidence, but of- substantive law.</p> <p>3. Same — Mistaken Opinion of Soliciting Agent — Not a Basis for Reformation of Policy. Where the statute provides that the by-laws of a-mutual insurance company shall be made a part of every policy issued, the fact that the agent who solicited the insurance made an. incorrect statement concerning the force of a by-law, through a mistaken opinion as to its meaning, will not form a basis for a refprmation of the contract to conform to such erroneous conception.</p> <p>4. Same — Effect of Change in By-law. A change in such by-law, by the elimination of a provision that in no event should the company’s liability exceed the market value of the animal lost, is held not to have had any effect upon the rights of the parties involved in this action.</p>

<p>Appeal from Eeno district court' Frank F. Prigg, judge.</p>

<p>Appeal from Montgomery district court; Joseph W. Hol-DREN, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Shipping Contract — Recital in Bill of Lading■ — Not Conclusive. A recital in a bill of lading that a shipment covered thereby is made under a particular order for a car is evidence of the facts stated in the recital, but it is not conclusive evidence' thereof and may be rebutted.</p> <p>2. Same — Delay in Furnishing Cars — “Exemplary Damages” — Instructions. In an action to recover the exemplary damages named in section 8423 of the General Statutes of 1915, it is error for the court to refuse to give an instruction that the plaintiff cannot recover if the shipments were to be a part of interstate commerce, where the evidence is not clear as to whether or not the shipments were to be made to points within or without the state.</p> <p>3. Same — “Exemplary Damages” as Prescribed by Statute. The exemplary damages named in section 8423 of the General Statutes of 1915 are not such damages as have been termed exemplary in actions in which it has been held that such damages cannot be recovered unless actual damages are proved.</p> <p>4. Same — Application for Cars — Deposit of Money by ShippeWhere a person makes a written application to a carrier for a car, under section 8421 of the General Statutes of 1915, and the carrier does not require any deposit to be made as prescribed by section 84£4, and the applicant does not tender any deposit, it is for the jury to determine whether the- applicant elected to order the car without making such deposit.</p> <p>5. Same — .Milling-in-transit Privileges — Shipment Not Rendered Interstate Commerce. A milling-in-transit privilege on a ear of grain shipped from one point to another point within this state, where all ' connection of the shipper with the grain ceases at such point, does not render the shipment interstate commerce, although the consignee at the. point of destination may, under the milling-in-transit privilege, ship the grain, or its product, to a point outside the state.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Promissory Notes •— Guaranty — Consideration. The consideration ' for a guaranty examined, and held sufficient.</p> <p>2. Same — Corporation Bound by Aots of Its Secretary and Manager. While a secretary of a corporation ordinarily has not authority by virtue of his office to bind his corporation, the corporation may be bound by his acts when it intrusts him with the management of its business, and where his acts are in furtherance of the corporate business.</p> <p>3. Corporation — May Act as Implement Salesagent. It is within the powers of a corporation chartered to conduct a wholesale and retail implement merchandise business to undertake the duties of an implement salesagent and the incidential obligations pertaining thereto.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Notes and Mortgages — Pleadings—Allegations of Cross Petition May be Made Part of Reply. Where the defendant in his answer and cross petition sets forth the execution and transfer of certain notes which were secured by a mortgage, the plaintiff in his reply may. refer to the' allegation in the cross petition in respect to the notes and mortgage and thereby make such allegations a part of his reply, and it is held herein that the reply of the plaintiff is sufficient to raise an issue as t© whether or not the possession of the mortgaged property was taken and the property sold under and by virtue of the chattel mortgage referred to in the cross petition and reply.</p> <p>2. Same — Proof under General Denial. Under a general denial a party may offer any evidence that will controvert the facts denied.</p> <p>3. Promissory Notes — Transferred by Indorsement — Transferree May Maintain Action Thereon. Where promissory notes have been indorsed and transferred by the payee to another, and the legal title to the same is thereby vested in the latter, he may maintain an action thereon in his own name, although the beneficial interest in the notes may not be in him.</p> <p>4. Same — Transfer of Note Transfers Chattel-mortgage Security. The indorsement and transfer of promissory notes secured by a chattel mortgage operates as a transfer of the title to the mortgage as well.</p> <p>5. Same — Substantial Evidence — Should Have Gone to Jury. Where there is substantial evidence upon which a jury might have found in favor of the plaintiff, the court is not warranted in directing a verdiet for defendant, and it is held herein that there was sufficient evidence upon an issue raised by plaintiff to require the submission of the case to the jury.</p>

<p>SYLLABUS BY THE COURT.</p> <p>CONTRACT — Oral Agreement to Bequeath Property — Specific Performance — Insufficient Evidence. In an action against an heir at law for the specific performance of an oral contract alleged to have been made between the deceased and plaintiff, by which the deceased agreed to make a will leaving all her property to the plaintiff, it is held, on the facts stated in the opinion, that the evidence is not sufficient to sustain a judgment in plaintiff’s favor.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Fraternal Insurance — Provision in Certificate for Payments to Member on Reaching a Certain Age Void. An incorporated mutual benefit society which under its charter has no power to obligate itself to pay a certain sum to its members on their reaching seventy years of ag’e, cannot accomplish the same result by the device of issuing a certificate promising to pay that amount to a member in case of his total disability, and adopting a by-law providing that members on reaching that age shall be considered totally disabled.</p> <p>2. Same — Power of Benefit Society to Change fits By-laws. Where a certificate issued by a mutual benefit association includes a provision that it is liable to forfeiture if the member shall not comply with “such by-laws as are or may be adopted,!’ and the application for membership includes an agreement that the certificate shall be void if the member shall fail to comply with the laws of the association then in force or thereafter adopted, the association has the same power to change its rules as is conferred by the ordinary agreement of the applicant to be bound by subsequently adopted regulations.</p> <p>3. Same — Statutory Provisions — Give No Authority to Malee Payments on Member Reaching Certain Age. A statute empowering certain associations “to make insurance on the lives of individuals, and against personal injury, disablement or death .resulting from injury,” and forbidding them “to contract the payment of endowments, annuities, or anything of value to the member himself, except for injury or disablement,” does not authorize them to undertake to make payments because of the insured having reached a certain age.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Damages — Injury to -Heating Plant — Judgment for Plaintiff Modified. On the facts stated in the opinion it is held that the judgment should be modified by giving the defendant credit on the judgment for $200 agreed to be paid to the plaintiff by a third party on the same cause of action.</p>

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

<p>Appeal from Jackson district court; Fred T. Woodburn, judge.</p>

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>School Districts — Transportation of Children to and from School — Option of School Board. The statute to the effect that a school board shall provide transportation for pupils living three miles or more from the school, or in lieu thereof shall allow as compensation therefor a sum not less than fifteen cents per day, gives to the board the option of adopting either method to aid pupils living at that distance, and (at least in the absence of any special circumstances showing an unjust result) it may provide a conveyance for a part of them while making a money allowance to the rest.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Sale — Well-drilling Outfit — Fraud Alleged — Action for Damages — Demurrer to Evidence. In an action to recover the value of property transferred by written bill of sale and for damages alleged to have been sustained by the fraud of defendants in inducing plaintiff to sell the property at an inadequate price when he was incapable of transacting business by reason of intoxicating liquor given him by the defendants, held, on the facts stated in the opinion, that a demurrer to the evidence was rightfully sustained.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Benefit Insurance — Pleadings—Reply—No Substantial Departure. The reply examined, and held not to amount to such a departure as to warrant a reversal.</p> <p>2. Same — Trial—Improper Question. An objection to a question calling for the conclusion of a witness was rightfully sustained.</p> <p>3. Same — “Corporal Appearances” — Indication of Health. “Corporal appearances and conduct as indications of the inward health or lack of it are relevant.”</p> <p>4. Same — Hypothetical Question — Omission of One Fact — No Material Error. The omission of one fact from the hypothetical question propounded to one of several witnesses did not constitute material error.</p> <p>5. Same — Demurrer to Evidence — Properly Overruled. The demurrer to the plaintiffs’ evidence was properly overruled, and requests for instructions raising the same question as such demurrer were properly refused.</p> <p>6. Same — Instructions. An instruction as to the necessity of concurrent delinquency, suspension, and bad health was not erroneous.</p> <p>7. Same — Instructions—Forfeiture—Proof. In view of the issues raised by the pleadings, no error was committed by charging that the defense must be proved by the greater weight of the evidence, and that the defense of forfeiture must be established by clear and satisfactory proof.</p> <p>8. Same — Nonpayment of Dues — Reinstatement—Condition of Health. To entitle the member to reinstatement, she must, aside from slight troubles or infirmities not usually ending in serious consequences, have been in fact free from any disease or ailment which tended seriously or permanently to weaken or impair her constitution.</p> <p>9. Same — Instruction Relating to “Good Health” Erroneous. It was error to instruct that if the insured enjoyed such good health and strength as to justify the reasonable belief that she was free from derangement of organic functions or symptoms, and to ordinary observation or outward appearance her health was reasonably what might have been expected, the requirements as to good health were satisfied.</p> <p>10. Same — Interest on Amount of Certificate. It was not error as against the defendant to allow interest from the date of filing proofs of death.</p>

<p>SYLLABUS BY THE COURT.</p> <p>'1. Misdemeanor — Information—Proof—Variance Not Fatal. A variance between the evidence and an unnecessary and immaterial allegation in an information charging a misdemeanor will not compel a reversal of a judgment of conviction.</p> <p>2. Same — Damming Surface Water — Overflowing Highway. Consent of township officers that a dam may he constructed by the side of a public highway, by a property owner, so as to prevent surface water from flowing over his land, does not give a right to maintain the dam after sections 4050 and 8806 of the General Statutes' of 1915 took effect, where the dam causes such water to cover the road and interfere with travel thereon.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Compensation Act — Dependency of Parents on Son for Support — Insufficient Evidence. The evidence examined and found insufficient to sustain a finding of plaintiffs’ partial dependency on their 34-year-old son for support, and insufficient to justify a judgment against the son’s employer for compensation on account of the son’s death in the latter’s employment.</p>

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

<p>OPINION DENYING A REHEARING.</p> <p>Appeal from Thomas district court; Charles I. Sparks, judge.</p>

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Garnishment — Mistaken Answer of Garnishee — Rightfully Allowed to Correct his Answer. A garnishee who purchased property from the defendant, leaving a balance of the purchase price unpaid, believing that the defendant owned the property and had the right to transfer it, when in fact he had previously disposed of it, made answer in response to the garnishment summons that he was indebted to the defendant for the balance of the purchase price, and an order directing the payment of the money into the court was accordingly made. Shortly after-wards the garnishee learned that the defendant had previously mortgaged and disposed of the property, and that consequently he was not indebted to the defendant, and further learned that plaintiff had procured the defendant to mortgage the property and had received and applied the proceeds of it upon anbther account, and therefore knew that the garnishee had not acquired the property and was not indebted for it, and that, knowing these things, plaintiff had led and allowed the garnishee to believe that the defendant had the right to transfer the property: Held, on an application promptly made by the garnishee, that there were sufficient grounds to warrant the court in setting aside the order on the garnishee and in allowing him to correct his answer so as to state the actual facts as to his indebtedness to the defendant.</p> <p>2. Same — Bights of Creditor against Garnishee. The plaintiff can have no greater rights as against the garnishee than the defendant has, and where it appears that the garnishee was not in fact indebted to the defendant when the process was served, the plaintiff can claim nothing from him.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. - Verbal Lease — Made by Agent of Owner — Proof of Agency. In litigation over the right of possession of land it is competent for a plaintiff who claims under a lease which he asserts was made to him by the owner’s agent, who is the defendant in the case, to show the fact of agency by the unsworn declarations of the alleged agent, notwithstanding the defendant claims under a later lease executed to him by the owner.</p> <p>2. Trial — Instructions. Instructions given held not to require a reversal.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Execution — Indemnifying Bond to Sheriff — Liability of Bondsmen— Evidence. Where a sheriff has been indemnified against all costs and damages that he may sustain by reason of levying an execution on certain personal property, and judgment is rendered against him for liabilities growing out of the levy, that judgment, in an action brought ' by the sheriff against his indemnitors, is only prima facie evdence that the sheriff has been damaged in the amount named therein, where the sheriff did not notify them of the action against him nor ask them to assist in the defense thereof. .</p> <p>2. Same — Duty'of Execution Creditor — Instructions to Sheriff. It is the duty of an execution creditor who has indemnified the sheriff, to give the sheriff instructions as to how he shall proceed, when he asks for such instructions; and when the execution creditor fails or refuses to give, such instructions, the sheriff, acting in good faith, may proceed according to his best judgment, and the indemnitor will be liable to the sheriff for the damage afterward sustained by him.</p> <p>3. Same — Sheriff May Sell Property after Return Day. A sheriff who has, under an execution, levied on personal property, which property remains in his hands on the return day unsold for want of bidders, for want of time to advertise and sell, or for any other reasonable cause, may sell that property after the return day of the execution.'</p> <p>4.. Same — Elements of Damages Recoverable by Sheriff on Indemnifying Bond. A sheriff who has been indemnified is entitled to! recover reasonable and necessary attorney’s fees for the services of an attorney in protecting the, sheriff’s interests in personal property held under the execution and in resisting actions against him growing out of levying the execution. He is also entitled to recover his mileage fees for the distances necessarily traveled by him in performing his duty under the execution, to recover the fees paid by him for publication of notice of sale of the property under the execution, and to recover the expenses incurred'by him in caring for the property.</p> <p>5. Same — Cross Appeal. The questions presented by the defendants on their cross appeal have been disposed of in the determination of the questions presented by the plaintiffs.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Criminal Law — Information—Properly “Subscribed” by Prosecuting Officer. The signing of an affidavit verifying an information hy the prosecuting officer in whose name it is drawn is a substantial compli- ■ anee with the statutory requirement that the information shall be subscribed by him.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Compromise and Settlement — Account Stated — Finding. A finding that the parties, before the action was brought, had arrived at a full and complete settlement of their differences under the contract upon an “account stated,” is held to be sustained by the evidence.</p> <p>2. Samé — Effect of an Account Stated in Writing. Where the account is stated in writing, the law implies an agreement to pay; the time when there must be an agreement, express or implied, for the payment of the balance, is when the settlement is agreed upon.</p> <p>3. Same — Stated Account — Binding on Bqth Pa/rties. The debtor cannot destroy the legal effect of a stated account by refusal to pay at a subsequent time; and on the other-hand, neither can the creditor avoid its effect by refusing to accept* the amount as the balance due; nor avoid the force and legal effect of the settlement on the ground of some new disagreement with the debtor. '</p> <p>4. Same — Debtor’s Agents Had Authority to Make Settlement. On the facts stated in the opinion, held, that the chief engineer and the general manager of a railway construction company, which was the debtor, had authority to make a settlement, which it is held embraced all the essential elements of a stated account.</p>

<p>Appeal from Montgomery district court; Charles D. Shtjkers, judge pro tem.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Divorce — Decree for Alimony — Decree Modified by Agreement of Parties. Parties to an action in which a divorce is granted and the care, custody, control, and education .of a minor child is given the plaintiff and alimony is given her out of which she shall pay for the education of the child, may, after the-decree has been entered, make other arrangements for the support and education of the child, for the amount of alimony to be paid, and for the times of payment.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Building Destroyed by Fire — Measure of Damages. The measure of damages for the negligent destruction of a building by fire, where there is no malice or willful wrongdoing, is' the fair and reasonable value of the building at the time and place of its destruction.</p> <p>2. Same — To arrive at the damages sustained, where the building burned had no market value, resort may bfe had to any facts which fairly tend to show its actual value when it was destroyed, and a permissible method of proof is by showing the cost of replacing the building, less any depreciation from age, use, utility, or condition.</p> <p>3. Same — Cost of Building as an Element of Damages. The cost of property destroyed, less a deduction for deterioration, is a proper element for consideration in fixing its value in some cases, but where the building burned had been erected more than twenty-six years before the fire occurred, when the cost of material and labor which entered into it differed greatly from the present cost of the same, evidence of the original cost is not essential.</p> <p>4. Sameí — Trial—Instructions—No error is found in the instructions of the court, and the evidence is deemed sufficient to support the verdict.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Cross Petition — Defa/iilt for Reply or Answer — When Action is Triable. When a party to an action deliberately puts himself in default, so far as he is concerned the action may be tried and judgment may be rendered at any time thereafter.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Shipping Contract — Personal Injuries — Limitation of Action. Under the terms of a livestock contract with the railway company, the plaintiff shipped a load of cattle, traveling with his shipment as caretaker, without charge other than that paid for the transportation of the cattle, and while on the journey he sustained injuries through the negligent operation of the defendant’s train. A provision of the contract was that no action should be maintained by him against the defendant for the recovery of any damage accruing or arising out of the contract of shipment unless it was brought within six months after the occurrence of the loss or damage. In an action brought under tha contract more than six months after the injury, to recover the damages sustained by him, it is held that the stipulation is valid and enforceable and that it applies to actions to recover for injuries to the shipper as well as actions to recover for injury to the stock shipped.</p> <p>2. Same — Contract Partly Valid, Partly Invalid. The fact that there was included in the contract a nonenforceable provision releasing the defendant from its own negligence did not destroy the entire contract nor invalidate a provision relating to the time within which actions must be brought upon Ihe contract.</p>

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

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

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

<p>Appeals from Cowley district court; SCHUYLER C. Bloss, judge pro tem.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Deed — Delivery—Intention—Finding. On the question involved — Did the plaintiff herein deliver to the defendant a deed purporting to convey a tract of land with the intention that it should become effective as a present conveyance? — the trial court found that there was a delivery, and it is held that there is sufficient evidence to uphold the finding.</p> <p>2. SAME — Where there is a complete delivery of a deed by the grantor, the fact that the grantee subsequently handed the instrument back to the grantor with the request that she should try to obtain the signature of another person who had an interest in the land, did not defeat the delivery already made nor operate as a surrender of the title transferred.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Partition — Quieting Title — No Jury Trial as of Right. Where in a proceeding begun by the filing of a petition stating a cause of action only for partitidn, and asking no other relief, a defendant files a cross petition setting up a claim of exclusive ownership and possession of one of the tracts involved, and asking to have his title quieted, it is not error to refuse an application of the plaintiff for a jury trial of the issue arising upon such - cross petition and a reply denying its truth.</p> <p>2. Deed — Delivery—Evidence. Where a deed is handed by the grantor to the grantee with the intention that title shall thereby pass, such passing of title is not prevented by the fact that the deed is immediately returned to the grantor to remain in his possession until his death, in order that he may be assured that it shall not be recorded in his lifetime. The evidence is held to sustain a finding of that state of facts.</p>

<p>opinion on petition to modify former opinion.</p> <p>SYLLABUS BY THE COURT.</p> <p>Compensation Act — Damages—Interpretation of Statute. In section 5 of the workmen’s cpmpensation act, section 5899 of the General Statutes of 1915, authorizing an injured workman to take proceedings against the person causing his injury and also against his ‘ employer, but providing that the workman shall not be entitled to recover both damages and compensation, the word “recover” means to “get,” “procure,” “obtain,” and the like, and the provision concerns itself with actual payment 'of money as damages or compensation and is not limited to the recovery of judgments upon which nothing may be realized.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Promissory NoTE-r-FcMZwe of Consideration — Evidence. In an action on a promissory note given in payment of insurance policies, where the defense is failure of consideration because the insurance company was insolvent when the policies were issued, held, on the facts stated in the opinion, that the admission of certain testimony was not prejudicial error.</p> <p>2. Same — Holder in Due Course — Set-off as between Maher and Payee. The purchaser of a promissory note is not prevented from being a holder in due course by the knowledge of the fact that, as between the maker and the payee, there rpay, before the note matures, arise a set-off or counterclaim in favor of the maker.</p> <p>3. Same — Violation of Statute — No Defense to Promissory Note. The fact that a bank has violated the provisions of the statute prohibiting it from lending to one person or corporation more than fifteen per cent of its capital stock and surplus is not a defense available to one who is sued by the bank upon a promissory note.</p> <p>4. Same — Finding of Good Faith of Holder — Sustained by Evidence. A bank purchased farmers’ notes before maturity, which it knew were given in payment of premiums on policies of insurance, and that in case of loss underthe policies the makers would have a set-off or counterclaim against the notes. The insurance company was insolvent when the notes were executed. Held, on the facts stated in the opinion, there was sufficient evidence to support a finding that the bank purchased without notice of any infirmity in the notes.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Garnishment — Proceeds of Mortgage on Homestead — Exemptions. Creditors, whose claims were not shown to be lienable, garnished a bank holding certain money of the defendants^ the proceeds of a mortgage on their homestead, placed thereon for the purpose of paying in-</p> <p>. debtedness incurred for the erection of improvements theretofore placed on such homestead. Held, that the fund was exempt from the claims of the plaintiffs.</p> <p>2. Same — Motion to Discharge — No Matter for Jury. On the hearing of a motion to discharge the garnishments the court properly denied the plaintiffs’ request for a jury.</p>

<p>Appeal from Sedgwick district court, division No. 1; Richard E. Bird, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Action to Set Aside Judgment — Fraud—Statute of Limitations. An, action to set aside a judgment for fraud practiced by the successful party in obtaining it must be brought within two years, unless the plaintiff is under some disability, i</p>

<p>SYLLABUS BY THE COURT.</p> <p>Defective Highway — Injuries—Statutory Notice of Defect Required. The liability of counties for injuries sustained by reason of defective bridges, culverts, and highways is statutory, and is not coextensive with the common-law liability for negligence. There can be. recovery only when the chairman of the board of county commissioners had notice. of the defect at least five days prior to the time the injury occurred (Gen. Stat. 1915, § 722), and the notice must be actual, as distinguished from constructive or imputed or implied.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Criminal- Law — Use of Trading Stamps — ■Information States Cause of Action. The informations charging defendants with violations of the act relating to the furnishing'and using of trading stamps in mercantile transactions (Laws 1917, ch. 331) examined, and held to state causes of action against the several defendants.</p> <p>2. Trading-stamp Act- — Constitutionality Affirmed. The decision in The State v. Wilson, 101 Kan. 789, 168 Pac. 679, that chapter 331 of the Session Laws of 1917 is a constitutional act of the legislature, is adhered to.</p> <p>3. Same — Law Can be Changed Only by the Legislature. Debatable questions as to the wisdom, necessity, or propriety of a law, and the objec- ' tions to it, where its constitutionality has been determined, should be addressed to the legislature, and not to the courts.</p> <p>4. Same — Statutory Provisions Govern Use of Trading Stamps. It is unlawful for a merchant, without first having procured a license under chapter 331 of the Session Laws of 1917, to issue and redeem trading stamps in connection with his mercantile transactions, except in conformity with the methods permitted by the statute.</p> <p>5. Same — Use Made of Trading Stamps by Defendants Constituted a Misdemeanor. A merchant who has not procured a license to issue and redeem trading stamps in his mercantile transactions is guilty of a misdemeanor when he issues such stamps but limits their redemption to numbers of 1,200 stamps and discriminates to the extent of twenty-five cents in the allowance which he makes in their redemptive value in cash or merchandise.</p> <p>6. Same — -A trading-stamp company or a trading-coupon company which is not engaged in mercantile business on its own account, but which furnishes trading stamps or coupons for the use of merchants in dealing with their customers, and which prescribes the mode "in which such merchants shall distribute and redeem such stamps or coupons, and which mode does not conform to the uses permitted by the statute, is engaged in a business governed by.the trading-stamp act, and where such business is undertaken without a license such company is guilty of a misdemeanor.</p>

<p>Appeal from Nemaha district court; William I. Stuart, judge.</p>

<p>Appeal from Elk district court; C. W. Shinn, judge.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Assault — Evidence — Conviction Sustained. The evidence examined, and held sufficient to support a conviction for assault.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Forcible Entry and Detainer — Time for Service of Notice to Quit. Under the statute requiring that at least three days before the commencement of an action for forcible entry and detainer a notice to leave the premises shall be served, such a notice is not rendered ineffectual by the fact that it is served before the occupant’s tenancy has expired, if it names a time for the vacation of the premises such. as to allow him a three days’ occupancy after the expiration of his lease.</p>

<p>Original proceeding in mandamus.</p> <p>Judgment for plaintiff.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Garbage — Exclusive Right to Remove — Definition of “Garbage.” It having already been determined that a city may grant to the highest bidder an exclusive right to remove all “garbage,” under an ordinance defining that word as “all rejected waste food, offal,” it is now held that the same rule applies where the definition is “all organic waste or residue of animal, food or vegetable matter from kitchens and dining rooms and from the preparation of dealing in or storage of meats, fowls, fruit, vegetables and grain.”</p> <p>2. Same — City May Control Disposition of Garbage. The fact that a number of articles which are fit for human food may be picked out of a quantity of garbage does not affect the power of the municipality absolutely to control its disposition. Where the owner of defective or damaged goods, which might be otherwise disposed of, casts them aside with ordinary garbage, they become subject to the same treatment.</p>

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

<p>SYLLABUS BJf THE COURT.</p> <p>1. Contract — Support During Life — Reformation of Contract — Evidence. The evidence examined, and held to be sufficiently clear, explicit, and satisfactory to support a judgment decreeing the reformation of a contract.</p> <p>2. Same — Competency of Deposition. Error assigned in overruling a motion to suppress a deposition of plaintiff which was taken in her behalf, examined, and not sustained.</p> <p>3. Same — Operative -Interpretation by Parties — Competent Evidence. The operative interpretation of a contract, under which the parties thereto have acted for many years, is competent and potent evidence where the question of reforming the contract is in issue.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Attempted Homicide — Excluded Evidence — Not Presented on Motion for New Trial — Not Beviewable. Objections to the exclusion of testimony cannot be considered on review where the offered testimony is' . not brought to the attention of the trial court on the motion for a new trial as the code requires.</p> <p>2. Same — Remarks of Court — Not in Record. Criticisms by the trial court of things said by counsel in his opening statement to the jury are not available as error where the statements are not preserved in the record.</p> <p>3. Same — Law of Self-defense. The general rule is that the right of self-defense does not imply the right of attack, and one who is the aggressor and who provokes or brings on an affray in which he kills or inflicts bodily harm to his adversary, or who produces the occasion which makes it necessary for him to commit homicide or inflict the injury, cannot justify his act on the plea of self-defense.</p> <p>4. Same — No Prejudicial Error in Instructions. Challenged instructions on the subject of self-defense examined, and held not to be prejudicially erroneous.</p> <p>5. Same — Verdict—No Degree of Offense Stated — No Error. Verdict based on sections 38 and 42 of the crimes act is held not to be invalid because no degrees of the offense committed were specified in it.</p>

<p>SYLLABUS BY THE'COURT.</p> <p>1. Homicide — Misconduct of Jurors¡ — Remarks in Jury-room. Evidence produced at the hearing on the motion for a new trial after a verdict of guilty of murder in the second degree, to the effect that during the deliberations of the jury one or more jurors said the defendant had been convicted of murder in the first degree at a former trial, eon■sidered, and held not to warrant the granting of a new trial under the rule that evidential statements of a prejudicial nature made by a juror on his personal knowledge, and which naturally and probably influenced the verdict, furnish ground for the granting of a new trial, unless the state show the accused suffered no prejudice.</p> <p>2. Same — Triad—No Substantial Error Shown. Various assignments of error considered, and held to be without substantial merit.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Foreign Insurance Corporation — Service upon Superintendent of Insurance — County in Which Action May be Brought. A foreign corporation which, in accordance with the statute, ■ has consented that actions may be commenced against it in any county in which the cause arose, or the plaintiff resides, by the service of process on the superintendent of insurance, is not thereby rendered liable to be sued in the county .in which the state capital is located, under a provision of the statute authorizing a transitory action to be brought against a foreign corporation in any county where it may be found.</p>

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

<p>OPINION ON REHEARING.</p> <p>SYLLABUS BY THE COURT.</p> <p>1. WRONGFUL Death — Personal Rejmesentative or Widow a Statutory Agent. Under the factory act and related provisions of the code of civil procedure concerning death by wrongful act, the personal representative of-the deceased, or the widow when no personal representative has been appointed and the deceased left a widow and a child or children, is a statutory agent to collect and distribute the damages recoverable, and possesses the powers and is charged with the duties of any other agent appointed to collect and distribute a fund.</p> <p>2. Same — Widow’s Authority to Bind Herself and Child by Settlement. When the deceased left a widow and child, and no personal representative has been appointed, the widow may bind herself and child by receiving payment in money, without suit, for a fair, reason- ' able, and just sum, in good faith considered the' proper amount of damages sustained; she may bind herself by settlement with the wrongdoer on any consideration satisfactory to her; but she may not bind her child, except by proportional payment of the character described.</p> <p>3. Same. By virtue of his or her control over litigation, the statutory agent may present to the court in which action has been brought, a stipulation for judgment embodying a fair adjustment of the controversy, and if the court, after judicial examination, approve it and enter judgment accordingly, the parties will be bound, and the distributees will be bound.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Specific Performance — Cross Petition — Issue Raised Not Triable. Under the circumstance's disclosed in the opinion, it is held that the court did not have jurisdiction to try the cause of action presented in the cross petition of one'of the. defendants against his codefendants.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Justice op Peace — Jurisdiction—No Authority to Grant Paroles, or Remit Jail Sentence. A justice of the peace is without jurisdiction to grant a parole, and has no jurisdiction to remit a jail sentence, and such parole or remittance of jail sentence is a nullity.</p> <p>2. Habeas Corpus — Jurisdiction of Probate Court — Unexecuted Commitment. A probate judge is without jurisdiction in habeas corpus to discharge a petitioner from the custody of an officer who holds the petitioner by virtue of an unexecuted judgment and commitment issued by another court of competent jurisdiction.</p> <p>3. Same — Termination of Term of Commitment. The term of a commitment to. a county jail does not expire until the sentence of imprisonment recited in the commitment has been fully executed-.</p> <p>4. Criminal Law — Delay in Execution of Jail Sentence Not Unreasonable. Assuming, but without deciding, that an unreasonable delay in the execution of a judgment imposing a jail sentence will altogether relieve a convicted person from liability to serve such jail sentence, the circumstances of the present cases, where the jail sentences were imposed in February and the commitments were not issued until the following November, examined, and held that, while the lapse of time was unusual, it was not unreasonable, that the commitments should be executed, and that mandamus may issue to accomplish that purpose.</p> <p>5. Same — Original Sentence of Commitment Should be Executed — Writ of Mandamus Should Issue. Three persons pleaded guilty to violations of the prohibitory law before a justice of the peace, and were sentenced to jail and to pay fines and costs. Later the justice paroled the defendants and remitted the jail sentences when the fines and costs were paid. The justice of the peace resigned, and his successor issued commitments for their incarceration. The probate judge discharged them on writs of habeas corpus. Held, that the justice of the peace was without jurisdiction to' parole or remit the jail sentences, and that the probate judge had no jurisdiction to discharge the convicted persons from the custody of the sheriff who held them under the commitments for the terms of imprisonment which had not been executed; and held, also, that mandamus should issue to secure the execution of the judgments originally imposed.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Limitation op Actions — Action Arising between Nonresidents — Law of the Forum Governs. Section 21 of the civil code imports into the statute of limitations of this state, under certain conditions, the limitations of other states which have barred action there; but the converse is not true, and the section does not extend generally the time within ■ which suit may b.e brought here on a cause of action arising between nonresidents, which has not become barred by the more liberal statute of the foreign state.</p> <p>2. Same. The rule stated applied, and held, the four-year statute of limitations of California did not govern a claim by a resident of California against the estate in this state of a person who died a resident of California, but the claim was barred by the three-year statute of Iimita- • tions of this state.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Fire Insurance — Annulment of Policy by Acts of Insured. The circumstances presented held to be such as to result in the annulment of a fire insurance policy so far as concerns any claim on the.part of the insured.</p> <p>2. Same — Mortgage Clause in Policy Interpreted. Where an insurance policy contains a provision that its conditions shall apply to a mortgagee in the manner expressed in such provisions and conditions of insurance relating to such interest as shall be •written thereon or attached thereto, and the attached clause which makes the loss payable to a mortgagee contains the words “subject to all the terms and conditions of this policy,” all the conditions of the policy are 'thereby made applicable to the mortgagee, and if the rights of the owner have been forfeited by his breach of any such condition the mortgagee is likewise precluded from recovery.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Building Contract — Made by Decedent — Authority of Executrix to Complete Contract. The doctrine that the only effect of contracts made by an executor or administrator is to bind himself individually applies to a contract made by the personal representative in attempting to carry on and complete a building contract entered into by the decedent in his lifetime.</p> <p>2. Same — Estate Interested in Profits of Contract Only. Notwithstanding the contract survives, the personal representative is not obliged to complete it; in case he does elect to carry on, he and those who deal with him are charged with knowledge of the law which declares that the estate is interested in the business only to the extent of the profits.</p> <p>3. Same — Notes of Executrix Not a Valid Claim against Estate of Decedent. A decedent in his lifetime held a contract for the erection of a building, actual construction of which had been in progress about a month when he died. The widow, who was the executrix of the estate, executed notes to a bank signed by her as executrix, and applied the proceeds toward payment for labor and material which had been used in the construction of the building. She afterwards abandoned the enterprise, and the building was completed by the surety of the decedent. Held, that the notes were not a valid claim against the estate.</p>

<p>Appeal from Pottawatomie district court; Robert C. Heizer, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Against Public Policy — Salary Paid Secretary of Panama-Pacific Exposition Commission Illegal. Public policy forbade the Panama-Pacific exposition commission to employ one of its members as secretary of the commission and pay him compensation for carrying out the purposes of the act creating the commission.</p>

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Jurisdiction — Of Parties and Subject Matter — Final Orders Unappealed from — Res Judicata. Rule followed that where a court has jurisdiction of the subject matter of an action and has jurisdiction of the parties thereto, its orders and judgments as to all matters involved in the action are final _ and conclusive, unless corrected or modified on appeal;' and such matters cannot be relitigated by the parties in an original proceeding before another tribunal.</p> <p>2. Same. During the pendency of foreclosure proceedings in the federal court, a receiver was appointed for plaintiff’s real estate. The receiver collected the rents, not only' during the pendency of the foreclosure proceedings, but during the eighteen months’ redemption period thereafter. All these rental moneys were delivered by the receiver to the clerk of the federal court, and the latter paid-them out as ordered by that court. Held, that an independent lawsuit cannot now be maintained in a district court of this state to recover any part of these moneys, as the parties and the subject matter were under the jurisdiction of the federal court, and its judgment, unless corrected in that court or by appeal therefrom, is final and conclusive.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Accident Insurance — Notice of Injury — Waived by Insurer. A provision in an accident insurance policy that notice of an injury must be given to the insurer within ten days after it occurs, may be waived by the retention of the proofs furnished by the insured and the act of the insurer in requiring the insured to obtain and furnish additional proofs or to do some act or incur some expense inconsistent with a forfeiture, and it is held under the testimony herein that the insurer waived the requirement as to the time of giving notice of injury.</p> <p>2. Same — “Immediate” and “Continuous Disability” Interpreted. The rule of Commercial Travelers v. Bournes, 72 Kan. 293, 80 Pac. 1020, followed, as to the meaning of the contract provision relating to the immediate and continuous total disability of a claimant.</p> <p>3. Same — Limitation of Action to Six Months — Repugnant to Statute. A provision in an agreement that actions on insurance policies can only be brought within six months after the claim has been disallowed is repugnant to the provisions of section 17 of the civil code, and therefore void.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Í. Common Carrier — Interstate Shipment of Livestock — Failure to Furnish Cars — Damages■—Form, of Action. The form of the action for damages for failure of a carrier to furnish cars to a shipper of livestock for an interstate shipment is not important. The ground of the liability is unjustifiable omission to furnish the cars, and it is not material that in an action for damages for failure to furnish cars requested for a particular day, the shipper predicates liability on breach of contract to furnish the cars on that day.</p> <p>2. Same — Negligence of Carrier — Car Shortage. The evidence «examined, and held, to warrant the jury in finding that the shipper’s requ'est for cars was negligently treated, and that the carrier was not excused from complying with the request because of sudden and great demands which it had no reason to apprehend would be made, and which it could not reasonably be expected to meet.</p> <p>3. Same — Interstate Shipment — Provisions of Bill of Lading — No Waiver of Previous ■ Loss from Carrier’s Negligence. Relying on compliance with his request for cars on a certain day, the shipper in due time ' placed hogs in the carrier’s stockyard, for interstate transportation. Because of the carrier’s failure to furnish the cars, 17 of the hogs •died. ' After the remainder of the herd, 131 in number, were loaded in belated cars, a bill of lading for them was issued, and was signed by the shipper. The bill of lading contained a provision that the carrier’s liability should not attach until the livestock was loaded in the cars and a written shipping contract was issued. Held, the carrier’s liability for loss of the hogs which died was not released or waived by the shipper.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Written Lease — Modification by. Parol — Instruction Defining a “Completed Oral Contract.” An instruction to the effect that a completed' oral contract can result only where the parties agree to the same thing-at the same time is held not to have been so open to misconception as. to amount to an error, although one of the parties was relying upon evidence of a proposition which had been made at one time having-been accepted at another without a restatement.</p> <p>2. Same — Instruction—Burden of Proof. An instruction regarding the burden of proof held not to justify a reversal.</p>

<p>syllabus' by the court.</p> <p>Jurisdiction — Setting Aside Order Denying a New Trial — Gr writing a New Trial. The district court has jurisdiction to set aside an order denying a motion for a new trial, and thereafter, at the same term of court, to grant a new .trial; and the court is justified in so doing when it appears that, because of a mental breakdown, the attorney representing the party asking the new trial failed to notify him of the time that had been set for the trial and failed to properly present his side of the controversy.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Judgment — Alimony in Gross Sum — Subject to Assignment — Enforcement by Assignee. A divorce was granted to a wife for the aggression and fault of the husband, and as an incident to the judgment an award of alimony for a gross sum payable in three installments was made to the wife. It was further provided that the payment of the alimony adjudged should be in full of all claims for alimony or on any other account, against the husband, and in an action to enjoin the enforcement of the judgment for alimony it is held that the judgment is final and conclusive, subject to assignment, and enforceable in the same manner as an ordinary judgment for debt.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Accident Insurance — Findings Sustained by Evidence. The evidence in an action to recover on an'accident insurance policy examined, and held sufficient to sustain special findings of the jury that the deceased came to his death through violent, external, accidental, and involuntary means — a fall while carrying- a scantling — whereby he sustained severe internal injuries.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Promissory Note — Liability of Comaker. A comaker, though in fact a surety only, is primarily liable on his promissory note.</p> <p>2. Same — Contemporaneous Oral Agreement — No Defense. It is no defense to an action on a note to plead an agreement with the payee to look to certain mortgage security and to hold the comaker for the balance only, as such agreement would contradict the terms of the note.</p> <p>3. Same — Set-off and Counterclaim. Neither does the alleged breach of such an agreement form any legal basis for a set-off or counterclaim.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Mortgagee in Possession — Right to Compel Junior Incumbrancer to Redeem. A senior incumbrancer of real property, who is in possession under circumstances which make it equitable, may maintain an action against a junior incumbrancer to compel the latter to redeem the property from the claim of the former, and the court may decree that unless the junior incumbrancer elects to redeem within a proper time he may be barred of his lien, and the title of the senior incumbrancer may be quieted against him.</p> <p>2. Same — Minimum Time for Redemption — Qusire. Whether under the circumstances disclosed in paragraph 1 of the syllabus some statutory provision establishes a minimum time for redemption, not being urged, is left undecided.</p> <p>3. Same — Legal Title Acquired by Mortgagee — Merger. Rule followed that where the equitable rights of the holder of a mortgage, who afterwards procures the fee title of property, require that those interests be kept separate, the mortgage and the fee title do not merge against the will of the holder.</p> <p>4. SAME — Form of Action to Compel Junior Mortgagee to Redeem. It is immaterial whether such an action be characterized as a suit in foreclosure or an action to require redemption under penalty of being debarred for failure to redeem, if the facts alleged and proved are sufficiently comprehensive to fit either case, and a judgment which substantially accords with either theory will be upheld.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Garnishment — Affidavit of Nonliability- — Evidence—Garnishee Discharged. A garnishee filed an affidavit of nonliability to the defendant under section 233 of the civil code, and upon issue joined by the plaintiff, the answer of the garnishee was upheld and he was discharged, Held, that the evidence in the case is sufficient to sustain the order,</p> <p>2. Same — Affidavit of Nonliability — Issues Fairly Joined. The fact that the court proceeded to the trial of the issue joined, without requiring the garnishee to file an answering affidavit as provided in section 234 óf the civil code, was not error.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Fees and Salaries — Compensation of Register of Deeds — Stated Salary — - Share of Excess Fees Collected. The statute providing that when the fees collected by a register of deeds for any quarter shall exceed the salary and clerk hire theretofore provided, he shall receive as clerk hire a further amount equal to one-half such excess, is interpreted, in view of other provisions of the statute, as requiring the register's personal compensation to be increased by the amount indicated, irrespective of whether additional clerical help was used.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Master and Servant — Death of Workman — Negligence Charged Not-Proven — Demurrer to Evidence Sustained. In an action against a refining company to recover for the death of a workman, it was claimed that the defendant was negligent in sending him into a dangerous place without providing some person to assist him in case he was overcome by fumes of gasoline; that he was overcome by fumes of gasoline from the tank car, and while in this condition fell from the top of the car to a ditch by the side of the track and inhaled water, mud and gasoline and other waste products in the ditch, and died from suffocation. Held, that there was no substantial evidence, direct or circumstantial, fairly tending to prove what actually caused the deceased to fall from the car, and that a demurrer to the evidence should have been sustained.</p>

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

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

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

<p>SYLLABUS BY THE COUKT.</p> <p>T. Paving Street — Apportionment of Assessments — Block as the Unit. In making and apportioning a special assessment for paving a street in a platted portion of the city, the block is the unit, and the fact that the block may vary in size and shape from others in the city does not ffect the rule, or the validity of the assessment.</p> <p>2. Same — When Block is Regarded as Platted Ground. A block so situated must all be regarded as platted ground, although a part óf it has not been subdivided into lots pf the customary size, and it is subject to-assessment from the line of the improved street to the middle of the block.</p> <p>3. Same — Error in Assessment — Advantage of Plaintiff — Plaintiff May Not Complain. The fact that the assessment was extended only 300 feet from the improved street, when it should have been extended to the middle of the block, by reason of which the assessment upon the ground of plaintiff, the complaining party, was considerably lessened, is not an error of which the plaintiff can complain. A party cannot take advantage of an error which operates to his advantage.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Habeas Corpus — Father’s Right to Custody of Minor Child. The mother of a child having died, the father arranged with its grandmother to care for her for an agreed consideration. Subsequently,' the father, having established a suitable home and provided for the care of his child therein, sought to obtain her custody, but the grandmother resisted. In the controversy following, it was found that the father was not unfit to care for his child, and therefore it is held that he is entitled to the custody of his daughter, although the grandmother is greatly attached to the child and might give her some attentions which the father cannot.</p>

<p>opinion denying a rehearing.</p> <p>SYLLABUS BY THE COURT.</p> <p>1. Unliquidated Damages' — Interest from, Date of Judgment Only. Before the rendition of judgment, interest is not recoverable on unliquidated damages which are not ascertainable by computation based on some fixed standard of measurement.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Replevin — Failure to Turn Over Property — Contempt Proceedings— Nature of Action. A proceeding to punish for contempt under section 7769 of the General Statutes of 1915, for failure to turn over property sought to be replevined, is civil in its nature.</p> <p>2.. Contempt Proceedings — Proper Party Plaintiff. Generally a proceeding to punish for contempt which may be instituted by a party to enforce his own rights in an action is civil and not criminal, the state' and its prosecuting officers not being directly or materially interested therein.</p> <p>3. Same — Contempt Proceedings — Jurisdiction of Justice of Peace. A justice of the peace before whom such a proceeding has been had, and who has adjudged the defendant in a replevin action to be in contempt for failure to turn over the property sought to be taken, is without jurisdiction to send a commitment to another county for the apprehension of such defendant, and the constable of his court is without authority to execute such paper in such other county.</p> <p>4. Same — Habeas Corpus — Petitioner Released. One who is arrested in such other county on such commitment and forcibly taken to the county whence it issued and placed in jail may maintain habeas corpus to secure'his release.</p>