Volume 104 — Kansas Reports

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Promissory Note — Held by Indorsee — Competent Evidence to Show Fraud and Want of Consideration. In an action on a promissory note that has been transferred to the plaintiff, where the defense is that the note was obtained by fraud and was without consideration, and that the plaintiff had purchased the note in bad faith with knowledge of ■ the fraud, chattel mortgages given by the payee to the plaintiff to secure existing debts and other debts to be afterward created are competent evidence to establish links in a chain of circumstances that would tend to show that the payee had obtained the note by fraud, and that the plaintiff had knowledge of that fraud and was not a holder of the note in good faith.</p> <p>2. Same — Evidence of Payee’s Reputation for Honesty and Integrity. Under the circumstances described in the first paragraph of this syllabus, where the payee of the note was an intinerant doctor who advertised his business by a dog, pony, and medicine show, it was proper to show by reputable doctors the payee's reputation for honesty and integrity, and his reputed ability as a physician.</p> <p>3. Same — Evidence of Fraud — Burden of Proof. The evidence' that was admitted, together with the evidence that should have been admitted as outlined in the first and second paragraphs of this syllabus, was sufficient to compel the court to submit the cause to the jury for the purpose of determining whether the payee had been guilty of fraud in obtaining the note, and, if the jury found that fraud existed, would have been sufficient to place on the plaintiff the burden of showing that it acquired the note in due course.</p>

<p>OPINION ON REHEARING.</p> <p>Appeal from Shawnee district court, division No. 1; Alston W. Dana, j udge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Promissory Note — Procured by Fraud, — Defenses. Rulings in Bank v. Stroup, 100 Kan. 17 and 444, 164 Pac. 1054, followed and applied.</p> <p>2. Same — Accommodation Notei — Defenses. That the execution of a promissory note was procured by fraud and given for accommodation, may be set up as defenses againsti the party accommodated.</p> <p>3. Same — Defenses Available to Maker — Oral Evidence. Evidence of the purpose for which the note was given, and that it was given for accommodation and without consideration, may be shown without trenching upon the rule that oral evidence cannot be used to vary or contradict the terms of a written contract.</p> <p>4. Same — Where the plaintiff was financing a construction company, and through misrepresentations procured the defendant to execute a note in favor of the company, which the plaintiff caused to be transferred to an innocent party, and of which the plaintiff -subsequently obtained possession, and upon representations that the plaintiff was carrying the indebtedness for the company and desired a change in the form of the note, and through false representations procured the defendant to execute a note, in the name of the plaintiff,, and for accommodation, the defendant is entitled to defend against an action brought on the note by the plaintiff, although there might have been no defense to the original note in the hands of the third party.</p> <p>5. Same — -The evidence in the case was sufficient to support the findings of the jury.</p> <p>6. Same — No error is found in challenged instructions given by the court.</p>

<p>Appeal from Sedgwick district court, division No. 1; THORNTON W. Sargent, judge.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Railroad Sidetracks. — Written Contract for their Use — No Corromunity of Interest Created — Instructions. Plantiff’s husband, who was an officer and employee of an industrial plant, was killed while attempting to pass between two cars standing on a sidetrack when a string of cars were coupled against them. The sidetrack had been maintained for many years under a contract between the owner of the industrial plant and certain railway companies by which the owner of the industrial plant granted to the railways a free and unincumbered right of way for the track, and agreed that the railway companies should have the right to use the track for their own business or for the business of any other person or shipper. The track was afterwards extended by the railway companies and served a number of other industrial plants, and was used in connection with the state and interstate business of the railway companies. Held, that it was error to instruct that under these circumstances the railway companies and the owner or lessee of the industrial plant had a community of interest in the sidetrack and were in the joint occupancy of the ground on which the track was laid.</p> <p>2. Same — No Community of Interest Acquired by Continued Trespassing. In such a case it is error to instruct that if the deceased and his fellow officers and employees and others having business with the industrial plant “made frequent use of the ground on which said track lay, in passing to and from said building through the doors in the west side thereof, which were in close proximity to said sidetrack, and that this practice had continued for several years,” then the railway companies and the owner or lessee of the industrial plant had a community of interest in the sidetrack and were in the joint occupancy of the ground on which the track was laid, and the railway companies were under an obligation to such officers and employees to exercise ordinary care to avoid injuring them.</p> <p>3. Same — Duty of Railway Employees towards Trespassers. “One who undertakes to cross a railway switch yard of many railway tracks, where engines and cars are likely to be moving at any time in the regular course of the railway’s business, is a trespasser and does so at his peril, and the only duty of the railway company and its employees towards such trespasser is not to willfully injure him.” (Malott v. Railroad Co., 99 Kan. 115, syl. ¶ 2, 160 Pac. 978.)</p>

<p>SYLLABUS BY THE COURT.</p> <p>Usury — Common-law Right to Recover Bach Usurious Interest Abrogated by Kansas Statute. The provisions of the statute regulating the legal rate of interest and providing penalties and forfeitures for taking or contracting for the payment of interest in excess of the statutory rate (Gen. Stat. 1915, §§ 5482, 5483) have abrogated the borrower’s common-law right to recover back usurious interest.</p>

<p>Appeal from Trego district court; JACOB C. RUPPENTHAL, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Divorce and Alimony — Divorce Refused — Division of Property — Statute Constitutional. The provisions of section 7576 of the General Statutes of 1915 (Gen. Stat. 1868, ch. 80, § 643, as amended), which authorize the court in a divorce case, for good cause shown, to make a proper and equitable division of the property acquired through the joint efforts of a husband and wife, although the divorce itself is denied, are constitutional and valid; and in the making of such equitable division, it is not of necessarily controlling significance that such property, when acquired, was taken and held in the name of the husband.</p> <p>2. Same — Where the marital relations of a husband and wife are so discordant and unhappy as to give apparent justification for an action for divorce, the trial court has judicial power in such action to make an equitable division of the property acquired by them during their marriage, although neither party has so grossly offended the marriage obligations as to require the court to grant an absolute divorce.</p> <p>3. Same — Statute Construed. Article 28 of chapter 93 of the General Statutes of 1915 (Civ. Code, § 663 et seq.), relating to divorce and alimony, covers germane and pertinent matters which may be properly determined in a divorce action, although the divorce itself is denied.</p> <p>4. Same — Evidence Supports Judgment. Record examined, and the evidence held sufficient to support the judgment.</p> <p>5. Same — Property Equitably Divided. The division of property examined, and no injustice discerned therein; and the rule followed that, where no manifest.injustice appears, the division of property decreed by the trial court cannot be disturbed.</p> <p>6. Same — When Findings and Judgment are Conclusive. Rule followed that where there is ample evidence to support the findings and judgment, the evidence to the contrary has little significance in an appellate court.</p> <p>7. Same — Award of Money to Wife — Not Error. In making an equitable division of property between a husband and wife, in a divorce action, where.no prejudice to defendant is ,shown, it was not error to award the wife a. sum of money to be paid in installments.</p>

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

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Trespass — Destruction of Trees — Disputed Boundary Line — Private Survey — Competent Evidence. In an action of trespass to recover for the destruction of trees growing near a disputed boundary line, evidence of a private survey made at the instance of the defendant, without notice to the plaintiff, may be received for the purpose of showing whether or not a trespass had been committed by the defendant.</p> <p>2. Same — Damages Not Within the Issues — Instruction. One who sues for damages for injury to trees standing wholly on his own land has no right to complain of an instruction that he cannot recover for injuries to trees standing on the division line and partly on the land of each of the contending parties.</p> <p>8. Same — Consistent Verdict and Findings. The verdict is held to he not inconsistent with the special findings of the jury and is not without support- in the evidence.</p>

<p>SYLLABUS BY THE.COURT.</p> <p>Replevin — Instructions Not Brought Up — Legal Presumptions. Where assignments of error relate to matters which would be immaterial under instructions which the nature of the case permitted, and the instructions are not brought up, it will be presumed, in support of the judgment, that such instructions were given.'</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Title and Ownership — Boundary Lines — Land Inclosed by Fence— Adverse Possession. Where an owner allowed a part of his land to be occupied by a neighbor, who by his permission built a fence inclosing it with his own property, and after the death of such neighbor his widow continued in the occupancy of the tract so inclosed, knowing nothing of the agreement, and supposing that the fence stood upon the true line between the original tracts, the possession of the neighbor was not adverse, bepause of its having been permissive, and the possession of his widow was not adverse, because she had no intention of asserting ownership beyond the actual boundary.</p> <p>'2. Same — Rights of Successor in Otvnership. In that situation, it is not necessary, in order to settle the question whether the widow’s possession was adverse, to decide whether the license granted to her husband survived for her benefit.</p> <p>3. Same — Assertion of Ownership. The evidence held to support a finding that the widow never intended to assert ownership beyond the true boundary of her land.</p> <p>4. Same — Trial 'without Jury — Incompetent Evidence. The rule applied that the admission of incompetent evidence in a trial without a jury is not of itself a ground of reversal, where there was competent evidence to the same point.</p> <p>5. Same — Authority of Agent Not Shown. Because the authority of the agent of a landowner was not shown, it is held that the trial court properly rejected evidence of an agreement made by him with regard to á boundary line.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Deed — Contract—Option to Repurchase — Option Not Exercised. The instruments executed by the plaintiffs examined, and held clearly to evidence a deed with an option to purchase back within a year — which option was not exercised. \</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Compensation Act — Sportive Acts of Coemployees — Injuries—Liability of Employer. An employer is liable under the workmen’s compensation act for injuries sustained by an employee from an electric shock caused by a mischievous prank of his fellow workmen, when it is shown that the perpetration of such pranks had become a custom on the employer’s premises, and consequently had become an incident to the employment.</p> <p>2. Same — Dangerous Practical Jokes — Knowledge of Foreman — Notice to Master\ The person designated by the master to direct the work of employees is a foreman, however limited in other respects his authority may be, and the knowledge of such foreman that dangerous practical jokes were being perpetrated by some of his employees at the expensé of other employees was notice to the master.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Negligence — Collision between Two Street Cars — Personal Injuries— Proximate Cause. The evidence in the case examined, and it is held to be sufficient to support a finding that the injury sustained by plaintiff while riding as a passenger on one of defendant’s cars was the result of the negligence of the defendant in causing another of its cars to collide with the one on which the plaintiff was riding, and that the evidence fairly tends to show that the collision was the proximate cause of the injury sustained. .</p> <p>2. Same — Trial—Instructions. Objections made to some of the instructions given to the jury are held to be without merit.</p> <p>3. Same — Award of Damages Not Excessive. Under the evidence as to the nature and extent of the injuries of the plaintiff, it is held that an award of $15,000 as damages cannot be regarded as excessive.</p>

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

<p>Appeal from Miami district court; Charles A. Smart, judge pro tem.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Defective Tax Deed — Quieting Title — Cross Petition Dismissed. In. a suit to quiet title instituted by the holder of a defective tax deed which is less than five years old, it is not error, as against the plaintiff, to dismiss defendant’s cross action to quiet her title, when defendant had not paid nor offered to pay the delinquent taxes which were the basis of the defective tax deed.</p> <p>2. Same — ■Reimbursement—Quieting Title — Action Premature. Reimbursement of an occupying claimant for improvements is not due until a judgment dispossessing him is entered, nor is it error to refuse to adjudicate this matter in a suit to quiet title. (Corbin v. Young, 24 Kan. 198, 201, 202.)</p> <p>3. Same — Tax Deed Not Five Years Old — Judicial Presumptions. Until a tax deed is five years old it is not entitled to the aid of judicial presumptions and inferences to remedy its defects, when to indulge them would aid in forfeiting the rights of the landowner.</p> <p>4. Same — Tax Deed Less Than Five Years Old — Rights of Holder. The rights of the holder of a defective tax deed'which is less than five years old are the statutory assurance that he will be reimbursed for the amount which he has paid for taxes, together with twelve per cent per annum on his investment, if he is deprived of the property covered by his defective tax deed.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Vacation op Judgment — Statutory Grounds Therefor — Loss of Stenographer’s Notes. Statutory provisions authorizing the setting aside of a judgment for mistake, neglect or omission of the clerk, or irregularity in "obtaining it, or for unavoidable casualty or misfortune preventing the party from prosecuting or defending, refer wholly to the proceedings leading up to the judgment, and have no application to matters taking place after its rendition, such as the loss of the reporter’s notes of the evidence.</p> <p>2. Same — Statement of Evidence Approved by Trial Judge. Where the stenographer’s notes of the evidence have been lost, a statement approved by the trial judge may be used on appeal in lieu of a transcript thereof, although the statute makes express provision for such substitute only in case of the stenographer’s death or disability.</p>

<p>SYLLABUS BY THE hoURT.</p> <p>Invalid Tax Sale — Discretion of County Commissioners to Refund Money Received. Where, after the conveyance of land sold for t'axes, it is discovered or adjudged that the sale was invalid, the allowance of a claim for the refunding of the money and subsequent taxes and charges paid by the purchaser or his assigns lies in the discretion of the county commissioners (Gen. Stat. 1915, §11461), and where they have rejected the claim no action can be maintained against the county to recover the payments.</p>

<p>SYLLABUS BY THE COURT.</p> <p>•Automobile Accident — Driver Using Car on Private Business Without Permission — Owner Not Liable. Under the facts stated in the opinion, the defendant is held not liable for the injury caused by his automobile when used by his agent’s wife in violation of his express orders.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Master and Servant — Personal Injuries — Evidence—When Fact fox the Jury. From the evidence on certain questions, different minds might reasonably have reached different conclusions; therefore, the findings of the jury on those questions, having received the approval of the trial court, and being conclusions that might reasonably have been reached from the evidence, will not be disturbed.</p> <p>2. Samf — Contributory Negligence — Eliminated by Findings. The defense of contributory negligence was eliminated by the findings of the j'ury, which findings showed, either that the deceased was not guilty of contributory negligence, or that the defendant had not complied with the federal employer's liability act.</p> <p>S. Same — Defective Car Coupler — Finding Sustained by Evidence. Evidence that an automatic car coupler failed to couple on two successive impacts warrants a jury in finding that the coupler was defective, and where the evidence shows that the car was old and was destroyed soon thereafter, the jury is justified in finding that the coupler was worn.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Interstate Shipment — Live Stock — Contract Limiting Carrier’s Ua~ bility Valid. Where rates for intrastate shipments are based' on the value of the property as set out in the contract, a provision thereof limiting the carrier’s liability to that amount is valid, even with respect to loss occasioned by its negligence.</p> <p>2. Same — Presumption that Rates were Properly Filed. In the' absence of evidence to the contrary, it will be presumed that the schedules of rates and regulations in use by a carrier have been properly filed with the utilities commission.</p> <p>3. Same — Injury to Stock — Negligence. A finding that an injury occasioned by the making of a flying switch, whereby a string of cars is shunted against a loaded ear standing on a siding, was the result of' gross negligence, does not, in the absence of any evidence of exceptional circumstances, imply that the injury was intentional or wanton, and does not take the case out of the rule announced in paragraph numbered one of this syllabus.</p> <p>4. Same — Construction of Contract. Where, under the circumstances stated, the shipping contract contains no express provision that the carrier’s liability is limited to the value therein stated, the same re- . suit follows from recitals that the rate is based on such valuation.</p>

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

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. School Districts — Territory Detached — New District Organized— Injunction — Void Order of County Superintendent — Incompetent Evidence. A void order made'by a county superintendent, undertaking to cancel and rescind her action in legally detaching territory from a school district and in organizing that territory into two new districts, may properly be excluded from evidence on the trial of an action to enjoin-the county superintendent and others from recognizing or treating as part of the new school districts any of the territory detached.</p> <p>2. Sa'me — New District Lawfully Organized — Jurisdiction of County Commissioners to Hear Appeal. Under section 8906 of the General Statutes of 1915, the board of county commissioners, at a special meeting called for that purpose, has no jurisdiction to hear an appeal from the action of the county superintendent in altering old school districts, or in forming new ones.</p> <p>8. Same — Order of Superintendent Forming New District — May Not be Attacked by Injunction. Neither a school district nor the district board can, by injunction proceedings, question the validity of the action of the county superintendent in detaching territory from such school district and organizing that territory into new districts.</p> <p>4. Same — Evidence Properly Rejected. An offer to introduce certain oral evidence was made. It is held that there was no error in rejecting the evidence.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Shipment of Potatoes — Commission Company Both Consignor and Comignee — Liable for Freight. In an action by a railroad company against a commission company for the freight charges on a carload of potatoes consigned to the latter, the sole question in controversy being whether the defendant or the owner of the potatoes was the consignor, the defendant maintained that, while it had made the shipment, it did so as the agent of the owner of the potatoes, and not in its own behalf, but admitted that at the time they were being loaded into the car it advanced $60 to the owner on them. Held, that a finding was justified that the defendant was the consignor and was liable for the freight.</p> <p>2. Same. It is further held' that, even assuming that the defendant in making the shipment was acting solely as the agent of the owner, the evidence did not compel a finding that the plaintiff had knowledge of that fact.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Divorce and Alimony — Award, of Alimony Affirmed. It does not appear that the trial court abused its discretion in determining the amount oí alimony awarded to the plaintiff.</p>

<p>SYLLABUS BY THE COURT.</p> <p>I. Oral Land Contract — Statute of Frauds — Not Available to Third Parties — Measure of Damages against Intermeddler. The rule of the statute of frauds which requires contracts for the conveyance of land to be in writing in order to furnish a legal basis for their enforcement, concerns only the parties to such contracts and their privies. The statute cannot be invoked by third parties not concerned therein. Oral contracts relating to land are not inherently illegal; the parties thereto may consummate them if they are willing to do so, and third parties whose intermeddling is the sole cause of frustrating the consummation of such oral contracts must respond in damages to the injured party; and the measure of damages is the loss of profits on the transaction which their wrongdoing frustrated, when that loss is capable of definite ascertainment.</p> <p>2. Same — Frustrated by Intermeddler — Measure of Damages. The fair and reasonable value of land at the time it was the subject of a bargain, is a proper and competent matter to be proved in an action for loss of profits against one whose wrongdoing frustrated the consummation of the bargain, and the cost of the land would be of no evidential value in ascertaining the damages.</p> <p>3. Same — Excluded Evidence- — When Reviewable. Error cannot be,predicated upon the exclusion of evidence when it is not brought on the record in support of a motion for a new trial and is not before the supreme court for review, following Scott v. King, 96 Kan. 561, 567, 152 Pac. 653.</p> <p>4. Same — Minimizing Damages. The rule that one who suffers from the wrong of another must use reasonable diligence to lessen or minimize his damages, is held to be inapplicable to the facts of this case.</p> <p>5. Same — Execution of Contract — Prevented by Intermeddler — Liability for Damages. The plaintiff applied to defendants for a loan of money to be secured by a mortgage on his farm. He executed a note and mortgage which were delivered to defendants. The instruments were not in satisfactory shape, and defendants prepared new instruments and forwarded them to plaintiff for his signature, but they retained the original instruments in their possession. Meantime, plaintiff procured a loan elsewhere. Then defendants recorded the first instruments, apparently to force plaintiff to pay them or their agent a commission. Plaintiff made a bargain to exchange his farm for Oklahoma property, but the cloud on plaintiff’s title occasioned by defendants’ 'wrongful recording of the ineffective mortgage and their refusal to cancel and release it defeated the plaintiff’s trade. Held, that defendants are liable to plaintiff for all damages capable of definite ascertainment and definite proof.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Benefit Insurance — Attempt to. Change Beneficiary — By-law Not Observed — Equitable Fulfillment. Equity may not ignore the positive inhibition of a by-law of a beneficiary society making any change of beneficiary ineffective without surrender of the old certificate and the issuing of a new one, and may not regard a new certificate as having been issued, when no one of several reasonable requirements of the bylaws relating to change of beneficiary has been complied with, and the society has not been placed in a position in which it might have issued a new certificate, but for the member’s death.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Mandamus — State Auditor — Refusal to Issue Warrant — Claim, Valid —Writ Allowed. Findings of fact and conclusions of law returned by a commissioner appointed for the purpose, approved, and held that the state auditor may not refuse to issue a warrant for the payment of a claim because the claimant had been a member of an unlawful combination in restraint of trade (Gen. Stat. 1915, § 6457), when the claim itself did not grow out of and was not connected with the combination.</p> <p>2. Same — Duty of Auditor to Issue Warrant — Proper Remedy. Mandamus is the proper remedy to obtain a warrant, whenever it is the legal duty of the auditor to issue it.</p> <p>3. Same — Authority of Auditor to Withhold Warrants. The authority of the auditor to issue and withhold war-rants outlined..</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Building — Lateral Support — Excavation on Adjoining Lot — Easement. The owner of a building has no natural easement for the lateral support of the land of an adjoining owner. The obligation rests upon him to shore or protect his building on notification or knowledge that the adjacent proprietor intends to make an excavation; and where there is no statutory or contractual obligation, one who exercises reasonable care and skill in excavating on his own land is not liable for injuries resulting to buildings on adjoining land.</p> <p>2. Same — Lateral Support — Excavation—Instruction. In an action to recover damages to the building of the plaintiffs caused by an excavation made by the defendant on his adjoining lot, it was not error to instruct that if plaintiffs had notice or knowledge that the excavation was to be made, defendant had the right to excavate the full length of his lot and was not required to remove the dirt in his excavation in sections, provided he used ordinary care and skill in making the excavation.</p> <p>3. Same — Findings—Not Inconsistent. The special findings examined, and held not to be inconsistent with each other or with the general verdict.</p>

<p>Appeal from Linn district court; Edward C. Gates, judge.</p>

<p>SYLLABUS BY THE COURT,</p> <p>Promissory Note — Holder in Due Course — Burden of Proof — Instructions. Instructions touching the burden of proof in an action on a promissory note, where the defense was fraud in its procurement and in its negotiation through breach of faith, examined, and held that the instructions given were in substantial accordance with the pertinent provisions of the negotiable-instruments act.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Compensation Act — Injuries—Findings—Instructions. The findings of the jury were supported by sufficient evidence.</p> <p>2. Same. No error appears in the giving or refusing of instructions.</p>

<p>SYLLABUS BY THE. COURT.</p> <p>1. Landlord and Tenant — Wrongful Disposition of Bents — Injunction — Receiver Appointed — No Reversible Error. Landlords procured an injunction enjoining their tenant from removing, selling, or disposing of the landlords’ share of the crop. A receiver was appointed to take charge of the crop, and- he afterward sold it. Judgment was rendered for the plaintiffs, and the receiver was ordered to turn the money over to them. Held, that the judgment should not be reversed, although the landlords had the right to attach, to sue in replevin, or to sue for damages.</p> <p>2. Same — Sufficient Petition. The petition, summarized in the opinion, stated a cause of action.</p> <p>8. Same — Injunction—Jurisdiction of Court. A district court has jurisdiction to grant an injunction, and although, it may be erroneously granted, yet the final judgment, if it is one that should be rendered, will not be reversed because of the injunction.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Pleadings — Amended Petition before Answer Filed. Before an answer is filed, the plaintiff may amend his petition as to subject matter and parties without leave of court.</p> <p>2. Appeal — Questions Beviewable on Appeal. Only questions raised and determined in the district court are open to review on appeal.</p> <p>3. Promissory Notes — Alleged Alterations — Burden of Proof. In his action to recover on promissory notes and to foreclose a mortgage securing the same, the plaintiff set out some of the negotiations preliminary to the execution of the notes and mortgage, also that because of a modification of their agreement, one set of notes prepared for signing had been substituted” for another, and that certain changes were made in the notes sued on before delivery to make them conform to the final agreement of the parties. The defendant answered alleging that there had been a -fraudulent alteration of the notes after delivery. Held, that the burden of proof to establish fraudulent alteration rested upon the defendant.</p> <p>4. Same — Findings of Trial Court Conclusive. The finding of the trial court upon conflicting and substantial evidence as to the alleged alteration is conclusive upon appeal.</p>

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

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

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

<p>■ Appeal from Shawnee district court, division No. 1; Robert D. Garver; judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Drainage District — Authority to Change Watercourses — Contracts with Landowners- Outside District. Under the drainage^act, Laws of 1905, chapter 215, it is competent for the directors of a drainage district to change the channels of watercourses and relocate and establish new ones, and to that end they may make contracts with landowners outside of the district, and the judgment and discretion so vested may be exercised by them without interference of control by the courts, unless fraud or bad faith enters into their action.</p> <p>2. Same — No Implication of Bad Faith. The fact that the directors may have had a wrong conception of their duties or have taken some illegal steps in the performance of their duties, does not necessarily imply bad faith nor that their conduct was so arbitrary, capricious and unreasonable as to indicate an abuse of the power conferred.</p> <p>3. Same — Flooding Lands — Injury' to Property in New Drainage District —Party Plaintiff in Injunction Suit. An action to enjoin the maintenance of a system of drainage that has been established by an organized district, upon the ground that it results in flooding, injury and loss to the lands of owners ip a newly created district, and to the roads and bridges therein, cannot be maintained at the suit of the new district, but must be brought in the name of the st'ate, at the instance of the attorney-general or the county attorney.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Receivers — Presumed to Operate under Workmen’s Compensation Act. Receivers of a railroad company are presumed to be operating under the workmen’s compensation act until they elect not to come within its provisions, although before their appointment the corporation had made such an election.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Written Guaranty — Performance of Contract — Action—Joinder of Guarantors and Principal Obligor. Under section 38 of the code of civil procedure (Gen. Stat. 1915, § 6928), guarantors who are only secondarily liable on a written obligation may be joined as defendants in an action against the principal obligor, and the rights of the guarantors can be equitably and adequately safeguarded in the judgment by directing execution against the property of the principal obligor and exhausting that source of satisfaction before issuing execution against the property of those secondarily liable.</p> <p>2. Same — Right of Action against Unconditional Guarantors. Where a guaranty is unconditional, the default of the party whose contracts, fidelity or conduct is guaranteed, matures the liability of the guarantors, and they may be proceeded against without awaiting a fruitless execution against the defaulting principal.,</p> <p>3. Same. Where a principal obligor is admittedly insolvent, an indem-, nified party may proceed at once against such obligor’s guarantors, without first pursuing a futile action against the principal.</p> <p>4. Same — Pleadings—Joinder of Defendants — Single Cause of Action. Appropriate allegations narrating the execution of an undertaking guaranteeing the performance of a contract, the default of the principal obligor, and the default of the guarantors, recite facts which state essentially but one cause of action against the principal and guarantors, and, as against a demurrer, there is neither misjoinder of parties nor of causes of action therein.</p> <p>5. Same — Want of Diligence — Guarantors Not Released. Want of diligence in prosecuting claims against a principal obligor will not relieve guarantors who bound themselves specifically and in writing that extension of time to the principal obligor should not relieve them from liability.</p> <p>6. Same — Guaranty May be Revoked by Guarantor. A guaranty of faithful performance of future obligations, with no limitation of the time such guaranty is to endure, is ordinarily subject to revocation by the guarantor; and while notice of such revocation does not relieve the guarantor from liabilities already incurred, it does relieve him from further liability.</p> <p>7. Same — Revocation of Guaranty by Guarantor. As against a demurrer, a guarantor’s denial of liability and notice thereof to the party indemnified should be construed as a revocation of the guaranty, unless the written terms of the guaranty will not admit of that interpretation.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Mortgage — Payment—Refusal to Cancel — Damages—Statutes Remedial. The statute authorizing recovery of statutory damages, additional damages, and an attorney fee, and removal of the cloud on the mortgagor’s title, resulting from wrongful refusal of a mortgagee, on payment of his mortgage and demand, to enter satisfaction of record (Gen. Stat. 1915, §§ 6471, 6473), is remedial, and not penal.</p> <p>2. Same — Tender of Payment Wrongfully Refused — Mortgagor Entitled to Release. Actual receipt of payment by the mortgagee is not essential. Tender by the mortgagor, wrongfully refused, entitles him ,to a release of the mortgage, and, after demand, to invoke the dtatutory remedies.</p> <p>3. Same — Action for Statutory Relief — Sufficient Petition. A petition for relief pursuant to the statute examined, and held to state a cause of action.</p> <p>4. Same — Mortgagee a Nonresident — Action Maintainable. The action may be maintained in this state against a nonresident.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Real-estate Agent ■ — • Purchaser Found — Commission Earned. The plaintiff found a customer ready, able and willing to buy the defendant’s land on the latter’s terms, and as the letter advising the plaintiff that the land had probably been sold did not reach him until after . such purchaser had been found, he had earned, and is entitled to, his commission.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Joint Will — By Husband and Wife — Not against Public Policy. A mutual and reciprocal joint will, made by a husband and his wife, in which they give a life estate in their property to the survivor and the remainder to their children, is not opposed to public policy.</p> <p>2. Same — May Not be Revoked after Death of Wife. A mutual and reciprocal joint will, made by a husband and his wife, cannot, after the death of the wife and the acceptance of benefits under the will by the husband, be revoked by his subsequent marriage.</p> <p>3. Same — Former Opinion Not in Conflict Hereivith. The rule announced in Postlethwaite v. Edson, 102 Kan. 104, 171 Pac. 769, Id., 102 Kan. "■ 619, 171 Pac. 773, cannot be extended so as to render nugatory the remainder created by a mutual and reciprocal- joint will made by a husband and his wife.</p>

<p>Appeal from Sumner district courtOliver P. Fuller, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Forcible Entry — Termination of Tenancy — Appeal Dismissed. An appeal by the plaintiff in a forcible entry and detainer case will not be considered on its merits where his right of possession will expire before a reversal woult}, in the usual' course of procedure, become effective, and the time for which the defendant claimed a right of possession has already expired.</p>

<p>SYLLABUS BY THE COURT.,</p> <p>Fire Insurance — Loss Paid to Mortgagee• — Right of Insurance Company to Subrogation. In an action on a fire insurance policy, the insurance company, upon satisfaction of a judgment against it in favor of a mortgagee under a loss payable clause of the policy, is entitled to subrogation to the claims of the mortgagee, where it has a valid defense as against the assured.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Appeal — Question of Costs Only — Appeal Dismissed. A landowner, on appeal from an award of condemnation commissioners, recovered the exact amount of the award. The trial court refused to retax the costs, amounting to $125, to the plaintiff, and the railway company seeks to appeal. Held, that the appeal will not lie. (Civ. Code, § 566, Gen. Stat. 1915, § 7470.)</p>

<p>SYLLABUS BY THE COURT. -</p> <p>Partnership- — Sale of Hay — Evidence Failed to Show a Partnership. Under the facts stated in the opinion, it is held that a partnership did not exist between the plaintiff and the Southwestern Hay and Grain Company.</p>

<p>Appeal from Wilson district court; L. Stillwell, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Oral Land .Contract — Contract Void — Within Statute of Frauds. An oral contract for the sale of land cannot be enforced though the recanting vendor’s only excuse given to the vendee for his failure to comply therewith was that he desired to sell the land to another person and had sold it to the latter after his oral bargain with the vendee.</p> <p>2. Same — No Estoppel to Plead Statute of Frauds. One who repudiates an oral contract for the sale of land is not estopped to invoke the statute of'frauds in an action for specific performance because he made no , mention of his legal rights under that statute in giving his reasons to the vendee for refusing to comply with his contract.</p>

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

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

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

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Taxation — Levy for Building and Repairing Bridges — Statutes Construed — Levy Authorized. Chapter 68 of the Laws of 1911 superseded section 11354 of the General Statutes of 1915., as to the levy of taxes for building and repairing bridges, and authorized a levy in addition to the amount permitted for current expenses.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Coal Mining — Statute Regulating Use of Dynamite in Coal Mines Constitutional. Chapter 175 of the Laws of 1909 is constitutional, although it gives to mine operators and miners the power to make rules and regulations for the use of dynamite in coal mines, if the rules and regulations are approved by the state mine inspector.</p> <p>2. Same — Strip-pit Coal Mines. The act applies to strip-pit coal mines.</p> <p>3. Same — -Shot-firer in a Strip-pit Coal Mine — Within Provisions of Statute. A shot-firer in a strip-pit coal mine comes within the provisions of the act making it unlawful for any person engaged in coal mining to use dynamite in the preparation of any blast or shot in any coal mine within the state.</p> <p>4. Same. Such a shot-firer, using dynamite in the preparation of a bltast in violation of the act, cannot recover damages for injury sustained by him in the explosion of dynamite with which he was working, if it is necessary for him to prove its illegal use as a part of his case.</p> <p>5. Same — Rules Regulating Use of Dynamite. The'fact that rules, under the act, could not have prevented the injury, does not affect the plaintiff’s right to recover.</p> <p>6. Same. The excerpts set out in the opinion, taken from the contract between the mine operators and the miners, do not constitute rules and regulations for the use of dynamite in coal mines.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Ejectment — Evidence Should Have Been Submitted to Jury. The evidence to support 'an action in ejectment examined, and held sufficient to require its submission to a jury, and that an instructed verdict thereon was erroneous.</p> <p>2. Same — Damages — Question for Jury. The evidence to support a claim for damages incident to an alleged wrongful dispossession considered, and held sufficient against an instructed verdict.</p> <p>3. Same — Statement of Counsel — Evidence—Issues Enlarged by Consent of Parties. In an action in ejectment and for incidental damages, where counsel for plaintiff, in his opening statement to the jury, was permitted, without objection, to give an outline of the facts which he proposed to prove touching the defendant’s conversion of plaintiff’s personal property situated on the premises at and about the time defendant wrongfully dispossessed the plaintiff, and where the trial court, without objection from defendant, permitted evidence at length to be introduced to establish the plaintiff’s damages for such conversion, although the facts were not pleaded, or were insufficiently pleaded, in the petition to justify such opening statement and to warrant the introduction of such evidence, it is held that the pleadings should be construed as being broad enough to include those elements of damage, or that the issues were thus enlarged by consent of parties..</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Bill op Lading — Transferred to Bank by Indorsement — Credit Given Shipper — Title to Goods Vested in Bank — No Attachable Interest Remained in Shipper. In the year 1916, a California shipper delivered to a carrier goods for transportation to Hutchinson, Kan. The carrier issued to the shipper an order bill of lading,, with a notation to notify a Hutchinson dealer. The shipper drew drafts on the dealer, attached to them the bill of lading properly indorsed, delivered them to a bank, and received credit on its checking account with the bank for the face of the drafts. The bank expected to charge interest during the suspension period, and to charge back the drafts in case of necessity. The drafts were dishonored. The dealer sued the shipper for damages for breach of contract, and attached the goods while in possession of a terminal carrier at Hutchinson, and garnished the terminal carrier. The bank replevined the goods. After obtaining possession of the goods, the bank, at the request of the shipper, delivered the bill of lading to the terminal carrier, and the shipper diverted the goods to Philadelphia, Pa. The dishonored drafts were returned to the shipper, who delivered to the bank new drafts on the Philadelphia consignee, but received no credit for them. The attaching dealer intervened in the replevin suit, and set up the attachment and garnishment proceedings. Held, negotiation of the bill of lading by the shipper vested in the bank title to the goods and right of possession. No attachable interest remained in the shipper, and the attachment being barren, the dealer had no standing to require the bank to account for the goods, or any excess in value over the face of the original drafts.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Evidence — Concerning Transactions with Person Since Deceased — Amended Statute ConstruedNotwithstanding the fact that in a revision of the section of the code making a party incompetent under certain circumstances to testify in his own behalf concerning transactions with a person since deceased, the word “party” in that connection was changed to “person,” the statute is not to be construed as excluding the testimony of a witness in the class of cases referred to, whenever a decision in favor o'f the party calling him would inure to his benefit.</p> <p>2. Action — Setting Aside Deeds — Trial to Court — Admission of Alleged Incompetent Evidence. Where in a trial without a jury judgment is rendered against the party having the burden of proof, the fáet that the,evidence in support of his claim is not directly contradicted otherwise than by testimony which is attacked as incompetent, does not affirmatively show that the decision was influenced by such challenged testimony.</p>

<p>No. 21,341. Appeal from Rush district court; Albert S. Foulks, judge.</p> <p>No. 21,768. Appeal from Edwards district court; Albert S. Foulks, judge. Opinion filed March 8,1919.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Shipping Contract — Livestoclc—Limiting Carrier’s Liability — Contract Valid. A statute providing that a carrier shall be liable to the shipper for loss or injury caused by it to property in shipment, and that no contract or regulation shall exempt it from such liability, does not prevent the amount of recovery for- such loss or injury being limited to the value stated in the bill of lading, on which the freight charged is based.</p> <p>2. Same. Other grounds presented held not to require a rehearing.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Promissory Note — Procured by False Representations — Plaintiff Not an Innocent Holder — Knowledge of Agent. The proceedings considered, and held that the plaintiff was not a holder of the promissory-note sued on, without notice of infirmity in the paper, because of knowledg'e which an agent in charge of its interests possessed that the note was obtained by false representations-for shares of stock in an insolvent bank.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Injunction — Excessive Charges for Local Improvements — Joinder of Plaintiffs. The owners of lots in different blocks which are subjected to an excessive charge’ for local improvements by reason of the total amount apportioned among the benefited property being too large, may join in an action for relief.</p> <p>2. Same — Pleadings—Illegality of Special Assessments. An allegation that the abutting property is charged with the cost of bringing the street to grade is sufficient to show the illegality of a special assessment.'</p> <p>3. Same — Assessments Payable in Installments — Tender. The rule applied that where assessments for local improvements are payable in installments a tender of the valid portion is not essential to the maintenance of an injunction against the collection on the ground of their being excessive.</p> <p>4. Same — Pleading—Additional Parties. The petition held not to show facts calling for the bringing in of additional parties.</p>

<p>SYLLABUS BY THE COURT..</p> <p>1. Insurance — Verdict—Findings. The general verdict in favor of the plaintiff is held to be in effect a sufficient finding that the fire occurred without the plaintiff’s fault.</p> <p>2. Same — Terms of Policy — Insured to Submit to Examination — Refusal Did Not Avoid the Policy. The provision that when required the plaintiff should submit to an examination under oath was not made a condition precedent to recovery, and his refusal to comply when called upon, did not, under the circumstances shown, constitute a valid defense.</p> <p>3. Same — Provisions of Policy — No Gasoline Allowed on Premises — Gasoline in Motor Car Avoided, the Policy. The policies provided that they should be‘void if the insured “kept, used or allowed on the premises gasoline ... or petroleum or any of its products of greater inflammability than kerosene oil.” Held, that the plaintiff’s keeping in 'the building for two or three months his Ford car with its gasoline tank from one-third to entirely full of gasoline (although not in the building the night of the fire) violated this provision and avoided the policies.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Automobile — Crossing Railroad Tracks — Failure to Stop and “Look” —Contributory Negligence. The findings of the jury set out in the opinion disclose the following facts: that two laborers riding in an automobile were engaged in a common, or joint, enterprise; that they had joint control of the automobile; that one was instructing the other concerning a route on which milk was to be delivered by the latter; that they attempted to cross a railroad track in front of an approaching passenger train which they saw, or could have seen if they had looked; that each was guilty of contributory negligence; and that the laborer doing the instructing was killed. Held, that his widow cannot recover damages for his death.</p> <p>2. Negligence — Pleading—Charging Contributory Negligence. An .answer charging contributory negligence in general terms is sufficient if a motion to make definite and certain has not been filed.</p> <p>3. Same — Injuries—Special Questions. The answer to a certain question is attacked on a number of grounds. Held, that the attack cannot be sustained.'</p> <p>4 Same — Crossing Railroad Track — Contributory Negligence. The widow of a man who is killed in a collision with a railroad train, while attempting to cross the railroad track in front of the approaching train which he saw, or could have seen, if he had looked, cannot recover damages for the death of her husband.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Automobile — Injuries at Railroad Crossing — Negligence—Contributory Negligence. Where an interurban railway company permits needless obstructions to the view on its right of way near a country crossroad, such company must take such obstructions into account in the discharge of its duty to exercise due care in the operation of its cars at such crossing; and the company is liable in damages to a person who, free from negligence herself, was injured because such obstructions to her view rendered the crossing dangerous and because of the high rate of speed at which the company’s car approached the crossing.</p> <p>2. Same — Injuries at Railroad Crossing — Evidence—Photographic Exhibits. Photographic exhibits which were introduced in evidence and which tend strongly to prove that there were no material obstructions to the view at a railway crossing over a rural highway, are insufficient, in a court of appeal, to overthrow the parol and other evidence contradictory thereto, when the jury gave greater credence to the latter than they did to the photographic exhibits.</p> <p>3. Same — Injuries at Railroad Crossing — Evidence—Findings. Where a jury in answer to special questions found that the person who was fatally injured at a railway crossing over a public highway could have seen the approaching interurban car in time to warn the driver of the vehicle in which she was riding, at 132 feet, and at 82 feet, but answered, “Can’t say,” and “Doubtful,” in response to similar questions as to her range of vision at 15 feet, 25 feet, and 30 feet, such findings construed together do not establish her contributory negligence as a matter of law, and a jury’s general verdict which is consistent with' such findings must stand.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Promissory Note — Name Indorsed on Back Thereof — Indorser Not a Maker or Guarantor — Notice of Dishonor. In the settlement with a creditor an indebtedness of a partnership composed of two persons was individualized, each partner giving a note for one-half of the indebtedness and securing it by a mortgage given on his individual property, and afterwards the' creditor procured each partner to sign his name in blank on the back of the note given by the other in settlement of the debt. In dn action brought on the indorsement, it is held, under the negotiable-instruments act, that the placing of defendant’s signature on the back of the note did not indicate he was a maker, or guarantor, but that his liability was that of an indorser, and then only liable in case notice of dishonor was given him, as the act prescribes.</p> <p>2. Same — Notice of Dishonor — Conflicting Evidence. The evidence is in conflict as to whether or not notice was given or-mailed to defendant, and the finding of the jury in favor of defendant is conclusive that the required notice was not given.</p>

<p>SYLLABUS BY THE COURT</p> <p>Appeal — Motion to Dismiss — Estoppel. An appellee who' first takes advantage of the appeal to procure a beneficial order is not in position to move a dismissal of the appeal on the ground the appellant had recognized the propriety and conclusiveness' of the judgment before appealing.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Defective Sidewalk — No Part of an “Approach to a Railroad Crossing” — Liability of Abutting Lot Owner. The evidence is held not to support a finding that a sidewalk was to be regarded as an approach to a railroad crossing in such sense as to make the railway company (which owned the abutting property) liable for its being kept in repair by virtue of the statute requiring highways crossed by railroads to be restored to such condition as to be fit for travel.</p> <p>2. Same — City Ordinance — Duty of Owner of Abutting Property to Make Repairs — Liability for Injuries. An ordinance which requires the abutting owner to repair sidewalks which become dangerously defective, and authorizes the city to make such repairs at his charge if he fails to do so within ten days of the receipt of an official notice of what has been determined to be necessary; does not render such owner liable to a pedestrian who is injured by reason of a defect in the walk.</p> <p>3. Same. Liability of the owner of the abutting property to persons injured by reason of the defective condition ■ of a sidewalk does not arise from his having previously repaired defects.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Sale — Book Accounts — Statute of Limitations — Moral Obligations. Book accounts which are barred by the statute of limitations are not legal, hut are moral, obligations.</p> <p>2. Same. Such accounts are not “good” if barred.</p> <p>3. Pleadings — Petition to be Liberally Construed. As against a general demurrer — no motion having been filed to make definite and certain— a petition should be liberally construed.</p>

<p>SYLLABUS BY THE COURT..</p> <p>Compensation Act — Proof of Injury of Employee — Report Made by Himself Inadmissible, as Evidence. Under the workmen’s compensation act, a written report concerning the injury of an employee, made by another employe or manager, at the request of the employer, which report contains statements regarding the accident and the injury to the employee, but which shows, on its face, that the statements are those of the injured employee and are not the admissions of the employer, is not admissible in evidence for the purpose of proving that the accident occurred, or of proving the nature of the injury.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Municipal Corporation — Vested with Powers in Dual Capacity. A municipality has a dual capacity — one as an agency of the state, in which it is vested with powers which are purely governmental, legislative and public; and the other which is proprietary, commercial, quasi-private and ministerial.</p> <p>2. Same — Negligence of City — Officials Exercising Governmental Powers. The rule followed that a city is not liable for the negligence of its officials in those matters which relate to the city’s governmental powers as an agent of the state.</p> <p>3. Same — Liability of City for Negligence of City Officials. The duty of a city and its officials to forbid and prevent an automobile race on one of its streets and to provide police and protection against such misuse of the street is a governmental power and duty, and for negligence in the discharge of such duty the city is not liable, because there is no statute imposing such liability.</p> <p>4. Same. During a four days’ street carnival in Gypsum City, an automobile race was run on a public street. . One car swerved, and struck and fatally injured one of the onlooking bystanders. In an action for damages against the wrongdoers, the city was also made a defendant on the theory that it was liable for the negligence of its officials “in allowing the race to be run and not providing police and protection.” Held, that while all the wrongdoers are individually liable in damages, and criminally liable for manslaughter, the city of Gypsum City is not liable.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Promissory Note — When a Bank Becomes a Bona Fide Holder for Value. The purchase of -a note by a bank and the deposit of the proceeds therein makes the bank a debtor of the depositor, but not a purchaser for value, but if the amount of the deposit is drawn out before maturity and before the bank acquires knowledge of the infirmities in the paper, it becomes entitled to the protection accorded a bona fide purchaser for value.</p> <p>2. Same. The fact that such depositor subsequently makes other deposits in the bank after the proceeds of the discounted note have been checked out, does not take from the bank its status as bona fide holder for value.</p> <p>3. Same. A bank purchased a note from a depositor and gave him credit in the bank for the proceeds. Including the proceeds of the note the depositor had then a credit of $1,550. Shortly afterwards, and before maturity of the note or knowledge by the bank of any infirmities in it, the depositor checked out of the bank the sum of $1,811.62. Held, that the bank then became a purchaser for value.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Contract — Sale of Beal Estate — Time of Performance — When Es- <. sence of Contract. It is not necessary that any particular form of expression be used to make time of performance by the vendee an essential element of a contract relating to the sale of real éstate; and such is the effect of a contract of sale which conditions conveyance on performance at the time specified, and reserves to the vendor the right of forfeiture and the'right of possession in case of default by the vendee.</p> <p>2. Same — Executory Contract for Sale of Land — In Whom Title Bests— Contract Not Personal Property. The equitable doctrine that, when land is sold on deferred payments and the deed is to be delivered when the payments have been made, the vendor becomes a trustee of the title for the benefit of the vendee, does not apply to such a contract. The entire title remains in the vendor until the vendee has performed, and should the vendor die, the contract is not personal property, to be inventoried and administered as such by his personal representative.</p>

<p>Appeal from Wyandotte district court, division No. 1Ed-ward L. Fischer, judge.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Corporation — Acts of Corporate Officer — Electing Not to Come Under Compensation Act — Burden of Proof. When an officer of a corporation presents to the secretary of state a document in writing in which it is recited that such corporation elects not to come under the provisions of the workmen’s compensation act, and the secretary of state accepts and files such document as a genuine and authorized instrument, the public has a right to act upon the presumption that the execution and presentation of the document were authorized by the corporation, and if not so authorized the burden is on the corporation to prove that fact.</p> <p>2. Same — Dangerous Place to Work — Assumption of Bisk — Instructions. Where a jury specifically finds that the situation of a workman who was injured was not obviously dangerous, an inaccurate instruction touching the workman’s assumption of the risk of obvious dangers is not reversible error.</p> <p>3. Same — Negligence — Moving Heavy Machinery — Tools Required — Province of Jury — Matters of Common Knowledge. A jury may draw upon their own information, without proof, touching simple matters of common knowledge and experience, and they do not need to be told that the use of a jack (or other equally efficient device) is necessary to raise the wheels of a heavily loaded vehicle from, a groove or rut into which the wheels had slipped; and when all the facts touching such a situation are in evidence the jury may properly find that the attempt to drag the loaded vehicle out of the groove without the use of jacks was an act of negligence; and a finding that such negligence caused the injury and death of a workman will not be disturbed.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Sale — Ice Plant — Indefinite Written Contract — Parol Evidence — Fraudulent Representations. A proposal by plaintiff to sell an ice plant, which was signed by the defendants, is held to be so indefinite and ambiguous that it cannot be regarded as a complete contract, and hence in an action thereon parol evidence may be received, not to contradict the writing, but to show the complete agreement, including any fraudulent representations made and the inducing causes to the making of the agreement.</p> <p>2. Same — Pleadings—Issue of Fraud. Under the pleadings herein the question of fraud was in issue and evidence thereon was admissible.</p> <p>3. Same — Trial — Reopened for Further Testimony — Admissions — Judicial Discretion. After the parties announced that they had rested, the court allowed the case to be reopened and further testimony to be introduced in respect to the value of the ice plant. Plaintiff objected upon the ground that their witnesses upon that subject had left the court, and their evidence to meet that of the defendants was not then available. Defendants then stated that they would concede that plaintiff’s absent witnesses, if present, would testify that the property was of the full value claimed by the plaintiff. Held, that there was no abuse of discretion shown in the ruling reopening the case.</p> <p>4. Trial — Instructions. Certain challenged instructions of the court examined, and held to be without prejudicial error, and also that the refusal of one requested instruction afforded no ground for reversal. „</p> <p>5. Same — Evidence—Verdict. Evidence examined and held to be sufficient to support the verdict of the jury.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Sale — Original Promise to Pay for Goods Furnished Another. The evidence held sufficient to carry to the jury the question whether a promise to pay for goods furnished to another was original or collateral.</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 Gove district court; Jacob C. Ruppenthal, judge.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Statute — Establishing State Industrial Farm for Women — Statute Constitutional. Chapter 298 of the Laws of 1917, establishing a state industrial farm for women, does not violate section 1 of the fourteenth amendment to the constitution of the United States, nor section 1 of the bill of rights of the constitution of the state of Kansas, and does not deny the equal protection of the law to women convicted of offenses punishable by imprisonment.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Highway — Opened Thirty Years — Obstruction of Road — Technical Objections to Record. In an action to enjoin the obstruction of a public road which had been laid out and open for travel more than thirty-years, technical objections to the sufficiency of the record are held insufficient, in a collateral attack, to show lack of jurisdiction in the commissioners.</p> <p>2. Same — Laying Out of Road — Judicial Notice of Nonresidence of Railroad Company. When the road was laid out, the appellant’s land belonged to the Atchison, Topeka and Santa Fe Railroad . Company. The only service of notice to the company was by publication, and there was no finding by the commissioners that the company was a nonresident of the county. Held, that the court will take judicial notice that in 1885 the railroad company was not operating- its railway in Hodge-man county, and was not a resident of the county.</p> <p>3. Same — Road Prima facie Established — Burden of Proof. The opinion in Gehlenberg v. Saline County, 100 Kan. 487, 165 Pac. 286, followed, and held, that the introduction of the record of the report, survey and plat placed the burden upon appellant to show lack of jurisdiction; and further, that the objections raised to the record are not sufficient to overturn the presumption of its validity.</p>

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

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Negligence — Boy Drowned — Boy Employed by Foreman. The evidence is held to warrant a finding that a boy, who was drowned while assisting a party of railroad employees .in clearing the driftwood away from a well built of masonry resting on the bed of a river, had been employed by the foreman to render such service,</p> <p>2. Same — Rule of Railway Company against Employing Minors — Minor Entitled to Care and Protection. ' Notwithstanding a rule of a railway company forbidding the employment of minors without the written-consent of their parents or guardians, a minor who, without notice of such rule, performs services for the company at the instance of the person authorized to employ workmen for that purpose, is entit.ed, while so engaged, to the care and protection ordinarily duo from an employer to an employee. '</p> <p>3. Same — Evidence Warranted a Finding of Negligence. The evidence and findings are held to have warranted holding the defendant liable for the drowning of the plaintiff’s son, on i-te theory that its foreman was negligent in not warning him o 1 the danger he incurred in doing the work assigned him.</p> <p>4. Sam? — Objections to Instruction Not Well Taken. Objections held not to be well taken to an instruction to the effect that even if it after-wards turned out that the boy would have been saved if he had remained in the boat, but had jumped out of it at a time when it reasonably appeared to him that it was more- dangerous to stay with it than to leave it, this would not relieve the defendant of liability.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Trespass — Petition Stated Cause of Action. A petition setting forth a trespass and injuries resulting therefrom and asking judgment for a certain sum, is held to state a cause of action, although it contains no express allegation that the plaintiff was damaged.</p> <p>2. Same — No Substantial Damages — No Exemplary Damages. Rule applied, that if no real or substantial damages are suffered, no exemplary damages can be recovered.</p> <p>3. Same — Motion for New Trial Granted — No Error. The defendants filed a motion for judgment on the findings, which were in their favor if supported by the evidence. The plaintiff moved for a new trial. The latter was granted and the former denied, without any reason being stated. Held, that the action of the trial court indicated dissatisfaction with the verdict and findings, and refusal to approve, and the ruling must be affirmed.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Contract — To Weigh and Load. Plaintiff’s Wheat into Cars — Breach by Elevator Company — Damages Recoverable. Damages can be recovered for the violation of a contract by which an elevator is sold for $5,000, and by which the purchaser agrees, for three-fourths of a cent a bushel, “to weigh, dump, elevate and load into cars when requested” any part of the seller’s wheat raised on land owned by him, when the purchaser, without justifiable excuse, refuses to receive the wheat offered by the seller.</p> <p>2. Same — Duty of Shipping Association to Order Cars. Under the terms of the contract, the material parts of which are described or set'out in the opinion, and under the interpretation thereof by the parties thereto, it was the defendant’s duty to order cars in which to load the plaintiff’s grain.</p> <p>3. Same — Evidence—Demurrer Wrongfully Sustained. There was evidence to show the amount of the plaintiff’s damage.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Contract — Sale of Cattle — Letter of Inquiry — Not an Offer to Sell. A letter written by one of three partners, at the dictation of his associates, inquiring, “Do you want to buy 240 good cattle,” etc., describing, locating and pricing them and giving terms, and concluding, “Phone me at Wichita,” etc., is not an offer to sell, subject to acceptance, but merely an inquiry to arouse the interest of the person addressed, in the hope or expectation that preliminary negotiations and an eventual bargain may be made.</p> <p>2. Same — Partnership—Authority of One Partner to Bind His Associate Partners. A well-recognized exception to the rule that one partner may bind his associates in the partnership, on matters relating thereto, is that one partner cannot so bind the partnership in a contract when the other contracting party is fairly and fully informed that there are other partners interested in the transaction and that they object and will not assent thereto.</p> <p>8. Same — Damages — Insufficient Evidence ■— Demurrer Properly Sustained. The evidence to support an action of damages for the breach of an alleged contract, examined, and held that a demurrer to such evidence was properly sustained.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Real-estate Agent — Commission Earned. The evidence held to support a judgment allowing a real-estate agent a commission for services in assisting the purchaser to buy property.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Award of Arbitrators- — Proceedings Thereon. There was nothing pleaded or shown to impeach the award oí the arbitrators set up by the plaintiff.</p> <p>2. Same. It was not error to take the date of the note in controversy as the starting place for the introduction of evidence.</p> <p>3. Same — Pleadings—Election pf Cause of Action. It was not error to deny the defendant’s motion to require the plaintiff to elect as to its causes of action.</p> <p>4. Same — Appointment of Referee Discretionary. The appointment of a referee is not mandatory, but discretionary, and the trial court did not abuse its discretion by refusing to appoint.</p> <p>5. Same — New Trial — Rejected Evidence Not Produced — Not Reviewable. The rejected evidence was not produced on the hearing of the motion for a new trial, and for that reason, if there were no other, it cannot be considered. (Civ. Code, § 307.)</p>

<p>SYLLABUS by the court.</p> <p>1. Libel — Cross-examination of Plaintiff. “An improper cross-examination of the plaintiff considered, and held not to have been prejudicially erroneous.” (De Lissa v. Coal Co., 59 Kan. 319, 52 Pac: 886, followed.)</p> <p>2. Same — Letter in Answer to Commercial Inquiry — When a Privileged Communication. The qualified privilege attaching to a letter written by a retail merchant, in response to an inquiry from a wholesale merchant concerning another retail merchant, goes no further than the answer to the inquiry; and if the letter goes outside the answer to that inquiry and contains other matter which is libelous, an action for damages may be maintained by the merchant libeled.</p> <p>3. Same. If the outside matter in such a letter impeaches the credit of the competing merchant by imputing to him insolvency or dishonesty, such matter is actionable per se.</p> <p>.4. Same — Action for Libel— Set-off for Libel Proper. Under section 100 • of the code of civil procedure, in an action for libel, a set-off for libel may be pleaded and proved.</p> <p>5. Same — Costs Divided — No Error. In an action for libel, the .costs may be divided, where a set-off for libel is pleaded and proved, and judgment is not rendered in favor of either party.</p>

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

<p>OPINION DENYING A REHEARING.</p> <p>Appeal from Jackson district court; Fred T. Woodburn, judge.'</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Notary Public — Liability for Damages Resulting from False Statement in Acknowledgment of Deed. A notary public is not a guarantor or insurer of the identity of a person for whom he performs notarial services. The standard of official duty required of a notary public is the usual one-which the law exacts of public officials, that of reasonable prudence, diligence, efficiency, and good faith. If the notary is negligent, he is liable, otherwise not.</p> <p>2. Same. A notary public cannot, without risk of personal liability for damages, certify to the identity of a stranger who seeks his notarial services; and the recital in a notary’s certificate that a certain person appeared before him, etc., is a pertinent declaration of such person’s identity.</p> <p>3. Same — Evidence—Question of Fact for Jury. The evidence touching the negligence of a notary public in certifying to the identity of a person who invoked his notarial services examined, and held to present a fair question for a jury, and held not to be subject to a demurrer.</p> <p>4. Same — Trial—Instructions. The evidence examined, and held to require a pertinent instruction on the question whether the plaintiff relied on the notary’s certificate of identity or on the plaintiff’s own judgment as to the identity of a pretender who forged, executed, and acknowledged a deed of conveyance.</p> <p>5. Same — Negligence in Taking Acknowledgment of Deed. A notary public who takes the acknowledgment of an impostor to a forged deed, and negligently certifies to the impostor’s identity, cannot escape liability merely because the name of the grantee is omitted from the deed.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Antenuptial Contract — Evidence—Findings. The record is held to disclose evidence sufficient in kind and amount to support the conclusion reached by the trial court.</p> <p>2. Same — Evidence—Communications Made to Attorney. Certain evidence offered by the plaintiff was rejected because of the incompetency of the witness under section 321 of the civil code respecting things told an attorney by his client. The defendants had taken and filed, but had not used, the deposition of the witness. Held, a waiver of the claim'ed privilege.</p> <p>3. Same — Exclusion of Competent Evidence — No Prejudicial Error. In a trial before the court, the admission of incompetent testimony, or the exclusion of competent evidence which is cumulative in character, does not work a reversal unless the ruling appears to have furnished some basis for the court’s findings.</p> <p>4. Appeal — Matters Reviewable on Appeal. Save as to original proceedings of which the constitution gives this court jurisdiction, this is an appellate tribunal only, and cannot review matters which have not been presented to the trial court.</p> <p>5. Antenuptial Contract — When to be Upheld — When Burden of Proof is Cast upon the Husband. An antenuptial contract must be upheld unless some fraud, deceit or unreasonable inadequacy or disproportion appears. If the latter appear, the presumption of fraud is raised, and the burden is on the husband or those claiming under him to show that the wife was fully informed as to his property,</p> <p>6. Same — No Presumption of Fraud. The claimed inadequacy or disproportion in this case is held not to be so unreasonable as to raise the presumption of fraud.</p> <p>7. Same — Pleadings—Evidence—Contract Upheld. If the question of the - wife’s information touching the husband’s property had been sufficiently called to the attention of the trial court to justify an appeal on that point, the result reached should have been the same; and as it was not necessary under the pleadings and evidence to ask an express rul- . ing on such question, no material error appears in respect thereto.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Compensation Act — Death of Night Watchman — Death. Arose Out of Employment — Subsequent Death of Sole Dependent — Legal Representative May Sue — Amount of Compensation. The night watchman in a boiler factory was killed while in performance of his duties-. He left a widow, who was wholly dependent, as his sole dependent. Before compensation was made, the dependent died. The administrator of the estate of the workman sued for compensation. Held:</p> <p>(1) The action was prosecuted by the proper party.</p> <p>(2) The right to the full amount of compensation allowed by subdivision 1 of section 5905 of the General Statutes of 1915, vested on the death of the workman, and was recoverable, notwithstanding the provision of subdivision 4 relating to discontinuance of compensation on marriage of a dependent and on arrival of a dependent at the age of independency.</p> <p>• (3) The injury to the night watchman which resulted in his death arose out of the employment.</p>

<p>•SYLLABUS BY THE COURT.</p> <p>1. State Grange — Expulsion of Member — Hearing before Executive Committee — Accusation—Notice—Order of Suspension — Appeal—Affirmed by State Grange- — No Liability for Damages Resulted. The executive committee of the Kansas State Grange of the Patrons of Husbandry, a voluntary association, such committee having authority to suspend an officer who proved inefficient or derelict in the discharge of duty, made an order suspending the worthy lecturer, without having first given her an opportunity to be heard. She appealed to the state grange, which took no direct action on the appeal, but sustained a ruling of the presiding officer that a inotion to hear her thereon was out of order. The record of the suspension recited that it was made “pending further investigation,” and the committee prepared for a formal hearing, but abandoned it on the ground that the appeal had deprived them of jurisdiction. Held, that the action of the state grange amounted to an affirmance of the order of suspension, and was conclusive upon the appellant, and that if the officer’s legal rights were invaded, her injury was at the hands of the grange, and that no action would lie against the members of the committee on account thereof.</p> <p>2. Same. The executive committee appointed a committee to try a member of the state grange against whom charges had been made. The accused objected to being tried by any committee selected by it, and refused to take part or appear further in the matter, on the ground that the executive committee was the “aggrieved party” and therefore interested in the result. The trial committee so appointed heard evidence and reported that the charges were sustained. The report was approved by the executive committee, which imposed the penalty of expulsion. The accused appealed to the state grange, where her appeal was treated in the same manner as that from the order of suspension referred to in the preceding paragraph. She brought action against the members of the executive committee and the person who signed the charges against her, for damages on account of her wrongful expulsion. Held, (a)-that in such action she cannot complain of a formal defect in the execution of the charges, or of the failure to furnish her a copy of them, or of prejudice on the part of members of the trial committee, because such objections were not made at a time when if well taken they could have been remedied; (6) that the action of the executive committee was authorized by a provision in the laws of the order giving it power to hear charges against a member between the annual sessions of the state grange; (c) that the order of expulsion was valid and is binding upon the plaintiff and the courts; and (d) that if the state grange was in fault in failing to áct directly upon the appeal, the defendants are not responsible therefor.</p> <p>3. Same — Facts Printed in Circular — Circular Distributed — No Cause of Action for Libel Shown. Where under the circumstances stated in the foregoing paragraphs the executive committee causes a circular to be printed for distribution among the members of the order, reciting such suspension and expulsion, and giving in detail the steps taken leading up thereto, such circular is qualihedly privileged, and the fact that it is incidentally brought to the attention of others than members does not deprive it of that character; and further held, that no substantial evidence of actual malice in its publication was shown.</p>

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

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

<p>SYLLABUS -BY THE' COURT.</p> <p>1. Promissory Note — Indorsement—Payee’s Name Written under Name of Maker — Good Commercial Indorsement. A promissory note may be negotiated by an indorsement written upon any part of the instrument, and where a payee in transferring a note writes his name on its face and under that of the maker, it will be implied that he signed it as an indorser, and not as a maker.</p> <p>2. Same — Holder in Due Course. The transferee of a negotiable instrument so indorsed before maturity and without notice of infirmities or defenses, is a holder in due course.</p> <p>3. Same — Indorsement—Holder in Due Course. Whenever a negotiable note passes into the hands of a holder in due course, its status as commercial paper is established, and such holder may transfer it to others, even after maturity, with immunity from the equities that may exist between the maker and payee.</p> <p>4. Same — Commercial Indorsement. An assignment by a holder, written on the back of such a note, without limitation, to which a guaranty of payment is added, is a commercial indorsement.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Fire Insurance — Loss of Wheat — Terms of Policy Construed. A provision in a fire insurance policy covering wheat in the stack, requiring the assured, if fire occur, to protect the property from further damage, applies to property involved in the fire, and not to unaffected stacks remote from those consumed.</p> <p>2. Same — 'No Prejudicial Eiror in Record. Various assignments of error considered, and held to be without substantial merit.</p>

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

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

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

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

<p>SYLLABUS BY THE COÜRJ.</p> <p>1. Action against Partnership — Cross-demand of One Partner Individually — Not a Proper Counterclaim. In an action upon a verified account against two partners for an indebtedness of the partnership, , a cross-demand by one of the partners individually for damages to her caused by an unrelated fort of the plaintiff cannot be used as a set-off or counterclaim against the plaintiff’s action.</p> <p>2. Same. Two defendants were partners in conducting a variety -store. They bought a small bill of goods from plaintiff, and failed to pay for them. Plaintiff sued the partners upon its verified account. One of the defendants set up a cross-demand for damages to her individually, caused by her being poisoned by the wrappings of a former shipment , of goods received from the plaintiff. Held, that such cross-demand, not being a mutual defense to her and her partner, cannot serve as a set-off or counterclaim to plaintiff’s verified account against the two partners.</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 Bourbon. district court; Edward G. Gates, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>' Jurisdiction — Nonresident Defendant — Defective Service — General Appearance — Motion for Stay of Execution — Waiver. A nonresident defendant which had challenged the jurisdiction of the court because not sued in the county of its residence, after judgment moved for and procured a stay of execution. Held, that this was a submission to the court’s jurisdiction. (Woodhouse v. Land & Cattle Co., 91 Kan. 823, 139 Pac. 356.)</p>

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

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

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Negligence — Uninsulated Electric Wires — Proximity to Telephone Wires• — Death of Boy — Telephone Company Not Liable. A telephone company is not responsible in damages for the death of a thirteen-year-old trespasser who climbs one of the company’s poles, equipped with steps for climbing, and is killed at the top of the pole by coming in .contact with an overhead, uninsulated electric-light wire placed, maintained, and operated by the city in which the company conducts its business, but over which electric-light wire the company has no control. '</p> <p>2. Negligence — Pleadings—Uninsulated Electric Wires — Death of Boy— Petition States Cause of Action. Among other things, the petition alleges that a telephone pole,, equipped with steps for climbing, was situated in the street of a city; that the city knew, or by the exercise of proper diligence should have known, that boys were in the habit of climbing the pole; that a boy who had climbed to the top of the pole was there killed by coming in contact with an overhead electric-light wire which had been negligently placed, maintained, and operated by the defendant city; and that the city had negligently permitted the electric-light wire to become uninsulated. Held, that the petition states a cause of action against the city.</p> <p>3. Same. The petition states a cause of action, not because it alleges that the telephone pole was an attractive nuisance, but because it alleges an act of negligence on the part of the city, and alleges that the city knew, or by the exercise of proper diligence should have known, that boys were in the habit of climbing the pole.</p>

<p>OPINION ON REHEARING.</p> <p>Appeal from Montgomery district court; Charles D. Shu-KERS, judge pro tem.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Action — Recovery of Money — Proper Party Plaintiff. The pleading and proof were sufficient on their face to enable the plaintiff to bring this action.</p> <p>2; Corporation — -Directors’ Meeting — Notice. Ordinarily, a directors’ meeting, to be binding, must be a regular one, of which the directors have general notice, or a special one, upon due notice to each.</p> <p>3. Same — Directors’ Meeting — Presumption of Regularity. Generally, the transaction of corporate business at a meeting of the directors, or a quorum thereof, raises the presumption of due notice properly given, but when the governing body- — -the directors — acts for the corporation, the result must be determined, not by the degree of formality observed, but by the practical and legal effect of such action.</p> <p>4. Same — Agreement—By Majority of Directors — Acquiscence for Three Years — Agreement Ratified. A majority of the directors of a corporation which had' made a certain escrow agreement with an agent to sell all its stock and assets on certain terms, at an informal meeting, without notice to thé others, directed that the property be turned over by the agent to a purchaser on making a first payment, contrary to the terms of the escrow agreement. This direction was followed; the stockholders received and retained four payments on the purchase price, aggregating about two-thirds thereof, and also received and retained certain shares of stock put -up as collateral to secure the payment of the purchase price. For nearly three years no director-objected to what had been done. Held, that by this course of conduct the corporation acquiesced in, and ratified, such action of the majority of its directors, and could not hold such selling agent liable on the original escrow agreement.</p> <p>5. SAME — Stockholder Not Entitled to Maintain Action. The plaintiff, a stockholder, being bound by the action and acquiescence of the corporation, cannot maintain an action — upon the refusal of the directors to' sue — to hold the selling agent for the unpaid balance of the purchase price, under the original escrow agreement.</p> <p>6. Trial Without Jury- — Improper Evidence — Presumptions. In a trial ’ by the court, without a jury, it is to be presumed that no improper evidence was permitted to materially affect the result.</p> <p>7. New Trial — Properly Denied. The affidavits in support of a motion for a new trial failed to show such accident, suprise and diligence as to require the granting of a new trial.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Shipment op Live Stock — Contract Limiting Carrier’s Liability — Injury to Stock — Elements ■ of Damages Recoverable. In an action against a carrier for damages on account of injury to an animal in transit, where delivery was made at the point of destination, the plaintiff cannot recover for freight charges paid, although the animal was so injured as to' be entirely worthless, and the amount of recovery was limited by the value stated in the bill of lading.</p> <p>2. Same. Where an animal has been killed or rendered entirely worthless by such injury, a recovery may sometimes be had in excess of its value by reason of money spent in an unsuccessful, but reasonable, effort to restore it to usefulness, but this can be true only of expenditures made in a just expectation of reducing the carrier’s liability by the amount expended; and where the recovery is based upon the valuation placed on the animal in the shipping contract, the expectation must be that the recoverable damages will be reduced below that amount.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Negligence — Depression in Amusement Park — Personal Injuries. The evidence examined, and held sufficient to sustain a judgment for damages for negligence in permitting the existence of a depression in defendant’s amusement park which caused an injury to plaintiff.</p> <p>2. Same — Findings—Verdict. The rule followed that special findings are to be construed, wherever possible, to harmonize with the general verdict.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Lease — Pasture Land — Overstocking Pasture — Injury to Sod — Measure of Damages. A lease contained the following provisions relating to use of pasture land: “The party of the second part hereby covenants and agrees: . . . not to permit the pasture on said land to be at any time overstocked so as to injure the sod; . '. . four acres per head for live stock to be the standard.”</p> <p>Held, the standard' of four acres per head was the rule for estimating overstocking to an extent which would injure the sod, and the damages recoverable by the landlord for breach of the covenant are limited to compensation for injury to the sod.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Sale of Land — Under Order of Probate Court — Injunction. On an appeal from a final judgment granting a permanent injunction-against the sale of land under order of the prohate court to pay the debts of a decedent whose estate is being administered, it is not material to inquire whether there was error or irregularity in the granting of a restraining order or temporary injunction.</p> <p>2. Guardian and Ward — Investment of Ward’s Money — Trust in Land. Created. The competent evidence is held to have been sufficient to support a finding that money belonging to his wards was used by a guardian in paying for land purchased by him, which thereby became impressed with a trust in their favor.</p> <p>3. Homestead — Exempt from Claims of Creditors. Property occupied at the time of his death as the homestead of its owner and his children remains exempt from the claims of his creditors so long as it continues to be so occupied by any of the children, although by his will the title passes to them in unequal shares.</p> <p>4. Same. Such exemption is' not affected by the fact that the will contains a general clause directing the payment of his debts out of his estate. I</p> <p>5. Same — Farm Occupied as Homestead — Temporary Absence. The evidence is held to support a finding that the property in question was in the eye of the law still occupied as a homestead, notwithstanding the temporary absence of all the children therefrom.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Í. Corporation — Payee of Promissory Noté — Maker Estopped to Deny Corporate Existence. One who has signed a promissory note running to a payee described by a name appropriate to a corporation, although not employing that term, cannot, in an action brought against him thereon by such payee, in which it alleges itself to be a corporation, be heard to question the plaintiff’s corporate existence, unless upon a showing that his obligation to make payment would be thereby affected.</p> <p>2. Promissory Note — Appellant a Member of Partnership — Evidence. The evidence held to support a finding that the appellant was a member of the partnership in whose name the note sued upon was executed.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Contracts ■ — ■ Unambiguous Contracts — Construction for the Court. The two contracts involved are held to be free from ambiguity, and it was error to submit their construction to the jury.</p> <p>2. Same — Ratification of Contract — Question for the Jury. No error was committed in submitting to the jury the question of ratification of the contracts sued on.</p> <p>3. Corporation — Written Reorganization Agreements —• Oral Evidence Inadmissible. It was not error to reject oral testimony of written reorganization agreements between the defendant company and its predecessor.</p> <p>4. Same- — Evidence—Not Produced on Motion for New Trial. Certain testimony of a director touching the transactions between the two companies was improperly excluded, but, not having been produced in support of the motion for a new trial, it cannot be availed of.</p> <p>5. Same — Reorganization—Liability of Successor on Former Contracts. The mere reorganization and corporate succession did not, of themselves, render the defendant liable on the contracts of its predecessor; such liability depending upon the terms of the reorganization, or upon ratification, or both.</p>

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

<p>OPINION DENYING A REHEARING.</p> <p>Appeal from Sedgwick district court, division No. 2; Thornton-W. Sargent, judge.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Compensation Act- — Injury to Workman — Failure to Apply for Appointment of Arbitrator — A etion for Compensation Maintainable. In an action for compensation the following facts were established: The plaintiff attempted to settle compensation by agreement. He consented to arbitration. He served notice he would not arbitrate before the establishment committee, representative of employer and workmen. The defendant refused to arbitrate except before that committee. The ' plaintiff made no application to the judge of the proper court for appointment of an arbitrator to settle the matter. Held, construing sections 10, 11, 12 and 20 of chapter 226 of the Laws of 1917, the action was maintainable, notwithstanding the plaintiff’s omission to apply for appointment of an arbitrator.</p> <p>2. Same — Injury Ascertainable by Objective Examination — Lump-sum Judgment. The evidence considered, and held, the workman’s injury was ascertainable by objective examination within the meaning of section 20 of chapter 226 of the Laws of 1917, providing that in no case shall a lump-sum judgment be rendered for any injury not ascertainable by objective examination.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Partition — Jurisdiction of Court to Do Equity. As a general rule, a court in decreeing partition has power to adjust the equitable rights of all the parties interested in the estate, so far as they relate to and grow out of the relation of the parties to the common property.</p> <p>2. Same — Judicial Sale — Mistake in Amount Necessary to Redeem — Tender of Balance — Redemption Allowed. In a suit for partition, the findings show that plaintiff originally owned an undivided one-third interest'in the land, consisting of a quarter section, and attempted in good faith to redeem its interest from the lien of a judgment foreclosing a mortgage on the quarter, but by mistake took the amount of the judgment as the basis for estimating the amount necessary to redeem, whereas the land had sold for $63.37 more than the judgment, interest, and costs. The court determined the amount necessary to redeem, gave plaintiff credit for two-thirds of the taxes advanced by it prior to the foreclosure, and credit for one-third of the excess in the hands of the clerk, and after allowing the defendant, who claimed to be the owner of the entire' quarter by virtue of a manual transfer of the certificate of sale in the foreclosure, credit for taxes paid by her, found there was a deficiency of $8.46 in the amount of redemption money remaining in the hands of the clerk. Held, it was not error to render judgment providing that, upon payment of the deficiency, plaintiff should be decreed to be the owner of a one-third interest, and ordering partition.</p> <p>8. Same. There is no hard or fast rule as to the amount of deficiency which a court of equity may regard under all the circumstances of the case as too small to prevent redemption.</p> <p>4. Same — Equitable Interest of Appellant in Land. In view of the findings as to the manner in which the defendant acquired her interest in the property, which formerly belonged to her sons, there was no error in allowing plaintiff credit for two-thirds of the taxes advanced prior to the foreclosure sale.</p> <p>5. Same — Jurisdiction—Cotenancy. While cotenancy is indispensable to confer jurisdiction in partition, the mode by which it is created is immaterial.</p> <p>6. Judicial Sale — Redemption—Interest of Purchaser Fully Protected. The defendant, who claimed to be the transferee of the bid at the foreclosure sale, is held to have no just cause of complaint by a judgment which gives back to her the full amount of the bid with interest, since she acquired her rights with notice of the plaintiff’s right to redeem, and of the power of a court of equity in the interest of justice to prevent a forfeiture where a party has attempted in good faith to redeem, but has not complied strictly with the provisions of the statute of redemption.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Pleadings — Default—Leave to Plead — Judicial Discretion. A district court has jurisdiction- to hear a defendant’s motion to make the plaintiff’s petition more definite and certain, although the motion is filed by leave of court after the defendant is in default.</p> <p>2. Same- — Order to Amend Petition Proper. It was not error to require the plaintiff to make his petition more definite and certain.</p> <p>3. Same — Order of Court Not Complied With! — Case Dismissed. If a proper order to make a petition more definite and certain is not complied with, the action may be dismissed.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Application for- Continuance — Bad Faith — Judicial Discretion. The record examined, and no error disclosed in the overruling of a motion for a continuance based upon the alleged ground of defendant's sickness and consequent inability to attend the trial.</p> <p>2. Same. Where facts and circumstances tend to cast doubt as to the truth of matters averred in affidavits offered to support a motion for a continuance, or to raise a judicial suspicion that the motion was made for mere delay, and to hinder the administration of. justice, there is no abuse of discretion in denying the continuance.</p>

<p>SYLLABUS. BY THE COURT.</p> <p>Compensation Act¡ — Death from Pulmonwy Hemorrhage — Injury Arose Out of Employment — An “Accident.” A workman’s employment required him to break rock in a quarry with a 16-pound sledge and load the rock into a car, which was hard work. At noon he was in apparent good health and spirits, and ate all of the lunch which his wife brought to the quarry for him. In the afternoon, while at his working place, • and shortly after he was seen beating a large rock with his sledge, he suffered a pulmonary hemorrhage, from which he died before medical aid could reach him. He had been working in the quarry for several months, and before that had worked for three years in the sacking department of a eementj plant, an exceedingly dusty place. Held, the facts stated indicated injury by accident, and injury arising out of > the employment, within the meaning of the first section of the workmen’s compensation act.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Sale of Land — Personal Contract of Agent Made with Purchaser— Landowner Not a Party Thereto. A written agreement respecting the sale of a tract of land, which was entered into between the buyer and a real-estate agent with whom it had been listed, and which was expressly made subject to the consent of the owner, is held to have been the personal contract of the agent, to which the owner was not a party, and its character in this respect is held not to have been changed by the owner deeding the land to the agent for the purpose of enabling him to carry it out.</p> <p>2. Same — Acts of Purchaser Defeat His Action for Specific Performance. In an action brought by the buyer against the agent for the specific performance of the contract above referred to, it is held that an attempt on the part of the plaintiff to buy the land through other agents, who brought an action against the owner for- the specific performance of a contract obtained from him by fraud, in which a temporary injunction was granted forbidding the transfer of the land,’ whereby the matter was tied up for some two years, was such a violation of his obligation to the defendant — the agent with whom he had made the original contract — as to defeat his recovery.</p>

<p>SYLLABUS BY THE COURT .</p> <p>1. Highway — Petition for Public Road — Petitioners Residing in the “Vicinity of the Road” — Construction of Statute. In section 8756 of the General Statutes of 1915, the statute which provides that a petition for a public road shall be “signed by at least twelve householders of the county residing in the vicinity where said road is to be laid out,” the words “residing in the vicinity” may comprehend those residing fifteen miles away from a proposed road in the sparsely settled western counties of the state.</p> <p>2. Same — County Commissioners May Legally Act on Labor Day. A board of county commissioners can, on the first Monday of September, labor day, legally consider and act on a petition for a public road.</p> <p>3. Same — Landowner Claiming Damages — Estopped to Deny Validity of Road. Parties cannot question the validity of proceedings for laying out a public road, after they have appealed to the district court from an allowance for damages, and the appeal has been tried and determined.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Defective Sidewalk — .Personal Injuries — City Ordinance — Liability 'of Abutting Oivner. The rule by virtue of which one who has assumed the duty of keeping a part of a street in repair, ,in return for some privilege granted, is held liable to persons injured in consequence of his neglect to" do so, does not apply to an abutting owner upon whom an ordinance imposes the duty of keeping a sidewalk in repair, with the proviso that in case pf his failure to take action, after having been officially notified of the necessity thereof, the city may make the repairs and charge the cost to the property.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Indemnity Bond — Agent’s Fidelity Bond — Recitals in Bond — Estoppel to Deny Agency. In a fidelity bond given by a surety company, it was recited that the person whose honesty and fidelity was guaranteed was an agent or employee of the plaintiff, who brought an action on the bond to recover for the fraudulent withholding and misappropriation of plaintiff's property, and in the contract between the plaintiff and the agent the latter was designated as an agent, and in the answer of the surety company he was likewise described as an agent of the plaintiff; and, therefore, it is held that the recitals and admissions of the surety company estop it to deny that the person whose fidelity was guaranteed was an agent or employee of the plaintiff.</p> <p>2. Same — Misappropriation of Funds — Proof Required to Warrant Recovery on Bond. Evidence showing that the agent had fraudulently withheld property and money of the plaintiff, and had appropriated it to his own use, is sufficient to warrant a recovery upon the bond in which the defendant undertook to reimburse the plaintiff for any loss that it might sustain by reason of the fraud or dishonesty of the agent amounting to larceny or embezzlement in connection with his duties and obligations; and the fact that the agent had not been prosecuted for embezzlement or that the proof was not strictly the same as is required in a prosecution for embezzlement, will not defeat a recovery.</p>

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

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Negligence — Explosives—Injury to Boy — Verdict—New Trial. An examination of the rec6rd fails to disclose that any error was committed by the trial court in granting a new trial.</p> <p>2. Same — Doctrine of Attractive Nuisance. The doctrine of attractive nuisance is held not applicable to the facts of this case.</p>

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

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

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

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