Volume 105 — Kansas Reports

<p>SYLLABUS BY THE COURT.</p> <p>1. Mutual Combat — Assault and Battery — Civil Damages. In an action to recover damages for an assault and battery, where the petition alleges that the defendant assaulted the plaintiff, and the answer alleges that the plaintiff assaulted the defendant, and each party introduces evidence to support his contention, competent evidence cannot be properly excluded, although it may tend to prove that the. parties engaged in a mutual combat, and if there is evidence tending to prove that fact, it is proper for the court to instruct the jury concerning the law of mutual combat.</p> <p>2. Same. Where persons engage in a mutual combat, each may recover from the other all damages caused by injuries received from the other in the fight.</p>

<p>SYLLABUS BY THE COURT.</p> <p>I. Negligence — Railroad Crossing — Death of Child — Evidence. There was evidence from which the jury could determine the financial loss of the plaintiffs.</p> <p>2. Same — Instructions. The trial court correctly instructed the jury on the law concerning the defendant's liability to the plaintiffs for negligently causing the death of their daughter. If the defendant desired an additional instruction, or a modification of the one given, it should have submitted such instruction and requested that it be given to the jury.</p> <p>3. Same — Evidence—Findings. There was evidence to sustain the findings of the jury.</p>

<p>Appeal from Pratt district court; Georgé L. Hay, judge.</p>

<p>Appeal from Crawford district court; Andeew J. Cueean, judge.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Pleadings — Sale—False Representations by Agent of Seller — Pleading ■ — Agency. In an action by the seller for the price of a chattel, an allegation of the answer that the sale was induced by false representations of the seller may be sustained by proof that the representations were made by an agent of the seller, without pleading the agency.</p> <p>2. Same — Collusion Pleaded. The allegations of the answer in such a case considered, and held sufficient to charge collusion of the seller with another in making the fraudulent sale.</p> <p>2. Sale — Collusion between Seller and Another. Where a sale' of a chattel is made for the mutual benefit of the seller and another, and the sale is procured by false representations of one of them, active cooperation of the other, by means of statements tending to induce the buyer to accept and rely on the representations, constitutes collusion.</p> <p>4. Sale — False Statements of Seller Actionable. In this state, false statements of fact, made by a seller to induce a sale and relied on by the buyer, are actionable, without regard to whether or not the seller knew the statements to be false, or acted recklessly in making them, or intended to deceive.</p> <p>5. Trial — Evidence. The evidence examined, and held to be sufficient to sustain the allegations of the answer.</p> <p>6. Same — No Error in Record. Various assignments of error considered, and held to be without substantial merit.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Criminal Act — Incapable of Ratification. The criminal act of a bank cashier in abstracting funds of his bank is not capable of ratification by a defrauded depositor to whose account the funds were charged.</p> <p>2. Bank Cashier — Making Wrongful Use of Depositors’ Money — Ratification by Depositor. The evidence examined, and held sufficient to sustain a verdict implying that a bank cashier was without authority to lend the funds of a depositor, and that the depositor did not ratify loans which he claimed he did make.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Reward — Apprehension of Criminal — Conflicting Claimants of Reward — Proper Case for Bill of Interpleader. Plaintiffs, who had offered a reward for the apprehension of a criminal, alleged that they were threatened with litigation hy different parties claiming the reward ; that some one or more of the defendants were entitled to receive it, and asked that defendants be required to set up their respective claiins to the fund, which plaintiffs brought into court. Held,, a proper case for an action in the nature of a bill of interpleader.</p> <p>2. Same — Informant Whose Information Did, Not Lead, to the Arrest Not Entitled to Reward. After the reward had been offered, an attorney at law was notified that the accused person desired to see him and was told where the latter could be found. Knowing of the offer of the reward, he went to the hiding place of the accused and talked with him for an hour and a half, but failing to agree upon a fee for defending him, went to the county attorney’s office and arranged for the arrest of the accused person and then claimed the right to the reward. Before the officer to whom his information was conveyed arrived at the place where the accused had been, the latter, with the aid of friends, had surrendered himself to the chief of police, who took him to the county jail and placed him in the custody of the sheriff. Held, that, under the circumstances, the attorney is not entitled to the reward, and a judgment in his favor is reversed.</p> <p>3. Same — Private Offer of Reward Not an Enforceable Contract until Accepted. A private offer of reward for the apprehension of an accused person stands, as a general rule, upon a different footing from an offer made by virtue of a statute. When accepted, the offer becomes a contract; until it is accepted by some person, who upon the strength of the offer takes some steps to earn the reward, there is no contract; and where a claimant of the reward was not aware that it had been offered until after he had acted, he is not entitled to claim the reward.</p> <p>4. Same — Chief of Police May Not Claim Reward for Performing His Official Duty. A chief of police, whose duty it is to make an arrest of fugitives from justice or persons charged with or suspected of crimes, is not entitled to maintain an action to recover a reward offered by private individuals for the apprehension of the person, for the reason that public policy does not permit an officer to claim a reward for merely doing his duty. (Thacker v. Smith, 103 Kan. 641, 175 Pac. 983.)</p> <p>5. Same — Interpleader Deposits Reward in Court — Evidence Shows No One Entitled to Receive It — Final Judgment Directed by Supreme Court. In an action in the nature of a bill of interpleader to determine conflicting claims of defendants to a reward offered by the plain- • tiffs for the apprehension of a criminal, where the court finds in favor of one defendant and, on appeal, the judgment is reversed because public policy prevents some of the defendants from accepting the reward, and the other defendants are shown not to be entitled to receive it, this court has power to end the litigation (Civ. Code, § 581, Gen. Stat. 1915, § 7485), and will order the judgment reversed and the cause sent back with directions to render judgment against all the defendants, and after the costs have been paid, to return the balance of the money to the plaintiffs.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Oil Well — Action for Price of Drilling — Cross-petition—Demurrer to Evidence Sustained — Leave to Amend Cross-petition Refused— Error. A demurrer to evidence was sustained on the ground that, although it tended to establish a cause of action, it was not consistent with the pleading of the party introducing it, and an application for leave to-amend the pleading to conform to the proof was denied. Held, that the pleading was not explicitly in conflict with the evidence, but was merely ambiguous and indefinite, and that in view of circumstances which are regarded as showing that the opposing party was not taken by surprise, the amendment should have been allowed and the demurrer overruled.</p> <p>2. Same — Pleadings—Defendant Described as Corporation — A Partnership. The fact that a company which is described in the pleadings as a corporation, and is made a party as such, and as to the corporate existence of which no issue is raised, turns out to be a firm, not all of the members of which are made parties, is not a ground of demurrer to the evidence.</p>

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

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

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Compensation Act — Improper Conduct of Counsel and Jurors During Trial — Refusal to Discharge Jury — No Prejudicial Error. In a workmen’s compensation case, a physician and surgeon testified for defendant that he had examined the plaintiff’s injury, and that the alleged stiffness of the ankle was accounted for by keeping the ankle bandaged and failing to exercise it. At the defendant’s request, the plaintiff was called and removed his shoe and stocking; the physician examined it in the presence of the jury and testified that if plaintiff would relax the muscle there was normal movement, but that plaintiff was holding his ankle rigid by his own will. Thereupon, plaintiff’s counsel asked the jurors to come and examine plaintiff’s ankle and see whether or not it was stiff. Over the defendant’s objections, two of the jurors came and personally examined the ankle. The court refused the ■ defendant’s request that the jury be discharged. Held, that the question whether under all the circumstances the jury should have been discharged was in the sound discretion of the court; that there was no abuse of discretion in refusing the request, and no error in denying a new trial.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Landlord and Tenant — Action to Recover Landlord’s Share of Crops. Upon an issue as to the quantity of corn delivered by a tenant to his landlord, the evidence is held to have been sufficient to support the verdict.</p>

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

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

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

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

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Will — Construction—Intention of Testator Governs. Rule followed that in the construction of a will the testator’s intention is to be gleaned from the entire text of the testament, and not by giving such controlling significance to any one paragraph as to render abortive other and subsequent provisions of the will which likewise indicate part of the testator’s purposes.</p> <p>2. Same — Life Estate to Widow, with Power of Disposition — Vested Remainder to Children. A will which declared that the testator’s widow should he the real owner and have complete control of testator’s property, etc., named an executor and prescribed his duties and fixed his compensation, directed the sale of his household goods, made a special allowance to whichever one of his children his widow should choose to live with, and provided for a determination of the amount and value of the property aforesaid after the death of the testator’s widow, and directed that it be divided equally among his children' or their heirs, examined, and held that such will bequeathed to the widow a life estate with power of disposition, and bequeathed a vested remainder to his children.</p> <p>3. Same — Life Estate — Vested Interest of Remaindermen — Passes to Trustee in Bankruptcy. Under the circumstances- outlined in paragraph two of the syllabus, the sons of the testator have a present right or interest in the property bequeathed, although their enjoyment thereof is postponed until their mother’s death, and such right or interest of each son (not being exempt property) will pass to- a trustee in bankruptcy as part of a bankrupt son’s estate.</p> <p>4. Same. The certainty that a right of property is vested in a definitely ascertained person, not the value of that right nor the time when it may be enjoyed, determines the question whether that right is an asset of which a court may make judicial disposition.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Compensation Act — Injuries—Award of Compensation Committee• — ■ Jurisdiction of Court to Review the Award. A workman for a packing company was injured in the course of his employment. The compensation committee organized by the company proceeded to award compensation to the workman, who, although notified, did not attend, and refused to accept the award. Within a few weeks he brought an action to review and cancel the award and have his compensation fixed, alleging, among other things, that the award was grossly inadequate, and that his incapacity to work had increased since the award was made. It is held that under section 16 of chapter 226 of the Laws of 1917, the court had jurisdiction and authority to review the award and to consider all competent evidence touching the inadequacy of compensation and increased disability.</p> <p>2. Same — Award—Revieiv—Judgment of Reviewing Court. The court determined that the committee had. acted in good faith, but that the award was grossly inadequate, and rendered judgment for a lump sum to cover total and partial incapacity. The evidence examined, and held to support the judgment.</p> <p>3. Same — Elements of Damages. The sum allowed for doctors’ bills and hospital and medicine bills was supported by the evidence.</p> <p>4. Same. From the record, including the transcript, nothing appears which requires the allowance made by the court to be credited with any part of the award made by the committee.</p>

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Title and Ownership — Grain Deposited in Elevator — Sale Distinguished from Bailment. Plaintiff deposited grain in an elevator with the understanding that it was to be indiscriminately mixed in a mass with other grain from which the owner of the elevator had the privilege of shipping. There was nó agreement that the elevator company would keep on hand an amount of wheat of like grade and quantity until plaintiff saw fit to dispose of his wheat, but it was the intention of plaintiff, when the price was satisfactory, to present to the elevator owner his scale ticket and receive the prevailing market price for the wheat. Held, that the transaction constituted a sale, and not a bailment.</p> <p>2. Same — Evidence—Findings. The evidence is considered, and held to sustain the findings of fact.</p> <p>3. Same — Evidence Shows a Sale — Not a Bailment. From the plaintiff’s admissions and other circumstances, it is held to have been a reasonable inference that he understood he was to be paid in cash or grain of an equal amount and quality.</p> <p>4. Actions — Conversion of Wheat — Fraud—Inconsistent Remedies. The transaction being- a sale, and not a bailment, it was the right of the elevator owner to treat the grain as its own and to make any disposition thereof it saw fit, being responsible to the plaintiff for the value; and in an action where plaintiff seeks and recovers damages for conversion against the corporation owning the elevator, he is not entitled to recover against officers of the corporation upon the ground that they permitted it to engage in unlawful grain speculations whereby it became insolvent, because the two remedies are inconsistent.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Real-estate Agent — No Authority to Make Contract of Sale of Land to a Purchaser. In answer to an inquiry, the owner of a tract of land wrote a real-estate agent: “I will sell the N. E. 14 . . . for $2,800 net to me. This for immediate acceptance.” And signed his name. Held, not to constitute authority for such agent to bind the owner by a written contract to sell to a third party.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Execution Sale — Property Sold under Chattel Mortgage to Third Party — Rights of Mortgagee. Where a sheriff sold chattels under an execution, and a third party had a mortgage on some of the property sold, and that party, before the sale, commenced an action in replevin to recover possession of the mortgaged property, the fact that the sheriff sold the propertynot covered by the mortgage will not. defeat the mortgagee’s right to recover the value of the mortgaged property.</p> <p>2. Note — Secured by Chattel Mortgage — New Note Given — Debt Not Paid — Chattel Mortgage Not Released. A new note is not payment of an old one, where each is evidence of the same debt, and the old note is retained by the payee thereof as security for the new one; and a chattel mortgage given to secure the payment of the debt evidenced by the old note remains as security for the payment of that debt.</p> <p>3. Replevin — Chattel-mortgaged Property — No Fraud Shown. After an examination of the evidence abstracted, this court is unable to say that the trial court committed any error in finding that there was no fraud shown.</p> <p>4. Same — Sale of Chattel-mortgaged Property by Sheriff — Amount Recoverable by Mortgagee. Under the circumstances described in the first paragraph of this syllabus, where it appears that the mortgaged property sold by the sheriff was of greater value than the amount of the mortgagee’s claim, with the interest thereon, and that the property cannot be returned, judgment should be rendered for the full amount of the mortgagee’s claim with the agreed rate of interest; but the judgment itself should bear interest at the rate of six per cent per annum.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Rural High-school Districts — Statute Authorizing their Formation Constitutional and Valid. Chapter 284 of the Laws of 1917 is held not unconstitutional because of the insufficiency of its title, the application of certain provisions of other acts, the amendment of certain sections of another statute, the classification of rural high-school districts or the basis thereof, nor because the act is special or of unequal operation throughout the state.</p> <p>2. Same. The provisions of the chapter in question touching the formation of rural high-school districts are not void as a delegation of legislative power.</p> <p>8. Same — Statute Not Repealed. Such chapter does not repeal section 9175 or section 9176 of the General Statutes of 1915.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Sale ■ — • Property Sold by Receiver — Consideration Partly Paid — Forfeiture for Default in Payment of Balance Refused — Receiver No Right to Appeal. A contract for the sale of property was made by a receiver under the order and approval of the court appointing him. About eleven-twelfths of the price of the property was paid by the purchaser to the receiver, but the remainder was not paid nor tendered until about a week after it became due. Upon a tender of the balance, the purchaser asked the court for an order directing the acceptance of the balance of the purchase price, and confirming the sale, as well as requiring the delivery of possession of the property. The receiver insisted 'upon a forfeiture as against the purchaser for noncompliance with the sale contract, and also asked for a resale of the property. Orders were made denying the application for a resale and also confirming the sale made, and directing the receiver to deliver possession of the property sold to the purchaser. The receiver thereupon attempted to appeal from these orders, and it is held that he did not have the right of appeal.</p>

<p>Appeal from Haskell district court; Charles E. Vance, judge.</p>

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

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

<p>opinion on rehearing.</p> <p>Appeal from Doniphan district court; William I. Stuart, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Promissory Note — Limitation of Action — Absence from State. The statute of limitations is held not to have run on the plaintiff’s claim, because of the interruption caused by the personal absence of the defendant from the state, notwithstanding his continued maintenance of a residence here.'</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Opening up Judgment — Loss of Files by Fire — Presumptions. After a judgment by default had been opened up under section 83 of the civil code, and the cause had been tried, the files of the case were destroyed by fire. Held, on the facts stated in the opinion, it will be presumed that the application to open the judgment complied with the statutory requirements.</p> <p>2. Same — Answer Filed a. “Full Answer” within the Statute. An answer filed with an application to open a judgment in a suit to quiet title, which expressly denies the facts pleaded in the petition, is a “full answer” within the meaning of the provisions of section 83 of the civil code.</p> <p>3. Same — Judgment by Default — Amended Answer — Judicial Discretion. After a default judgment has been opened up under the provisions of section 83 of the civil code, it is within the discretion of the court to permit an amended answer to be filed.</p> <p>4. Same — Fraudulent Conveyances. The evidence and findings are held sufficient to establish that certain conveyances were made in fraud of creditors.</p> <p>5. Same — Land Fraudulently Conveyed May Not be Recovered by Grantor Nor His Heirs. With-the intent to hinder and delay his creditors, a husband and wife conveyed certain real estate, which the husband owned, to a third person, who at once conveyed the title to the wife. Several years after the husband’s death, the widow conveyed to her daughter the share to which the latter would have been entitled if the property had belonged to the deceased. The daughter died, and the widow sued the heirs of the daughter to quiet her own title and to cancel the deed conveying an interest to the daughter. The defendants pleaded that the conveyances were made in fraud of creditors. Held, that while the law is well settled that where property is transferred with a fraudulent purpose, neither the grantor nor his heirs can recover it, the answer stated a good defense to the action.</p> <p>6. Same. In such a case, the court having found that all the conveyances were made for a fraudulent purpose in which the plaintiff participated, a judgment denying her any relief will be sustained.</p> <p>7. Same — Proof Required to Show Fraud. In such a case, it is held not necessary for the defendants to show all the facts that would have been required of a creditor in order to set aside the conveyances.</p> <p>8. Same — Statute of Limitations. The two-year statute of limitations with respect to actions for relief on the ground of fraud has no application to a case where the fraud is pleaded merely for the purpose of preventing recovery by plaintiff, and where the defendants obtain no affirmative relief. (Muekenthaler v. Noller, ante, p. 551.)</p>

<p>opinion denying motion for rehearing.</p> <p>Appeal from Allen district court; Oscar Foust, judge.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Oral Contract — Sale of Wheat — Conflicting Evidence — Issue f-or the Jury. In an action for damages caused by failure to perform a contract according to its terms, where there is a conflict in the evidence concerning the terms of an oral contract, it is proper for the court to instruct the jury to find what the terms of the contract were, and to base the verdict on that finding.</p> <p>2. Same — Evidence—Damages. There was evidence from which the jury could ascertain the amount of damages sustained by the plaintiff.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Bankruptcy — Farm Belonging to Wife — No Pari of Bankrupt’s Estate. Tbe facts concerning the acquisition of a farm by a wife, some fifteen months prior to the bankruptcy of her husband, examined, and held to show no basis for the contention that the farm was purchased with the moneys of the husband with the design of putting his property beyond the reach of creditors.</p>

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

<p>SYLLABUS BY THE COURT</p> <p>1. Exemptions — Butcher’s Implements — Unexecuted Intention to Become a Butcher — Right to Claim Exemption. Where a person is engaged in an occupation which entitles him to hold certain tools and implements exempt from legal process, he cannot, by a mere unexecuted intention to change his calling, unaccompanied by any overt act, acquire the right to claim exemption with respect to the equipment to be used in such contemplated occupation. The special findings in the present case are held to be consistent with a general verdict of nonexemption.</p> <p>2. Chattel Mortgage — Exempt Personal Property — Purchase Price. Where a person has by a single contract arranged to purchase several articles, making payment partly in property and partly in cash, and obtains the money necessary to enable him to carry out the contract by giving a mortgage upon all the property purchased, under the representation that it is to be used in making payment therefor, the purchase-money character of the mortgage as to a part of the property cannot be defeated by a showing that the buyer and seller had an understanding between themselves that the cash payment was to apply solely to another part. '</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Real-estate Agents — Contract for Sale of Principal’s Land Executed by Agents — Personal Contract of Agents. A written agreement for the sale of a tract of land by the defendants, who were real-estate agents, to the plaintiff, who was the buyer, and which expressly provided that it was subject to the consent of the owner, is held to have been the personal contract of defendants; and further held, that they were not in any sense agents, for the purchaser, although they took title to the land from the owner for the purpose of enabling them to carry out their contract with the buyer. (McMichael v. Land Co., 104 Kan. 778, 180 Pac. 777.)</p> <p>2. Same — Default of Purchaser — -Specific Performance Denied. In an action brought by the buyer against defendants for the specific performance of the contract referred to in the foregoing paragraph, the plaintiff’s failure to pay the purchase price within a reasonable time after defendants had obtained title and tendered the conveyances will defeat his recovery.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Negligence — Automobile — Liability of Owner for Daughter’s Negligence. On the day of a certain election a campaign committee requested the use of the defendant’s car for the afternoon. The defendant, who had purchased it for the use of his family, consented that such car, driven by his sixteen-year-old daughter, be used as requested. The daughter reported with the car to the committee, who gave her names of persons to go after, and while on her way, as thus directed, she collided with and injured the plaintiff. Held, that as she was not at the time acting as agent for her father, or under his direction or control or in any way connected with his business, he is not liable.</p> <p>2. Same — Evidence—Instruction. Certain references to a casualty company, having been withdrawn and the jury properly instructed thereupon, no material error appears in respect thereto.</p> <p>3. Same — Pleadings—Allegations of Agency. The amended petition examined, and held not to allege agency of the defendant's daughter so as to require a denial under oath, even if the point were not raised here for the first time.</p> <p>4. Same — Evidence — Examination of Plaintiff by Physicians. Physicians who examined the plaintiff testified as to the examination and the results thereof, some of such testimony being to the effect that she was not injured. On rebuttal, the plaintiff described the method of the examination and the effects thereof. Held, that such evidence was competent; the alleged manner of giving such evidence being beyond our control.</p> <p>5. Same — Certain Rulings of Court Not Error. The claims of error in refusing judgment on the findings and for excess of verdict held insufficient to require a reversal.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Garnishment Proceedings •— Before Justice of Peace — Service on Defendant by Publication — Justice Acquired no Jurisdiction. An action was commenced before a justice of the peace of Barber county against parties who had never been in that county, but who resided in Greenwood county; summons was issued and returned unserved, and notice by publication was given. A bank in Barber county was garnisheed, and it answered that it had- money belonging to the parties sued. Judgment was rendered against them; and the bank, under an order of the court, paid into court, out of the funds in its possession, sufficient to pay the judgment and costs. Subsequently, the parties sued commenced an action against the bank to recover the mo.ney that had been paid into court. Held, that the garnishment proceedings and the judgment of the justice of the peace were void, and that payment thereunder did not protect the bank in the action to recover the money.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Family Settlements op Estates — Favorites of the Law. Family settlements of estates are favorites of the law and, when fairly made, should not be disturbed by those who entered into them.</p> <p>2. Same — May Differ from Statute of Descents and Distributions. No rights of creditors being involved, it is competent for the widow and the heirs of an intestate to enter into an agreement for the distribution of an estate upon a plan different from that prescribed by the statute of descents and distributions.</p> <p>3. Same — Widow’s Share under the Settlement — Evidence—Findings. In the family settlement involved herein, no disposition or allotment was made of a certain tract of land in which the surviving widow owned -a one-half interest. She signed the partition agreement, but • did not execute a conveyance of her interest in the tract, and the claim was made and evidence offered tending to show that she orally agreed to accept certain properties as dower and in full satisfaction of her interest in the estate, including the unpartitioned tract, and also that by the use and enjoyment of these properties for years, as well as by certain acts and declarations, she was estopped to claim an interest in that tract. There was conflicting evidence on these questions, some of which was oral, and the trial court determined that the widow did not surrender nor agree to surrender her interest in the tract, and that she had not by any of her acts or declarations estopped herself to assert title to the tract. It is held that the decision of the trial court upon the disputed questions of fact is conclusive upon this court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Compensation Act — Injuries — Time in Which Claim for Damages Must be Made. Under the workmen’s compensation act, section 5916 of the General Statutes of 1915, proceedings against an employer to recover compensation for an injury sustained by a workman in the course of his employment cannot be maintained unless a claim for compensation has been made within three months after the accident.</p> <p>2. Same — Findings of Fact — Conclusive on Appeal. The trial court’s finding of fact, based upon sufficient, though conflicting, testimony that a claim for compensation was not made within three months, is conclusive on appeal.</p> <p>3. Same — Claims of Error Immaterial. Errors concerning the admission and exclusion of evidence relating to alleged injuries for which no action can be maintained need no attention on appeal.</p> <p>4. Same — Compensation Allowed — Evidence. The evidence and findings pertaining to an allowance of $114 for compensation for injuries to a workman examined, and no error discerned therein.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Contract — Sale—Contract Repudiated — Action for Breach — Not Prematurely Brought. Where a seller, who has agreed to deliver goods within a certain time, notifies the buyer that he will not perform his contract, the latter may treat such action as an anticipatory breach and bring an action for damages without waiting for the expiration of the period originally allowed for delivery.</p> <p>2. Same — Renunciation — Issues Raised by Pleadings — Evidence. The plaintiff pleaded that the rules of the board of trade had been made a part of a contract for the sale of grain to him. The defendant answered denying the contract, and alleging that the board of trade was a gambling concern. No reply was filed. Held, that as no proof was made of the rules of the board of trade, and as the plaintiff did not in any way rely upon them, there was no occasion for submitting to the jury any issues concerning that body.</p> <p>3. Same — Confirmation of Oral Contracts —■ Customs. Where there is evidence of a practice among grain dealers, which had been followed in prior transactions between the parties, to mail letters of confirmation of oral contracts, such confirmations are admissible in corroboration of testimony that oral contracts to which they refer were made.</p> <p>4. Same — Future Delivery of Wheat — Renunciation by Seller — Damages —Rights of Buyer. One who, having agreed to deliver goods within a fixed time, renounces the contract, cannot complain that the buyer de'lays for a short time to purchase elsewhere (giving him the opportunity meanwhile to reconsider and carry out his agreement), at least where no increase in the market price is shown to have occurred in the interval.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Divorce and Alimony — Award of Real Estate to Minor Children Void. Following Emery .v. Emery, 104 Kan. 679, 180 Pac. 451, that part of a decree granting to the wife a divorce which declares that real estate belonging to the husband shall be the sole property of the minor children is held to be wholly void and open to collateral attack.</p>

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

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Reciprocal Demurrage Act — Act Not Discriminative — Delay in Furnishing Cars. The reciprocal demurrage act (Gen. Stat. 1915, §§ 8421-8424), which provides statutory damages against a railway company for delay in furnishing freight cars, and which provides similar statutory damages in favor of a railway company against a shipper for delay in loading and using the cars furnished, 'does not discriminate against the railway carrier.</p> <p>2. Same. The prior decisions' of the federal supreme court and of this court have not materially affected the reciprocal demurrage act as a whole.</p> <p>3. Same — Deposit of Freight Charges by Shipper. A shipper’s failure to make a partial deposit of freight charges at the time it applied for freight cars does not bar a recovery against the railway carrier for delay in furnishing the cars, unless the carrier made a demand for such partial deposit and the shipper declined to comply therewith.</p>

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

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

<p>SYLLABUS by the court.</p> <p>1. Jurisdiction — Foreign Corporation — Motion to Quash Service — Trial by Jury — Statute Construed. The provisions of section 279 of the code of civil procedure (Gen. Stat. 1915, §7179), providing for the trial by a jury of “issues of fact arising in actions for the recovery of money,” etc., refer solely to issues of fact involving the merits of the action, and not to issues of fact upon which the jurisdiction of the court depends.</p> <p>2. Same. On a motion to quash the service of a summons against a foreign corporation, on the ground that it has made no application to do business in this state, has filed no written consent authorizing service of process upon it through the secretary of state, and is not and has not been doing business in Kansas within the meaning of sections 2139 and 2141 of the General Statutes of 1915, the plaintiff is not entitled to a jury trial on the questions of fact involved in the motion.</p>

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Mortgage — Securing/ Attorney’s Fee — Transaction Not Fraudulent. The proceedings examined, and held to be free from prejudicial error.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Compensation Act — Injuries—Release—Mutual Mistake. There was evidence that tended to show a mutual mistake of fact.</p> <p>2. Same — Citizens of Germany — May Sue Under Compensation Act. A citizen of Germany, who came to this country in 1885 and then took out his first naturalization papers, which were subsequently destroyed by fire, and who, previous to and at the time of the declaration of war with Germany, was working for one of the packing-house companies of Kansas City, and who immediately after that declaration was, by the federal authorities, given a permit to reside in the packing-house district, and to work for the packing house, is not declared to be an alien enemy by the act of congress of October 6, 1917 (Stat. of U. S., 65th Congress, 1st Session, 1917 [40 U. S. Stat. at Large], ch. 106, § 2), and is entitled to prosecute an action under the workmen’s compensation act of this state.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Quo Warranto — Corporation — Misconduct of. Directors- — -Partial Ouster. Courts proceed with caution in declaring a forfeiture of the privileges and corporate capacity of a corporation, and where innocent owners of the property, as well as the public, would sustain severe losses from dissolution, and the purposes of the law can be subserved by a partial ouster, the latter will be adjudged.</p> <p>2. Same. In a proceeding in quo warranto in which a corporation is charged with abuses of the franchises granted to it, and with unlawful practices by its board of directors, the charges are found to be in part sustained, and, exercising the discretion vested in the court, it is adjudged that there be a partial ouster by the prohibition of the abuses and unlawful practices and the selection of efficient and law-observing directors.</p> <p>3. Same — Costs Adjudicated. The costs of the proceeding cannot be adjudged against persons not before the court.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Intoxicating Liquors — Violation of Injunction — Contempt Proceeding — Pendency of Other Prosecutions. In a contempt proceeding for the violation of a decree enjoining the sale of intoxicating liquors, and the maintenance of a nuisance at a certain place, the defendant maybe punished for sales of liquor and for acts done in maintaining a nuisance, although a criminal prosecution is pending against him for the same sales and acts.</p> <p>2. Same — Not Twice in Jeopardy for Same Offense. He is not thereby put in jeopardy twice for the same offense, since in one case he is punished for a crime and in the other for contempt of court.</p> <p>8. Same — Admission of Certain Testimony — Stipulation. The defendant had no reason to complain of the admission of testimony in the contempt proceeding which had formerly been taken and transcribed in the criminal proceeding, as he had agreed and stipulated that the evidence might -be so used.</p> <p>4. Same — Sufficient Evidence. The evidence in the case examined, and held to be sufficient to sustain the findings and judgment of the trial court.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Promissory Note — Procured by Fraud — Collateral Security by One Corporation for Debt of Another — Notice of Infirmity — “Holder in Due Course.” The plaintiff was the holder of the note of a realty company which was secured by deposit of collateral consisting of notes to the amount of $15,000, and of the value of $15,000. A railroad company then secured the note of the realty company by deposit of collateral consisting of notes of the face value of $6,500, which were exchanged and substituted for the other collateral notes. Among the notes deposited by the railroad company was one given the railroad company by the defendant. ■ It was complete and regular on its face, and was not dishonored or overdue, but it had been procured by fraud, and was negotiated in violation of a restricted agreement. Held: (a) The plaintiff gave value for the defendant’s note; (b) the defendant was not at liberty to assert that deposit of collateral security .by the railroad company for the debt of the realty company was void because ultra vires; (c) the fact that one corporation was securing the debt of another did not charge the plaintiff with notice of infirmity in the instrument or defect in the railroad company’s title; (d) such fact did not render acceptance of the instrument by the plaintiff an act of bad faith, or otherwise deprive him of the character of a holder in due cotirse.</p> <p>2. Same — “Bad Faith” as Used in Statute Interpreted. The bad faith which is referred to in section 63 of the negotiable-instruments law, and which is the antithesis of the good faith referred to in section 59, is bad faith in fact, derived by inference of fact, as distinguished from inference of law, and the substantial equivalent of fraud.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. New Trial — Newly Discovered Evidence — Evidence at Trial Not Abstracted. A judgment refusing to grant a new trial on the ground of newly discovered evidence will not be reversed, where the evidence introduced at the trial is not abstracted, and there is nothing in the, abstract to show clearly that the newly discovered evidence was not cumulative.</p> <p>2. Same — Nevñy Discovered Evidence — Want of Diligence. Before a new trial can be properly granted on the ground of newly discovered evidence, the applicant must show affirmatively that the failure to obtain it so as to produce it at the trial was not due to his own want of diligence. Evidence that , the defeated party did not know of the fact relied on until after the trial, when he was told of it by his attorney, is insufficient, because it fails to show a similar ignorance on the part of his attorney.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Fraudulent Representations — Damages — Statute of Limitations. An action for damages on account of fraudulent misrepresentations is barred in two years.</p> <p>2. Same — When Statute of Limitations Begins to Bun. The time for the bringing of an action for damages on account of fraudulent misrepresentations begins to run when the facts concerning the fraud are discovered.</p> <p>3. Same — Action Barred After Two Years. The facts examined, and, assuming that they disclose fraud, the plaintiff was sufficiently apprised of them to have based his action thereon more than two years before it was begun, and consequently his action was barred by the statute of limitations. (Civ. Code, §17, subdiv. 3.)</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Divorce — Alimony—Installments Due after Wife’s Death Payable to Children Whose Custody Was Awarded Her — Interest of Executo-r of Wife’s Will — In an action for divorce, alimony was awarded the wife for the support of herself and children given to her custody, in a certain sum payable in monthly payments of a specified amount. The decree further provided that if the wife should die before the entire sum was paid the remainder should acrue to and be paid to the children. Held, the executor of the wife’s will has no interest in payments falling due after her death, and has no standing- to contest an order relieving the husband, who was given custody and appointed guardian of the children, from making the payments to the children.</p> <p>2. Same — Adjudication against Husband of Title in Wife — Not Binding on Husband Subsequently Claiming as Guardian for Children. In the divorce action it was adjudged that the wife owned a certain certificate of deposit, which the husband had used as collateral security for the payment of a debt. Held, the adjudication did not bind the husband, in his capacity of guardian for the children.</p> <p>3. Same — Death of Wife in Foreign State — Domicile of Minor Children —Jurisdiction to Appoint Guardian. On the death of the wife in a foreign state, natural guardianship of a child which had been in her custody devolved on the husband; his domicile became the child’s domicile; the probate court of his domicile had jurisdiction to appoint him guardian, although the child' was absent from the state; the wife not being surviving parent, designation of a different guardian in her will was void; and the district court had authority to adjudicate the question of guardianship, in the proceeding to try title to the certificate.</p> <p>4. Same — Executor of Wife’s Will — No Interest in Future Custody of Minor Children. The executor of the wife’s will has no standing to contest an order formally transferring custody of the children to the husband, following the wife’s death.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Ejectment — Cancellation of Deed — Minority of Grantor — -Homestead —Findings Support the Judgment. A widow brought suit in ejectment , and to cancel a deed executed and delivered by her deceased husband in his lifetime, in which she joined, her claim being that from the time of her marriage and until her husband’s death the real estate was occupied by her husband and herself as their homestead; that she continued to occupy it as her homestead after his death; and that the deed which purported to convey the title was without consideration, and further was void because at the time she executed it she was and at the time of the commencement of the action was yet a minor under the age of eighteen years. The findings, sustained by evidence, are to the effect that after the marriage of plaintiff the real estate in controversy was never in the possession nor occupied by plaintiff and her husband as their homestead; that the equitable title belonged to the defendants, the naked legal title resting in plain- ' tiff’s husband; and that the deed was made to carry out and complete ■ a contract given for a valuable consideration, the terms of which had been fully complied with. Held, that the findings compel a judgment in favor of the defendants.</p> <p>2: Same — Pleadings—Competent Evidence Under General Denial. On the facts stated in the foregoing paragraph, the defendants were entitled under a general denial to show a paramount equitable title which carried with it the right of possession; and a written contract between the plaintiff’s husband and the defendants executed prior to the marriage of plaintiff, by which he agreed for a valuable consideration to convey the property to the defendants, was competent evidence to sustain the defendants’ claim.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Cities — Contractor’s Indemnity Bond — Breach by Contractor — Liability of Surety Company. Where a surety company has signed a contractor’s bond guaranteeing the honest and faithful performance of a construction contract made by him with a municipality and binding the surety to hold the city' harmless from all costs and damages of every kind and nature whatsoever which might flow from the breach of the contract or the contractor’s infidelity, and where such contract is grossly breached and the city, is swindled out of a large sum of money because of insufficient and defective construction of the Work contracted for, the city’s expenses, in whatever courts it was necessary to resort to for the recovery of that sum of money, are a proper charge against the- contractor’s surety under the terms of the bond. .</p> <p>2. Same — Employment of Special Counsel — Services Rendered and Ac- ■ cepted — Liability of City. Where there is no want of power on the part of a municipality to make a contract of employment, but merely a failure to comply formally with the provisions of the statute authorizing the city to make such a contract, the city is liable for services rendered by a person informally employed by the city, when his services have been recognized and accepted by the city, and where the city has received valuable benefits from such services, following Mound City v. Snoddy, 53 Kan. 126, 35 Pac. 1112.</p> <p>3- Same — When City May Employ Special Counsel. Although a city of the first class is provided with a city attorney, whose duties are to attend to all the litigation in which the city is involved, yet the city may employ special counsel to assist the city attorney when the gravity or extent of the litigation reasonably requires the services of such additional counsel.</p>

<p>SYLLABUS BY THE COURT</p> <p>1. Pleadings — Action for Relief on the Ground of Fraud. The petition considered, and held, its purpose was to state a cause of action for relief on the ground of fraud, which it clearly did.</p> <p>2. Same — Relief on the Ground of Fraud — Statute of Limitations The gravamen of the action being fraud, the statute of limitations applicable to actions for relief on that ground governs, although the petition discloses appropriation of property for the payment of which the law implies a contract.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Selling Chattel-mortgaged Property — Title Note Not a Chattel Mortgage. A title note (one evidencing the conditional sale of personal property and reserving the title thereto in the vendor until full payment of the purchase price) is not a chattel mortgage within the meaning of that term as used in section 6513 of the General Statutes of 1915, punishing the unlawful disposition of mortgaged personal property.</p>

<p>Appeal from Miami district court; Jabez 0. Rankin, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Judgments — Offer to Confess Judgment Made in Vacation — Liability for Costs. Under section 547 of the civil code, after an action for the recovery of money is begun, at any time before trial, the defendant may serve upon plaintiff or his attorney an offer, in writing, to allow judgment to be taken against him for a sum of money, and if that offer is declined, no mention shall be made of it at the trial, but if ' the judgment in plaintiff’s favor does not exceed the sum which was offered, the plaintiff is liable for all costs incurred after the receipt of the offer.-</p> <p>2. Same — -Confession of Judgment — Statutes Construed. Sections 547 and 552 of the civil code serve different purposes; The one governs offers to confess judgment which may be made in vacation, the other relates to confessions of judgment in open court.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Master and Servant — Unsafe Work — Explosion of Gas — Injuries— Contributory Negligence — Assumption of Risk. The mere fact that in the judgment of the employee an act required by the employer is unsafe does not, as a matter of law, render him guilty of negligence in performing it, if the employer assures him that there is no danger. He cannot be charged, as a matter of law, with either contributory negligence or with having assumed the risk, merely because, before notifying the master, he had entertained fears as to the possibility of injury by circumstances coming to his own knowledge, where he afterwards relies upon the assurance of the master that such work may be performed in safety, unless, of course, the danger was so obvious that no man of ordinary prudence would incur it.</p>

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

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

<p>Appeal from Doniphan district court; Arthur C. Bell, judge pro tem.</p>

<p>SYLLABUS BY THE COURT.</p> <p>ACCOUNTING — Partnership—Evidence. In an action for an accounting' between partners, it is held that testimony of the value of the partnership property at any time during the existence of the partnership was admissible.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Cancellation op Deed — Fraud, Coercion, Undue Influence — Plaintiff’s Right to Maintain Action. Although the pleadings in an action to cancel a deed may admit that plaintiff first unlawfully acquired the land involved through the aid and connivance of the defendant, yet the plaintiff may maintain her action against the defendant where it is alleged that she was compelled through fraud, coercion, fear and undue influence to convey the land to the defendant, when such wrongdoing of defendant had no material relation, to the original wrongdoing of both parties in the original acquisition of the property.</p> <p>2. Same — Rule of In Pari Delicto — Not Applicable. The rule, that where both parties are in equal wrong the situation of the defendant is the stronger, does not apply where the original wrongdoing is consummated and unrelated to. the later and independent wrongdoing of the defendant of which the plaintiff complains.</p> <p>3. Same — Pleadings—Defendant’s Answer Raised an Issuei — Motion for Judgment Wrongfully Sustained. Plaintiff’s petition alleged that through fraud, fear, deceit and undue influence she was constrained to convey her land to the defendant, her son-in-law. She sought a cancellation of the deed. Defendant’s answer alleged in substance that he had conspired with plaintiff to violate the federal land laws pertaining to the acquisition of title to the public domain, and denied the plaintiff's allegations of fraud, etc. Plaintiff’s motion for judgment on the pleadings was sustained. Held, error, defendant’s answer having raised an issue of fact which should be tried out and could not be summarily disposed of on motion or demurrer.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Promissory Note — Defense Was Forgery — Trial—No Substantial Merit in Assignments of Error. Assignments of erro.r regarding order of proof, qualification of witnesses — expert and nonexpert — abuse of discretion by the court, instructions to the jury, and the qualification of jurors, considered, and held to be without substantial merit.</p>

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Ejectment — Boundary Line — Recognition and Acquiescence. The facts considered, and held to warrant the inference that a line not the true boundary had become the boundary between two tracts of land, by recognition and acquiescence.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Provisional Warranty Deed — Testamentary in Character — Inoperative for Want of Witnesses. The insertion in a warranty deed of a provision that it shall be void in case the grantee dies before the grantor indicates a purpose that the title shall pass only in the event the grantee shall survive the grantor, and renders the instrument testamentary in character and therefore inoperative for want of witnesses. The fact that it was executed shortly after the grantor had suffered a paralytic stroke, in consideration of the care and kindness of the grantee, his brother, and the probability that he would be a burden on him for some time to come, does not militate against this construction.</p>

<p>Appeal from Miami district court; Jabez 0. Rankin, judge.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Contract — Purchase and Sale of Horses — A Partnership Created. In the present case, where an arrangement was made between two persons for the purchase and sale of horses, each furnishing in different proportions money for the conduct of the business, and each contributing certain services in carrying it on, the profits and losses of which were to be equally divided between them, it is held to constitute a partnership relation as to a third person who held a claim for the unpaid price of the horses purchased by the firm.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Ejectment- — Generial Denial — Preliminary Statements to Jury — Demurrer to Statement — Wrongfully Sustained. The admission made in course of the preliminary statement to the jury in behalf of a defendant in ejectment, whose answer is a general denial, and who relies upon a claim of being the adopted child of a former owner of the property in controversy, that he can produce no evidence of the proceedings of a court relating to the matter, does not necessarily preclude his recovery upon the theory that a valid adoption had been brought about, because under that pleading he might prove that in the jurisdiction in which he asserts the adoption to have taken place the law permitted it to be accomplished without judicial action. The rule that one who relies on a foreign law different from our own must plead as well as prove it, does not apply in an action where any defense can be shown under a general denial.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Trial — Findings of Fact — Conclusive on Appeal. The rule followed that the special findings of a jury, when approved or adopted by the trial court, and supported by substantial though disputed testimony, are conclusive on appeal.</p> <p>2. Lumberman’s Lien — Partial Payment by Check — Form of Check — No Notice of a Trust Fund — Pleadings—Issues. In an action to enforce a materialman’s lien on a certain property, in precedence of mortgage liens, the fact that the creditor accepted a check which was signed by the contractor, “F. C. Workman, Trust. — ” in payment upon items of an account for materials furnished on another property, does not charge rhe materialman with notice that a trust fund is being wrongfully appropriated by his debtor, when both the trustee and his beneficiary were parties to the action and neither of them raised any issue concerning the existence of such a trust fund, and filed no pleadings and submitted to a judgment by default.</p> <p>3. Same — Partial Payment — No Application of Payment Directed by Debtor — Creditor May Make Application. A bookkeeper who receives money for his employer from a debtor “on account” and makes an ■ appropriate bookkeeping entry to record the fact of payment, does not thereby, without authority, preclude his employer, the materialman, from applying that payment to a particular account against his debtor, if such application is made within a reasonable time, where the evidence shows that the materialman’s system of bookkeeping was arranged so as to keep a record of separate accounts against the debtor to preserve the materialman’s right to liens on separate properties for each of the debtor’s accounts.</p> <p>4. Same — When Materialman’s Lien Has Precedence Over Mortgage Lien on Same Property. A contractor was furnished with materials for repairing two properties, one owned by his wife, the other by a stranger. The materialman kept a book showing the aggregate indebtedness of the contractor, and also kept a record showing what materials were furnished for use on each property. The purpose of the latter record was to preserve the materialman’s fight to a lien on each property. On February 10, 1917, the contractor paid $400 on account, without specifying more particularly how the money should be applied. On or before February 16, 1917, a Sunday and holiday having intervened, the materialman applied the $400 on the account due for materials on the stranger’s property, and filed a lien on the property of the contractor’s wife for the materials used in repairing her property. Held, that the materialman’s lien was properly given precedence over mortgage liens on that property.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Accord and Satisfaction — Default in Payment — Aeeord Agreement Ineffectual. To make an accord effectual, there must be a satisfaction, and if payment on an accord is to be made when the agreement is made, and a party fails to make payment at that time, the accord fails, and the other party may then sue on the original claim.</p> <p>2. SaMe — Unambiguous Contract — Evidence of Custom Incompetent. Custom and usage may be shown to elucidate or explain something ambiguous in a contract, but where the contract is clear and complete it cannot be changed or supplemented by evidence of a local custom, and in the present case it is held that there was no room for the operation of a.custom.</p> <p>3. Trial — No Material Error in Record. Objections to rulings on testimony and to instructions of the court examined, and held to be without material error.</p>

<p>SYLLABUS BY THE COURT</p> <p>Habeas Corpus — Father Seeking Custody of Minor Child — Order Placing Child in Custody of Stranger Was Within the Issues. In a habeas corpus proceeding by a father to obtain custody of his infant daughter from her maternal grandparents, it appeared the father was not at the time fitted to have the care and custody of the child, and that she had a good home where she was, but that the grandparents were so hostile to the father they substantially denied him opportunity to visit the child. Held, an order placing the child in custody of a suitable stranger was within the issues.</p>

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Action on Note — Fraud Pleaded — Order for Additional Parties — Summons Issued to Another County. The assignee of a real-estate mortgage brought an action thereon in the county in which the property was situated, against a purchaser thereof who had assumed the payment of the debt. The defendant, having obtained leave to file an answer and cross petition and “to make additional parties defendant,” filed a pleading which included a counterclaim against the plaintiff for damages resulting from fraud practiced to induce him to purchase the property, and a demand on the same account against several new parties who were alleged to have participated in the fraud. A summons for the new defendants was served -upon them in another county, where they resided. They moved to quash the service on the ground that they had not been made parties by any order of the court, and that the situation was not such as to warrant summons for them being issued to another county. Held, that</p> <p>(1) The permission granted by the court for the defendant to make additional parties, although they were not named or described, was a sufficient authority for their being made defendants by the action of the original defendant; and</p> <p>(2) Inasmuch as the original defendant, by the voluntary act of the plaintiff, had acquired the right to prosecute in that proceeding a claim against him based upon the alleged fraud, the right followed to issue summons to another county for other persons charged with liability upon the same cause of action.</p>

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Compensation Act — Death—Arbitration—Form of Award of Compensation — Interpretation of Statute. The section of the workmen’s compensation act which provides that no award.shall be or provide for payment of compensation in a lump sum, except such portion of the compensation as shall be found due' and unpaid at the time of the award (laws 1917, ch. 226, § 13), governs the award in an arbitration of compensation to dependents in a case in which injury to the workman resulted in death.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Criminal Law — Burglary—Failure to Instruct upon Circumstantial Evidence — No Request — Waiver by Defendant. In a criminal prosecution circumstantial evidence alone was relied upon by the state for conviction. No instruction relating to circumstantial evidence was given, and the defendant made no request for instructions of any kind. Held, that, while an instruction upon circumstantial evidence should have been given, it was not indispensable in the sense that it might not be waived by the defendant, and that the failure to make such request waived the error in failing to instruct. {The State v. Winters, 81 Kan. 414, 105 Pad 516.)</p> <p>2. Same — Alibi—No Request for Instruction — Waiver. The general rule applied also to the failure to give an instruction upon the defense of an alibi.</p>

<p>SYLLABUS BY THE COURT</p> <p>1. Mandamus — Requiring Slate Officer to Perform a Ministerial Duty— Not an Action Against the Stale. An application for a writ of mandamus to require the bank commissioner to issue to a depositor in an insolvent bank of which he has taken charge a certificate (payable out of the assets of the bank, supplemented if necessary by the guaranty fund), the controversy turning upon the rate of interest such certificate should bear, and its determination depending upon the construction of the statute in relation to the matter, is not an action against the state, and is a proper proceeding for the purpose of procuring an interpretation of the statute.</p> <p>2. Bank Failure — State Guaranty Fund — Rate of Interest on Matured Certificates of Deposit — Original Contract Rate Governs. Under the provision of the statute that upon taking charge of. fin insolvent bank the commissioner shall issue to each depositor a certificate (payable out of the assets, supplemented if necessary by the guaranty fund), “bearing six per cent interest per annum . *. . except where a contract rate exists on the deposit, in which case the certificate shall bear interest at the contract rate,” the holder of a certificate of deposit maturing after the closing of the bank, drawing interest by its terms at the rate of 4 per cent per annum “for the time specified only” (that is, until maturity), is entitled to a commissioner’s certificate bearing interest at 4 per cent until paid, and not to one bearing interest at 6 per cent after the date of maturity of the certificate of deposit issued by the bank.</p>

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Homicide — •Disqualification of Jurors. The testimony of jurors with regard to their having formed opinions, held not to warrant the reversal of the ruling of the trial court holding them to be eligible to sit in the case.</p> <p>2. Same. The retention of a juror whose credibility had been attacked by a witness produced by the defendant, held not to constitute reversible error.</p> <p>3. Same — Evidence of Insanity — Opinion Evidence. The evidence of a witness concerning the opportunity he had had to observe the conduct of a person whose soundness of mind was in issue, held to have been sufficient to render him competent to give an opinion on the subject, and the sustaining of an objection to such testimony, held to have been error.</p> <p>4. Same — Declarations of Defendant's Wife — When Inadmissible. In the prosecution of a husband for the murder of his wife, declarations made by hex a few days before the homicide, to the effect that she had - to leave him — that she could not stand it to live with him any longer — are inadmissible against him, not being within any of the recognized exceptions to the rule against hearsay evidence.</p> <p>5. Same — Impeaching Witness — Cross-examination. Ground for impeaching a witness by showing previous contradictory statements cannot be laid by cross-examination on a subject not touched upon in the direct examination.</p> <p>6'. Same — Nonprofessional Witness — When Evidence Inadmissible. It is not competent for a nonprofessional witness to give his opinion as to ■ whether a designated person was physically able to perform acts attributed to him by other witnesses.</p> <p>7. Same — Evidence—Bad Reputation of Defendant. The admission of evidence.of the had reputation of the defendant (who had taken the stand) for veracity fifteen years before, held not to have been a ground of reversal.</p> <p>8. Same — Jurors Viewing the Place of Crime — Judicial Discretion. Whether or not it is advisable to allow the jury to view the place where the offense charged is alleged to have been" committed, is a matter for the determination of the trial court.</p> <p>9. Same — Instructions. The instructions held to be without substantial error, although containing a few expressions.open to criticism.</p>

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Contract op Employment — Findings of Trial Court. The facts in dispute touching the duration and terms of a contract of employment examined, and no error discerned in the trial court’s determination . thereof.</p> <p>2. Corporation — Action of Board, of Directors — When Not Conclusive on Corporation. Although a board of directors of a corporation hears the reading of a financial report of the corporation’s liabilities and approves the report, the corporation is not thereby precluded from afterward denying its liability on specific items set out in the report.</p> <p>3. Same — Authority of President to Bind Corporation. Where a president of a corporation is not shown to have authority to obligate the corporation, a letter written by him endeavoring to pacify an insistent creditor, and promising to make a desperate effort to raise money to take up the corporate debts, and the letter included the promise, “Your account is among the others of which I am fully aware; and if we can raise this money it will be one of the first taken care of,” it is . held that such promise is subject to explanation and is not necessarily binding on the corporation.</p>

<p>Appeal from Phillips district court; William S. Langmade, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Action — Recovery of Proceeds of Mortgage — No Substantial Error Appears in the Record. Assignments of error relating to rulings on evidence, instructions to the jury, sufficiency of the evidence to sustain the verdict, accident and surprise, and newly discovered evidence, considered, and held to be insufficient to warrant a reversal. .</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Workmen’s Compensation Act — New Election Not to Accept it Necessary after its Revision. The workmen’s compensation act of 1913 provided that all employers within its general scope should be presumed to have come within its provisions, unless by reason of an affirmative election to the contrary, expressed by filing a notice with the secretary of state, which should be changed only by a written declaration filed with that officer. In 1917 the act was radically amended, many important changes being made. The section relating to the election by employers was reenacted, with several merely verbal changes and the addition of a clause declaratory of the law as it already existed. Held, that an employer who had given notice in 1913 of an election not to come within the law, was by the new act brought within its operation, in the absence of notice of an election to the contrary given subsequent to its enactment.</p> <p>2. Same — A Minor is Bound by Provisions of Statute. The fact that an employee is a minor does not prevent his being bound by the statute which places employees within the operation of the workmen’s compensation act in the absence of an affirmative election to the contrary.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Workmen’s Compensation Act — New Election Not to Accept it Necessary after Its Revision. For the reasons set out in the opinion in Railway Co. v. Fuller, ante, p. 608, which was argued and submitted to- . gether with this case, it is held that under the law as it now exists all employers of five or more workmen, engaged in industries characterized by the statute as especially dangerous, are subject to the compensation system, except where notice to the contrary has been given subsequent to the adoption of the act of 1917 in relation thereto, irrespective of what may have been done before that time.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Trade Secrets — Expiration Books of Insurance Company — Wrongful Use by Discharged Employee — Replevin—Injunction. The law recognizes a property right in trade secrets and confidences, and a court of equity may, when its jurisdiction is properly invoked, enjoin one in whom the confidence has been reposed, from divulging it to third persons or from taking advantage of it himself to the injury of the owner. In the case of an employee, such’ an obligation exists in the absence of a stipulation to the contrary.</p> <p>2. Same. The right to such relief is not affected by the fact that the trade secrets or confidences are embraced in books or lists which may have been added to by the employee’s efforts.</p> <p>3. Same — Expiration Books of Insurance Company■ — Discharged Employee Enjoined from Taking Copies from Original Boohs for His Own Use. In an action by the owner of an insurance , agency against a former employee to recover possession of original books showing the expiration of policies written by the defendant for the plaintiff, and to enjoin the making or using of copies taken from the original books, where the admissions of the defendant showed that after the action in replevin was brought, and before the injunction was asked for, he procured copies of portions of the books for the purpose of retaining them in the event the court required him to turn over the originals, and expected to use the copies for the purpose of soliciting business for other insurance companies, held, that it was error to deny the injunction, and upon the undisputed facts, judgment is ordered for the plaintiff.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Contract- — Exchange of Property — Specific Performance — Jurisdiction of Court to Order an Accounting. In an action foi* specific performance of a contract for the exchange of real and personal property, where the execution of the contract is pleaded, and the contract is exhibited, and not denied, and the defendant joins in the prayer for specific performance “so far as the real estate is concerned,” the action is maintainable, although the trial court finds that the contract cannot be specifically enforced “because of a want of mutual understanding as to all its terms”; and where pursuant to such imperfect contract the parties have partially performed it by a transfer of a bank account, and by payments and expenditures pertaining to the personal property, the court may properly retain jurisdiction and order an accounting, and give such judgment as justice may require.</p> <p>2. Same — Findings of Trial .Court. A seemingly equivocal finding of fact touching the trial court’s construction of a contract may be interpreted in the light of the pleadings and the contract itself, and no error will be based thereon when the judgment itself is correct.</p> <p>3. Same — Venue—Jurisdiction of Court to Adjudicate All Matters Pertaining to Contract. The civil code permits an action for specific performance of a contract concerning land to be brought in any county where part of the land is situated, and it may be so brought although an exchange of some personal property is also involved in the contract; and the court does not lose jurisdiction to adjudicate all matters pertaining to the contract although it finds that a decree of specific performance should not be rendered; and in such case the court may decree an accounting between' the parties on pertinent matters which arose because of their acts in partially carrying the contract into effect.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Fraudulent Conveyance — No Consideration — Bad Faith of Grantor —Intent of Grantee Immaterial. The transfer of property by a debtor to his wife without consideration, thereby placing all of his property subject to be taken by creditors beyond the reach of his creditors, amounted to a fraud in law, and the intent of the wife in accepting the transfer is immaterial.</p> <p>2. Same — Statute of Limitations. The statute of limitations did not run against the action to set aside the fraudulent transfer until two years after the creditors’ claim was reduced to judgment, it having been prosecuted with reasonable diligence.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Will — Devise to Certain Children — Plaintiff Not One of Devisees. Ill an action for a share of the property devised to the living children of one of the testatrix’s sons, it is held that the evidence fails to show that the plaintiff was his daughter.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Warranty — Sale of Stallion — Sale by Vendee to Third. Party with Similar Warranty — No Privity of Contract between Original Vendor and Third Party — Warranty is Personal. Ordinarily there is no privity of contract between the original vendor of personal property and third persons who may purchase or acquire the property from the original vendee; and the original vendor’s warranty is a personal obligation between him and his own vendee, and it does not run with the property like covenants concerning real estate.</p> <p>2. Same — Original Vendor Not Bound to Defend Action on his Vendee’s Warranty to Third Party. The defendant traded a stallion to plaintiff and warranted the animal to be sound. The plaintiff, relying upon defendant’s representations and warranty, traded the stallion to a third person, giving his subvendee the same sort of warranty as he had received from defendant. The third party sued the plaintiff for breach of warranty. Plaintiff notified defendant of the suit and requested him to take charge of the defense. Defendant declined. Plaintiff was subjected to a judgment, and in this action seeks recoupment against the defendant. Held, that the defendant was not bound to defend in the action of the third party against the plaintiff, nor is he concluded by its result; his warranty to plaintiff was personal; and he may defend against an alleged breach of his warranty without regard to the consequences which flowed from the suit of the third party on a similar alleged breach of warranty made by plaintiff to his subvendee.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Conveyance — Purchaser Charged with Notice of Encumbrances Suggested by Recitals in his Deed. A purchaser of property on which there were three mortgages, one for $2,700, another for $1,502.50, both of which were of record; and also an unrecorded mortgage for $600.00 which was placed on record after the purchase, but before the transfer was completed, accepted a deed of conveyance which contained a recital:</p> <p>“Made subject to a mortgage of $4,800.00, which is now a lien upon the above land, which the grantee agrees to assume and pay with interest at six per cent from date, as a part of the purchase price.” '</p> <p>He had no actual knowledge of the unrecorded mortgage when the purchase was made; nor any notice except such as is afforded by the foregoing recital. Held, that the recital as to encumbrance on the property was such as to require him to inquire as to the liens that made up the' recited encumbrance, and if the inquiry had been pursued with reasonable diligence, he would have learned of the $600 mortgage and is chargeable with notice of it.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Industrial Insurance — Default in Payment of Premium — Thirty Days’ Written Notice Required to Forfeit or Cancel Policy. The provision cf section 1 of chapter 212 of the Laws of 1913 (Gen. Stat. 1915, § 5292), making it unlawful for any life insurance company, other than fraternal, doing business in the state, to forfeit or cancel a policy on account of the nonpayment of premiums, without first giving notice in writing to the holder of any such policy of its intention to forfeit or cancel the same, is held to include industrial policies issued upon the payment of monthly or weekly premiums.</p> <p>2. Same — Provision in Policy Waiving Statutory Written Notice Void. The policy of insurance sued on was an industrial policy, which made ' it the duty of the company’s agent to call upon the insured on Monday of each week to collect a weekly premium of 25 cents. Printed upon the policy with a rubber stamp was a provision as follows:</p> <p>“The insured under this policy, by the acceptance thereof, expressly waives, both for himself and for any other person who has now, or who may subsequently acquire any interest herein, the giving of any notice provided for by chapter 212 of the Laws of 1913 of the state of Kansas, and consents that said policy may be lapsed or forfeited for nonpayment of premium as herein provided.”</p> <p>Held, that this provision of the policy was void.</p> <p>3. Same — No Mutual Agreement to Cancel or Abandon Policy. On the facts stated in the opinion, it is held that the insured and the insurance company had not by mutual agreement abandoned and canceled the policy, and that it was in full force and effect at the time of the death of the insured.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Venue — Transitory Action against Nonresident. A transitory action against a nonresident defendant may be brought in any county where he may be found and summoned, and the fact that the petition was filed and the summons issued before he came into the state and within the jurisdiction of the court does not render the summons subsequently served in the state abortive nor defeat jurisdiction of the defendant.</p> <p>2. Appeal — Notice of Appeal — Matters of Review. A notice of appeal stating that the appeal is taken from the judgment and every part thereof is sufficient to bring up for review a ruling quashing a summons and the service thereof, as well as the order dismissing the action.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Conversion op Corn Crop — Instructions—Verdict Contrary to the Evidence. The proceedings examined, and held that a verdict returned under proper instructions, but contrary to the evidence, and contrary to the knowledge possessed by the jury in common with the rest of mankind, should be set aside.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Fraternal Insurance — Death While Engaged in Prohibited Occupation — Acceptance of Assessments from Beneficiary — No Waiver. A fraternal beneficiary association, a member of which dies as the re- - suit of a risk with respect to which it is expressly exempted from liability, is not precluded from successfully asserting such exemption by thereafter accepting from the beneficiary, with knowledge of the facts, payment of an assessment for the month within which the death occurred, which was by the by-laws made due and payable on or before the last day of that month.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Real-estate Agent — Commission Not Earned — Evidence. The evidence examined, and held insufficient to support a cause of action on a special contract for an agent’s commission on a sale of real estate.</p> <p>2. Same — Special Contract for Commissions — Ordinary Buie of Bight to ' Commissions Not Applicable. The ordinary rule that a real-estate agent is entitled to his commission when he procures a purchaser who is ready, willing, and able to buy, or when he brings a buyer and seller together, who make a bargain on different terms than those theretofore dictated to the agent, does not apply where the agent’s commission is governed by a special contract between him and his principal.</p> <p>3. Same — Under Special Contract — Commissions Were Not Earned. The owners of a ranch listed it with an agent for sale at $35 per acre net to them, and stipulated that the agent must procure his commission out of some addition to that price. Later, the owners told the agent, “In the event you could only get a $35 offer on this ranch, it might be that we could adjust some commission.” The agent endeavored to interest one Anderson in the ranch, and Anderson promised to consider it. The agent never succeeded in selling the ranch, and never succeeded in obtaining an offer of $35 an acre from Anderson or any other person. Some three months later, Anderson bought the ranch directly from the owners for $35 per acre. The record shows no bad faith or unfair dealing on the part of the owners towards the agent. Held that, under the special contract governing the agent’s right to a commission, the owners of the ranch were not liable.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Master and Servant — Injuries—Use of Defective Tool — Knowledge of Servant — Assumption of Risk. Where a workman, who was a pipe fitter, called his foreman’s attention to a pipe wrench with which he was working, and which was worn and inclined to slip when in use, saying, “This wrench is bad; this wrench is not very good; I have got to have one,” such statement does not indicate that the continued use of the wrench would be dangerous; and the foreman’s answer, “Go ahead and use it this evening, but maybe I will get you one in the morning,” did not indicate an appreciation that the use of the wrench was dangerous, nor a promise to speedily eliminate some impending danger to the workman.</p> <p>2. Same — When Servant Assumes the Risk of Danger. In an ordinary action for damages -by a workman against his employer for injuries sustained in the use .of a defective tool, when such action is not governed by workmen’s compensation acts and similar modern statutes, the workman assumes the risk of injury in using the tool, if it is a common and familiar one in his vocation, and if he is aware of its defective condition; and the master is not liable in damages for injury to the workman under such crcumstances.</p> <p>3. Same. Ordinarily, an employer is not liable to his workman for injuries sustained in the use of a defective, common tool with which the workman is perfectly familiar, nor where neither the employer nor employee contemplates any danger to the latter in the continued use of the defective tool.</p> <p>4. Same — Facts Showing Assumption of Bisk. A workman, who was a pipe fitter by vocation, was making a connection of a steam pipe to. a radiator. The pipe wrench was worn, and frequently slipped and ■ failed to hold its grip on the pipe. On one occasion when it slipped the workman wrenched his back, and the radiator fell upon and bruised him. The workman brought an action against his employer for dam- • ages, not under the modern statutes relating to workmen’s compensa- . tion for injuries, but under the general principles of the common law. Held, that the tool was a common and simple one in the workman’s vocation, and that the rule as to assumption of risk of the ordinary hazards of his calling bars a recovery against his employer.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Fraternal Insurance — Uncle and Nephew are “Blood Relatives”— Member May Designate His Uncle as Beneficiary. An uncle and nephew are blood relatives, and under the act providing for the organization and regulation of fraternal beneficiary societies- a member of a beneficiary association may designate his uncle as a beneficiary in a certificate of insurance and thereby vest him with the right to the death benefits provided for in the certificate.</p> <p>2. Trial — Affidavits for Continuance — Treated as Depositions. The affidavits filed in support of a motion for continuance having been read and treated as a deposition, no error was committed in denying the motion.</p> <p>3. Trial — Evidence—Instructions. Objections to rulings on evidence and to instructions are held to be without materiality.</p>

<p>SYLLABUS by the court.</p> <p>1. Will — Interpretation—Nature of Gift Devised. The provisions of a will considered, and held to make á gift of a stated portion of the testator’s estate, with restraint on use and enjoyment, and not a gift of income.</p> <p>2. Will — Legacy for Maintenance Bore Interest from Testator’s Death. The will declared the legacy was given for maintenance and education of the legatee, who. was a minor, and the estate was productive. Heid, the legacy bore interest from the date of the testator’s death, although liquidation of legacies was not feasible for more than two years thereafter, because the testator’s liabilities could not sooner be ascertained.</p>

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

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>3. Partnership — Evidence Sustains Existence of a Partnership — Accounting Between Partners. The evidence herein examined, and found to be sufficient to sustain the finding of the court that a partnership relation existed between the plaintiff and the defendant in certain mining leases, as well as in other lines of business, and also sufficient to support the accounting that was made and the judgment that was rendered.</p> <p>2. Same — Jurisdiction of Court — Dissolution of Partnership — Disposition of Partnership Property Outside the State — Division of Partnership Assets. It was competent for the court, sitting as a court of equity having personal jurisdiction of the parties, to adjudge the dissolution of a partnership, the disposition of partnership property in mining leases outside of the jurisdiction of the court and beyond the limits of the state, and to make a division of partnership assets.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Taxation — Deduction of Debts from Credits — Both Debts and Credits Secured by Lien on Real Estate — Statute Construed. The statute authorizes a taxpayer to deduct indebtedness owed by him from the amount of his “credits,” on which he would otherwise be required to pay taxes. Originally the statute contained a provision that the word “credits” as so used should not include demands secured by lien on real estate. Held, that the striking out of that definition from the statute showed a legislative purpose to allow notes owing by the taxpayer to be deducted from notes owned by him, although both be secured by lien on real estate.</p> <p>2. Same — Deduction of Debts from Credits — Uniformity of and Equality in Taxation — Statute Constitutional. A statute allowing a taxpayer to deduct indebtedness which he owes from indebtedness owing to him in order to arrive at the amount for which he shall be liable to taxation on account thereof, is not rendered obnoxious to the constitutional rule of uniformity and equality by the fact that no such deduction is allowed with respect to other personal property, or to realty.</p> <p>3. Same — •Uniformity of Taxation — Deduction Relating to Banks. Such statute is not rendered obnoxious to the requirement of uniformity and equality of treatment in matters of taxation by the provision of the constitution requiring all the property of banks, “without deduction,” to be taxed, the words quoted having reference to the two-hundred-dollar exemption allowed to heads of families.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Taxation — City of First Class — Unplatted Lands Annexed to City After July 5 — Not Taxable by City for Current Year. The tax law does not authorize a city of the first class to levy taxes for the year 1919 on tracts of unplatted land, described by metes and bounds, and containing approximately 20 acres and 160 acres, annexed to the city by ordinances passed on July 5 and July 11, 1919.</p>