Volume 106 — Kansas Reports

<p>SYLLABUS by the court.</p> <p>Defective Pleading — Not Attacked before Trial — Valid Judgment A judgment will not necessarily be reversed on account of a defective ■ pleading, where that pleading is not attacked before trial, and the action is tried on an agreed statement of facts, supplemented by oral evidence, and the statement of facts and oral evidence sustain the judgment.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Criminal Law — Conviction—Appeal—No Appeal Bond Given — Stay of Execution — Prisoner in Custody of Sheriff. Although in the code of criminal procedure provision is made for a stay of execution on appeal only upon the giving of a bond, this court, under its general authority to .suspend further pfoeeedings in the court below, may direct that the defendant in default of bond shall remain in the custody of the sheriff pending the final decision.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Sale — Hay—Error in Estimates — Action to Recover Overpayments— Trial — No Reversible Error in Record. It is held that no reversible error was committed (a) in the admission of evidence, (6) in the giving or refusing of instructions, (e) in the refusal to submit a special question, or (d) in the refusal to set aside a special finding, or the general verdict.</p> <p>2. Same — Recovery of Overpayments — Interest Allowed. The fact that a defendant has at all times denied liability on a debt the amount of which is a matter of computation, and has resisted to the utmost the efforts of the creditor to obtain judgment thereon, affords no ground for exempting him from the payment of interest, even in the absence of an affirmative finding of bad faith on his part. This rule is applied in an action to recover an overpayment where a quantity of hay was purchased under an agreement that its weight was to be determined in a specified way, and before that was done the buyer made full payment, the amount being based on an estimate which proved excessive.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Foreign Will — Proper Authentication — Admission to Record! — Appeal. An'appeal to the district court may be taken from a judgment of a probate court-admitting to record an authenticated copy of a foreign will and of the record, in a foreign court, of the probate thereof.</p> <p>2. Same — Authentication Complies with Kansas Statute. The authentication of a copy of a foreign will and of the record of the probate thereof in the court -of a foreign country, has been examined, and it is held that the authentication complies with section 368 of the code of civil procedure.</p> <p>3. Same — Authentication Complies with Kansas Statutes — Should be Admitted to Record in this State. Patrick Hanna was born in Ireland. When a young man he came to America, settled in Grayson county, Texas, engaged in business there, and accumulated a fortune. He visited Ireland on a number of occasions, and while there on a visit in 1908, he executed his will. In 1913 he again went to Ireland, and remained there until his death, which occurred in 1916. His will was probated in Ireland. An application was presented to the proper court in Texas, asking, in one count, that the will be probated there, and asking, in another count, that the authenticated copy of the will and of the order admitting it to probate be recorded. The Texas court ordered that the copy of the will be recorded. Afterward, an authenticated copy of the will and of the record of its probate in Ireland was presented to the probate court of Harvey county, where the testator owned property at the time of his death, and request was there made that the copies be recorded in that county. The probate court ordered the copies recorded. The application was resisted by heirs at law of Patrick Hanna. They appealed to the district court. That court refused to admit the copies to record on the ground that Patrick Hanna, at the time of his death, was domiciled in Grayson county, Texas. Held, that the authenticated copy of the will, and of the record of the probate thereof in Ireland, should be admitted to record in the probate court of Harvey county.</p>

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

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Cancellation op Written Instruments — Nature of Evidence Required. It is often said that in certain classes of cases proof is required that is “clear, distinct and satisfactory,” “clear and convincing,” “clear, precise and indubitable.” These and similar expressions convey substantially the same meaning, which is, that the evidence should be “clear,” that is, not ambiguous, doubtful, equivocal, or contradictory, and should be perspicuous and pointed to the issue under investigation; and “satisfactory” in the sense that the source from which it comes is of such a credible nature that the court and jury, as men of ordinary intelligence, discretion, and caution, may repose confidence in it. Absolute certainty is, of course, not required.</p> <p>2. Same — Findings Supported by Evidence. The evidence upon which the judgment in the present case rests is examined, and held to meet the test of “clear, distinct and satisfactory proof,” and the findings being supported by competent and substantial testimony, it 'will be presumed that the trial court applied the proper test in weighing the facts. (Woddell v. Allbrecht, 80 Kan. 736, 104 Pa.c. 559.)</p> <p>3. Same — Presumption that Instrument on Record Speaks the Truth— Presumption is Rebuttable. While there is a presumption that the register of deeds performed his duty properly, and that an instrument as recorded speaks the truth, the presumption is rebuttable. The original instrument is primary, the recorded copy secondary, evidence. If a variance appear between the original, as filed, and the record, the original prevails; and in a case where the original, after being recorded, is lost (proper foundation being laid), oral testimony is competent to prove the contents of the original instrument, and that it differs from the recorded copy.</p> <p>4. Same — Oil-and-gas Lease ■ — • Incorrectly Recorded — Evidence —• Findings. The plaintiff purchased a tract of land subject to an oil and gas lease, the record of which in the office of the register of deeds showed the surrender clause to read: “That the said party of the second part (the lessee) shall surrender this lease to said party of the first part, at any time upon payment of $50, or a good and sufficient quitclaim deed, and that thereupon the lease shall cease and determine.” In an action to cancel the lease, plaintiff alleged- a tender of the $50 and demand for a quitclaim deed; and that the tender and demand had been refused. The answer alleged that the provision in the original lease was that the party of the second part “shall have the right to surrender this lease to said party of the first part, at any time upon payment of $50, or a good and sufficient quitclaim deed,” and that the words “have the right to” were not entered by the register of deeds upon the record. On the trial, after showing that the original instrument had been lost, the defendants offered evidence to sustain their contention. The court found the facts in defendants’ favor. Held,, that the findings are sustained by substantial and competent testimony, and that a judgment in favor of the defendants, establishing the lease as it was originally written, will not be disturbed.</p>

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

<p>syllabus by the court.</p> <p>Sales — Breach of Contract — Measure of Damages. The proceedings considered, and held that various defenses to the action were not'sustained by the evidence, and that -the measure of damages invoked by the defeated party was applied.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Oral Contract — Sale of Real Estate — Partial Possession Given— Statute of Frauds. An indivisible oral contract for the sale of real property is not taken out of the operation of the statute of frauds by the delivery of possession of part of the property.</p> <p>2. Same- — Nonenforcible—Elements of Purchaser’s Damages. A purchaser of real property under an oral contract, nonenforcible on account of the statute of frauds, who is by the vendor put into possession of a part of the real property purchased, and who makes improvements thereon, may recover the damages sustained by him on account of such improvements, if the vendor refuses to perform his contract.</p> <p>3. Appeal — Jurisdiction of Supreme Court. Where an action of which the supreme court has jurisdiction is appealed from the district court to the supreme court, the latter will determine all matters in controversy, although on examination, it is determined that the action is not well founded except as to a claim of $50.</p>

<p>Appeal from Cherokee district court; Frank W. Boss, judge.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Life Insurance — Policy Never Took Effect — No Waiver. The facts considered, and held that conditions precedent to the taking effect of a life insurance policy were not waived by statements and conduct of the insurer’s agents.</p>

<p>syllabus by the court.</p> <p>1. Bill op Lading — With “Shipper’s Order” and “Notify Purchaser” Clauses — Draft Attached — Title Does Not Pass Until Draft is Paid. The term “shipper’s order” as used in bills of lading is well understood, and means that the title remains in the shipper until he orders the delivery of the goods. Under a shipment of a car of corn consigned by the seller to himself, “notify the purchaser,” the bill of lading having attached thereto a customer’s draft drawn by the seller on the purchaser and sent to a bank for collection, the title does not pass to the purchaser until the draft is paid and the bill of lading surrendered, in the absence of evidence to overcome the presumption that this was the intention.</p> <p>2. Same. It is a common practice, where a. bill of lading provides for delivery to the consignor’s order and has gone forward attached to a draft on the purchaser or other person by whom payment is to be made, to give directions that such person be notified on the arrival of the goods in order that he may pay the draft and procure the goods. The very presence of the word “notify” in such a case shows that the person named is not intended as the consignee, but is simply to be advised on the arrival of the goods. The fact that a bill of lading is made out to the consignor’s order, to which is attached a draft drawn upon the person to be notified, makes this still plainer.</p> <p>3. Same. Plaintiff, who was in business at Topeka, contracted to purchase a carload of corn from a shipper at Clayton, Kan., “basis track Clayton buyer’s routing.” In the letter of confirmation the shipper was directed to bill the car of corn “to us at Shady Bend, Kansas, via Colby and draw on us in the usual manner with papers attached.” The shipper followed the instructions, and procured a “shipper’s order notify” bill of lading, to which he attached a customer’s draft drawn on the purchaser, which was sent through the banks for collection. The corn was damaged in transit. The draft was 'paid on the day the car-reached its destination. Held, that the title not having passed to the purchaser until the draft was paid, he cannot maintain an action to recover damages to the corn occurring in transit.</p> <p>4. Same — Consignor Reserved Title in Himself. Evidence examined, and held insufficient to overcome the presumption that the consignor intended to reserve title in himself and, therefore, there was nothing to submit to a jury.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Written Contract — Payment of Money — Parol Évidence Inadmissible. The terms of a written instrument considered, and held to express an absolute obligation to pay money within a reasonable time implied by law. Held further, the terms of the instrument could not be contradicted by parol evidence to the effect that the obligation was conditional.</p>

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Promissory Notes — Satisfied in Full — Refusal to Surrender the Notes— Injunction. The facts considered, and held sufficient to warrant a judgment requiring the payee of ten satisfied promissory notes to surrender them to the maker, enjoining transfer of the notes, and enjoining the payee from bringing and prosecuting vexatious suits founded on them.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Redemption — Foreclosure of Mortgages — Party Entitled to Redeem,. It is held that no error is shown affecting a decision that the holder of a sheriff’s deed based on the foreclosure of a second mortgage is entitled to redeem from a subsequent sale under a decree foreclosing the first mortgage.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Negligence — Erection and Maintenance of Overhead, Bridge — Death of Locomotive Engineer — Assumption of Risk. In an action under the federal employers’ liability act to recover damages for the death of a locomotive engineer who, while leaning out of the cab of his engine and looking backward, was struck by one of the steel girders of an overhead bridge, the special findings show that the clearance between the bridge and the side of the engine was approximately two feet; that deceased had been running an engine over the bridge for 15 years; that in the year previous to the accident he had run an engine of the same class over the same bridge 300 times, including 26 times in that month; that he had warned his fireman against the dangers in passing through the same kind of bridges; that the engine he was operating did not sway from side to side in going over the bridge more than wag ordinarily the case in engines of similar type. Held, that defendant was entitled to judgment on the findings, because they establish that deceased had assumed the risk. .</p>

<p>Appeal from Norton district court; Celsus A. P. Faulconer, judge.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Trial — Improper Evidence — Prejudicial Error. The proceedings considered, and held that certain evidence was improperly admitted, and that the error committed in admitting the evidence was prejudicial.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Will — Life Estate to Wife — Qualified Power of Disposition. One paragraph of a will gave to the testator’s widow his personal property and the income on his real estate during her life, while the succeeding paragraph gave to a son his real estate and all his personal property, subject to the prior claims of the wife during her lifetime. Held, that the wife took a life interest in the personalty, with a qualified power of disposition, entitling her to impair the principal or body of the property so far as necessary to her support.</p> <p>2. Same — Proper Allowance to Widow. An allowance made to the widow from the proceeds of the personal property held to have been proper, although in excess of its income.</p> <p>3. Same — Allowance to Administrator. The refusal to allow the administrator (the testator’s son above referred to) compensation for providing board and lodging for the widow, held to have been proper.</p> <p>4. Same. Claims of the administrator against the estate held not to have been conclusively shown to be valid.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Railroad Crossing — Passenger in Automobile — Contributory Negligence. A mature person who attempts to cross an interurban railroad track without taking any precautions for his own safety, while riding in an automobile with another, who is driving, cannot recover damages for injuries sustained in a collision with a car on the track, when by looking he could have seen the approaching car in time to have warned the driver of the danger.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Highway — Defective Highway — Injuries—Liability of County. A county is not liable for defects in a highway unless it has been duly designated as a county highway, nor for defects in a bridge unless it has been wholly or partially constructed by the eounty.</p> <p>2. Highways — Statutory Classifications — “County Roads” — “Township Roads.” Under the provisions of chapter 264 of the Laws of 1917, the board of county commissioners are required to make new classifications and designations of roads in the county, and by reason of this enactment all former designations were annulled.</p> <p>3. Same — Defective Highway — Injuries—Road Not a “County Road.”— County Not Liable. The evidence herein failing to show that the road alleged by plaintiff to be defective had been duly designated under the governing statute as a county highway, it is insufficient to show a liability of the county for damages resulting to plaintiff from defects in the road, and the demurrer to plaintiff’s evidence was rightly sustained.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Will — Authority in Executors to Sell and Convey Beal Estate. The provisions of a will considered, and held to confer authority to sell and convey real estate without petition to the probate court for an order of sale.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Larceny- — Indorsement of Names of Witnesses on Information. It was not error to permit the county attorney, upon the case being called for trial, to indorse the names of two witnesses upon the information, no claim of surprise or request for delay being made by the defendant, and the record failing to show that either of these witnesses was used on the trial.</p> <p>2. Same — Sufficient Proof of Ownership of Stolen Property. The ownership of the property in question was sufficiently shown;</p> <p>3. Same — Venue—Judicial Notice of Location of Cities. This court takes judicial notice that the city of Gardner is in Johnson county.</p> <p>4. Same —■ Instruction ■ — ■ Circumstantial Evidence. An instruction given touching the sufficiency of circumstantial evidence examined, and held proper.</p> <p>5. Same — Evidence Sustained Conviction. The circumstances and the actions of the defendant being inconsistent with the ordinary conduct of an innocent man, the verdict of the jury, finding the defendant guilty, will not be overturned.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Cities — Paving Street — 'Defective Petition— Width of Proposed Pavement Not Stated — Injunction Allowed. When a city of the first class having a population of over 25,000 inhabitants undertakes to pave a street pursuant to a petition of resident owners of abutting property, under section 1233 of the General Statutes of 1915, the provision of the statute that such petition shall state the width of the paving petitioned for is mandatory and is intended for the protection of the taxpayers affected by the projected improvement; and proceedings to pave a street in disregard of that mandatory provision may be enjoined in an action by the taxpayers affected thereby.</p>

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

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

<p>SYLLABUS by the court.</p> <p>1. Contract — Sale of Wheat — Failure of Seller to Deliver — Evidence— Finding of Jury — Instruction Erroneously Refused. In an action to recover damages for failure to deliver wheat according to the terms of a contract, the jury returned a verdict for the defendant and made a finding that the contract, which was oral, was that defendant should deliver the wheat at Grantville within thirty days, providing plaintiff furnished cars, which plaintiff failed to do. On the trial defendant admitted at the time the contract was made plaintiff said to him he would accept the wheat piled on the ground at Grantville if cars could not be obtained. Held, that the matter of furnishing cars was for the benefit of the plaintiff, and that it was error to refuse to give an instruction that plaintiff’s failure to furnish cars would not justify the defendant in rescinding the contract if the jury further found that plaintiff was willing to accept the wheat at Grantville and pay for the same, and so advised the defendant.</p> <p>2. Same — Sale of Wheat — No Tender of Delivery Under Controxt. On the trial the defendant testified that the only notice he ever gave plaintiff that he could come and get the wheat was at the time the contract was entered into, when the plaintiff said to him, “You give me two or three days’ notice and I will give you cars,” and defendant replied, “You have got your notice now.” Upon this evidence alone the jury made a finding that “the defendant . . . tendered wheat to plaintiff according to contract the day contract was made.” Held, that ths evidence was insufficient to sustain a finding that the defendant tendered a delivery of the wheat under the contract.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Survey op Land — Government Corners Control. In making a survey of land, the fact that a county surveyor follows the theory that he is bound by a previous survey of the same land becomes immaterial, if the corners thus located are the government corners.</p> <p>2. Same — Trial to Court — Bequest for Special Findings of Fact. At the opening of the trial of an appeal from a report of a surveyor on a survey of land made by him, counsel requested the court to make special findings of fact and conclusions of law, and at the conclusion of the introduction of evidence repeated the request. On each request the court asked c'ounsel to submit such findings as they desired made, hut none were submitted. When the last request was made, the court announced that it would make a general finding approving the survey; but a finding was made on the controlling controverted question of fact, and judgment was rendered accordingly. It does not appear that any pleadings were filed. Held, that it was not prejudicial error to refuse to make further findings of fact.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Roads and Highways — Vacation and Relocation of Road — Jurisdiction of County Commissioners. Where a valid petition for the laying out of a road, or the vacation of one and its relocation on another line, is presented to a board of county commissioners and allowed, its determination as to the practicability of the proposed road, including the convenience and public utility of the same, involves the legislative and administrative- powers of the board, and the exercise of these functions are beyond the' jurisdiction of- the district court, and no appeal is allowed from the decision.</p> <p>2. Same — Opening of Road — Claim of Damages — Right of Appeal. Matters pertaining to the damages sustained by a landowner through the location or relocation of a road are judicial in character, and an appeal from orders in the allowance of damages may be taken.</p> <p>3. Sanie — Claim for Damages — Waiver of Jurisdiction to Lay Out Road. One who claims damages for the location or relocation of a road cannot be heard to object to the order making such location or relocation.</p> <p>4. Same — Pending of Mandamus Proceedings. The pendency of a proceeding in mandamus against a township trustee to compel the opening of a road does not prevent a board of county commissioners from allowing a petition to vacate the road or from establishing the same on another line.</p>

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

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

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

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

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Mortgage Foreclosure — Sale—Confirmation—Finality of Judgment of Confirmation. When a mortgage on real property is foreclosed, and the property sold, and the sale confirmed, such confirmation cannot be vacated nor t:he sale set aside after the term at which the judgment of confirmation was rendered, except in accordance with the civil code.</p> <p>2. Same — Sale—Rights of Second Mortgagee. Under section 497 of the civil code there can be but one foreclosure sale of mortgaged property, no matter how many mortgages encumber that property; and the only way that a junior mortgagee who has been impleaded can protect his interest is by seeing to it that the property, when sold, brings somewhere near what it is worth, or enough to satisfy his second lien. {Sigler v. Plwres, 105 Kan. 116, 181 Pac. 628.)</p> <p>3. Same — No Conflict between Positive Law and Equity. Equitable considerations do not clash with positive law, nor can they be invoked to unsettle established legal principles.</p> <p>4. Same — Judgment of Confirmation Final at End of Term. A court has no discretionary control over a judgment after the end of the term of court at which the judgment is rendered.</p> <p>5. Same — Sale of Mortgaged Property a Judicial Sale. In a mortgage foreclosure, the sale of the mortgaged property is a judicial sale, and the confirmation is a final and binding judgment of the court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. LIQUOR Law — Appeal from Police Court — Defective Transcript — Waiver by Defendant. In the first of these cases, which was an appeal from a police court to the district court, an objection by the defendant to the introduction of evidence, upon grounds that related solely to alleged defects in the transcript, is held insufficient to raise the contention that the complaint had not been certified up by the police judge; and upon the facts stated in the opinion it is held that the defendant waived the want of certification.</p> <p>2. Same — Insufficient Evidence to Show a Nuisance. In the second case, which was brought by the state to enjoin the maintaining of a nuisance under the prohibitory law, it is held that the evidence was insufficient to sustain a judgment against the defendant.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Easement — Access to and Use of Well Water — Equities—Damages— Injunction. In a growing, developing urban community, an implied easement or quasi easement will not be preserved nor reestablished by the aid of an injunction, when the owner of the dominant estate to which the easement was appurtenant is not seriously injured by being deprived of it. He will be remanded to seek legal redress in damages.</p>

<p>Appeal from Reno district court; E. T. Foote, judge pro tem.</p>

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

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Drainage District Organized — Engineer’s Report Filed — Notice that Objections to Report by County Commissioners were Overruled— Appeal Taken in Time. A drainage district was organized; the report of the engineer was filed; and notice was given of the time to hear objections to that report. Through the attorney for the board of supervisors, the time of the county commissioners to file their objections was extended. Negotiations were then commenced to settle the differences that existed between the board of supervisors and the county commissioners. Finally the board of supervisors notified the county commissioners that their objections had been overruled more than ten days before. The county commissioners perfected their appeal to the district court within ten days after being notified that their objections had been overruled. Held, that the appeal was within time.</p> <p>2. Same — Appeal from Order of Supervisors — Jurisdiction of District Court. On an appeal from an order of the board of supervisors of a drainage district overruling objections filed to the report of the engineer, the district court has jurisdiction to correct the record of the acts of the board of supervisors.</p> <p>3. Same — Trial—Burden of Proof. A judgment of the district court will not be reversed for error in placing the burden of proof, in an action tried without a jury, where each of the parties had ample opportunity to introduce all his evidence.</p> <p>4. Same — Appeal—Jurisdiction of District Court. On such an appeal as is named in paragraphs 1 and 2 of this syllabus, the district court has power to reduce the assessment of benefits and of costs on the land affected by the appeal.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Oil and Gas Lease — Liability of Lessees for Annual Rentals. A supplementary agreement touching a gas and oil lease examined, and held that by its terms the lessees were bound to pay an annual rental while-they kept the lease alive after development and production ceased to be profitable.</p>

<p>SYLLABUS BY THE COURT</p> <p>Action Upon Written Order — Evidence—Demurrer Thereto Wrongfully Sustained. The evidence examined, and held that it was error to sustain a demurrer to plaintiff’s evidence. (Acker v. Norman, 72 Kan. 586, 84 Pac. 531; Meyers v. Woolsey, 103 Kan. 362, 175 Pac. 162.)</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Cancellation op Deed — Evidence—Demurrer Wrongfully Sustained. The evidence to maintain an action to cancel a deed and to quiet the title to property conveyed by a mother to her son, examined, and held sufficient as against a demurrer thereto.</p> <p>2. Same — The familiar rule applied that when a demurrer to evidence is interposed the trial court is bound to give all the favorable evidence the most generous credence and to disregard all the evidence contrary thereto.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Purchase of Real Estate — Title Taken in Name of Wife — Resulting Trust in Favor of Husband — Pleadings. A demurrer to a petition was overruled, although an essential allegation was lacking. In a trial without a jury testimony to support such an allegation was admitted over objection. Pending the decision of a demurrer to the plaintiff’s evidence the court permitted the petition to be amended to conform to such testimony. Held, that no reversible error was committed, inasmuch as the defendants were not denied an opportunity to make a full showing, and do not appear to have' suffered any substantial prejudice.</p> <p>2. Same — Evidence. In an action in which one of the issues was whether a husband in causing a deed to be made to his wife, who had since died, was actuated by a fraudulent intent, his testimony that his purpose was not to defraud creditors, but to enable his wife to handle the property during his sickness, was not open to objection under the rule relating to transactions had with a person since deceased.</p> <p>3. Same — Evidence. The evidence held to be sufficient to support the judgment.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Building Contract — Breach by Owner of Building — Measure of Damages. The measure of damages for the breach of a building contract where the plaintiff has been wrongfully prevented from fully performing, is the difference between what it would cost to complete the entire work according to the contract, and the contract price. The same result may be reached by allowing the plaintiff, as damages for the work done, such proportion of the entire price as the fair cost of that work bears to the fair cost of the whole work, and in respect to the work not done such profits as the evidence shows he would have realized by doing it.</p> <p>2. Same — Breach—Measure of Damages — Erroneous Instruction. In an action by a contractor to recover for the breach of a building contract, an instruction which charges that if the defendant owner breached the contract, the measure of plaintiff’s damages was the profit he would have made on the contract in addition to the reasonable value of the work already performed, is erroneous because, the action being upon the contract, plaintiff was not entitled to recover the reasonable value of the work performed, except as determined by the contract price, and as to the uncompleted work only such profit as the evidence showed he would have realized had he not been prevented from performance.</p> <p>3. Same — Breach—Recovery of Anticipated Profits. Anticipated profits can be recovered only when they are made reasonably certain by competent proof of facts furnishing a rational estimate of their amount. In this case it is held that there was no competent evidence to show what profit, if any, the plaintiff would have made had he not been prevented from completing the work; his own statement on the witness stand that he would have made a profit of a certain amount was of no probative force. (Town Co. v. Leonard, 46 Kan. 354, 26 Pac. 717.)</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Will — Not a Conveyance or an Alienation of Homestead. The former ruling (Postlethwaite v. Edson, 102 Kan. 104, 171 Pac. 769), that the will was not an alienation or conveyance of the homestead, is followed and adhered to.</p> <p>2. Judgment — Against Directors of Corporation — Contribution. As against the defendants, the plaintiff’s right to compel contribution from the estate of a deceased person has been established by former judgments.</p> <p>3. Same — Revivor. A judgment that has been revived against the administratrix of the estate of a deceased person need not be again revived on the death of the administratrix.</p> <p>4. Creditor’s Bill — Findings of Ownership of Property. A finding of the court concerning the ownership of real property will not be disturbed where there is evidence to support the finding.</p> <p>5. Same — Right to Trial by Jury. In an action in the nature of a creditor’s bill to subject certain lands to the payment of the plaintiff’s claim, it is not error to refuse to submit to a jury the question of the title to the property.</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 — Injury—Refusal of Employer to Arbitrate. The facts considered, and held, the conduct of an employer was equivalent to refusal to consent to arbitration, and authorized the workman to resort to action to recover compensation.</p> <p>2. Same — Injury—Permanent Loss of Use of Eye. The facts considered, and held, the plaintiff suffered permanent loss of the use of an eye as the direct result of injury, within the meaning of pertinent provisions of the workmen’s compensation act.</p> <p>3. Same — Injury—Elements of Proper Compensation. In addition to the loss of an eye, the plaintiff suffered permanent partial disability on account of partial paralysis of one side of his body. Held, he was entitled to additional compensation.</p> <p>4. Same — Methods of Computing Compensation. Provisions of the workmen’s compensation act relating to amount of compensation interpreted, and methods of computing the plaintiff’s compensation stated.</p> <p>5. Same — Trial—No Prejudicial Error. Various assignments of error considered, and held to be without substantial merit.</p>

<p>Appeal from Cherokee district court; Frank W. Boss, judge.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Homestead — Boundary by Agreement and Acquiescence — Occupation in Good Faith. An owner of a quarter section of' land occupied by him and his family as a homestead, the residence being understood to be on the line between the two halves of the tract, sold the east half of the quarter section, and with his wife continued to live in the west half of the residence. The owner and the grantee did not know the exact boundary line between the two halves of the tract, but it was orally agreed between them that the center of the house should be the dividing line between the two tracts, and this agreement has been acquiesced in ever since the conveyance was made. They were mistaken as to.the boundary line, as the house was found to be entirely on the east side of that line, but the outbuildings used in connection with the home were located wholly on the west side of the line. It was the intention of the plaintiffs to occupy the west half, including a part of the house, as their homestead, and there has been no change of purpose nor any cessation of occupancy. The tract occupied by plaintiff as his homestead was seized and sold under a judgment against the owner alone, and in an action brought by the owner and his wife to enjoin the issuance of a deed it is held that the property was exempt as the homestead of the owner and his wife.</p> <p>2. Same — Sale and Confirmation Under Execution Against Husband— No Estoppel Against Wife to Claim Homestead. Although the owner moved to set aside the sale under the execution and did not appeal from the overruling of his motion, and the confirmation of the sale, he and his wife were entitled to the remedy of injunction to prevent the issuance of a deed and a conveyance of their homestead, his wife not being a party to the action and judgment under which the execution was issued, and their action of injunction having been begun before the expiration of the period of redemption.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Auto Truck — Crossing Railroad Track — Duty of Driver — Contributory Negligence. In a railway crossing case, it is held (following Wehe v. Railway Co., 97 Kan. 794, 156 Pac. 742, and kindred cases) that where the plaintiff and his employee who was driving his automobile discovered, just before they were about to cross the railroad track, that their view.of the track was obstructed by clouds of smoke from engines standing on another track, it was contributory negligence for them to proceed to cross without stopping and waiting or going to some point where a view of the track could be obtained, if there was no other way of determining whether a train was approaching.</p>

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Bill op Lading — Transferred to Bank by Indorsement — Credit Given Shipper — No Garnishable Interest Remained in Shipper. Where a shipper of goods by rail draws a draft on the consignee in favor of a bank, and surrenders the bill of lading to the bank, and receives credit, from the bank for the value of the draft, and the draft with the bill of lading attached is forwarded by the bank to its local banking correspondent at the place where the goods are to be delivered, and the consignee receives the bill of lading upon payment of the draft, and thereby obtains the possession of the goods, it is held that no garnishable interest of the shipper remained in the proceeds of the draft in the hands of the local banking correspondent, as the title to the goods had passed, either absolutely or as security, to the bank which extended credit thereon to the shipper; and this rule is unaffected by any question whether the shipper had checked against the credit given to him for the draft and bill of lading.</p> <p>2. Same. A consignor in Idaho shipped certain carloads of potatoes to consignees in Wichita. At the same time he drew drafts on the consignees in favor of his home bank in Idaho and surrendered to it the bills of lading for the potatoes. The bank gave him a credit on his checking account in consideration thereof, and forwarded the drafts with the hills of lading attached to a bank in Wichita. The consignees paid the drafts, and the bills of lading were surrendered to them. Pursuant thereto the railway carrier delivered the potatoes to the consignees. There was a shortage in quantity and defect in the quality of the potatoes. The consignees garnished the proceeds of the drafts while the money was still in the hands of the Wichita bank. The Idaho bank intervened. Held, that no garnishable interest in the money remained in the shipper; it belonged to the Idaho bank; and it is immaterial whether the consignor had checked against his deposit account in his home bank or not.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Sale — Water Rights — False Representations — Damages. Where a seller makes positive representations to another in relation to a sale of property, and makes them as statements of facts, intending' thereby to induce a purchase, and. the purchaser buys the property in reliance upon the representations, which are in fact untrue, the seller is liable for the damages sustained by the purchaser through the untruthful representations, although the seller may not have known that • the representations were false when he made them, and although he may have had no intention to deceive the purchaser.</p> <p>2. Same — False Representations — Measure of Damages. The rule stated in Epp v. Hinton, 91 Kan. 513, 138 Pac. 576, as to the measure of damages where a sale of water rights is induced by false representations of the seller, is followed and applied.</p> <p>3. Same — Evidence of Other Similar Acts Competent. Evidence of other similar acts of misrepresentations and fraud by a party to the action may be admitted where they were made and perpetrated about the same time as the one in controversy.</p>

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

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

<p>Appeal from Ellis district court; Isaac T. Purcell, judge.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Sale — Interest in Oil Lease — Purchasers to Form Association — Fiduciary Relation of Vendor to Prospective Purchasers. Where one buys a piece of property on his own account and thereafter sells interests in, it to different persons in pursuance of a plan to form an association to handle it, in making such sales he occupies no fiduciary relation to the prospective purchasers, and is not bound to inform them what the property cost him, or to refrain from charging them more than a proportionate part of what he had paid for it.</p>

<p>Appeal from Cherokee district court; Frank W. Boss, judge.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Master and Servant — Safe Place to Work — No Negligence Shown. The evidence considered, and held insufficient to sustain a judgment against an employer for damages sustained by an employee because of alleged failure to furnish the employee a reasonably safe place in which to work.</p>

<p>Appeal from Decatur district court; Celsus A. P. Falconer, judge.</p>

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

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

<p>Appeal from Johnson district court; JABEZ 0. RANKIN, judge.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Judicial Sale — Estate of Insane Person — Notice of Hearing Upon Petition of Guardian. The law in force prior to the enactment of chapter 247 of the Laws of 1907 did not require a guardian of the estate of an insane person to give notice of a hearing upon a. petition for the sale of land to pay the debts of an insane person, or for the education and maintenance of his family, and where the records of the probate court disclosed that a sale of the land of the insane person was ordered and made in compliance with existing statutes, the failure of the record to show that a notice of a hearing upon the petition to sell was given, did not invalidate the sale of the land or the title acquired under the guardian’s deed.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Contract — Exchanging Beal Estate for Home and Personal Care. The evidence considered, and held to establish a contract to give property in exchange for a home and personal care.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Garnishment — In Justice Court — Independent Action Against Garnishee — Pleadings. Where a separate action is brought under the justice code (Gen. Stat. 1915, § 7738) “to enforce an order against the garnishee made by the justice of the peace, the proceeding is an independent one, governed by the ordinary rules of pleading, and the defendant is no more concluded by the documents filed in the justice court than by the order there made against him.” (Lamb v. Taylor, 101 Kan. 642, 644, 168 Pac. 673.)</p> <p>2. Same — Independent Action Against Garnishee — Necessary Allegations of Petition. In such an action it is necessary for plaintiff to allege that defendant was indebted to the defendant in the original action, or had money, property or effects in his possession or under his control at the time the garnishee summons was served upon him, as he can recover only “what shall appear to be owing by” the garnishee to the original defendant when the garnishee summons was served.</p> <p>3. Same — Independent Action Against Garnishee — Petition Subject to Demurrer. In such an action, where it is plain from the bill of particulars that the plaintiff proceeds upon the theory that he can recover by merely showing that defendant was properly brought into court as garnishee and examined under oath; that the justice made a finding that he was indebted to the defendant and ordered him to pay the money into court, which he refused to do, the pleading is subject to demurrer.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Appeal — From Justice of Peace — Time in Which an Appeal Bond Must be Filed — Time Not Extended by Motion for New Trial. The only method of obtaining a review of the rulings and judgment of a justice of the peace is to file and secure the approval of an appeal bond within ten days after the final judgment is rendered, and the filing and overruling of a motion.for a new trial does not operate to extend the time for the taking of an appeal.</p>

<p>SYLLABUS BY THE COURT..</p> <p>AGENCY' — Sale of Real Estate — Forfeiture of Right to Commission. The evidence considered, and held to show forfeiture by a real-estate agent of right to a commission for his services in negotiating a sale, because of unfaithful conduct.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Divorce — Alimony Properly Based Partly on Future Earning Capacity of Husband. Although the statute provides that the wife shall be allowed alimony “out of the husband’s real and personal property” where a divorce is granted by reason of his fault, his earning capacity is a matter to be taken into account, and he may, in a proper case, be required to pay permanent alimony beyond the value of his estate at the time the marriage is dissolved.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. School Districts — Changing Boundaries — Appeal to County Commissioners — Qualification of Commissioner to Act. A county commissioner is not disqualified from acting on an appeal from an order of the county superintendent changing the boundaries of school districts, by reason of the fact that the commissioner owns property affected by the change of' boundaries. ■</p> <p>2. Same — Appeal Not Disposed of. Such an appeal is not .disposed of by the.action of two members, of the board of county commissioners, where one of them votes in favor of sustaining the appeal and the other votes against it.</p> <p>S. Same — When County Commissioners Must Act on Appeal. When such an 'appeal has been taken it must be heard by the board of county commissioners, and if the appeal is not determined at the first regular meeting of the board after it is filed, it may be determined at a subsequent meeting on proper notice.</p> <p>4. Same — State a Proper Party to Maintain Action. The state can maintain an action to compel a board of county commissioners to act on such an appeal.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Recall of Public Officials — Constitutional Provision Not Self-Executing — No One Authorized to Call a Recall 'Election. The constitutional amendment of 1914, providing for the recall of public officials by-special elections (Kan. Const., Art. 4, §§ 3-5, Gen. Stat. 1915, §§ 192-194), is not altogether self-executing but needs supplementary legislation to render it effective, as hitherto no general authority has been granted by statute to any official to call special elections, and none of the many miscellaneous statutes for calling special elections, which vest such power in specific instances in the governor, or the boards of county commissioners, or other public officials, can be construed to fit the constitutional provision which speaks of “the authority for calling elections in the state or other electoral division.”</p>

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

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

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

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

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

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

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

<p>Appeal from Cherokee district court; Frank W. BOSS, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Negligence — Pumping Machinery — Death of Minor Son — Doctrine of Attractive Nuisance. Pumping machinery inclosed in an iron house which one of the plaintiffs had been employed by the defendant to care for and operate, was allowed to run for a short time when he left the plant to attend to another task. The home of his family was within 100 feet of the power house, and while he was absent his son, twelve years old, entered the power house to shut off the engine and was accompanied by another son, who was nine years of age. The latter went so close to the machinery that he was caught in a belt and suffered injuries which resulted in his death. The children had been repeatedly warned by plaintiffs of the danger of close approach to the plant and directed to keep away from it. Held, that the doctrine of attractive nuisance is not applicable to the facts of the case, and that under the evidence defendant was not liable to plaintiffs for the injury and death of their son.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Foreign Insurance Company — Jurisdiction—Conditions Under Which Service May Be Made on Superintendent of Insurance. Inasmuch as the statute provides that it is only in the county in which the plaintiff resides, or in which the cause of action arose, that a suit against a foreign corporation may he begun in this state by the service of summons on the superintendent of insurance, where neither of such conditions exists service made in that manner is ineffective.</p> <p>2. Same — Contract for Services — Place “Where Cause of Action Arose.” Where a written contract to pay an agreed compensation for certain services, a part of which are to be performed in Kansas, is executed in another state between a resident thereof and a corporation of a third state, a cause of action against the corporation, based upon its failure to pay for the plaintiff’s services according to the agreement, cannot be regarded as having arisen in a county of this state by virtue of the fact that a part of the services were to be performed therein.</p> <p>3. Same — No General Appearance Effected. A general appearance is not effected by the insertion, in a motion to set aside the service of summons, of allegations concerning some of the facts on which the plaintiff’s claim is founded, which are made because of their bearing upon the validity of the service, and which are material to that question.</p> <p>4. Same — Plea in Abatement — Special Appearance — No Submission to Court’s Jurisdiction. Where a defendant upon a special appearance objects to the service, he does not lose the right to have the overruling of his objection reviewed on appeal by afterward filing a plea in abatement in which jurisdictional and non jurisdictional matters are united, or by contesting the plaintiff’s claim on its merits.</p> <p>5. Same — Allegations of Answer — No General Appearance. A defendant who has properly preserved for review the question of the validity of the service is not to be deemed to have waived the point, by seeking affirmative relief, in consequence of inserting in his answer a prayer that, he be allowed to go hence without day, with such relief as the facts may entitle him to, and that he recover his costs, although the allegations of the answer might support a money judgment in his behalf, where the pleading as a whole discloses no purpose to ask such a recovery.</p> <p>6. Same — Motion to Quash Summons■ — Reviewable on Appeal. The overruling of a motion to set aside the service of summons does not require to he submitted to the reexamination of the trial court in a motion for a new trial in order to he reviewable on appeal.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Opening Judgment — Notice to Adverse Party — Appearance—Waiver of Notice. Within three years after the rendition of a judgment upon service by publication, defendants filed an application, which complied with the provisions of section 83 of the code, to open the judgment. The only notice given to the plaintiffs was by summons served upon them notifying them of the filing of the application and stating that unless they entered their appearance and made reply, the judgment would be opened. In the absence of the plaintiffs, the court made an order opening the judgment, and permitted the defendants to file their answer. Subsequently, the plaintiffs appeared specially and asked to have the order set aside on the ground that no notice had been served upon them of the time and place of hearing. The court overruled the motion, and the case was tried on its merits, resulting in a judgment for the defendants. Held, that when the plaintiffs appeared in court to contest the opening of the judgment, they waived the necessity for notice.</p> <p>2. Accommodation Note — Note Fully Paid. In an action upon a promissory note, where the defense is that the note was an accommodation note given to a trustee as collateral security for the payment of another note and mortgage, which had been fully paid and discharged, held, for the reasons stated in the opinion, that a general judgment in defendants’ favor, being supported by evidence, will not be disturbed.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Intoxicating Liquor — Temporary Injunction Properly Granted. A district court is justified in granting a temporary injunction, under the prohibitory liquor law of this state, against parties who, for a long time previous to the commencement of the action, had been engaged in the illegal sale of intoxicating liquors, although there is evidence which tends to show that a few days prior to the commencement of the action the defendants had sold and closed the place.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Negligence — Railroad Crossing — Obstructions—Pleadings—Rulings of Court It was not error to receive testimony under the petition, to overrule the demurrer to the plaintiffs’ evidence, or to refuse the defendant’s request for an instructed verdict.</p> <p>2. Same — Instruction—“Stop, Look and Listen.” An instruction touchingthe duty of the driver of the vehicle in respect to stopping, looking, and listening, held proper.</p> <p>3. Same. Certain instructions were properly refused because substantially included in those given by the court.</p> <p>4. Same. A charge touching the lateness of the train which it is alleged struck the plantiff’s daughter, held proper.</p> <p>5. Same — Condition of Crossing — Findings. The findings as to the condition of the crossing and the striking of the plaintiffs’ daughter by the train, held to have been supported by the. evidence.</p> <p>6. Same — Rejected Evidence — Requested Instructions Refused The refusal to receive in evidence the speed ordinance offered by the plaintiffs, and the refusal of the plaintiffs’ requested instruction as to wantonness and last clear chance, held not to constitute material • error.</p> <p>7. Same — Contributory Negligence Fatal to Recovery. Under the settled rule that one cannot recover for an injury caused by his own carelessness, the plaintiffs are barred because the driver crossed the track without stopping to ascertain whether or not a train was approaching.</p>

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

<p>Appeal from Jewell district court; Charles L. Kagey, judge pro tem.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Jurisdiction — Wrongful Death in Foreign State — Right of Action by Kansas Administrator. A cause of action for death hy wrongful act, accruing in another state by virtue of its laws, may not be enforced in this state by an administrator appointed in this state for the estate of the deceased, who was a residént of this state, following Batiese v. Railroad Co., 102 Kan. 468, 170 Pac. 811.</p>

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

<p>Appeal from Ellis district court; Isaac T. Purcell, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Coupon Interest Note — Defense of Payment — Evidence. In an action to foreclose a mortgage on account of the nonpayment of a coupon interest note, where the defense is payment of the note, and the evidence tends to prove that defense, the verdict and judgment in favor of the defendant will not be disturbed on the ground that the verdict and judgment are not supported by evidence.</p>

<p>Appeal from Ellis district court; Isaac T. Purcell, judge.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Real-estate Agent — Purchaser Introduced — Sale Made'— Commission Earned. The evidence considered, and held sufficient to sustain the verdict, which was one in favor of a real-estate agent, for commission for services rendered in connection with the sale of land.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>I. Trade Name — Name of Newspaper — Infringement—Injunction The owner of a newspaper who suspended its publication and merged it with that of another publisher, but who continued to maintain an office for the transaction of the unfinished business of the suspended paper and for the care of the business which he had built up in connection with his newspaper, and who continued to transact such business in its name, may enjoin a subsequent, rival publisher from using the name of the suspended newspaper, or a name so nearly similar to it as to be likely to confuse or mislead the patrons of the first publication, or to divert to the subsequent publisher the business patronage which the first publisher had built up through the successful publication of his newspaper in that locality for a considerable time.</p> <p>2. Same — Injunction Not Premature. Where actual damage through unfair trade practices is imminent or highly probable, the injured party is not ordinarily required to wait until he has actually suffered such damage. He may seek, at once, to forestall and prevent such damage by the aid of a court of equity.</p> <p>3. Same — Facts Show Infringement on Trade Name of Netospaper. One of the plaintiffs for several years owned and published in Coffeyville a newspaper commonly known as the “Sun,” although its formal title was “The Coffeyville, Kan. Sun.” He formed a partnership with another Coffeyville publisher who owned a paper called the “Journal.” The partners merged their papers, continued the publication of the “Journal,” and suspended the publication of the “Sun”; but its former proprietor continued to maintain an office for the transaction of its accruing and continuing business. Soon after the merger, a third publisher, who had theretofore published a free paper in Coffeyville, called “The Earth,” began the publication of a new paper formally entitled, “The Morning Sun and the Daily Earth,” but which, by the style and the arrangement of its caption would be read and named as “The Sun” and would probably mislead the public and unfairly divert the business which had been built up in and about Coffeyville in connection with the earlier publicátion of that name. Held, that the use of the word “Sun” by the third publisher as a name or part of a name for his newspaper was an unfair trade practice and was properly enjoined.</p> <p>4. Same — Petition for Injunction — Verification. A temporary restraining order ought not to issue on a petition which is not positively verified; but when, later, it is properly verified and the restraining order has given place to a temporary injunction lawfully issued, no reversible error can be predicated on the improvident issue of the restraining order.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Trial — Qualification of Jurors. A remark by a juror that the defendant’s counsel would not let him sit in the case because he had joined in an adverse verdict in another case did not indicate prejudice against counsel or constitute misconduct on the part of such juror.</p> <p>2. Same — Recovery of Money — Fraud—Instructions. Under a clear charge of willful fraud it was proper for the court to instruct on the question of fraud.</p> <p>3. Same — No Passion or Prejudice of Jury. Nothing is found in the record to indicate passion or prejudice on the part of the jury.</p> <p>4. Reference — Right to Have Reference. The code provision (Civ. Code, § 299) for the appointment of a referee in cases involving accounts does not make such appointment mandatory, and it was not error to refuse such appointment in this case.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Garnishment — Answer of Garnishee — Order of Justice of Peace — Not a Final Order. It is not error for a district court to dismiss an appeal from a judgment rendered by a justice of the peace in a garnishment proceeding, directing the garnishee to pay money into the justice’s court on a finding that the garnishee is indebted to the defendant in the action.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Master and Servant — Injuries—Election of Remedies — Stipulation to Settle under Workmen’s Compensation Act Valid. Where a workman was injured in the service of his employers under such circumstances as to give him reasonable grounds for a cause of action for damages at common law against his employers, or to base a claim against them under the workmen’s compensation act if their business was conducted under that act, and his employers in good faith believed that they were conducting their business under the provisions of that act, and had purchased and paid for indemnity insurance pursuant to that belief, although they had not formally filed their election with the secretary of state until after the workman had been injured, it was not against public policy for the workman and his employers to agree that he should waive his right to sue for damages at common law, and to claim compensation under the act in lieu thereof; and the mutual agreement of the workman and his employers that the terms of the compensation act should he used as the basis for determining the respective rights and liabilities of the parties, and to measure the compensation, if any, for the plaintiff’s injuries, was a valid, contractual engagement which the court should enforce according to its terms.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Chattel Mortgages — TJnplanted Crop — Enforceable between Original Parties A chattel mortgage upon an unplanted crop, which is afterwards planted and grown, may be enforced as between the original parties, where no rights of third persons are thereby affected.</p> <p>2. Same — Not Signed by Wife — Property Exempt. Evidence concerning a crop held to show prima facie that it was exempt, and therefore to raise an issue as to the validity of a mortgage upon it not signed by the wife of the owner.</p> <p>3. Replevin — Demand—Costs. In replevin, where the right of the plaintiff to possession is established, the matter of demand having been made prior to the bringing of th'e action can be material only upon the question whether costs should be taxed to the defendant.</p> <p>4. Same — Personal Judgment. An objection to the rendition of a personal judgment held to be without foundation in fact.</p> <p>5. Trial — Interpreter for Witness Refused — No Error. Where an Indian upon being called to the stand fails to respond to questions, and an application for the use of an interpreter is overruled, the judge stating that he has reliable information that it is unnecessary, it is incumbent upon a party complaining of such ruling to produce evidence that the witness cannot speak and understand English.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Bank Cashier — Presumptions as to His Qualifications. One who has been regularly selected to act as cashier of a state bank by the board of directors and who discharges the duties of cashier is presumed to be the holder of the number of shares of stock of the bank provided by section 522 of the General Statutes of 1915.</p> <p>2. Same — Plaintiff Properly Selected as Bank Cashier. No formal election is necessary to entitle one to hold the office of cashier of a state bank, and the statute contemplates that the selection shall be for one year. Where one has been already formally elected for a year and at the regular meeting of the directors a resolution is adopted fixing his salary for another year and he is permitted to enter upon and discharge the duties of the office, there has been a sufficient selection.</p> <p>3. Same — Wrongfully Discharged — Entitled to Damages. The cashier of a state bank, claiming that he had been wrongfully discharged as a cashier, sued to recover damages based on the amount of the salary for the balance of the term, alleging that he was able, ready, and offered to continue to perform the duties of the office. Held, that the evidence was sufficient to sustain a judgment in his favor.</p>

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

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

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

<p>OPINION ON MOTION TO AMEND MANDATE.</p> <p>Appeal from McPherson district court; Frank F. Prigg, judge.</p>

<p>OPINION ON REHEARING.</p> <p>SYLLABUS BY THE COURT.</p> <p>1. Dissolution op Partnership — Jtirisdiction of Parties — Order Affecting Real Estate in Another State. A court of equity which has obtained jurisdiction of the parties in a proceeding- to dissolve a partnership and make an accounting- of partnership affairs may make an order that consequentially affects real estate in another state, where it is enforceable against the person of the party within its jurisdiction, and to that end may compel a partner holding partnership property in his own name in another state to convey it to the firm.</p> <p>2. Same — Accoimting—Personal Judgment Against Partner. At the end of an accounting a personal judgment may he rendered, although the exigencies of the partnership business will require a further accounting of profits that will accrue before a sale of the partnership business and property can be made.</p> <p>3. Same — Appointment of Receiver — Title to Partnership Property. It is competent for a court of equity to appoint a receiver in winding up a partnership and in making a disposition of partnership assets, but it is the better practice to require a partner holding partnership property in his own name in another state to transfer the same directly to the partnership, instead of to the receiver.</p> <p>4. SameI — Effect of Disobedience of Decree of Court. In case a defendant partner refuses to assign and transfer property in another state in accordance with the decree of the court, it is competent for the court to order an accounting of the value of the property not assigned and transferred as the decree directed, and to render a personal judgment against the defendant for that value.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Sale of Oil Leases — Fraudulent Representations by Seller — Action by Purchaser to Cancel Contract — Amendment of Pleadings — Abuse of Judicial Discretion. To answers containing- allegations of new matter as a basis for affirmative relief, replies were filed denying every material allegation contained in the answers, “except such as are consistent with the allegations of the plaintiff’s amended petition.” At the trial evidence was introduced in support of the answers. After submission, but before decision of the cause, leave to amend the replies, to conform to the theory on which the case was tried, by making them general instead of qualified denials, was asked, and refused. The court returned findings of fact based on the pleadings and the evidence. One of them was that the affirmative allegations of the answers were true, and judgment was rendered accordingly. The finding indicated was not sustained by the evidence. Held, refusal of permission to amend and return of the finding constituted abuse of judicial discretion.</p> <p>2. Same The petition prayed for cancellation of a contract to purchase oil and gas leases, on the ground of fraud. The answers of the sellers prayed for specific performance. Held, although the plaintiff failed to establish the specific ground for cancellation pleaded, the defendants praying specific performance were not entitled to equitable relief unless they had already performed what the contract required of them, or unless they were able and willing and offered to do so.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Mortgage Foreclosure — Judicial Sale — Confirmation—Judicial Discretion. Where a sale of mortgaged property has been conducted in substantial conformity with law, but the sale price was greatly below its true value, the trial court is authorized to withhold confirmation of the sale and to set it aside ■ as inequitable, under section 500 of the civil code — following Bank v. Murray>, 84 Kan. 524, 528, 114 Pac. 847; Robinson v. Kennedy, 93 Kan. 514, 516, 144 Pac. 1002; Anschutz v. Steinwdnd, 97 Kan. 89, 90, 154 Pac. 252; Norris v. Evans, 102 Kan. 583, 590, 171 Pac. 606.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Bankruptcy — Claim Filed by Creditor — Dividend Accepted — Estoppel. On a salé of a stock of goods, only a part of the purchase price was paid. The vendee was given possession of the goods and the right to conduct the business, to buy and sell goods with limitations on the indebtedness that might be incurred, and the extent of the goods that> should be carried in stock. The vendor reserved the right to sell and dispose of the stock if the installments of the unpaid purchase price were not paid as agreed upon or if the other conditions of the agreement were not observed, and any surplus remaining was to be turned over to the vendee. Before all- the payments were made, the vendee failed in business and was adjudged a bankrupt. With knowledge of the contract relations between the vendor and vendee, a creditor who had sold goods on the credit of the vendee joined with the vendor in electing a referee in bankruptcy. Its claims, as well as that of the vendor, were presented to the referee and allowed, and together they procured an adjudication to be made that the vendee was the debtor and that the vendor was a general creditor of the bankrupt estate. Dividends were accepted by the creditor on the basis that the vendor was a creditor, but subsequently it brought this action against the vendor to recover the balance of its claims, on the theory that the vendor was owner of the stock and the principal debtor. Held, that the creditor is precluded from denying the facts adjudicated in the bankruptcy proceeding, and from resorting to the vendor for the recovery of its claims.</p>

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Promissory Note — Note Not Executed Under Duress. In an action on a promissory note, the evidence is held sufficient to sustain a finding against the defense that the note was executed under duress.</p> <p>2. Same — Note Given in Compromise arid. Settlement of Indebtedness— Valid Consideration. In order to increase the surplus of a state bank so that it might come within the provisions of the state guaranty law, the president and another stockholder, for no other consideration, gave their promissory note to the bank for $1,000, and with their consent the bank sold it to another bánk, taking credit in that bank for the amount of the note, and reported the deposit as a surplus and was admitted to the benefits of the guaranty law. Eighteen months later the president sold his stock, and at his request the cashier directed the bank holding the note to apply the deposit on the note, mark it paid, and return it to the makers. Afterwards, the cashier sold his stock and the bank was taken over by other parties and the facts with reference to the bank’s surplus were disclosed. Held, that the cashier acted without authority in having the deposit in the other bank applied upon the note and the note surrendered, and that there was a valid consideration for his subsequently giving a note in compromise and settlement of his liability to the bank by reason of the transaction.</p> <p>3. Same — Improper Question Submitted to Jury — Question of Law Not of Fact. In an action on a promissory note given by the cashier in settlement of his liability, under the facts stated in the above paragraph, the question whether the bank sustained a loss by the cancellation of the deposit was a question of law and not of fact, which should not have been submitted to the jury, and a finding by the jury that the bank sustained no loss by the transaction is contrary to the undisputed facts.</p> <p>4. Same —• Compromise and Settlement — Supported by Consideration. While compromises and settlements, like other contracts, must be supported by a consideration, it is enough to support the agreement that there was a doubtful question, and where the parties to a compromise act in good faith and one agrees to pay, and the other to accept a certain sum in satisfaction-of his liability upon a claim, there is sufficient consideration for the compromise.</p>

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Criminal Law — Taking Minor Fem,ale for Purpose of Prostitution — Evidence. The evidence examined, and held to be altogether insufficient to sustain a conviction on a criminal charge of feloniously taking a minor female child away from her parents for the purpose of prostitution.</p>

<p>Appeal from Mitchell district court; Nelson J. Ward, judge pro tem.</p>

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Master and Servant — Injury to Servant — Injury Did Not Arise Out of and in Course of Employment. A terminal railway company was engaged in constructing an embankment on which to lay a railroad, and a workman employed by the company in making the embankment was killed while crawling under a car in the yards of another company, at a distance of about three .hundred and fifty feet from his place of work. He had choice of several routes of travel in order to reach his work. Although the workmen and others frequently crossed the yards in which he was killed, in going to and from their work, no right of ingress or egress over them had been given to the terminal company, and that company had no interest in or control over the yards. Held, that the accident to the workman occurred while he was on his way to assume the duties of his employment, and that his injury and death did not arise out of and in the course of his employment.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Compensation Act — “Willful” Failure of Employee to Use Guard Against Accident — Statute Interpreted. The meaning of the word “willful,” as used in the statute denying compensation to a workman injured through willful failure to use a guard against accident provided by his employer (Laws 1917, ch. 226, §27), is not necessarily fulfilled by voluntary and intentional omission, but includes the element of intractableness, the headstrong disposition to act by the rule of contradiction.</p> <p>2. Same — Injuries—Not Caused by “Willful” Negligence of Employee. Findings of fact and evidence sustaining the general verdict considered, and held, the plaintiff, who was injured because of failure to replace guards which he had removed from a casing machine which he was cleaning, was not precluded by the statute from recovering compensation.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Pleadings — Demurrer to Petition Sustained — Amended Petition Filed —Demurrer to Amended Petition — Matters Reviewable on Appeal. Where a demurrer to a petition is sustained and the plaintiff thereupon by leave of the court files an amended petition amplifying but not materially changing or adding to the original allegations, it cannot be successfully urged upon an appeal taken from an order sustaining a demurrer to the amended petition, that the ruling on the first demurrer, because not appealed from, is conclusive upon the appellant as to the questions of law there involved; a sufficient reason for denying such contention is that the filing of the amended petition precluded an appeal from the order sustaining the first demurrer.</p> <p>2. 'Note and Mortgage — Default in Interest Payment — Entire Principal Becomes Due — Statute of Limitations Begins to Run. Where a real-estate mortgage given to secure a note provides that if default is made in an interest payment the principal shall at once become due, the statute of limitations begins to fun immediately upon such default, and its operation is not suspended and the renewal thereof postponed to the date of the original maturity, or of a new default, by the subsequent payment of the interest and a part of the principal, even if accompanied by an agreement, not based on any other consideration, for an extension of the time of payment to the time stated in the note.</p> <p>3. Same — Certain Letters Not an Acknowledgment of Personal Liability to Pay Note. A letter written to the owner of a mortgage by one who has purchased the mortgaged realty and become personally liable upon the debt by assuming its payment, in which he indicates an intention to pay off the lien, does not amount to such an acknowledgment of personal liability as to afford a new starting point for the statute of limitations, although it concludes with the words: “I am going to make some kind of sale or deal . . . if it does lose me considerable, so I can meet your mortgage without much longer delay, hoping to do so before this may cause you more annoyance.”</p>

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Easement — Roadway—Lands Partitioned — Rights of Allottees. When lands, which were afterwards severed by partition, were held as a single estate by the ancestral proprietor, no easement was created by his private use of a portion of his land as a roadway for the convenience of himself and family and his licensees.</p> <p>2. Same. When an estate is severed by partition without specific reference to easements for rights of way to serve the partitioned lands, easements by implication only arise when they necessarily must do so to give the allottees fair and reasonable enjoyment of their several allotments.</p> <p>8. Same — Closing Roadway — Facts Do Not Warrant An Injunction. The facts concerning the use of a roadway on and near a half-section line not regularly established nor dedicated as a public highway, and its subsequent partial abandonment because of the construction of a railroad thereon, and its later limited use by the landowner and his family and licensees, and the further fact that the partitioned lands were adequately served by regularly established highways, considered, and held sufficient to require the granting of injunctive relief to prevent the closing of the roadway by the allottee to whom the land had been apportioned when the owner’s estate was partitioned among his heirs.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Sale — “Fanehon Flour” — Flour Tendered Not “Fanehon Flour”— Buyer’s Right Not to Accept it. A seller who contracts with a buyer to sell and ship to him an article described as “Fanehon flour,” which was known to be a hard-wheat flour, is under an implied obligation to deliver to the buyer flour of that kind, and if he tenders flour not of that kind the buyer may refuse to receive it.</p> <p>2. Same — Evidence—Findings■—Flour Not “Fanehon Flour ” Under the evidence and findings, the flour tendered by the seller was not hard-wheat flour, and that was a condition precedent to the liability of the buyer for nonacceptance.</p> <p>3. Same. It is held that the evidence supported the findings, and also that the findings supported the judgment that was rendered.</p>

<p>SYLLABUS BY THE .COURT.</p> <p>Contract — Real-estate Transaction — Division of Profits — Compromise and Settlement Shown — Demurrer to Plaintiff’s Evidence. The petition prayed judgment for advancements and profits claimed to be due on account of a real-estate transaction. The answer pleaded a settlement with the plaintiffs for a stated sum, which was conceded to be due, and was deposited with the clerk. At the trial the plaintiffs admitted settling with the defendant, but declined the court’s offer to give them judgment for the amount of the deposit, with interest. Thereupon a-demurrer was sustained to their evidence, judgment was rendered accordingly, and they appealed. Afterwards they took down the deposit. Held, the appeal must be dismissed.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Will — Interpretation—Interest of Surviving Widoiv After Her Remarriage. A will by which a testator, who was survived also by several children, left all his property to his wife “for her use during- the rest of her life, provided, she does not remarry,” the language quoted being followed by this provision: “It is my will and wish that she be allowed the income from the said property only and at her remarriage or death, then the same shall be divided according to the laws of Kansas.” Held, that upon its face the will is to be construed as meaning that upon the remarriage of the widow the property is to be distributed as though her husband had died intestate, she receiving half of it; and that the fact that for several years prior to the death of her husband she had been weak mentally is not a sufficient basis for interpreting the language used as showing a purpose on his part to deprive her of all interest in the property in the event of her marrying again.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Compensation Act — Injuries—No Notice of Accident Given Within Ten Days. In an action under the workmen’s compensation act, the answer was a general denial. On the trial it was shown that no notice of the accident was given to the employer within ten days as required by section 5916 of the General Statutes of 1915. No instructions were asked with respect to the question of notice and, the record failing to disclose that the question was called to the attention of the trial court, held, that it is too late to raise the question in this court.</p> <p>2. Same — Evidence—Dying Declarations. The rule, announced in Thurs-ton v. Fritz, 91 Kan. 468, 138 Pac. 625, that dying declarations are admissible in civil cases, followed and applied in a workmen’s compensation case.</p> <p>3. Same — Questions of Fact for Jury. The evidence is held sufficient to take to the jury the question of the declarant’s fear of impending death and the question of the credibility of the declarations.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Compensation Act — Death of Workman — Injury Did Not Arise Out of the Employment. The deceased, with another Mexican, was ’engaged in trucking livers in the defendant’s packing house. An altercation occurred between him and a colored ox-tail trucker resulting in a fight which was reported to the foreman. Shortly after this the colored man and another workman were engaged in trucking ox tails, when the deceased and his partner coming along within ten or twelve feet of them were abused and called names by the colored workmen. The two Mexicans left their truck and approached the colored men and engaged in an altercation with them, during which one of the colored men stabbed and killed the deceased. Held, that the injury did not arise out of the employment, and, therefore, the defendant is not liable.</p>

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

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

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. City Ordinance — Licensing Taxicab Drivers. A city ordinance is not void because it grants a license to one and denies it to another, where the grant and the restriction are in the interest of the public.</p> <p>2. Same — Relating to Taxicab Stands in Front of Private Property. A city ordinance which in effect grants special permit to licensed hack drivers who can procure the consent of the abutting property owners, to stand their vehicles in the street in front of such property is not unconstitutional on the ground that it grants special privileges, although the same privilege is not granted to those who do not obtain such consent.</p> <p>3. Same — Exclusive Privilege to Hackmen to Go Upon Railroad Property to Solicit Business. A railway company may grant an exclusive privilege to one and exclude all others who desire to go upon its premises for the sole purpose of soliciting customers or business.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Fraternal Beneficiary Societies — Laws Construed Most Favorably to Members. Rule applied that laws of a benefit association are to be construed most favorably to members when their rights as holders of benefit certificates are affected.</p> <p>2. Same — Constitution and By-laws Interpreted — Right of Members to Appeal to Supreme Council. The constitution and by-laws of a benefit association interpreted, and held, members of a subordinate council have a right to appeal to the supreme council from the decision of a committee having jurisdiction of the subject dissolving the subordinate council. Held further, the members have a right, in such a case, to petition the supreme council for redress of grievance.</p> <p>3. Same — Mandamus to Restore Charter to Subordinate Council — Writ Denied. Writ of mandamus to restore the charter of a dissolved subordinate council denied to members who did not invoke remedies provided by the laws of the association.</p>