Volume 107 — Kansas Reports

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

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

<p>OPINION ON REHEARING.</p> <p>SYLLABUS BY THE COURT.</p> <p>1. Agency — Authority and Powers of a Local Agent of Fire Insurance Company. A license issued by the state insurance department to the local agent of an insurance company at the company’s request is merely a regulatory permit; but neither the license itself nor the statute concerning its issue has the effect of defining the agent’s powers to bind his company, nor do they change the general law of agency. His powers are merely those which his company expressly or impliedly confers upon him, according to the general law of principal and agent.</p> <p>2. Pire Insurance — Terms of Policy — Premium Note in Default — Lapse of Policy — Antidiscrimination Law. Where an insurance company contracts to carry the fire risk on property for a term of years, and the insured gives his promissory note to pay for .such insurance, and the insurance contract provides that the company shall not be liable for any loss or damage that may occur to the property while the note given for the premium remains in default, it is not a substantial violation of the antidiscrimination law, when a fire loss occurs during the default of the maker of the note and while the insurance is suspended, for the insurance company in denying its liability to offer to surrender the note in exchange for a surrender of the insurance policy, without claiming any portion of the insurance earned before the insured defaulted in the payment of his note.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Promissory Notes — Notes Held for Collection — Plaintiff Not a Holder ' in Due Course — Instructions. In an action upon promissory notes brought against the makers by one claiming to be a holder in due course, the defendants pleaded that the plaintiff held them merely for collection, and the case was tried largely on that issue. The jury were instructed that if the defendants’ claim in this regard were true there could be no recovery. It is held that, whether or not one holding a note for collection may ordinarily maintain an action thereon in his own name, the circumstances of this case do not justify a reversal by reason of that instruction.</p> <p>2. Contract — Sale of Real Estate — No Proper Tender of Deed and Abstract of Title. Where a contract for the sale of real estate provides that upon the payment of a series of notes then executed by the purchaser, maturing at different times, and upon the execution of new notes for the balance of the price, the vendor is to deliver a deed and an abstract showing- a clear title, and after the maturity of all the notes which were g-iven when the contract was entered into, no payment having been made, action is brought upon them by one not a holder in due course, it is a sufficient defense to show that the only offer made by the vendor to deliver a deed and abstract of title had been accompanied by a refusal to permit the purchaser to retain the abstract long enough to allow a reasonable time for its examination.</p> <p>3. Trial Various trial rulings held not to justify a reversal.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Trust Funds — Power of City to Accept a Bequest of Trust Funds for Pxiblic, Charitable Use. A Kansas municipality has power to accept a bequest of a trust fund and to administer it in perpetuity if the purpose of the trust created by such bequest is for a public, charitable use.</p> <p>2. Same — When Trust Fund is for Public, Charitable Use. A trust fund is for a public, charitable use where its purpose is to buy food and fuel for needy and deserving inhabitants of the municipality to which the trust fund is bequeathed and by which it is to be administered.</p> <p>3. Same. A trust fund is for a public, charitable use where its purpose is to aid any deserving person suffering from cancer to secure treatment for that disease in its early and probably curable stages.</p> <p>4. Same — Provision of Will — Not Ambiguous. The- provisions of a will making disposition of the residue of an estate after all the other provisions of the will are executed and fully discharged, examined, and no ambiguity discerned therein.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Action- — •Ejectment■—Partition—Accounting. A ruling admitting evidence is held to have been nonprejudicial.</p> <p>2. Evidence — Transaction with Person Since Deceased. The rule that the statute relating to the incompetence of a party under certain-circumstances to testify concerning transactions with a person since deceased may be waived by the adverse party examining him as to a part of the transaction involved, is applied in this situation: A party testified in his own behalf that he had seen a deed (under which he claimed) delivered by the grantor (his grandmother) to the grantee (his mother). On cross-examination it was brought out that just before the delivery he had gone to the grantor’s house, found the deed, and brought it to her. It is held that on cross-examination he was properly permitted to testify further that the grantor had told him where the deed was and sent him to get it.</p> <p>3. Same. In the circumstances above stated it is held that the witness’ getting the deed for his grandmother and her delivering it to his mother are not so connected as to cause the delivery to be regarded as a transaction to which he was a party, and therefore to render- him incompetent to testify concerning it; nor is his testimony to be rejected on the theory that its admission would be a violation of the spirit of the statute.</p> <p>4. Same — Unsworn Declaration of Party in Possession of Land. Testimony of unsworn declarations is held not to have been of such a nature as to be rendered admissible because of the speaker being in the possession of the land in controversy.</p> <p>5. Practice — Instructions. Rulings in the giving and refusing of instructions are held not to warrant a reversal.</p> <p>6. Same — Omission to File Pleadings- — Jury Trial. The fact that some of the defendants whose interests were identical with the plaintiffs omitted to file pleadings, is held not to have resulted in a denial to the appellants of their right to a trial by jury with respect to their controversy with them.</p> <p>7. New Trial — Newly Discovered Evidence. The newly discovered evidence offered is held not to have required the granting of a new trial.</p> <p>8. Trial — Finding of Facts. Findings of fact are held not to have been demonstrably wrong.</p> <p>9. Same — Mistake in Computation — Unimportant. A mistake in computation in the general verdict is held not to have been important.</p> <p>10. Same — No Error in Accounting. The result of an accounting is held not to show error.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Second Appeal — Issues Involved on Former Appeal Settled — Creditor’s Bill — Fraudulent Transfer of Land — Judgment Lien. On a former appeal (Kinkel v. Chase, 102 Kan. 275, 169 Pac. 1134) a new trial was ordered on a single .issue of fact. Held, that complaints of trial errors involving matters that were settled by the former appeal will not be considered, and there being sufficient evidence to sustain a finding by the court on the one question sent back for trial, the judgment is affirmed.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Deed — Verbal Assumption of Mortgage by Grantee. Where mortgaged property is conveyed and the deed contains no recital that the grantee assumes and agrees to pay the encumbrance, parol evidence is competent and admissible to prove such agreement; and when thus established, the grantee is bound thereby.</p> <p>2. Same — Assumption of Mortgage by Grantee — Parol Evidence The evidence to prove a verbal agreement by a grantee of mortgaged property that he would assume and pay the mortgage, examined, and held to meet the requirement of the rule that the proof of such parol obligation must be clear and convincing.</p> <p>3. Same — Pleadings■—Issues Properly Raised. The pleadings sufficiently raised the issue involved to require the overruling of appellant’s objection to the introduction of evidence.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Negligence — Destruction of Oil Well — Explosion of Nitroglycerin— Measure of Damages. The evidence considered in an action for damages for destruction of an oil well by explosion of a shell of nitroglycerin while it was being lowered into the well by the shooter, and held, the defendant was not prejudiced by refusal of an instruction that the measure of damages was the cost of drilling another well, and by giving an instruction under which the jury • allowed damag'es equivalent to the cost of drilling the destroyed well and expenses incurred in trying to save it after the explosion.</p> <p>2. Same — Demurrer to Evidence Properly■ Overruled — Expert Witnesses— Instruction. The proceedings examined, and held, a demurrer to” plaintiffs’ evidence was properly overruled, certain witnesses were qualified to give expert testimony, their'testimony did not invade the province of the jury, and an instruction which told the jury certain facts, if found, constituted negligence, did not invade the province of the jury.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Master and Servant — Servant Wrongfully Discharged — Measure of Damages — Pleadings—Instructions. Where an employee who was discharged before the expiration of the term of his employment recovers of his employer what his salary would have amounted to less what he was able to earn during the remainder of the period, the judgment being based upon a verdict which necessarily implies a finding, after a full and fair hearing of the issue, that the discharge was wrongful, a reversal will not be ordered because the petition did not allege that fact, or because in the instructions language was used indicating the adoption of the theory of constructive service, even assuming that theory to be unsound.</p> <p>2. Same — Amount of Recovery — Computation. The amount of recovery in case of a finding in favor of the plaintiff upon the issue referred to, held to have been a matter of computation, properly determined by the trial court.</p> <p>3. Same — Interest AlloivecL on Amount of Recovery. Where there is no real controversy over the amount of recovery, and the verdict expressly excludes interest, a judgment will not he reversed because of an addition on that account made by the court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Real-estate Agent ■ — ■ Listing Property for Sale — Not an Exclusive Agency A landowner, by merely listing his property for sale with a broker, does not give the broker the exclusive agency to sell, and such an agency may be revoked at any time.</p> <p>2. Same — Land Sold by Owner — Agent Not Entitled to Commission. Where the owner of land lists his property with a broker who finds a purchaser, but fails to notify the owner until after the owner has sold the property to another, the broker is not entitled to a commission. {Helling v. Darby, 71 Kan. 107, 79 Pac. 1073.)</p> <p>3. Same — Action for Commission — Demurrer to Answer Wrongfully Sustained In an action to recover a 'real-estate broker’s commission an answer admitting that the defendant had listed the property with the plaintiff to find a purchaser, and alleging that before he was notified by the plaintiff that he had found a purchaser, the defendant had sold the property to another, is not subject to demurrer on the ground that it fails to state a defense to the action.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Bank Check — Authority of Agent to Indorse Check Drawn in Favor of His Principal A corporation of Michigan sent its agent to Kansas to contract for and supply weather strips to such customers as he could induce to purchase them. The form of contract furnished to and used by him provided for payment in cash on completion of the work. On completing a contract with one customer she gave him a check on a local bank whose cashier knew he had been in the vicinity for some time filling similar contracts. The agent indorsed the check: “Chamberlin Metal Weatherstrip Co. By Sprague T. Haskell, Agent,” and the bank paid it to the agent, who absconded with the proceeds. Held, that the principal cannot compel the bank to pay to it the amount of the cheek thus indorsed and collected by its agent.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Negligence — Death of Section Foreman — No Actionable Negligence Proven. In an action under the federal employers’ liability act to recover for the death of a section foreman who, with the other section men, rode on a hand car following a freight train into a station and stopped his car within a car length or two at the rear of the train, which was backed up without the giving of any signal and struck and killed the foreman, held, on the facts stated in the opinion, the railroad company owed the deceased .no duty to warn him of the backward movement of the train.</p>

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

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

<p>Appeal from Wilson district court; Shelby C. Brown, judge.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Casualty Insurance — When Liability of the Casualty Company to the Insured Matures. A condition of a casualty insurance policy was to the effect that the casualty company should not be liable for any loss under the policy until after a final judgment had been rendered in a suit against the insured for damages and the loss so adjudged had been paid in money. Held, that the provision is valid and that there must be substantial compliance with it to mature a liability of the casualty company to the insured.</p> <p>2. Same — Final Judgment Against the Insured Paid — Liability of Casualty Company. The insured gave its promissory notes to the judgment creditors, who thereupon accepted the same as payment and entered satisfaction of the judgments, but whether this constituted a substantial compliance with the provision as to payment is not determined, as the promissory notes which were afterwards reduced to judgments against the insured were actually paid in money by the insured, and it is held that such payments accomplished the purposes of the contract provision and amounted to a substantial compliance with the insurance contract.</p> <p>3. Same — Limitation of Action — Stipulation in Insurance Contract Invalid. A stipulation in an insurance contract that an action thereon can only be brought within ninety days after the date of a judgment for the loss, is repugnant to the provisions of section 17 of the code and is therefore invalid.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Conversion — Tenant’s Share of Crop — Excessive Verdict. The proceedings examined, and held, the defendant suffered no material prejudice on account of instructions given, but the verdict was excessive.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Minor — Neglected Child — Committed to Children’s Aid Society — Jurisdiction of District Court. Where the juvenile court has, in accordance with the statute, committed a dependent and neglected child to the care of a children’s aid society, a court which had previously granted a divorce to the parents of the child thereby loses jurisdiction to control its custody, and in a hearing of the application of one of the parents in relation thereto cannot require an officer of the aid society to disclose its whereabouts.</p>

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>L. Practice — Action Voluntarily Dismissed — New Action Begun — Error in First Action, if Any, Waived. Voluntary dismissal of their action hy the plaintiffs after denial of their motion for a continuance, and immediate commencement of a second action for the same relief, waived error committed in denying the continuance.</p> <p>2. Same — No Abuse of Judicial Discretion. The proceedings examined, and held, the court did not abuse its discretion in refusing to reinstate the first action.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Promissory Note — Part of Assets of Bank — Former Stockholders Had No Interest Therein. Among the assets of a state bank was a promissory note that was uncollectible, and it was charged to the profit and loss account, under an agreement among the stockholders to consider the note as a dividend, and if it were ever collected, the proceeds should belong to them. Subsequently they sold their stock, and long afterwards, claiming to own the note, brought suit thereon against the maker. Their evidence showed that no dividend was, in fact, declared, and that none could have been lawfully declared at the time of the transaction under which they claim, and also that they never paid anything to the bank to take up the loss occasioned by the note. Held, that the note was part of the assets of the bank, and that the former stockholders had no interest therein.</p> <p>Issues — Between Codefendants — Codefendant May Have Attachment Against Property of His Codefendant. Where one who is joined as a defendant files a cross petition against his codefendant, his relation to the latter is that of a plaintiff, and he is entitled, on proper showing, to have an attachment issued against the property of his codefendant.</p> <p>3. Trial — No Error in Record. Various complaints of error raised by the defendant (maker of the note), held to be without merit.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Declaration of Trust — Agreement Created a Trust — Not a-Partnership. An agreement and declaration of trust provided for the transfer of property to trustees who were given power to issue negotiable certificates to shareholders, carry on a general business, invest and reinvest the funds of the estate at will, pay dividends at their discretion and make proportionate distribution of the assets among the shareholders at the end of twenty years. The shareholders had no authority to instruct or direct the trustees and had no control, either as individuals or in association, except to elect the trustees, and no personal liability could arise against them upon any contract, obligation or action entered into or taken by the trustees, and persons dealing with the trustees could only look to the trust estate for satisfaction. Held, that the agreement created a trust and not a partnership and that the shareholders cannot be held individually liable for the obligations of the trust.</p> <p>2. Same — Unincorporated Company — Application for Permission to Sell Stock — Must Conform to Regulations Imposed by Statute on Corporations. The trust, although an unincorporated company, is deemed to be a corporation within the meaning of section 6 of. article 12 of the state constitution, since the agreement under which the company is organized gives it powers and privileges not possessed by individuals or partnerships, and therefore it can only sell securities and stock within the state by conforming to the regulations imposed by statute upon corporations.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Oil and Gas Lease — Joint Enterprise — No Partnership Created. Under the evidence it is held that the joint enterprise in which the parties herein were engaged did not constitute a partnership.</p> <p>2. Contract. — Developing Oil and Gas Lease — Breach of Contract — Lease Forfeited. The evidence is deemed sufficient to support the contention that the plaintiffs were entitled to have the rights of the defendant in an oil and gas contract adjudged to he forfeited because of the noncompliance of the defendant with the terms of the contract.</p>

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

<p>Appeal from the court of industrial relations and original proceeding in mandamus.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Drainage District — County Commissioners Exercise No Judicial Functions. A board of county commissioners does not exercise judicial functions in sustaining a demurrer to a protest against an application for the establishment of a drainage ditch under sections 3874-3889 of the General Statutes of 1915.</p> <p>2. Same — Right of Appeal from County Commissioners. Section 564 of the code of civil procedure does not give a right to an appeal from such an order as is mentioned in the first paragraph of this syllabus.</p> <p>3. Same — Order of an Administrative Board Not Res Judicata. An order made by an administrative board or officer does not preclude a subsequent order on the same matter by the same board or officer on a proper application therefor.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Building Contract — Alleged Oral Agreement to Protect Adjacent Stone Wall Not Proven. ■ The record examined, and held sufficient to sustain a judgment for defendant in an action against a contractor for an alleged breach of an oral contract to protect the stone wall of a building adjacent to the place where the contractor was engaged in excavation- and foundation work for a new building.</p> <p>2. SAUSr-Instructions: ■ The-instructions to the jury examined, and when read and construed together are held to fairly state the issues and the pertinent law, and to be free from material error.</p>

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Chattel Mortgage — Mutual Mistake — Reformation in Replevin Action. In a suitable case a chattel mortgage may be reformed for mutual mistake, in an action of replevin based thereon.</p> <p>2. Same — -Executed in Duplicate — Mistake — Reformation. Where a chattel mortgage is executed in duplicate, the mortgagor signing both papers, one being filed with the register of deeds, the other, which is retained by the mortgagee, may be reformed by the restoration of words printed in the blank form through which a line had inadvertently been drawn, such reformation being made effective as to execution creditors as well as to the mortgagor.</p> <p>3. Same — Each Duplicate Copy an Original. In the situation stated each paper is an original, and the instrument filed with the register could be enforced without a formal correction of the other.</p> <p>4. Same — -Property Sufficiently Described. A chattel mortgage is not void for want of a more definite description, which describes the property covered as all the personalty of every kind owned by the mortgagor, and shows that it is in his possession and in a certain county.</p> <p>5. Replevin — Demurrer to Petition Erroneously Sustained. Inasmuch as the sustaining of a demurrer to the petition in a replevin case is held to have been erroneous, there is no occasion for reviewing the refusal of the court thereupon to inquire into the right of the de- ■ fendants to a return of the property.</p>

<p>Appeal from Labette district court; Elmer C. Clark, j udge.</p> <p>(Original opinion filed but not reported.)</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Negligence — Sale of Coal Oil Mixed with Gasoline — Explosion of Lamp — Evidence Insufficient to Show Negligence. Plaintiff was injured by the explosion of a coal-oil lamp, and sued the defendant, a wholesale dealer in gasoline and coal oil, alleging that defendant had carelessly mixed a large quantity of gasoline with coal oil and negligently sold and delivered some of the product as high-grade coal oil to the retail grocer from whom it was purchased, and that the mixture of gasoline caused the explosion which injured her. On the trial it was conceded that at defendant’s place of business several thousand gallons of kerosene from a tank car had been, by mistake, loaded into a tank containing gasoline and that some of the contents was sold to the trade as gasoline. The principal issue of fact was whether any of this mixture was sold to the trade generally or to the retail grocer in question as coal oil. Upon an examination of the record it is held that there was no substantial evidence, direct or circumstantial, tending to prove that fact, and therefore plaintiff failed to prove her cause of action.</p> <p>2: Same — Incompetent Evidence to Show Negligence Alleged. Over defendant’s objections plaintiff was permitted to prove that shortly after the accidental mixture of gasoline' and coal oil at defendant’s plant other persons purchased high-grade gasoline from the defendant which contained large quantities of coal oil. Held, that the testimony was not admissible, for the reason that evidence of defendant’s negligence in selling for coal oil a mixture containing gasoline could not be established by proof that it was negligent in the sale of gasoline.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Workmen’s Compensation Act — Death of Workman — Unlawful Wife Not Entitled to Compensation — Judgment—New Trial. A woman who claimed to be the wife and sole dependent of a deceased workman recovered judgment for his death against his employer under the workmen’s compensation act. The woman died, and after her death the judgment was revived in the name of her administrator and that of the deceased workman, and the administrator and guardian of a minor child of the deceased was substituted for the plaintiff. On a motion for a new trial, it was shown that the plaintiff was not the wife of the deceased workman, that another woman then living was his wife, and that the plaintiff had knowledge of that fact. Held, that the judgment should have been set aside, and that a new trial should have been granted.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Written Contract — Promise to Pay for Past and Future Services — ■ Sufficient Consideration — Contract Valid. A contract in which a sick and helpless old lady agrees to pay $11,000 to a young woman for service rendered in the past and to be rendered in the future during the life of the old lady, has a sufficient consideration and is not unreasonable, unconscionable, or void, where it had been understood between the parties that the past service should be paid for, although the old lady provided a home for and raised the young woman.</p> <p>2. Same. A contract to pay a certain sum for service may be proved and allowed as a claim against the estate of the party contracting to pay, and may be collected from the estate in the same manner as any other claim of the same class, although the payment of the claim may exhaust all the assets of the estate.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Highway — Surface Oil Pipe — Escaping Oil — Fire — Damages — Demurrer to Evidence. There was no error in overruling the defendant’s demurrer to the plaintiffs’ evidence.</p> <p>2. Same — Incompetent Evidence. There was evidence from which the jury could ascertain the value of the machinery destroyed, and there was no reversible error in the admission of incompetent evidence.</p> <p>3. Same — Instructions. There was no error in refusing to give requested instructions.</p> <p>4. Same — Motion for Judgment on Findings. It was not error to deny the defendant’s motion for judgment on the findings of the jury.</p> <p>5. Same — Motion for New Trial. The motion for a new trial was properly overruled.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Written Contract — Compensation, for Services — Continuing Contract —Pleadings—Evidence. The petition of the plaintiff herein examined, and held to be sufficient to warrant a, recovery for the services rendered by him to the defendant under a written contract which was pleaded, and further that the allegations were sufficient to admit of evidence that the parties treated the contract as a continuing one, and justified a recovery for services rendered beyond the term specified in the written contract.</p> <p>2. Same — Evidence Supports the Judgment. The evidence is held to be sufficient to sustain the findings of the jury and the judgment of the court.</p> <p>3. Same- — Evidence — Authority of Secretary of Defendant Company. Under the objection that was made, it is held that the questioned testimony of statements and directions given by the secretary of the defendant company, who was a director and member of the executive committee of the company, as to plaintiff’s employment, was admissible.</p> <p>4. Same — Certain Evidence Properly Admitted., The admission of stubs of checks which corresponded with the checks themselves that had already been received in evidence, was not error.</p> <p>5. Same — Exclusion of Evidence. No error was committed in excluding a letter written by an officer of the defendant to its own attorneys respecting a pleading filed in the case.</p> <p>6. Same ■— Self-serving Declarations. Self-serving declarations in the minutes of a private corporation are not admissible in its favor as against third parties not privies to the entries.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Real-estate Agent — Purchaser Produced — “Option Contract” Entered Into — Right to Commissions. Where a broker who has been employed to find a purchaser for real estate produces a prospect with whom the owner enters into a contract which otherwise would amount to one for a sale, its character as such is not necessarily lost, and the right to a commission defeated, by the mere fact that it reserves to the proposed buyer the right to decline to complete the purchase, the owner in that event to retain part payments already made.</p> <p>2. Same — “Option Contract’’ Between Landowner and Purchaser Constituted a Sale. The evidence is held to show prima facie that a written contract entered into by the owner of real property and a prospective buyer was one for a sale, notwithstanding it described itself as an option agreement, contained no promise on the part of the' prospective buyer to complete the purchase, and enabled him after an occupancy of three years to escape further liability by turning back the property, the owner to retain all payments that had been made. Among other circumstances regarded as justifying this view are these: The contract included an assumption by the buyer (unqualified unless by inference) of an existing mortgage, and of the payment of taxes and insurance; this mortgage was given to raise money to erect a building suitable to the buyer’s needs; the’ buyer took possession, installed expensive machinery, and kept up the payments at least until the time of the trial, such payments being considerably in excess of the rental value.</p> <p>3. Same — Amount on Which Commissions Should Be Based. Where property is listed with a real-estate broker for sale for a stated amount, which includes an existing mortgage, the commission, unless for some special reason to the contrary, should be based on a sale for that amount. But where, in order to promote the sale, money for improving the property is raised by a mortgage executed by the owner and gurante'ed by the buyer, who assumes its payment, the commission should not be increased on that account unless an agreement to that effect may be implied from other circumstances.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Compensation Act — Injuries on Oil and Gas Drilling Machinery— Demurrer to Plaintiff’s Evidence Overruled. The evidence of the plaintiff was sufficient to prove that E. L. Fairbanks, J. M. Clover, D. Vensel, Frank Wolfe, and D. B. Golden were operating the oil and gas lease and the drilling machinery thereon, on which the plaintiff was injured, and was sufficient to justify the court in overruling their demurrer to the plaintiff’s evidence.</p> <p>2. Same — Liability of Operators of Drilling Machinery — Subcontractor. The evidence was not sufficient to establish that the plaintiff, when he was injured, was employed by a subcontractor; but even if he were so employed, the parties named in the first paragraph of this syllabus were liable to the plaintiff for compensation under section 5898 of the General Statutes of 1915.</p> <p>3. Same — Evidence—Subcontractor. There was not sufficient evidence to show that the plaintiff was a subcontractor.</p>

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

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Oral Contract — To Leave Property to Plaintiff — No Material Vari- ■ anee Between Petition and Evidence. A difference between the date and character of the contract shown by the evidence and that pleaded is held not to require a reversal, because it doe's not appear that any prejudice resulted.</p> <p>2. Same — Contract Performed by Plaintiff — Evidence. The evidence is held sufficient to justify findings that when the plaintiff was 14 years of age a contract was made between him and his mother on the one hand and the decedent whose estate is in controversy on the other, that at the death of the latter the plaintiff was to have all the property he left, in consideration of remaining with him and working for him until the plaintiff should come of age, and that the plaintiff had carried out the agreement on his part.</p> <p>3. Same — Contract Not Inequitable — Not Within Statute of Frauds. It is held that enforcement of the contract referred to should not be refused either on the ground of inequity or because of the statute of frauds.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Sale op Real Estate — Property Listed With Agent — Agent Without Authority to Make Binding Contract with Purchaser. Correspondence between a real-estate broker and the executor of an estate with authority under the will to sell real property, is held to show a mere listing of the real estate with authority in the broker to find a purchaser, and held that a written contract made by the broker with a purchaser is not binding upon the executor, and (following Haggart v. King, ante p. 75; Wiggam v. Shouse, 105 Kan. 637, 185 Pac. 896, and authorities cited in those cases) further held that the broker had no authority to bind the executor by a written contract with a purchaser.</p> <p>2. Same — No Ratification of Contract by Principal. In an action to enforce such a void contract, it is held that the evidence is sufficient to sustain a finding that the executor had not ratified the contract.</p> <p>3. Same — Cancellation of Deed and Release of Mortgage Properly Decreed. The evidence is further held to sustain a judgment for the cancellation of the executor’s deed which the purchaser obtained from a bank and placed of record, and for the release of a mortgage he had placed on the land.</p>

<p>OPINION DENYING A REHEARING.</p> <p>SYLLABUS BY THE COURT.</p> <p>1. Deed — Want of Consideration — A Gift. A contention that a deed was based upon a valuable consideration is held to be untenable because' of a specific finding against it.</p> <p>2. Same — Former Decision Distinguished. A decision contrary to that reached is held not to be required by former rulings.</p> <p>3. Same — Interpretation of Will — Effect of Former Decisions of This Court. The fact that a will was drawn and the testator died after a decision had been made by this court announcing a rule of interpretation applicable thereto, and before the rendition of another decision assumed to be in conflict therewith, is not a sufficient reason for following the rule first announced rather than the later one. If the second decision is regarded as overruling the first, the accepted theory is that the first was wrong — not that a change had taken place in the law. The earlier rendition of an erroneous decision could not affect the matter unless in a situation where it might have a bearing upon the testator’s actual intention.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Tax Title — ■Wife Disqualified to Acquire Tax Title to Husband’s Land. Where a husband and wife occupy a farm in which he has a life estate, with remainder to his children, and the wife shares in its management and proceeds, keeping stock of her own thereon, she is disqualified to acquire a tax title thereto based upon taxes which accrued while these conditions existed, and paid for out of a fund derived from its operation.</p> <p>2. Same — Evidence■—Findings. The evidence is held to support the findings.</p>

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

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

<p>opinion denying a rehearing.</p> <p>SYLLABUS BY THE COURT.</p> <p>1. Service op Process — Telephone Company. The ruling on a motion to set aside service is adhered to.</p> <p>2. Same — Motion for Judgment on Findings — No Forfeiture of Bight to Question Sufficiency of Service. A defendant who moves for a judgment in his favor on the special findings of the jury, and upon appeal asks this court to direct the sustaining of the motion, is not to be regarded as thereby seeking affirmative relief and so forfeiting his right to ask a review of theu overruling of his objection to the sufficiency of the service upon him.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Verdict — Judgment—New Trial Granted — No Error. A judgment granting a new trial will not be reversed where error in granting it is not shown, and there is nothing to indicate that the new trial may not have been granted because the court was unable to approve the decision of the jury on a disputed question of fact.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Oil and Gas Lease — Default of Lessees — Cancellation of Lease. Under the facts shown, it was not error to decree cancellation of the oil and gas lease involved. (Doornbos v. Warwick, 104 Kan. 102, 111 Pac. 527.)</p>

<p>SYLLABUS BY THE COURT.</p> <p>Farm Crossing — Over Railroad Right of Way — Full Compensation for Right of Way Previously Paid to Landowner — Writ of Manda/mus Denied. Where a railway company acquired a right of way across a farm in 1885, and at that time paid the owner the full compensation for all the damages, matured, continuing and prospective, which he thereby sustained, the railway company cannot be compelled, under a statute enacted many years later, to furnish a crossing over the railway and to construct it at its own expense to connect the two parts of the farm divided by the railway, since such an application of the after-enacted statute would deprive the railway company of its property without compensation, and deny to it that equal protection of the law which is guaranteed by both the state and federal constitutions.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Partnership — Liquidation of the Business Intrusted to One Partner- — • Accounting and Settlement Between Partners. Where by agreement of two partners their partnership business is turned over to one of them for the purpose of settling its outstanding liabilities and collecting its claims and accounts and winding up its affairs, a cause of action will lie on behalf of the liquidating partner against the retiring partner for the latter’s share of the ascertained liabilities of the partnership which have been paid by the liquidating partner.</p> <p>2. Same — Action for Accounting — Limitation of Action. Under the circumstances stated in the first paragraph of the syllabus, the statute of limitations does not begin to run until the business has been wound up by the liquidating partner and the liability of the retiring partner ascertained.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Fraternal Benefit Insurance — False Statements in Application for Certificate Avoid the Certificate. The law declared in the syllabus of the preceding- case (Glasgow v. Woodmen of the World, ante, p. 354) is applied, and further held, that questions asked upon an application for a beneficiary certificate as to whether or not the applicant ever had certain diseases, and whether he had ever consulted or been treated by a physician for any disease or injury during- the preceding five years, are material, and that findings showing that his answers to these questions were false operate to annul the certificate.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Motion to Set Aside Judgment — Defendant Wholly in Default. The proceedings examined, and held, the court did not abuse its discretion in refusing to set aside a judgment regularly rendered against the defendant, who, though personally served, did not plead or appear.</p>

<p>, SYLLABUS BY THE COURT.</p> <p>I. Grain Contract — Initiated by Telephone — Confirmation by Letter— Instruction. The rule that in certain circumstances the receipt without objection of a letter of confirmation undertaking to state the terms of an oral contract may estop the recipient to question its accuracy, was not qualified by a decision affirming a judgment appealed from upon the ground, among others, that error against the appellant had been committed by the giving of an instruction that the jury might consider confirmations sent to and received by him in determining whether or not oral contracts had previously been entered into..</p> <p>2. Same — Petition—States Cause of Action with Sufficient Clearness. It is not a valid objection to a petition declaring upon a contract originating in an oral agreement confirmed by a written statement of its terms, that it does not clearly show whether or not the pleader regarded the contract relied upon as one in writing. It is held that the meaning of the written confirmation here involved is not so obscure as to interfere with its enforcement.</p> <p>3. Same — Effect of Provisions in Letter of Confirmation Different from the Oral Agreement. One of the parties to an oral contract who receives from the other, without making objection thereto, a letter of confirmation undertaking'to state its terms, where the circumstances are such that his assent is to be implied, cannot avoid the effect of any of the provisions of the writing on the ground that they differ from those of the oral agreement as pleaded by the adverse party, or relate to matters that were not mentioned therein.</p> <p>4. Same — Contract Valid — No Wager Contract. A provision of a contract for the sale of grain to the effect that if delivery is not made at the date named the deal shall be considered open until the seller gives notice to the contrary, and that in the meantime upon the seller offering to deliver the buyer may elect to accept or refuse, is not open to the objection that it amounts to a mere wager.</p> <p>5. Same — Extension of Contract — Notice of Extension. Under such a contract as that referred to in the foregoing paragraph, where after the seller’s default the buyer gives written notice of an extension under such circumstances that the seller’s assent thereto is to be implied, the resulting contract extending the time of delivery is supported by a sufficient consideration.</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 Linn district court; Edward C. Gates, judge.</p>

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Mandamus — High School Established in County of Less Than 6,000— Existence Not Affected by Increase in Population — Construction of Statutes. By the enactment of chapter 180 of the Laws of 1897, as amended by chapter 433 of the Laws of 1903 (Gen. Stat. 1915, § § 9305-9310), the legislature provided for the establishment of permanent county high schools in counties having a population of less than 6,000, and where a county high school has been duly established under the statute, its existence is not affected by an increase in the population of the county above the limit named in the statute.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Criminal Procedure — Appeal by The State “Upon a Question Reserved by the State.” An appeal “upon a question reserved by the state” (Crim. Code, § 283) may be taken from an order overruling the objection of the state to evidence offered by the defendant on the</p> <p>. trial of a criminal charge, and from instructions given by the court to the jury. The appeal may be taken after the jury has disagreed and after the cause has been continued to another term of court for trial.</p> <p>2. Same — Homieide—Self-defense—Evidence of Violent, Turbulent Acts of Deceased May Be Admitted. On a trial for murder, the defendant, after he has introduced evidence tending to prove that he ■ acted in self-defense, may, for the purpose of showing that he took the life of the other under a reasonable apprehension of danger to his own life, introduce evidence to show that he had heard of particular acts of violence on the part of the deceased, and that the deceased was a turbulent, quarrelsome, and dangerous man.</p> <p>3. Same — Instruction—Right to Arm One’s Self in Anticipation of an Altercation. It is error to instruct a jury that a defendant, who has had a dispute with another concerning the ownership of property which each claimed and which is in the possession of the other, may arm himself and go to the home of the other to obtain the property, when the defendant has information that the other person is a violent man, and has made threats against the defendant, and when the defendant has reason to believe that a visit to the home of the other person will result in an altercation and in a possible encounter in which it may be necessary for him in self-defense to take the other person’s life.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Injunction — Election of Rural High-school Officers — Questioning Legality of Organization of District — Parties Plaintiff. Private persons have no standing to question the legality of the organization of a rural high-school district, by an action to enjoin election of rural high-school district officers.</p>

<p>Appeal from Jackson district court; Thomas A. Fairchild, judge pro tem.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Court of Industrial Relations — Jurisdiction Conferred by Statute Relative to Investigation and Operation of Mining Industries Not Obnoxious to the Constitution. The legislature may create an adminis-, trative body and empower it to investigate conditions existing in the mjning industry, make findings and reports, and establish rules with reference to the operation thereof designed, among other purposes, to promote the health and safety of employees and the continuity of production, so long as the regulations are reasonable and not upon some special ground obnoxious to constitutional provisions.</p> <p>2. Same — One Provision of the Statute Being Held Unconstitutional Does Not Invalidate the Entire Act. In view of the provision of the statute creating the court of industrial relations, that if any part thereof shall be held to be invalid it shall be conclusively presumed that the legislature would have passed the act without it, any portions thereof which are not objectionable in themselves must he enforced regardless of whether or not other portions may be open to constitutional objections.</p> <p>3. Same — Statute Authorizing Investigation of Mining Industries Valid —Duty of Witness to Obey Subpoena — Contempt. The provisions of the statute creating the court of industrial relations authorizing that body to conduct investigations of the character indicated in the first paragraph of this syllabus are valid, and one who refuses obedience to an order of the district court requiring him to appear as a witness in such an investigation cannot be heard, in a proceeding against him for contempt on account thereof, to question the validity of other portions of the act because of constitutional guarantees which are not invaded by the requirement made of him.</p> <p>4. Same — Finding of Disobedience of Subpoena Warranted. The finding that the defendants disobeyed the order of the district court is held to have been warranted.</p> <p>5. Same — Provision Authorizing District Court to Compel Obedience to Subpoena Not Unconstitutional. The provision of the act creating the court of industrial relations that in case of the refusal of any person to obey a subpoena issued by that body it may take proper proceedings in any court of competent jurisdiction to compel obedience thereto, authorizes the district court to make an order for the appearance of such person before the industrial court, and to commit him for contempt in case of his refusal. The provision is not open to constitutional objection on the ground that such action of the district court would be nonjudicial.</p> <p>6. Same — Disobedience of Subpoena on the Ground of Self-incrimination —Not Available to Defendants. The disobedience of an order to appear as a' witness in such an investigation as that referred to in the first paragraph hereof cannot be justified on the ground that questions might be asked the answers to which would tend to self-incrimination.</p> <p>7. Same — Special Session of the Legislature — Call Within Discretion of the Governor. Under the provision of the constitution authorizing the legislature to be convened by proclamation on extraordinary occasions, the governor is the final judge of the existence of conditions justifying the calling of a special session. (Farrelly v. Cole, 60 Kan. 356, 56 Pac. 492, followed.)</p> <p>8. Same — No Defect in Title of Act Creating Court of Industrial Relations. The act creating the court of industrial relations is held not to be void by reason of any defect in the title; nor because it makes applicable to that body the laws previously relating to the public utilities commission; nor on the ground that it commingles in one body executive, legislative, and judicial functions.</p> <p>9. Same — Immaterial Objections to Statute. Various objections to the act are held not to be material in this proceeding.</p> <p>10. Same — No Conflict between Provisions of Statute Creating the Court and Congressional Legislation. Legislation by congress concerning the unlawful restraint of interstate commerce and control of fuel by the government during the war, and the appointment by the president of a commission to hear and determine matters of hours, wages and conditions in the mining industry, do not so fully occupy the field covered by the act creating the court of industrial relations as to prevent that body from investigating conditions in the mining district of this state, making reports thereon, and exerting some degree of regulation with reference thereto.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Improvement op Country Road — Levy of Taxes Before Completion of Improvements. Under the provisions of the road law it is not necessary that an improvement shall be completed before general county and township taxes can be levied to provide a fund to meet at maturity the first installment of the bonded debt created therefor, notwithstanding that local assessments upon the land specially benefited cannot be made until such completion.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Temporary Injunction- — Granted Without Notice — Right of Appeal. An appeal will lie from a temporary injunction granted without notice under section 262 of the civil code, without first applying to the court or judge to vacate or modify the order.</p> <p>2. Same — Motion to Vacate — Right of Appeal Not Destroyed. The right of appeal in such case is not destroyed by the filing of a motion to vacate which has not been presented to nor been passed upon by the judge or the court granting the order.</p> <p>3. Same. On the facts and circumstances in this case, the order granted is held to be a temporary injunction.</p> <p>4. Rural High-school District Board — Power Over Conduct of Schools and Levying of Taxes. In an ordinary school district the patrons of the school at the annual meeting of the district determine what levy shall be made for school purposes, but a rural high-school district at its annual meeting has no power except to elect the rural high-school board, which determines at its annual meeting on the third Monday in April how the school shall be conducted, and makes the levy of taxes for school purposes.</p> <p>5. Same — Erection of School Building — Board May Make Levy for Deficiency After Proceeds of Bonds are Exhausted. Under sections 4 and 5 of chapter 284 of the Laws of 1917, the rural high-school board, in the erection of a school building, is not necessarily limited to the proceeds of bonds voted by the district for that purpose, and where it is found that a school building suitable and fit for the district cannot be erected for the amount of bonds voted and issued, the board may proceed to erect a building and meet the deficiency by a levy of taxes made within the limits of the levy authorized by section 4 of chapter 284 of the Laws of 1917.</p> <p>6. Injunction — Restraining Erection of High-sehool Building — Petition Fails to State Cause of Action. On appeal from an order granting a temporary injunction restraining a rural high-school board from erecting a high-school building or levying any taxes for that purpose, held, that the petition fails to state a cause of action, and that it was error to grant the injunction.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Appeal — Issue Raised Not Embraced in Notice of Appeal — Not Reviewable. The notice of appeal did not cover the order overruling the defendant’s demurrer to the plaintiff’s petition to vacate the appeal from the probate court, and hence such ruling is not before us for cohsideration.</p> <p>2. Same — Issue Raised Not Appealable. An order denying a motion to dismiss an appeal from probate court is not appealable.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Mechanic’s. Lien. — Statement for Lien — Husband and Wife. Where a husband or wife contracts for improvements on the property of the other and a mechanic’s lien is filed, it is not necessary that the lien statement shall recite that the contract was made with the husband or wife of the owner.</p> <p>2. Same — Amendment of Lien Statement Pending Foreclosure. On the trial of an action to foreclose a mechanic’s lien the lien statement may be amended so as to correctly describe the property affected thereby and to correctly state the name of the owner thereof.</p> <p>3. Same — Lien May Cover Adjacent Lots on Opposite Sides of An Alley, When, A single mechanic’s lien may cover adjacent lots on opposite sides of an alley if all the lots on both sides of the alley are used as one property; but if the improvements made are all on one side of the alley, and the property on each side of the alley is used as a separate property, the lien will attach only to that property on which the improvements are made.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Automobile — Collision at Railroad Crossing — Contributory Negligence —Last Clear Chance. The evidence considered, and held, the plaintiff, whose automobile was injured by collision with the defendant’s trains at a street crossing while he was attempting to cross a series of tracks, some of which were filled with cars which obstructed his view, was guilty of contributory negligence, as a matter of law. Held further, the plaintiff was not entitled to the benefit of the doctrine of last clear chance.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Insurance — Fire Loss after Expiration of Policy — No Renewal — No Liability — Agency. Where a fire insurance company had been accustomed to renew annual insurance on plaintiff’s household goods on applications signed , for her by the company’s local agent, who was also an obliging friend of the insured, the insurance company is not liable for a fire loss on such goods where the local agent, through ill health, failed to make such application for reinsurance, although he did make a futile effort to procure insurance on the goods through the local agent of another insurance company and although the owner’s check was turned over to the latter for that purpose, when it is shown that such latter agent communicated the facts to the owner about the time the insurance expired and where plaintiff was aware that she had no insurance on her goods for over a day and a half before they were burned, and made no effort to procure insurance.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Contributory Negligence — Foreman Killed by Stepping in Front of Moving Train — Failure to Look. An engine foreman having full enjoyment of his faculties of seeing and hearing, in walking in railroad yards, where there were many tracks over which trains and cars were frequently passing, stepped in front of an approaching train that could have been seen by him without difficulty if he had looked, is held to have been guilty of such contributory negligence as bars recovery although the railway company was itself negligent in the running of the train.</p> <p>2. Same — Failure to Look for Approaching Train — Presumptions. * The evidence did not disclose whether the engine foreman looked in the</p> <p>. direction from which the train was coming before going upon the 'railroad track, but as it was his duty to look before putting himself in a place of danger, and as he had the capacity and opportunity to see, it must be presumed that he did see that which was obvious and patent.</p> <p>3. Same — No Inference of Due Care from the Evidence. The presumption arising from the love of life and instinct of self-preservation, that one encountering a peril exercised due care, cannot be indulged in this case where the plaintiff’s own evidence was such as to overthrow the presumption.</p>

<p>SYLLABUS BY THE COÚKT.</p> <p>1. Action on Contract* — Order on Bank for Payment of Money. An action on an order on a bank for the payment of money is an action on a contract, although the petition alleges that the bank conspired with the maker of the order to defeat the payment thereof to the person named therein.</p> <p>2. Order — Substitution—Additional Parties — No Appeal from Order. Neither an order of substitution made under section 42 of the code of civil procedure nor an order making additional parties defendant</p> <p>. under section 35 of the code is, a final order, and an appeal cannot be taken from either.</p>

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

<p>OPINION DENYING A REHEARING.</p> <p>Appeal from Leavenworth district court; James H. Wen-do'rff, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Robbery — Sufficiency of Circumstantial Evidence. Circumstantial evidence considered, and held sufficient to warrant the jury in finding that the defendant counseled, aided and abetted commission of the crime of robbery.</p> <p>2. Same — Certain Evidence Properly Admitted. Various portions of the evidence considered, and held they were properly admitted.</p> <p>3. Same — Instruction as to Circumstantial Evidence. The certainty required in order to warrant conviction on circumstantial evidence considered, and held, an instruction employing a mode of expressing such certainty different from that appearing in the case of Carl Horne v. The State of Kansas, 1 Kan. 42, was unobjectionable.</p> <p>4. Same — No Meritorious Assignments of Error. Minor assignments of error considered, and held to be without substantial merit.</p>

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Landlord and Tenant — Crop Rental — Valid Agreement as to Division of Wheat. A landlord leased his land for a rental of one-third of the wheat crop, which was to be delivered at the nearest market. When the contract was entered into no provision was made as to whether the threshed wheat should be divided by measure at the threshing machine or at the market. At the time the threshing was done it was agreed between the landlord and the tenant that the division should be made according to the threshing machine measure, and it was so measured, both parties participating in the division. Held, that it was competent for the parties to agree on that method of division and that there was no lack of consideration for the agreement.</p> <p>2. Same — Division of Crop — Evidence—Finding. The evidence examined, arid it is held to be sufficient to uphold the verdict finding that such an agreement was made and that each party received his share of the crop.</p> <p>3. Same — Crop Divided — Tenant Not Liable for Landlord’s Share by Theft. After the division was made and the wheat of the landlord placed in a bin of his own selection, awaiting the transportation of the wheat to the market, any loss of the same by theft or otherwise which did not occur through the fault of the tenant, was the'landlord’s loss.</p> <p>4. - Same — Special Question — Ruling Not Prejudicial. A ruling refusing ■ to.require the jury to make a more definite answer to a special question, not important to a decision of the case, is not a ground for reversal.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Negligence — Jury May Not Indulge in Mere Conjecture and Speculation. It is not within the province of the jury to indulge in mere conjecture and speculation for the purpose of finding negligence.</p> <p>2. Same — Injury to Shipment of Live Stock — Evidence Insufficient to Sustain Finding of Jury. In an action against a carrier to recover for injuries to a shipment of colts and mares, it was alleged the injuries were caused by negligence of the defendant’s employees who, in attempting to attach the car to the freight train, carelessly and negligently backed the engine against it with great speed, force and violence, by which several of the animals were knocked down and killed and others maimed and injured. Held, that a motion to set aside a finding that the injuries to the animals were caused by negligence in making the coupling and starting the engine should have been sustained because it was unsupported by evidence.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Telegram — Fwilu/re to Transmit Money by Telegram — Telegraph Line Under Control of Government — Company Not Liable for Damages. The Western Union Telegraph Company is not liable for damages caused by the failure to transmit money by telegram over the Western Union lines during the time that the property of the company was under the control of the government of the United States under the joint resolution adopted by Congress July 16, 1918, and the proclamation of the president issued thereunder July 22, 1918, and the order of the postmaster-general issued August 1, 1918.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Witness — Proper Cross-examination Concerning Contradictory Statements Formerly Made by Witness. In an action by a woman for damages for personal injury, whefce her husband, as one of her witnesses, testifies concerning the extent-of her disability after her injury, it is proper to cross-examine the husband concerning contradictory statements made in a petition for a divorce filed by him against his wife.</p> <p>2. Same — Maternal Error in Refusing Proper Cross-examination It is material error to refuse to permit such cross-examination where it might have resulted in a modification of the testimony of the witness, or would have given an opportunity to question the truthfulness of the testimony, on the argument to the jury.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Action on Account — Plea of Payment and Receipt in Full — Counterplea of Mistake in Giving Receipt — Burden of Proof. Where a plaintiff pleads an indebtedness and the defendant alleges payment of it and sets out a receipt in full given by plaintiff and a letter acknowledging full payment of the indebtedness, and the plaintiff in turn replies that the receipt was given and the letter written through a mistake, and that payment had not in fact been made, the burden of proof rests upon the defendant and this burden is not shifted or affected by the affirmative allegations of plaintiff that a mistake had been made in giving the receipt and in writing the letter acknowledging payment.</p>

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

<p>OPINION DENYING A REHEARING.</p> <p>Original proceeding in mandamus.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Workmen’s Compensation Act — Defendant Engaged in Drilling Oil and Gas Well — Not Within Provisions of Compensation Act — Oil or Gas Well Not a Mine. An employer of less than five workmen, who has not affirmatively elected to accept the provisions of the workmen’s compensation act, is not brought within its operation by reason of the fact that he is engaged in drilling an oil or gas well. An oil or gas well is not a mine within the meaning of the provision extending the effect of the act to mines irrespective of the number of workmen employed.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Fraternal Insurance — By-laws—Insured Changing to More Hazardous Occupation — Evidence. The jury’s finding that the holder of a fraternal beneficiary certificate of life insurance had not changed his occupation from that of a common laborer to a more hazardous employment is not in conflict with the evidence disclosed by the record, and the record fails to show conclusively that there was such change in the nature of the deceased’s occupation.</p> <p>2. Same — Change to More Hazardous Occupation — Knowledge hy Company — No Formal Notice Necessary. Where a by-law of a fraternal insurance society provided that where a member changed his occupation to one more hazardous he should notify the clerk of the local society to that effect, and thereafter pay a higher rate of assessment, and that his contract of insurance should be void unless he did so, it is held that where the clerk (and the other officers) of the local society knew of deceased’s change of occupation — if there was in fact such change — and for several years thereafter continued to accept his regular monthly assessments at the old rate, without demand for the, higher rate, and the insured met his death through natural causes wholly unrelated to his employment, the society cannot avoid its liability to pay the insurance.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Contract ■ — Car Loads of Wheat — Valid Contract Completed. The facts touching the purchase and sale of two carloads of wheat about the time the government control of wheat prices was impending and became effective September 1, 1917, examined, and held that a valid contract of sale between the vendor and purchaser was made between the parties, although the capacity of the carloads was not particularly specified, and although the matter of the capacity was the subject of some correspondence between the parties after the contract was closed.</p> <p>2. Same — Wheat Tendered by Vendor as Per Terms of Contract — Vendee Bound to Accept. When one grain dealer notifies another to whom he has sold two carloads of wheat of no specified capacity, and the vendee on confirmation specifies carloads of 1,000 bushels each, and the vendor promptly notifies the vendee that while an effort will be made to get carloads of that capacity, but the vendee must expect carloads of larger capacity then prevailing in that territory, and the vendee raises no further question or timely objection thereto, the vendee is bound to accept carloads of the larger, prevailing capacity if those are tendered him in conformity with the other terms of the contract.</p> <p>3. Same — Lawful Modification of Original Contract by Agreement. Where a vendee objects to the largeness of the capacity of a carload of wheat lawfully tendered him pursuant to his contract of purchase, the vendor may bind the vendee, by agreement, that the large carload may be sold elsewhere and a smaller carload be procured for the vendee upon a concession of further time for delivery, and such agreement is a lawful modification of the original contract, and with such modification the original contract may be enforced.</p> <p>4. Same — No Unnecessary Delay' of Vendor in Making Sale of Refused Wheat — Measure of Damages. The facts touching the delay of the vendor in effecting a sale of a carload of wheat which the vendee had purchased and later refused to accept and pay for, examined, and no error in the judgment or measure of damages discerned therein.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Railroads — Track Dividing Inclosed Pasture — Failure to Maintain Proper Crossing, Fences and Cattle Guards — Damages—Pleadings. Where a railroad company has constructed its railway track across a farmer’s fenced pasture land, cutting it in two, but failed to construct an underground crossing to connect the divided parts of the pasture as it had agreed to do, and failed to construct the statutory cattle guards at its entrance to and exit from the pasture, whereby the farmer’s live stock escaped from the pasture, and the farmer was compelled to abandon the use of one part of the pasture, a petition reciting these pertinent facts was sufficient as against a demurrer.</p> <p>2. Same — Measure of Damages — Minimizing Damages. The evidence showing the expense of providing pasture elsewhere to replace that which the farmer was compelled to abandon because of defective cattle guards was sufficiently accurate to determine the amount of the' damages sustained through the loss of the use of the pasture, and this loss was a proper item of damages; and the farmer’s restraint of his cattle within a fenced portion of his pasture, and his feeding them in a lot for a longer season than would have been necessary if all his pasture had been available was a sufficient showing of diligence on his part to minimize his damages.</p> <p>3. Same — No Error in Refusing Requested Instructions. Two instructions which defendant requested and which were refused, examined, and held that the subject matter of one of these was adequately and more pertinently given by the trial court, and that the other was properly refused.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Sale of Horse — Breach of Warranty — Evidence—Passion and Prejudice of Jury. In an action for the price of property sold it is held that the evidence was sufficient to support findings of the making, reliance upon and breach of a warranty, and that the contention that the verdict was influenced by passion and prejudice is not sustained.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Sale op Flour — Breach of Warranty — Evidence of Offer to Compromise. An offer to compromise a difference is not admissible in evidence in an action between the parties concerning that difference, but if the offer to compromise contains an admission of fact, that may be properly introduced in evidence.</p> <p>2. Same — Breach of Warranty — Liability of Seller. A manufacturer of a grade of flour that is known by him to be extensively used by bakers in making bread, and who sells that grade of flour under a certain name, warrants that the flour sold by him under that name is of the grade and character described thereby, and warrants that it will make bread; and if flour that will not make bread is sold to a dealer under that name, the seller is liable for the damages thereby sustained by the purchaser, and an instruction to the jury to that effect is not erroneous.</p> <p>3. Same — Evidence Supports Verdict. The verdict was supported by evidence.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Master and Servant — Personal Injuries ■ — Contributory Negligence Question for Jury. In an action for damages, the question whether the injured plaintiff was guilty of contributory negligence is ordinarily one to be determined by the jury in view of all the evidence, and cannot be disposed of by a demurrer.</p> <p>2. Same — Assumption of Risk Question for Jury. Under the evidence in this case the question of assumption of risk was properly submitted to the jury.</p> <p>3. Same — Trial—Rulings Upon Evidence Not Prejudicial Error. Certain rulings of the trial court in striking out testimony and in restricting the examination of a witness examined, and held not to amount to prejudicial error.</p> <p>4. Same — Instructions Not Erroneous. Error assigned on two instructions examined and not sustained.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Liquor Law — Having Intoxicating Liquor in Possession — Insufficient Evidence to Sustain Charge. The evidence on which the defendant was convicted of unlawfully having intoxicating liquor in his possession, considered, and held insufficient to establish the fact of possession.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Sale op Land — Price Payable in Installments — Default of Vendee— Effect of Tender of Balance of Purchase Price. A tender of the balance of the purchase price of a tract of land is held not to have discharged the vendor’s contract lien therefor, both because in ejectment brought thereafter by the vendor on account of the nonpayment thereof the purchaser asked affirmative equitable relief, and because the judgment in such action declared the continued existence of the lien.</p> <p>2. Same — Default of Purchaser — Ejectment—Conditional Judgment for Plaintiff. Where in ejectment brought by the vendor of a tract of land against the purchaser because of his failure to complete payment the court finds the existence of the contract, denies the vendor relief, and orders him to execute a deed to the purchaser upon his paying the balance due, such judgment does not upon the principle of merger prevent the maintenance of a second action of ejectment based upon the failure of the purchaser to make the payment; and in such second action a conditional judgment may be rendered awarding the vendor possession unless the purchaser shall complete his payment within a stated period.</p>

<p>■ SYLLABUS BY THE COURT.</p> <p>1. Mutual Telephone Line — Unincorporated—Service Lawfully Transferred to Another Exchange. On the facts stated in the opinion, held, that a member of an unincorporated voluntary association formed to maintain a mutual party telephone line, which association has no constitution, by-laws, or rules regulating the manner of calling meetings, is bound by the action taken at a meeting of the majority of the members transferring the service to another exchange, although it deprives such member of the right to service through the former exchange.</p> <p>2. Same — Interference with Use of Line — Injunction. Evidence considered and held sufficient to sustain a judgment enjoining the defendants 'from interfering with the plaintiffs’ use of a telephone line.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Indemnity Bond — Public Improvements — Statute of Limitations. An action on a bond given under section 661 of the code of civil procedure is barred by section 662 thereof if commenced more than six months after the completion of the public improvement, although begun within six months after the acceptance of the improvement by the proper authority.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Quo Warranto — Ouster of Public Official — Findings and Conclusions of Special Commissioner Advisory Only. In an action originating in this court, when a special commissioner is appointed to take the testimony and to make findings of fact and conclusions of law, the commissioner’s findings, if exceptions are taken thereto, are only advisory, and the court itself must examine all the testimony, and determine for itself the truth of the matters given in evidence, and the weight and significance to be attached thereto, as well as to determine the correct judgment to be entered.</p> <p>2. Same — Ouster of Public Officials — Good Faith of Officer Charged the Determining Factor. In quo warranto, where forfeiture of a public office is demanded by the state on charges of willful misconduct in office or willful neglect of official duty, the paramount consideration in scrutinizing the acts of the defendant officer is whether they bear the distinguishing characteristics of genuine good faith, not whether those acts are technically free from error when viewed under rigid and critical scrutiny.</p> <p>3. Same — Evidence Fails to Establish Willful Misconduct or Willful Neglect of Duty. The record examined, and held that it does not establish the state’s charges of willful misconduct in office or willful neglect of duty on the part of the defendants.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Negligence — Railroad Crossing — Contributory Negligence a. Question of Faet for Jury. At a railroad crossing over a much used street in a city there were three railroad tracks. The plaintiff approached the crossing, driving his automobile slowly, and, looking for trains, saw none on the first track, which was the main line, and he proceeded across that track. On the second track he observed a box car standing partly in the street where it had been left for several hours, but there was no engine or car attached to it. A switch engine was being shifted about in the yard, at the time being upon the second track a short distance away, and although plaintiff says he did not observe it, it could have been seen by him before he started over the second track. While he was passing over that track the switch engine backed and bunted an uncoupled car against the stationary car standing partly in the street, causing it to strike and injure plaintiff’s automobile. There was no flagman at the crossing, and no lookout on the ends of the moving cars, nor was any warning given of the intention to bunt the stationary car across the street. Under the circumstances it is held that whether the plaintiff was guilty of contributory negligence was a question of fact for the determination of the jury.</p> <p>2. Same — Rulings on Special Questions — Not Error. The refusal of the trial court to require more definite answers to certain special questions is held not to be prejudicial error.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Contract — Independent Promise to Pay Debt of Another — Consideration. The evidence considered, and held, that a promise to pay the debt of another was an independent promise, made for the advantage of the promisor, in consideration of forbearance by the promisee to bring a contemplated suit against the person owing the debt.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Negligence — Railroad Crossing — Traveler Obeying Signal of Flagman — Finding of Negligence Interpreted. In an action against a railroad company growing out of a crossing collision, where there is evidence that the plaintiff attempted to cross the track in obedience to a signal from a flagman, a' finding of the jury that the defendant’s negligence consisted in “insufficient flag service” may be interpreted as meaning that the flagman was remiss in his duty rather than that another flagman was required.</p> <p>2. Same — Contributory Negligence — Question of Fact for Jury. Where the driver of a vehicle is about to cross a- railroad track the fact that he receives a signal from a flagman to go ahead does not relieve him from the obligation to exercise' due care for his own protection; but it prevents his failure to ascertain for himself whether a train is approaching (by looking and listening, stopping for the purpose if necessary) from constituting contributory negligence as a matter of law, leaving the jury to determine whether under all the circumstances, including the giving of the signal, he acted with reasonable prudence.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Claims Against Estate — Heir’s Right to Appeal from Allowance. The widow of a person who died intestate may appeal from an order of the probate court allowing the claim of a creditor against the estate of the deceased.</p> <p>2. Same — Defective Affidavit for Appeal from Allowance — Appeal Improperly Dismissed. An affidavit for an appeal from two orders of a probate court allowing separate claims against an estate of a deceased person, recited that the “appeal is not taken for the purpose of delay,” but did not recite that it was “not taken for the purpose of vexation.” One appeal bond was given which was approved by the probate court for an appeal from two orders which were made on the same day. Held, that the district court obtained jurisdiction of both claims, and that the appeal was improperly dismissed as to one of them.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>City Ordinance — Regulating Operation of Motor Vehicles — Display of Lights — Violation—Intent of Accused. A city ordinance regulating . operation of motor vehicles on streets of the city, and requiring a red rear light to be displayed between certain hours, may impose a penalty for its violation, without making a specific intent or guilty mind an essential element of the misdemeanor.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Fire Insurance — Appraisers Chosen — Partial Appraisement — Not ■Binding on Assured. An appraisement made under a policy of fire insurance to ascertain the amount of damage to the property caused by fire is not binding on the assured where the appraisers' failed to ascertain the damage to all the property covered by the policy and described in the contract submitting the matter to them.</p> <p>2. Same — Construction of Policy. Applying the principle that “contracts of insurance are to be construed, where construction is permissible, piost strongly against the insurer and in favor of the insured” (Insurance Co. v. Milling Co., 69 Kan. 114, 76 Pac. 423), to the words “only while occupied as a dwelling house,” contained in a fire insurance policy, it is held that liability under the policy attaches to a building described therein that is used as a dwelling house although the building is also used “as an ice cream parlor in a meager way.”</p> <p>3. Same — Company Estopped by Its Answer and Tender of Payment— Waiver. The right to avoid a policy of fire insurance, on account of alleged discrimination in the rate at which the insurance was written or on account of the use made of a part of the building insured, is waived by an offer to pay and a tender of the amount of a fire loss ascertained by appraisers appointed by contract between the insured and the insurer, and by an answer pleading that appraisement and offer to pay and tender of payment as a defense in an action by the insured on the policy, and by a tender of that amount into court for ■ the use and benefit of the insured.</p>

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

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

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

<p>SYLLABUS BY THE COURT</p> <p>Injunction- — Questions Presented on Appeal No Longer a Matter of Controversy — Appeal Dismissed. A city ordinance requiring the closing of public schools in the city during the existence of an emergency, caused by- a general scarcity of fuel, was held void, and the city was enjoined at the suit of the school authorities from closing the schools. The city appealed without staying the judgment, and before the appeal could be determined the emergency had passed. Held, that the validity of the ordinance is no longer a matter of controversy which affects the rights of either party, for no decision the court might make could furnish the basis for an order that could be carried into effect.</p>

<p>Appeal from Jackson district court; Otis E. Hungate, judge pro tem.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Railroads — Right to Control Use of Its Private Property — Validity of Grant of Special Privilege to Certain Cabmen to the Exclusion of Others. A railway company by contract may grant to a firm of cab and baggage men an exclusive privilege to board its passenger trains to solicit the patronage of passengers and to arrange for their safe and expeditious transportation'to other railroad stations; and may also grant to such firm an exclusive right to stand its vehicles on a portion of the property owned by the railway company when the space so granted is not required for the necessary and convenient use of the public having business with the railway company; and in the absence of valid statutory authority a city may not authorize its police officers to interfere with the reasonable exercise of the exclusive privileges so granted.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Life Insurance — Terms of Policy — Limiting Liability in Case of Death While Engaged in Military Service. A provision in a life insurance policy was to the effect that, if the insured engaged in military or naval service and died while in such service, the extent of the liability of the insurer should be the return of the premiums paid on the policy. It was also provided that the limitation would not apply if an insured engaging in the service should obtain a permit from the insurer and pay the extra premiums required. The insured, who had been inducted into military service under the selective-service act and was acting as chief blacksmith of his company in a training camp, died of pneumonia. Held, that the agreement limiting the liability of the insurer where the insured engaged in military service was one the parties had a right to make and is binding upon both of them, and that the extent of the liability of the insurer on a policy was the amount of the premiums paid thereon; and held, further, that the limitation of liability applies equally to- persons inducted into the military service under the selective-service act, as to those who voluntarily enlist in that service.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Settlement — On Tract of Land as School Land — Bond Required for Costs and Damages — Elements of Damages. The bond which was formerly required to be given by a settler desiring to acquire a tract as school land on the ground that it had originally been an unsurveyed island, conditioned for the payment of all costs and damages awarded against him in any of the subsequent proceedings relating thereto, covers the expenses, including attorneys’ fees, incurred by one found to be the owner in resisting such claim in the district court and in the supreme' court on appeal.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Promissory Note — Descriptive Addition to Signature — Oral Evidence to Explain Intent. In an action against the makers of a promissory note by the payee thereof, signed “The Salina Trust Company, W. B. Middlekauff, L. A. Mergen, Treas.,” an answer by L. A. Mergen which alleges that he signed the note as treasurer of the Salina Trust Company, that he was authorized so to do, that the note was the note of the trust company, that it was not the note of L. A. Mergen, and that the payee had knowledge of such facts and accepted the note as the note of the trust company and not of L. A. Mergen, states a defense in the action as to him, and a demurrer to the answer is properly overruled.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Manufacturing Establishment — Plant for Converting Stones into Tombstones and Monuments. A plant in which rough stones are shaped, dressed, lettered and converted into tombstones and monuments is a manufacturing establishment within the meaning of the factory act.</p> <p>2. Same — Derrick Outside the Building Part of the Plant.- A derrick erected in the yard of the establishment and outside of the building where the dressing and lettering were done, and which was used in connection with other processes of the plant, was a part of the manufacturing establishment.</p> <p>3. Same — Laborer Within Protection of Factory Act. A person laboring in such an establishment, although not an employee of the proprietors thereof, is within the protection of the factory act.</p> <p>4. Trial — Evidence Should Have Gone to Jury. The evidence in the case held to be sufficient to take the case to the jury.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. False Representations — Obtaining Money — ¡Separate Felonies May Be Charged in One Information. In a prosecution for fraudulently obtaining money by false representations made by defendant to several purchasers of the capital stock of an oil company, the several offenses so committed may be charged in separate counts of a single information, and a trial and conviction may be had and sentences imposed upon such counts as the proof sustains, although each of the counts charges a separate and distinct felony.</p> <p>2. Same — Evidence—Not Prejudicial. Several errors assigned on the admission of testimony examined, and held not to be prejudicially erroneous.</p> <p>• S. Same — Separate Transactions — Election by the State — Judicial Discretion. A court is vested with some discretion in the matter of requiring the prosecution to elect upon which of several transactions mentioned in the testimony it will rely for a conviction, and it is only to be done in'furtherance of justice1 and where the evidence is such as to make it necessary. Held, that under the evidence herein there was no occasion for requiring an election.</p> <p>4. Same — Instructions Not Prejudicially Erroneous. Several of the instructions given and about which complaint was made are held to be without prejudicial error.</p> <p>5. Same — Penalties Need Not Be Stated to Jury. As the jury has nothing to do with assessment of punishment for offenses in this state, there is no necessity for the court to instruct a jury as to the penalties that may be imposed for offenses.</p> <p>6. Same — Evidence Sustains the Verdict. The evidence examined and held to be sufficient to uphold the verdict of the jury!</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Criminal Law — Statute Forbidding Sale of Cigarettes Constitutional —Within Police Power of State. The act (Laws 1917, ch. 166) prohibiting and prescribing penalties for bartering, selling or the giving away of cigarettes or cigarette papers and the keeping of them for barter, sale or free distribution is within the police power of the state and does not violate any of the principles of the' fourteenth amendment to the constitution of the United States.</p> <p>2. Same — Possession of Cigarettes as Evidence. The provision making the possession of cigarettes and cigarette papers prima facie evidence of the selling and keeping for sale of the prohibited articles is not a denial of due process of law.</p> <p>3. Same — Several Unlawful Sales in Evidence — State not Required to Elect. Held further, that under the evidence there was no error in refusing to require the county attorney to elect upon which sales made by the defendant he would rely for a conviction.</p> <p>4. Same — Verdict Supported by Evidence. The evidence is held to be sufficient to support the verdict of the jury.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Compensation Act — Injury Arose “in Course of Plaintiff’s Employment.’’ The evidence in a workmen’s compensation case is considered and held sufficient to sustain a finding that a disease from which the plaintiff suffers was the result of an injury arising out of and in the course of his employment.</p> <p>2. Same — Existing Disease Aggravated by Accident to Workman — Compensation for Resulting Injury. Following Monson v. Battelle, 102 Kan. 208, 170 Pac. 801, and Gilliland v. Cement Co., 104 Kan. 771, 180 Pac. 793, it is held that if by weakening resistance or otherwise an accident so contributes to or influences the progress of an existing disease as to cause a disability, it is sufficient to justify an award under the workmen’s compensation act.</p> <p>3. Same — Aggravation of Existing Disease — Findings—Instructions. In a workman’s compensation case there was evidence to sustain a finding that the plaintiff’s injury contributed to and aggravated the disease of multiple sclerosis from which it is conceded he suffered. The jury found that the plaintiff’s injury had precipitated or contributed to the development of his present condition and also that it was. fully responsible for that condition. Held, that any inconsistency in these findings is explained by an error (not complained of by either party) in the giving of an instruction which charged that the plaintiff was not entitled to recover for an aggravation of a disease he may have had prior to receiving the injury; and further held, that the error should be disregarded and the general findings and judgment upheld.</p> <p>4. Same — Petition—No Material Variance Between Pleading and Proof. Ordinarily the issues in a .^compensation case are simple and, except for certain facts which the statute makes essential, the pleadings are of little importance. Where the petition charges incapacity resulting from an accident, the employer may not unreasonably be expected to meet evidence showing that as a result of the accident a disease from which the plaintiff already suffered was aggravated, causing partial or total incapacity.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Minors — Adoption of Minor ChilcE^-Persons Entitled to Notice of Plearing. A female child, whose sole surviving parent was her father, was placed, by order of court made in a habeas corpus proceeding, in the custody of her maternal grandmother from September 1 to June 1 of each year, and in the custody of her paternal grandmother the remainder of the year. In the month of June, and while she was in lawful custody of the child, the paternal grandmother adopted her. The child had no guardian such as the statute relating to guardian and ward recognizes, and the father appeared and consented to the adoption. Held, it was not essential to jurisdiction of the probate court sanctioning the adoption that the maternal grandmother should be notified, or should appear or consent.</p> <p>2. Same — Parents are Natural Guardians, — Welfare of Child. By statute the father and mother are natural guardians of their child. If one die, natural guardianship devolves on the other. The other then has the right to custody of the child, and the welfare of the child is best subserved by leaving it with its natural guardian until it is demonstrated that the parent is unfit to discharge the duties which are correlative to his right.</p> <p>3. Same — Rights of Parent by Adoption to Custody of Minor. The domestic relation of parent and child created by adoption confers the same right to custody as the natural relation.</p> <p>4. Same — Education of the Child. A parent, including a parent by adoption, has the right to control the education of the child.</p> <p>5. Same; — Religious Training of the Child. Aside from teachings subversive of morality and decency, and some others equally obnoxious, the courts have no authority over that part of a child’s training which consists in religious discipline, and in a dispute relating to custody, religious views afford no ground for depriving a parent of custody who is otherwise qualified.</p> <p>6. Same. In this instance the child’s mother was a Roman Catholic, and the father agreed the child should be reared in its mother’s religious faith. The maternal grandmother is a Roman Catholic, and the mother by adoption is not. Held, the facts stated afford no ground for depriving the mother by adoption of custody of the child during the school year.</p>

<p>SYLLABUS BY THE COURT.</p> <p>City of First Class — Under Commission Form of Government — No Statutory Provision for Withdrawal of Candidate Nominated for City Office at Primary Election. The statute' concerning the election of municipal officers in cities of the first class which have adopted the commission form of government makes no provision for the withdrawal of a candidate nominated at the' primary, nor for the filling of a vacancy in the list of nominees occurring between the primary and the election.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Agency — Allegation of Employment of Real-estate Agent — Allegation Admitted Unless Denied Under Oath. An allegation in a petition that the plaintiff was employed by the defendant to find a purchaser for certain real property owned by him is admitted unless denied under oath.</p> <p>2. Same — Verification of Answer During Trial Denied. It was not reversible error to refuse to permit the answer to be verified on the trial.</p>

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