Volume 108 — Kansas Reports

<p>Appeals from Hamilton district court; Albert Watkins, judge pro tern.</p>

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

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

<p>Appeal from Clay district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Contract — Option to Rent Land — Option Not Exercised — Contract Forfeited — Injunction. One who has an option to rent farming lands on payment of rent at the beginning of the farm-rental year, March 1, may properly be enjoined from meddling with those lands if he has failed to. give the grantor of the option some notification of his election to farm the lands and has failed to pay the specified rent at the time stipulated in the contract.</p>

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

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

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

<p>SYLLABUS OF THE COURT.</p> <p>1. Defective Highway — Accident—Presentation of Claim for Damages. Where an action against a township on account of a death alleged to have been occasioned by a defective highway has resulted in a judgment for the plaintiff it is not a ground of reversal that the defendant pleaded and proved that no verified statement of the claim had been presented to the township board in accordance with the statute.</p> <p>2. Same — Notice of Defect to Township Trustee — Insufficient Evidence. The evidence is held not to sustain a finding that the trustee had notice of the defective condition of a highway five days before the occurrence of the accident upon which the action against the township is based.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Negligence — Permitting Stone to Remain in Dangerous Position in Alley — Personal Injuries — Changing Grounds for Recovery on Appeal. Where one is injured by a large stone falling on him in an alley, and, in an action against the city for damages on account of the injuries sustained by him, bases his right to recover on the knowledge of the city that the stone was so placed that it was liable to fall, he cannot, in the supreme court secure a reversal of the judgment against him by there contending for the first time that even if the city did not know of the dangerous condition of the stone it is liable because the stone was an obstruction in the alley.</p> <p>2. Same — Instructions. Where the substance of instructions requested are given there is no error in refusing to give those requested.</p> <p>8. Same — Obstruction in Alley — Kept There Without Permission from City. Knowledge on the part of the city that there is an obstruction in an alley and a request from a street commissioner that the obstruction be kept within certain limits do not amount to authority or express permission to keep the obstruction in that place.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Specific Performance — Agreement of Father to Give His Property tó His Son — Request for Separate Conclusions of Fact and Law. The record examined, and held, that the special findings of fact made by the trial court fully complied with the rule of the code requiring separate conclusions of fact to be stated in writing when requested by a litigant, and held, that no error transpired in the trial court’s refusal to adopt those submitted by the plaintiff.</p> <p>2. Same — Nature of Special Findings Required by Statute. The special findings which the code directs the trial court to state in writing, at the request of a litigant, are those which deal with the ultimate facts upon which the rights of the parties directly depend and from which the correctness of the judgment can obviously and readily be ascertained, not the merely evidentiary facts upon which the ultimate facts in issue are established.</p> <p>3. Same — Request for Separate Conclusions of Law and Fact — Requirement of Code Satisfied by the Conclusions Found. In an action to enforce an alleged oral contract between plaintiff and his parents in which it was agreed that he was to have all his father’s property at his father’s death, subject only to a life estate in his mother’s favor if she survived her husband, the code requirement (Civ. Code, §297, Gen. Stat. 1915, § 7197) that conclusions of fact be made separately from the trial court’s conclusions of law, when requested by either party, was satisfied when the trial court found separately, upon competent and sufficient evidence, that there never was any such agreement between plaintiff and his parents.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Railroads — Riding on Freight Train — Limitation of Liability to Passenger — Liable for Gross Negligence Only. Railroad companies are required to carry passengers on certain freight trains, hut are not required to take the same precautions for their safety and comfort as they must for those riding in passenger trains. As to passengers riding on freight trains, the carriers are only liable for gross negligence.</p> <p>2. Same. One riding in such a train on a stock pass as a caretaker of a carload of cattle that was in the train is deemed to be a passenger for hire, and the statutory limitation of liability applies to him.</p> <p>3. Same — Injury While Riding on Freight Train — Contributory Negligence an Issue — Instructions. There being testimony tending to show that the injury of which plaintiff complained was due in part to his own negligence, it was incumbent on the court upon the request of defendant to give the jury an instruction on contributory negligence.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Demurrer to Evidence — On the facts stated in the opinion, held, it was error to sustain a demurrer to defendant’s evidence in support of his answer and cross petition.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Compensation Act — Pleadings Show Plaintiff Not Entitled to Recover. Maughlelle v. Mining Co., 99 Kan. 412, 161 Pac. 907, followed.</p> <p>2. S-ame — Motion for Judgment on Pleadings — Notice—Waiver. After the issues have been made up in an action, and the pleadings disclose that judgment cannot be rendered for the plaintiff on the facts alleged, a motion for judgment on the pleadings may be filed out of term time without notice to the opposing party and without his consent; and judgment may be rendered thereon, when counsel for the opposing party is present at and participates in the hearing of the motion without objection.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Divorce — Attorney Acting for Both Husband and Wife — Case Dismissed — Authority of Attorney to Consent to Reinstatement. Where a husband employs an attorney to represent him in negotiations and litigation relative to a divorce, with instructions to ta-ke such steps as may seem desirable to bring about an action by the wife and a judgment for divorce, and the attorney with the full knowledge and consent of each party undertakes to represent both of them, signing the petition as attorney for the plaintiff, his authority to act for the husband does not cease upon a judgment of dismissal for want of prosecution brought about by his illness; and he is still authorized to consent in behalf of the husband to a reinstatement of the case at a subsequent term of court, unless a disability results from the dual representation.</p> <p>2. Same — Collusion—Action to Set Aside Decree — Estoppel. A husband who employs an attorney to foster the bringing of an action for divorce by his wife, and to represent him as well as her in such litigation, with instructions to do whatever is necessary to bring about a judgment for divorce, cannot be heard after the rendition of such judgment to attack its validity on the ground that public policy forbids an attorney to represent both parties to a divorce action.</p>

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

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

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

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

<p>SYLLABUS by the court.</p> <p>1. Live Stock — Hogs Killed in Operation of Railroad — Remedy Under Both Stock Law and Fence Law. An owner of land through or by which a railroad is built, may demand of the railroad company that it build hog-tight fences along the line of the railroad where he has complied with certain conditions of the statute, and if they are not built or if built are not maintained, and by reason thereof his hogs escape and are killed in the operation of the railroad, he may, in an action brought to recover the damages sustained, avail himself of the remedies of the stock law (Gen. Stat. 1915, §§ 8557, 8558), and also the fence law (Gen. Stat. 1915, § 8488).</p> <p>2. Same — Negligence — Failure to Build Hog-tight Fence — Damages. The evidence examined, and held to be sufficient to support the findings of the trial court as to the failure of the defendant to complete the inclosure and that plaintiff’s animals were killed in the operation of the railroad.</p> <p>3. Same — ■Action — Loss of Hogs Killed by Railroad — Attorney Fee. Where the owner sues for the loss sustained by the killing of the hogs, before a justice of the peace, and a trial is had upon appeal in the district court, the plaintiff is entitled to recover reasonable attorney’s fees for the prosecution of the suit in both courts.</p> <p>4. Same — Evidence. Error assigned on the admission of testimony is held to be immaterial.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. New Trial Granted — No Appeal Taken. There being no appeal from a ruling- setting aside a verdict in a former trial, the proceedings in that trial have no place in the abstract.</p> <p>2. Promissory Note — Trial—Verdict Defective in Form — Correction, by Trial Court. In an action on a promissory note, it is held that the action of the court in correcting the verdict to include interest, and in accordance with the instructions, was proper under the provisions of section 293 of the code (Gen. Stat. 1915, § 7193), which authorizes the court with the assent of the jury, to correct a verdict which is defective in form only.</p> <p>3. Same — Amendment of Pleadings — Judicial Discretion. An amendment to the pleadings to conform to the proof held not to be an abuse of discretion.</p>

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

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Promissory' Note — Indorsement by Means of Rubber Stamp — Valid Indorsement. Where the name of the indorser has been placed on the back of the instrument with a rubber stamp by one having authority to do it, and with intent to indorse the instrument, it is a valid indorsement within the provisions of sections 37 and 38 of the negotiable-instruments law (Gen. Stat. 1915, §§ 6557, 6558).</p> <p>2. Same — Evidence Showing Authority of Agent to Deliver Note. On the facts stated in the opinion, held, that authority to deliver may be shown by proof of the actual delivery of the instrument by the person authorized to indorse it and receipt by the indorser of the consideration paid by the indorsee.</p> <p>3. Same — Note Indorsed to Bank — Bank a Holder in Due Course. Following Dreilling v. National Bank, 43 Kan. 197, 23 Pac. 94, and Bank v. Quasebarth, 104 Kan. 422, 179 Pac. 300, held, that in an action on a promissory note purchased by a bank from a depositor who takes credit for the proceeds and subsequently adds other deposits to his checking account, the fact that sometimes there was a balance in favor of the depositor, does not deprive the bank of its rights as a holder in due course where before the maturity of the note, or knowledge by the bank of any infirmities in it, the depositor has checked out the amount of the proceeds of such note.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Intoxicants — Having Intoxicants in Possession — Sufficient Evidence. There was evidence sufficient to prove that the defendant had intoxicating liquor in his possession.</p> <p>2. Same — Evidence of a Sale Competent, to Show Possession. On a charge of unlawfully having possession of intoxicating liquor, it is proper to prove that the person charged did, on the day that the liquor was found, sell intoxicating liquor of the same kind at the same place.</p> <p>3. Practice — Trial Court May Admonish Witness. A trial court may admonish an evasive witness to answer questions truthfully.</p> <p>4. Same — Court May Instruct Clerk to Properly Swear Witnesses. It is not error for a court to instruct the clerk to properly swear the witnesses.</p> <p>5. Same — Evidence of General Reputation — Instruction to Witnesses. It is not necessary for a trial court to instruct witnesses called to prove general reputation for truth and veracity how to answer questions, but if such instructions are given and are given correctly, no error is committed.</p>

<p>SYLLABUS BY THE COURT. '</p> <p>Compensation Act. — Railroad Operated, by Direetor-general of Railroads —Operated Under Provisions of Workmen’s Compensation Act. While the director-general of railroads was operating the Union Pacific Rail- . road shops in Kansas he was the employer of the workingmen in those shops, and he had power to determine for himself independently whether he would operate those shops under the workmen’s compensation act or not; and since he did not elect to conduct the business of those shops outside its provisions his liability to his injured workmen is governed by the compensation act.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Master and Servant — Accident in Coal Mine — Injury Arose in Course of Employment. A workman engaged in mining coal in a strip pit quit his ordinary work at the end of the day and with other employees rode upon an engine towards the other end of the pit with a view of ascending to the surface, as was the custom in the mine, and while on his way the engine on which he was rising collided with cars which had been insecurely placed upon a switch line, and he suffered an injury. Held, that the accident arose out of and in the course of his employment and that he is entitled to compensation for the injury under the provisions of the workmen’s compensation act.</p> <p>2. Same — Judgment — Error in Computation — Corrected and Modified Upon Appeal. An error in computation of the award made may be corrected and modified upon appeal without reversing the judgment.</p> <p>S. Same — Finding of Partial Permanent Disability — Sustained by Evidence. The fact that the injured’workman has performed some labor since he was injured is held under the evidence to be no ground for overthrowing the finding of the court that the injury had resulted in partial permanent disability.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Action to Contest Will — Within What Time May Be Brought — Effect of Amendment of Statute. Where a statute granting a right to contest a will by an action brought within three years after its probate is amended by making the period two years, a provision being added that the act shall apply to any will probated within two years prior to its enactment, a will admitted to probate more than two years before the amendment cannot be contested by an action begun more than three years after the making of the order of probate.</p>

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

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

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Action — Recovery of Personal Property — Defendant in His Capacity as Administrator Properly Made a Party Defendant. Where personal property and cash came into the hands of an administrator by virtue of his office, and he is sued individually therefor, he may properly be made a party defendant in his capacity as administrator and file an answer and cross-petition as such; and on the issues thus raised the trial should proceed in due course; and where the defendant indi-¡ vidually disclaimed and offered to make such disposition as the trial' court might direct, a motion for judgment against him individually was properly denied.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Habeas Corpus — Custody of Minor Child — Evidence—Welfare of Child. The evidence examined, and held, the conclusion of the district court that the respondent was not the most suitable person to have custody of a child unrelated to both parties to the action, that neither party was able to provide for it a normal home, and that both should be denied custody of the child, is sustained by the evidence.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Surface Waters — Rights of Landowner Respecting Control of Surface Waters. In cities, where the common-law rule respecting surface waters is still in force (Gen. Stat. 1915, § 4050, as amended by Laws 1917, ch. 176, § 1), the landowner has the right to use and improve his own land for the purposes for which similar land is ordinarily used; he may build upon it, or raise or lower its surface, even though the effect may be to shed surface water over land upon which it would not otherwise go. (Mo. Pac. Rly. Co. v. Renfro, 52 Kan. 237, 34 Pac. 802. See, also, Bryant v. Merritt, 71 Kan. 272, 80 Pac. 600.)</p> <p>2. Same — Action to Abate Nuisance — Demurrer to Petition Properly Sustained. In an action to abate an alleged nuisance and for damages to city property claimed to result from conditions created by an adjoining lot owner by which water falling upon defendants’ house, concrete walk and lot was cast upon plaintiff’s premises, held, a demurrer to the petition was properly sustained, since it appeared that the water which fell upon the house (there being no eaves trough or conductors), ran down the concrete walk to the rear of defendants’ house and there mingled with the water that fell upon all the premises of defendants, thus becoming mere surface water which followed the natural slope of the ground, so much of it as was not taken up by the soil, finding its way to the plaintiff’s premises.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Live Stock — Diseased Cattle — Delegation of Official Duties — Who May Inspect Cattle to Ascertain Whether They Are Infected with Tuberculosis. Either a veterinary inspector from the bureau of animal industry of the United States department of agriculture or a person employed by the state live-stock sanitary commissioner, designated deputy state live-stock sanitary commissioner, may inspect cattle in this state for the purpose of ascertaining whether they are infected with tuberculosis, and on a report from either that the cattle are so infected, the live-stock sanitary commissioner may order that the cattle be destroyed or disposed of under the law for the protection of domestic animals.</p> <p>2. Same — Diseased Cattle — Legal Method of Appraisement. The owner of cattle infected with tuberculosis, a deputy state live-stock sanitary commisioner, and a member of the board of county commissioners designated by the chairman to act where he is unable to participate, may appraise cattle under section 11084 of the General Statutes of 1915.</p> <p>3. Same — No Evidence of Collusion or Fraud. There was no evidence to show collusion or fraud in making the appraisement of cattle.</p> <p>4. Same — Diseased Cattle — County to Pay One-half of Appraised Value ■ — Statute Constitutional. Section 11101 of the General Statutes of 1915, requiring the board of county commissioners to pay one-half of the appraised value of cattle infected with tuberculosis, does not violate any provision of the state or Federal constitution.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Pleadings — Petition Consisting of Two Counts — One Under Workman’s Compensation Act — One for. Damages Resulting from Negligence — No Misjoinder — No Election Required. A petition consisted of two counts, one stating facts which, if established, would entitle plaintiff to recover under the workmen’s compensation law; the other stated a cause of action for damages for injuries which it was alleged resulted from defendant’s negligence. Held, there was no misjoinder, and further, that plaintiff could not be required to' elect between the two causes of action.</p> <p>2. Negligence — Insecurely Fastened Derrick — Proximate Cause of Accident to Plaintiff. The foreman and another employee of the defendant were engaged in removing casing from a well, using a derrick made of iron piping. There were -three guy wires on the derrick but only two of them were fastened. As each length of casing was drawn it was loaded on a wagon to which there was hitched a team of horses. In attempting to pull one of the joints of casing, the strain caused the derrick to topple over and it fell across the back of one of the horses knocking the animal down. The other horse was hitched to the derrick to pull it off the one that was down, and as this was being done, C. Y. Hutton, a bystander, at the request of the foreman assisted the latter to roll the pipe from .the fallen horse. The hitched horse started with a jerk and plaintiff was caught in the wreckage and his leg was broken. Held, that these facts warranted a finding that the negligence of the defendant in failing to have the third guy rope fastened was the proximate cause of the accident by which plaintiff was injured.</p> <p>3. Same — Instructions Not Prejudicial. Certain language in an instruction considered and held not prejudicial in view of other instructions given.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Liens — Priorities—Innocent Holder of Legal Title — Judgment Creditor of Holder of Equitable Title. One who purchases real estate from the holder of the legal title, for value and without notice that another is the equitable owner, takes the land free from the lien of a Judgment on the equitable owner’s interest.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Contract — Sale of Land — No Completed Contract. In a letter sent by a prospective purchaser to the owner of real property an inquiry was made concerning the price asked for it; the writer of the letter afterward sent a telegram in which he offered $4,250 for the property. The owner answered by telegram stating that he would accept $4,350. A telegram was sent accepting the proposition of the owner, and instructing him to make a deed in blank and send it and the abstract to a bank in Garden City with directions to deliver on payment of the money. A deed, executed in blank and forwarded to the bank in Garden City, contained a reservation of all mineral and oil rights. The prospective purchaser refused to accept the deed with that reservation. Held, that there was no contract for the purchase and sale of the real property.</p>

<p>Appeal from Finney district court; CHARLES E. VANCE, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Divorce — Amount of Alimony — Matters to Be Considered — Judicial Discretion. Upon granting a divorce for the fault of the husband the court may take into consideration, in the matter of alimony and division of property, the financial ability of the parties, the custody and maintenance of children, the conduct and the earning capacity of the husband, and before the judgment rendered can be reversed it must appear that the court in making the award abused the discretion vested in it.</p> <p>2. Same — Alimony—No Abuse of Judicial Discretion. The evidence examined, and it is held that the award made is not unreasonable and the court did not abuse its discretion in making it.</p>

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

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

<p>SYLLABUS BY THE COURT</p> <p>Promissory Note — Dishonored by Nonpayment — Recourse to All Parties Secondarily Liable Thereon. Under the negotiable-instruments law (Gen. Stat. 1915, §§'6610, 6611) providing that a negotiable instrument is dishonored by nonpayment when it is overdue and presentment is excused, and that in such circumstances an immediate right of recourse against all parties secondarily liable thereon accrues to the holder, held, in an action on a promissory note, it was error to sustain a demurrer to the bill of particulars on the ground that it failed to show that plaintiff used any diligence to collect from the maker.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Promissory Note — Holder in Due Course■ — Defense of Fraud in Its Procurement — Burden of Proof. Where a plaintiff transferee of a negotiable promissory note sues the maker and payee as codefendants thereon, claiming to be a holder in due course, and the defendant maker pleads and his evidence tends to prove that he was induced by the fraud of the payee to execute and deliver the note, the plaintiff has the burden of showing by evidence that he acquired the note in the usual course of business, before maturity, and without notice of any vice in it; and unless that evidence is so clear and unequivocal as to leave no room for difference of opinion concerning it among fair-minded men, the question as to the issue and the credibility of the evidence is for the jury and it is error to instruct the jury to render a verdict for plaintiff.</p> <p>2. Same — Pleading—Prayer for Relief Not Important When a pleading states all the necessary facts to maintain a defense to an action on a promissory note, and the evidence is sufficient to support its allegations, and the parties concerned are in court, the pleader’s prayer is not important; and it is the court’s duty to render the proper judgment therein; and such judgment may or may not conform in whole or in part to the relief prayed for by the pleader — following Eagan v. Miirray, 102 Kan. 193, and citations, 170 Pac. 389.</p> <p>3. Same — Evidence for Defense — When Pleading Should Be Construed to Conform to Facts Shown. When the trial court permits evidence to be introduced in extenso to support a defense to a promissory note, the pleading upon which such defense was intended to be based should be construed as if it sufficiently set out the facts or as if the issues had been enlarged by consent of parties.</p> <p>4. Same — Judgment—Control of, During Term at Which it Was Rendered.. During the term at which a judgment is entered the trial court has complete control of that judgment, and may permit amendments to pleadings in furtherance of justice even after judgment, and may grant a new trial thereon; and if the trial court is not satisfied that the litigants have received substantial justice, it may and should grant a new trial.</p> <p>5. Same — Statute of Limitations — Can Only Be Raised by Special Plea. Where an action is brought on a promissory note against the maker and payee as codefendants, and the maker files an answer and cross petition against his codefendant alleging the fraud of the latter in procuring the note, and the payee’s, answer to such cross petition is merely a general denial, such answer is insufficient to raise a question of the statute of limitations, as such a' defense can only be raised by a specific plea — following Parker v. Berry, 12 Kan. 351; Croan v. Baden, 73 Kan. 364, 85 Pac. 532.</p> <p>6. Change op Venue — Judge Interested in Suit — Change Properly Granted. When an attorney who had been of counsel in a lawsuit becomes the district judge of the forum, a change of venue is proper in such case, but such judge may with entire propriety consider the motion for a change of venue and he has jurisdiction to grant it. .</p> <p>7. Promissory Note — Two Appeals — Reversed in Toto — New Trial Ordered De Novo Between all Parties. Where a judgment has been rendered against two codefendants on a promissory note, and the question of primary and secondary liability is determined therein, and the defendant who is held primarily liable appeals from the judgment, and the defendant who is held secondarily liable does not appeal therefrom but does appeal from .an order granting a new trial of cross issues joined between the two codefendants, this court may, when it is proper that the judgment should be reversed at the instance of the defendant who did appeal, order the judgment reversed in toto and order a trial de novo between all the parties when such order is necessary to prevent a possible miscarriage of justice.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Real-estate Agent — Action for Commissions — Defense of Fraud on the Part of Agent — Refusal of Court to Make Certain Findings of Fact — Error. In an action by a broker to recover a commission for procuring a sale of an oil lease the defense was that the sale was procured through the misrepresentation and fraud of the broker, and as there was evidence tending to sustain the defense and, further, that because of the fraud a sale made was rescinded, it was the duty of the trial court upon request of the owner to make a finding as to whether or not the broker was guilty of fraud in the transaction, and whether or not the sale was rescinded and the services of the broker became worthless because of the fraud of the broker.</p> <p>.2. Same — Misrepresentation and Fraud by Agent Forfeits His Commissions. Misrepresentation and fraud on the part of a broker in procuring a sale of property operate as a forfeiture of his commission and make him liable for resulting damages.</p> <p>■3. Same — Condonation and Confirmation of Fraud Must Be Specially Pleaded — Inadmissible Evidence. In order for the broker- to avail himself of the claim that the owner had condoned and confirmed the fraud of the broker by making a subsequent agreement with the purchaser, it was incumbent on the broker to plead the agreement and, not being pleaded, evidence of the agreement was not admissible.</p> <p>-4. Same. Where a broker relies on a subsequent agreement or conduct of the owner as an estoppel against the assertion of fraud, it must be specially pleaded.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>' 1. Taxation — Insurance—Gross Premium Tax 'Not Collectible on Reinsurance Contracts. Under sections 5467-5469 of the General Statutes of 1915, which exact from fire-insurance companies a tax of two or four per cent of all the premiums received on account of business done in this state, it is held that this statutory percentage is collectible but once and no more; and additional exactions of such tax upon these premiums cannot be made upon divisions of those premiums among other insurance companies under reinsurance contracts whereby the latter undertake to indemnify the original insurance company or aid it in carrying the risks for which the premiums were originally paid.</p> <p>2. Same — Manner of Collecting Tax on Insurance Premium — Within Discretion of Superintendent of Insurance. It is within the sound administrative discretion of the superintendent of insurance to direct and require that the statutory tax be paid in the most direct, convenient and accurate way for the efficient conduct of his departmental business.</p>

<p>Appeal from Trego district court; ISAAC T. PURCELL, judge.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Appeal — Direction to Modify Judgment — Judgment as Modified Affirmed — Set-off Denied and Mandate Followed — Res Judicata — No Error. On the occasion of a former appeal (106 Kan. 287), this court directed a modification of the judgment of the district court. Two mathematical computations were to be made, and were to be .followed by a clerical correction of the journal. This court treated those acts as already done, and affirmed the judgment as corrected. On return of the cause to the district court, the plaintiff asked, for the first time, that a set-off be made in such a way as to effect computation of interest in making the modification directed. The district court followed the mandate of this court. Held, the subject was res judicata, and obedience to the mandate did not constitute an abuse of discretion, or judicial error in any other respect.</p> <p>2. Query — Where Cross-demands Exist — At What Time Shall the Two Demands Be Deemed Compensated. Query: Under section 102 of the civil code, providing that privilege of set-off shall not be defeated under certain circumstances, and providing that “the two demands must be deemed compensated so far as they equal each other,” at what time , shall the two demands be deemed compensated — at the time the júnior demand matured, at commencement of suit in which set-off is pleaded, at date of verdict or finding by the court, or at some other time?</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Specific Performance- — Contract to Convey and Transfer Certain Street Railway Property — Consideration. The contract sued on was not void for want of consideration.</p> <p>2. Same — Contract—Assignment Valid. The contract under which the plaintiff claims was by its terms made assignable and its assignment— having been recognized by the parties and by the city in various ways during a course of dealing covering several years — is held valid.</p> <p>3. Same — Street Railroad Franchise — ■Within the City — Not Under Jurisdiction of State Utilities Commission. The franchise granted to the plaintiff’s assignor covered a street-car system located within the city of Lawrence and was therefore not under the jurisdiction of the state utilities commission, and the consent of that body to its assignment to the plaintiff was not necessary.</p> <p>SYLLABUS BY THE COURT.</p> <p>1. Specific Performance — Consideration for Contract. There was ample consideration for the contract sued on, and there was no failure of any part of that consideration.</p> <p>2. Same — Valid Contract Between Street Railway Company and Interurban Railroad Company. A contract may be made between a street-railway company and an interurban railroad company by which the latter obtains the right to run its cars over the tracks of the former.</p> <p>3. Same — Certain Property Included in Contract. The tracks in the 500 and 600 blocks on Massachusetts street (from Seventh street north to the south end of the bridge across the Kansas river) in Lawrence, were not excluded from the operation of the contract between the Lawrence Railway & Light Company and the Kansas City, Kaw Valley & Western Railway Company.</p> <p>4. Same — Contract Neither Ultra Vires nor Void. The contract was neither ultra vires nor void.</p> <p>5. Same — Parties to Contract Rightfully Occupying City Streets. The streets of the city of Lawrence are occupied by the plaintiff and the defendant under ordinances authorized by statute and passed by the proper authorities of the city of Lawrence.</p> <p>6. Same — Rights Under Contract Assignable. The rights under the contract were assignable.</p> <p>7. Same — Contract Need Not Have Been Approved by Public Utilities Commission. It is not necessary to obtain the approval of the public utilities commission to a contract made by an interurban railroad company under the control of that commission, with a street-railway company not under the control of the commission, by which contract the interurban company acquires the right to run its cars over the tracks of the street-railway company, and does not modify, restrict, transfer, nor defeat any of the franchise rights of the interurban company.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Partnership — Accounting—Findings Sustained by Law and Evidence. The proceedings examined, and held, the material findings of fact are sustained by law and by sufficient competent evidence.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Criminal Law — Rape—Evidence Sustains Verdict• — Instructions. The proceedings examined, and held, the evidence established the completed crime of rape, and error was not committed in oiritting to instruct the jury with reference to attempt to rape.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Drainage District — Contract to Build Riprap Work for Benefit of Railroad — Expense to be Borne by Drainage District — Right of Company Completing Work to Recover Cost Thereof. In an action pending between the Kaw Valley Drainage District and two railroad companies, a consent judgment was entered giving the drainage district the right of way over the private property of the railroad companies and providing that the drainage district would pay the cost, not to exceed $4,000 expended in the construction of necessary riprap protection to the railroad bed and tracks. The court reserved jurisdiction of the action and parties to make any orders necessary to carry out the judgment. One of the two railroad companies performed the work and upon refusal of the drainage district to pay brought supplemental proceedings to compel payment. The court found that the railroad company had performed the work and had expended a sum in excess of $4,000 and was entitled to judgment for that amount and interest. No question having been raised in the court below as to the sole right of the one railroad company to perform the work and recover for the cost thereof, it is held too late for the drainage district to raise the question here.</p> <p>2. Same — Character of Stone Used in Riprap Work — Waiver—Estoppel. Instead of one-man riprap, much heavier stone was used in a considerable portion of the revetment work, which was more substantial and better construction and cost less than if one-man riprap had been used. Held, that as the work was being done for the benefit of the railroad company, the stipulation as to the character of the stone to be used might be waived without the consent of the drainage district, and further held, that there was a substantial compliance with the terms of the contract, and held, also, that appellant was estopped by its conduct to contend otherwise.</p> <p>3. Same — Counterclaim Properly Disallowed. Evidence with respect to a counterclaim for alleged delays in the work considered, and held, the finding of the trial court against the appellant is conclusive.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Oil and Gas Lease — Action to Quiet Title — Lease Assigned — New Pleadings Filed — Issues in Ejectment Raised — Right of Trial by Jury. Where a plaintiff who is in the exclusive possession of a tract of land sues to quiet title as against an oil and gas lease alleged to have expired, and thereafter the defendant takes possession and files an answer pleading that fact and asking a decree affirming the validity of the lease, and thereupon the plaintiff in a reply asks for possession, no objection being made to either answer or reply because of its stating facts occurring after the suit was begun, the action is substantially one in ejectment brought by the plaintiff, who is entitled to a jury trial as a matter of right.</p> <p>2. Same — Lease Assigned — Right of Assignor to Make Effective Tender of Rents Under Terms of Lease. Where the owner of an oil and gas lease, which requires the payment of a semi-annual rental to keep it in force, executes an assignment thereof absolute on its face but in fact intended as security for a loan and accompanied by a separate contract for a reassignment in case of its prompt payment, the assignment but not the defeasance being recorded, a tender of the rent made in behalf of such assignor is not rendered ineffective by such conditions, on the theory of his being at the time a stranger to the lease so far as the lessor knew.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Workmen’s Compensation Act — Evidence—Inconsistent Findings— New Trial. In an action under the workmen’s compensation law, the evidence, findings and verdict are examined, and held, that the findings are inconsistent with the undisputed evidence and that the amount of the verdict cannot be sustained upon any theory consistent either with the special findings or with the undisputed facts, and therefore a new trial is ordered on the sole issue as to the amount of compensation to which the plaintiff is entitled.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Oil and Gas Lease — Default in Payment of Rentals — Forfeiture•— Cancellation. In an oil and gas lease given for a term of years it was provided that if a well was not commenced within a year, the lease should terminate unless the lessee within that period paid a stipulated rental by check mailed with postage prepaid at or to a certain bank for the lessor’s credit, and the bank was made the agent of the lessor to accept the rental. At the expiration of a year no well had been commenced and when the lessor made inquiry at the bank he was informed that the rental had not been paid or placed to his credit. The lessor brought action to cancel the lease and to obviate the effect of nonpayment, one of the lessees who had a checking account in the bank offered testimony to the effect that he had told the cashier of the bank that if the rental was not paid by the company he wanted to pay it out of his account. The lessor had no knowledge of the statement and gave no assent to the arrangement. No check was given upon the lessee’s account nor were any of his funds set apart to pay the rental. Held, that the statement and arrangement did not constitute a payment of the rental nor prevent the forfeiture of the lessee’s rights under the lease for nonpayment.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Automobile — Collision with Motorcycle — Exceeding Speed Limit — Negligence. The rule that violation of a speed regulation does not constitute actionable negligence, or constitute contributory negligence defeating recovery, unless it contribute to injury, applied to admissions and findings of facts in an action for damages for personal injuries sustained in a collision between a motorcycle and an automobile.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Malicious Prosecution' — Complaint Made on Advice of Prosecuting Attorney- — What Information Should Be Given to Prosecuting Attorney. In an action to recover damages for malicious prosecution, a complete defense is made by proving that the complaining witness obtained all the available information concerning the commission of a crime, except such as might have been acquired from the suspected person, and truthfully placed all that information in the hands of the deputy county attorney, and that the deputy county attorney advised and directed that the prosecution be commenced.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Defaulting Employee — Report of Accountant as to Shortage. The evidence as a whole is held not to show that the report of an accountant as to a shortage of an employee was arrived at upon an improper basis.</p> <p>2. Indemnity Bond — Shortage of Employee — Interpretation of Word “Embezzlement” as Used in Bond. In a bond insuring an employer against losses sustained by reason of conduct of an employee constituting embezzlement the word “embezzlement” is to be construed broadly in its general and popular sense, rather than in a narrow and technical spirit with specific reference to the local statute; and a loss occasioned by the employee’s speculating on the market'in the name of the employer, but without his knowledge or consent, is within the protection of the bond.</p> <p>3. Same — Employer’s Warranty that Boohs Shall Be Inspected Every Three Months. Where a contract of insurance against losses through the embezzlement of an employee contains a warranty on the part of' the employer that the' books shall be inspected, audited and verified at -least once in three months, this requirement is met by an examination conducted by the officers of the employing company, and does not involve the employment of an expert accountant for the purpose; nor does the fact that the examinations that were made failed to disclose .shortages that were afterwards found to have existed necessarily show any breach of the warranty.</p> <p>4. Same — Requirement that Employee’s Shortage Must Be Discovered Within Six Months. After Discharge. The requirement of a bond of indemnity against the results of embezzlement by an employee that losses to be covered by it must be discovered within six months after his discharge is met where within that period the fact of a shortage becomes known, although its exact ainount is not ascertained until later.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Trust — Action to Establish .Trust in Real Estate — Not Triable to Jury. An action to establish a trust in real estate and for an accounting of the rents and profits thereof, brought against the heirs and devisees of a former owner of the land, is not triable by a jury as a matter of right.</p> <p>2. Same — Incompetent Evidence to Disprove Verbal Contract. In an action, -as described in the first paragraph hereof, evidence of the declarations of the deceased, who held the possession and legal title of the land, is not competent for the purpose of disproving the making of the verbal contract relied upon by the plaintiffs.</p>

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Will — Interpretation of Words Used in Devise. A will devised property to certain parties and then provided' — ■</p> <p>“In the event of the death of any of the beneficiaries named in this paragraph 14 of my will, then and in that event the portion of my estate arising from the properties described in this paragraph 14 to which such deceased beneficiary would be entitled, I will and bequeath and direct that it be paid to Mirza Temple, Ancient Arabic Order, Nobles of .the Mystic Shrine, to be used by Mirza Temple for charitable purposes as the officers of said Temple may direct.”</p> <p>Held, that the words, “In the event of the death of any of the bene- . ficiaries,” mean the death of any of the' devisees before the death of the testator.</p> <p>2. Same — Dye v. Pwrker, ante p. 304, 194 Pac. 640, followed.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Life Insurance — Proof of Death — Transcript of Coroner’s Proceedings Incompetent Evidence. A beneficiary certificate provided that it should be void if death of the certificate holder should occur as a consequence of his violating the law. A by-law of the society issuing the certificate required proof of death on prescribed blank forms. The forms prescribed required that, in case of violent death followed by a coroner’s inquest, a duly authenticated transcript of the proceedings should accompany proof of death. The certificate holder died by violence, an inquest was held, and an authenticated transcript of the proceedings accompanied proof of death. The testimony of witnesses given at the inquest indicated, and the verdict of the coroner’s jury was, that the deceased was accidentally shot while engaged in making an unlawful assault. In an action to recover on the certificate, the defendant offered the transcript in evidence. Held, the transcript was not admissible, either as independent evidence of the facts disclosed, or as an admission made in connection with proof of death.</p>

<p>Appeal from Mitchell district court; William R. Mitchell, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Specific Performance — Contract for Sale of Land, — When Decree-Will Be Refused. Specific performance of a contract for the sale of lands is not a matter of course. Performance will be decreed only when, upon all the facts, it is equitable it should be done. (Fowler v. Marshall, 29 Kan. 665, Syl. ¶ 1.)</p> <p>. 2. Same — Facts Justifying Refusal of Decree for Specific Performance. In an action by the purchaser to compel specific performance of a contract for the sale of real estate, the writings comprising the contract are examined and held to leave it doubtful whether the minds of the parties ever met in respect to the meaning of certain terms, and in view of all the circumstances and the great inadequacy of price, held, that specific performance should not be ordered. (Burkhalter v. Jones, 32 Kan. 5, 3 Pac. 559; Shoop v. Burnside, 78 Kan. 871, 98 Pac. 202.)</p>

<p>SYLLABUS BY THE COURT.</p> <p>Negligence: — Failure to Deliver Money Transmitted by Telegram— Measure of Damages. Special damages caused by failure to deliver money transmitted by telegram cannot be recovered where the telegraph company had no notice of, or information concerning, the purpose for which the person to whom the money was sent desired to use it.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Criminal Law — Application for Continuance Properly Denied. The application for a continuance is held not to have been erroneously-denied.</p> <p>2. Same — Evidence of Attempt by Defendant to Conceal, Destroy or Fabricate Evidence Competent Against Him. Attempts by a defendant, charged with the commission of an offense to conceal or destroy evidence against him, or to fabricate or procure false evidence in his behalf, are incriminating circumstances evidence of which may be offered against him.</p> <p>3. Same — Defendant as a Witness — Cross-examination. A defendant who takes the stand as a witness cannot complain that he was subject to the inquiries and tests to which other witnesses are subject.</p> <p>4. Same — Instructions—Not Prejudicially Erroneous. Instructions examined and held not to be prejudicially erroneous.</p> <p>5. Same — Arguments of Counsel — Reasonable Latitude Allowed. In summing up a case before a jury counsel may not introduce or comment on facts outside the evidence, but reasonable inferences may be drawn from the evidence and considerable latitude allowed in the discussion of it in which he may use illustrations and appeal to the jury with all the power and persuasiveness which his learning, skill and experience enable him to use.</p> <p>6. Same — The argument of counsel challenged is held not to afford ground for a reversal.</p> <p>7. Same — Evidence Supported Verdict. The evidence examined and held to be ample to support the verdict of the jury.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Promissory Note — Claim of Misrepresentation and Fraud — No Evidence to- Sustain Defense of Fraud. In an action upon a promissory note transferred by the payee to another before it was due, in which it was alleged that the payee procured it by misrepresentation and fraud, it is held that the testimony produced did not amount to substantial evidence of fraud and further did not tend to prove that the holder had any knowledge or notice of the claim of fraud when he acquired the note.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Municipal Bonds — Improvement of Highway — Rate of Interest— Price at Which Bonds May Be Sold. Where a statute authorizes the issuance of bonds bearing not more than a stated rate of interest, and provides for their sale without making an express requirement as to the amount they shall bring, bonds issued thereunder which bear the maximum interest named may be sold at a discount if the sale is made on the best terms obtainable.</p> <p>2. Same — Issuance of County Warrants in Excess of Amount Actually Due. The statute which forbids the issuance of county warrants in a larger amount than that actually due, in order to compensate creditors for the fact that they cannot be immediately paid and if sold would be subject to discount, does not prohibit the sale of bonds at less than par.</p> <p>3. Same — Road Improvements — Proportion of Costs Chargeable to County — To Be Paid by Taxation — Bonds Sold at Discount. The statute authorizing the issuance of bonds to provide for the payment of the proportion of the cost of road improvements chargeable against the county contemplates the raising by taxation of a sufficient fund to pay such bonds and the coupons thereof, even if by reason of the bonds being sold at a discount the taxes levied to meet the principal shall exceed the county’s share' of the cost of the improvement.</p> <p>4. Same — Bonds May Be Issued as Road Improvement Progresses. The provision of the statute that after estimates of the cost of a road improvement have been filed, and the cost to be assesséd against the county approximately determined therefrom, the commissioners may issue bonds from time to time as required, in the absence of any expression to the contrary, implies that after the steps referred to have been taken it rests with the board to determine when such issuance is required.</p> <p>5. Same — Form of Bid for Purchase of Bonds — Bonds Not Invalidated. The fact that in an offer to buy bonds from the body issuing them the bidder describes the discount at which he is willing to take them as a deduction to cover expenses has no effect upon the validity of the contract resulting from an acceptance of the bid.</p> <p>6. Same — Good FaAth of County Commissioners. The question of the exercise of good faith on the part of the commissioners in the issuance and sale of bonds is held to have been settled in their favor by the decision of the trial court.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Criminal Law — Destruction of Deed with Intent to Defraud — Sufficient Information. An information which lacks no material matter of precision and certainty to fully apprise a defendant of the crime charged against him and which is sufficiently clear to cause the court no doubt touching the correct judgment to be pronounced thereon upon a verdict of guilty is sufficient against a motion to quash or a motion in arrest of judgment.</p> <p>2. Same — Evidence—Issue Properly for Jury. The evidence examined, and held' that notwithstanding that part of it which tended to exculpate the defendant the issue was properly one for the consideration of the jury.</p> <p>3. Same — Inadequate Instructions to Jury. Where the attorney and confidential adviser of the grantor of a deed receives such deed from his client to be delivered to the grantee after the death of the grantor, and the attorney, during the grantor’s lifetime destroys the deed, the matter of the attorney’s good faith, when he candidly admits that he destroyed it, is of controlling significance when such attorney is prosecuted on a charge of destroying it with intent to defraud the grantee, and the question whether the grantor retained control over the deed during his lifetime and whether he expressly or impliedly authorized the destruction of the deed should also be adequately covered by the court’s instructions to the jury.</p> <p>4. Same — Instructions. The instructions requested were properly refused, but those given were inadequate and prejudicially erroneous.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Minors — Right of Parents to Have Custody of Their Children. Courts will not take from parents the custody of their children upon a charge of unfitness to maintain and care for them unless the charge is sustained by clear and satisfactory proof.</p> <p>2. Same — Mother Entitled to Custody of Her Children. The evidence examined and held to be sufficient to support the finding of the trial court that the petitioner, the mother of the children whose custody is involved, is not an unfit person to be entrusted with their custody and care.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Nuisance — Hedge Feyiee in Highway — Evidence—Findings—True Location of Highway. The proceedings in an action to abate a nuisance caused by hedge fences standing in a highway, examined, and held, a finding of fact which determined the issue — true location of the highway — is sustained by abundant competent evidence.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Damages — Maintenance of Pipe Line and Telephone Line Across Farm Lands■ — Contract Interpreted. In an action for damages resulting from the maintenance of a pipe line and telephone line under a grant of a right of way with respect thereto it is held that</p> <p>(1) An agreement to pay for any resulting injury to crops does not impose a liability on account of the frightening of grazing cattle so that they will not eat the grass;</p> <p>(2) A subsequent agreement on the' part of the grantee of the right of way not to exercise the right given until after the grazing season is not enforceable unless supported by a new consideration;</p> <p>(3) A provision that the right of way is for one line only, following a grant of a right to construct pipe lines and telephone lines, is to be interpreted as permitting the construction of one pipe line and one telephone line.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Sale and Purchase — Machine — Official Records of City —■ Impeachment by Parol Evidence. In an action against a city for the purchase price of a sewer-cleaning machine it is held that the official records of the city showing the adoption by the city council of a resolution authorizing the mayor to purchase the machine cannot be impeached by the parol evidence of some of the'members of the city council at that time to the effect that they had no recollection of the adoption of the resolution. (Manufacturing Co. v. Porter, 103 Kan. 84, 172 Pac. 1018.)</p> <p>2. Same — Directed Verdict. There being no competent evidence offered by the city to dispute the plaintiff’s claim it was error to submit the cause to the jury, and plaintiff’s motion for a directed verdict should have been sustained.</p>

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Criminal Law — Obtaining Property by False Pretenses — Sufficiency of Information. The information sufficiently charged the crime of obtaining property by false and fraudulent representations.</p> <p>2. Same. The information sufficiently charged that false representations were made as to existing facts and not wholly relating to future promises.</p> <p>3. Same. The facts narrated in the information and supported by the evidence were sufficient to establish the crime of obtaining property by false and fraudulent representations as to existing facts. '</p> <p>4. Same — Obtaining Property by False Pretenses — Instructions. The trial court’s refusal to instruct the jury as requested by defendant was not error.</p> <p>5. Same. The instructions given by the court examined, and held to be correct statements of pertinent law.</p> <p>6. Same. Instructions intended to advise the jury what were material statements of fact, which, if proven to have been falsely made, would justify a conviction, examined, and held to be correct and pertinent.</p> <p>7. Same — Evidence of Other Transactions Competent. Evidence of other transactions set on foot by defendant, similar to the one for which defendant was being prosecuted, were competent to show that defendant was well aware of what .he was doing, to show his usual method of business, and to show his deliberately willful and guilty intent to falsify for the purpose of defrauding the complaining witness.</p> <p>8. Same — Value of Property Obtained, by False Pretenses. It needs no formal evidence to prove that five new Maxwell automobiles and six other used cars of various kinds were worth in the aggregate over $20, and a defendant who fraudulently obtained them by false pretenses is guilty of a felony.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Street Railway — Motor Truck Attempting to Cross Track — Contributory Negligence. Where the driver of a motor truck which has been backed up to the curb to be loaded, its front being three or four feet from a street-car track which it must cross to get started on its trip, starts it while a 65 or 70 foot street car is approaching at a distance of 80 feet and a speed of 15 to 18 miles an hour, his conduct amounts to such contributory negligence as to bar a recovery against the streetcar company, notwithstanding a showing that it would have been possible for the motorman to have stopped the car within its own length.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Evidence. Evidence examined, and held sufficient as against a demurrer.</p>

<p>SYLLABUS BY THE COURT.</p> <p>M'alpractice — Chiropractic Treatment — Demurrer Wrongfully Sustained. The record shows evidence on behalf of the plaintiff which should have been permitted to go to the jury, and it was error to sustain a demurrer thereto.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Insurance — Foreign Insurance Company■ — Service on Superintendent of Insurance — Statute Construed. A foreign insurance company obtained authority to transact business in the state and filed its consent that it might be brought into the courts by service of summons upon the superintendent of insurance. While conducting business under the state license an insurance contract was executed under which proofs of loss were made, and the loss was paid. Afterwards the agent of the company claimed that the insured had obtained payment of the loss by fraud and false pretenses and instituted a prosecution against the insured, which resulted in a dismissal and a discharge of the defendant. Later the insured began an action against the company to recover damages for malicious prosecution, by the service of a summons on the superintendent of insurance, but after the termination of the prosecution and prior to the commencement of the action for malicious prosecution, the authority granted by the state to the company was revoked by the insurance department, after which it ceased .to do any new business in the state and left the collection of premiums and the closing up of unfinished business in the hands of an agent bank. Held, that the service of summons upon the superintendent of insurance in the suit for malicious prosecution is sufficient to bring the company into court.</p> <p>2. Malicious Prosecution — When Advice of Counsel Will Absolve from Liability. In an action for malicious prosecution the fact that a person took the advice of counsel as to probable cause for instituting the prosecution will not absolve him from liability unless he made a full disclosure of the facts to the counsel.</p> <p>3. Same — Termination of Prosecution. The prosecution must be terminated before an action for malicious prosecution can be maintained, but a dismissal of the prosecution and the final discharge of the defendant satisfies the requirements of the law as to the termination of the prosecution.</p> <p>4. Same — Duty of Court to Instruct as to What Facts Would Constitute Probable Cause. Whether certain facts, sought to be established, exist is a matter of fact for the determination of a jury; but whether particular facts, if found to exist, do or do not constitute probable cause is strictly one of law for the decision of the court, and it is error to submit it to the jury.</p>

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

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

<p>Appeal from Woodson district court; James W. Finley, judge pro tern.</p>

<p>SYLLABUS BY THE COURT.</p> <p>T. Criminal Law- — Rape—One Preliminary Examination No Bar to a Subsequent One. One preliminary examination on which the defendant is held for trial is not-a bar to a subsequent preliminary on another complaint and warrant charging the same offense, where the first action is dismissed before the second is tried.</p> <p>2-. Same — Information Containing Three Counts — Motion to Quash. It is not reversible error to refuse to quash an information containing three counts where the action is dismissed as to the second and third counts before it is submitted to the jury, and the first count states an offense.</p> <p>3. Same — Rape—Charging Offense in Language of Statute Sufficient. An information charging rape under section 3393 of the General Statutes of 1915 is sufficient if it sets out the offense in the language of the statute.</p> <p>4. Same — Examination, of Jurors on Their Voir Dire. On a criminal prosecution it is not error, in the examination of jurors concerning their qualifications to sit as such, to allow counsel to read to them the statute under which the defendant is being prosecuted and to ask them whether they believe the penalty too severe and whether they are in favor of the enforcement of that statute.</p> <p>5. SameI — Information Containing Three Counts — Motion to Require State to Elect. On a trial on an information charging three different felonies in as many different counts, it is not reversible error to refuse to require the state to elect on which count it will rely for a conviction, where the second and third counts are dismissed before the case is submitted to the jury.</p> <p>6. Same — Impeachment of Witness. 'A witness cannot be impeached by showing contradictory statements made by him at another time and place on matters that are immaterial or collateral.</p> <p>7. Same — Evidence. No error was committed in the introduction or exclusion of evidence.</p> <p>8. Same — Rape-—Instructions. The instructions properly submitted the charge of rape under section 3393 of the General Statutes of 1915.</p> <p>9. Same — Trial—Improper Remarks of Counsel. A judgment of conviction will not be reversed on account of improper remarks of counsel for the state in argument to the jury, where those remarks were voluntarily withdrawn or the jury was instructed by the court to disregard them, if they were not so prejudicial as to prevent the error being cured thereby.</p> <p>10. Same — -Evidence—Verdict. There was evidence sufficient to sustain the verdict.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Sale op Real Estate — Default in Payments — Forfeiture Would Be Inequitable. Under the facts and findings herein, as indicated in the opinion, the plaintiff is not entitled to a forfeiture of his contract for the sale of the real estate involved.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Injunction — Issue Becoming Moot — Case Dismissed — Taxation of Costs. The appeal is dismissed as having become moot through a change of conditions since the judgment appealed from was rendered, but the costs are taxed to the plaintiff, who prevailed below, because of the vexatious character of the litigation instituted by him.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Criminal Law — Receiving Stolen Property — Allegation of Ownership, as Bailee, in Railroad Company — Railroad in Control of United States Government. The information in a prosecution for receiving stolen property alleged that the goods involved were “of the goods and chattels of the Chicago, Rock Island and Pacific Railway Company, a corporation, bailee, said Chicago, Rock Island and Pacific Railway Company, being then and there under the control of the United States government.” Held, that there was no. substantial variance between the allegation and the proof, and that possession was properly laid in the railroad company. (Brackville v. Telephone Co., 107 Kan. 130, 132,190 Pac. 773.)</p>

<p>SYLLABUS BY THE COURT.</p> <p>Taxes- — Paid Under Protest — Action to Recover — Statute of Limitations. An action against a county for illegal taxes paid under protest is barred by section 2674 of the General Statutes of 1915, if no claim for the repayment of the money is presented to the board of county commissioners, and the action is not commenced until more than two years have elapsed since the payment of the taxes.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Promissory Note — Procured by Fraud — Holder With Notice of Fraud —Note Not Controlled by Law of Commercial Paper. Where a promissory note is procured by the fraud of the payee, but such note never passed into the hands of an innocent holder in due course, the law of commercial paper does not control the obligation of the maker of such note.</p> <p>2. Same — Procured by Fraud — Subsequent Contract to Return Note to Maker — Note and Contract Construed Together. Where the' payee of a note has bound himself to the maker, in writing, that he would surrender the note to the maker at or before its maturity, the note and the contract in writing are to be read and construed together in an action by a plaintiff who acquired it with full notice of .its infirmities and who knew and had custody of the written contract.</p> <p>3. Same — Rights 'of Purchaser With Notice of Its Infirmities. One who purchases a note before maturity with full notice of the defenses thereto stands in the same position towards its possible enforcement as the payee himself.</p> <p>4. Same — Note Procured by Fraud — Subsequent Contract — No Waiver of Fraud — Purchaser with Notice of Fraud and Contract Cannot Recover on Note. Where a promissory note has been procured from the maker by the fraud of the payee, and after the discovery of the .fraud the maker and the payee make an agreement in writing that the maker will permit the note to run to maturity and permit the payee to discount it, upon condition that the payee will take' it' up and deliver it to the maker without payment and without cost to him, and the payee gives the maker a sum of money to cover any expense he might be put to in procuring the return of the note, and where pursuant thereto the payee discounts the note to a bank which had notice of the fraud and knew the contents of the agreement in writing and was the custodian of that agreement, and the payee fails to redeem and surrender the note to the maker, and the bank brings action against the maker thereon, it is held (1) that the contract to redeem and surrender the note did not waive the fraud since the contract was not complied with; and (2) the note and the agreement together constituted one entire contract between the parties; and (3) that the bank stood in no better position than the payee and could not recover thereon.</p> <p>5. Same — Procured by Fraud — When Controlled by Law of Contracts. Under the state of facts above set forth the law controlling the case is the law of contracts, and not the law of commercial paper.</p>

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Opening Up Judgment — Party Deceased — No Revivor — No Jurisdiction to Open Up Judgment. Before the district court can entertain an application to open up a judgment rendered on service by publication where the plaintiff in the action has died, there must be a revivor of the judgment.</p> <p>2. Same — No Revivor of Judgment — No Valid Service of Notice to Open Up Judgment. In a suit for partition, a defendant answered that he was the only heir of his wife who in her lifetime had obtained a judgement against the plaintiffs, quieting her title to the real estate. The plaintiffs replied that the judgment upon which defendant relied was obtained on publication service only and that they had had it opened up, and at another trial judgment was rendered in their favor. The evidence showed that after the death of the plaintiff in the first action, and without a revivor of the judgment, and without any notice served in compliance with section 83 of the code of civil procedure, the district court opened the judgment and afterwards rendered judgment in favor of the parties now plaintiffs in the present action. Held, that the proceedings subsequent to the death of the plaintiff in the first suit were void because there was no revivor of the judgment,, and because there was no valid service of notice to open the judgment.</p>

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Descents and Distributions — Rights of Surviving Husband. When a married woman dies intestate, leaving a husband and two children by a former husband, her heirs at law are her surviving husband and her children; and these heirs at law are vested at her death with all her property and rights of property; and a subsequent marriage of the husband to another woman does not divest him of his interest in his dead wife’s property.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Negligence — Employer Transporting Employee from Home to His Work — Injury to Employee. A packing company employed a transfer company to convey its employees to and from their work and directed and controlled the transportation. Held, that having assumed the responsibility of the transportation of its employees the company owed them the duty to provide vehicles that were reasonably safe and the obligation to see that the drivers should exercise reasonable care in operating them.</p> <p>2. Same — Relation of Master and Servant Existed — Liability of Master. As the' relation of master and servant existed between the packing company and its employees, the former cannot be absolved from liability for the negligent operation of the vehicles because they were owned by another.</p> <p>3. Same — Instructions — Evidence — Verdict. Questioned instructions given to the jury are held to be without error, and the verdict is found to be supported by sufficient evidence.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Promissory Note — Findings of Fact.— Evidence. Certain named questioned findings of fact were supported by evidence.</p> <p>2. Same. Part of a certain named questioned finding of fact was not supported by evidence.</p> <p>3. Same — Accommodation Indorser — When Entitled to Notice of Dishonor on Nonpayment. A stockholder, who is also an officer and director in a Missouri corporation, and who, without receiving any direct consideration therefor and without any language of qualification, signs his name' on the back of a note given in Missouri by the corporation to itself to be negotiated for the purpose of procuring money for the corporation, is liable under the Missouri negotiable-instruments law as an indorser, and is entitled to notice of dishonor on nonpayment of the note. (Auto Co. v. Winters, 277 Mo. 425, followed.)</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Specific Performance — Sale of Land — By School Board — Statute of Frauds- — Official Records — Sufficient Memorandum. The minutes of a board of education, duly entered in the clerk’s journal and approved at a later meeting of the board, recording the board’s determination to sell a tract Of ground owned by the board, and recording the vote thereon, and authorizing and directing the president and clerk of the board to execute a deed to the property in favor of the purchaser, are a sufficient memorandum of the contract to bind the board under the statute of frauds.</p> <p>2. Same — Sale of Land — Completed Contract — Public Interest Involved —Specific Performance Refused. Where a board of education has made a contract to sell a tract of school ground pursuant to its purpose to acquire a parcel of ground for a schoolhouse elsewhere, but later changes its determination and rescinds its contract, and decides to build the schoolhouse on the ground it had contracted to sell, preferring, if it must, to respond in damages to the contractee, a- court of equity, in its discretion and with due consideration to the public interest involved, may decline to compel the school board to perform its contract to sell the property.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Evidence — Relative Value of Affirmative and Negative Testimony. The testimony of a witness that a warning of an approaching street car was given is ordinarily worth more than the testimony of two witnesses who truthfully say that they did not hear it given.</p> <p>2. Street Railway — Pedestrian in Public Highway — Assumptions that May Be Indulged by Motorman. A motorman on a street car may rightfully assume that an adult pedestrian apparently capable of taking care of herself, who is walking in the wagonway between the track and the curbing, a space of about six feet, and not near enough to the track to be struck by the forward end of the car, will step aside far enough to avoid being struck by the overhang of the car as it rounds a curve which they were approaching and of which she was aware.</p> <p>3. Same — Personal Injuries — Contributory Negligence. It is the duty of one walking in the street close to a street-car track in which there is a curve, and who is aware of the track .on which cars are frequently passing and of the curve in the track, and is capable of taking care of herself, to take heed of the perils of the place and step aside to an available place of safety; and where she fails to do so, even when the front end of the car passes her, and is injured by the hind end of the car as. it takes the curve, she will be deemed to be guilty of such contributory negligence as will bar a recovery for the' injuries sustained.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Contract. — Sale of Wheat — Accidental Destruction of Wheat — Failure to Deliver — Instructions—Findings of Jury. The omission of the trial court to give an instruction as to the effect of the accidental destruction of wheat out of which it was claimed by a seller that it had been agreed he should fill an order, because in this way a delay in delivery which was desired by the purchaser could be arranged, is held to have been rendered immaterial by a finding of the jury that the buyer had at no time advised delay in making the shipment.</p> <p>2. Same — No Prejudicial Error in Court’s Rulings. Various trial rulings are held not to afford a basis for reversal.</p> <p>8. Same — Set-off Allowed — Judgment Modified. A claim of the defendant for an allowance on account of underpayments in shipments of wheat, having been withdrawn from the jury for want of evidence as to the grades and weights, it is held that an allowance should have been made on the basis of evidence on the subject supplied by the plaintiff.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Sale op Grain — Motion for New Trial — Excluded Evidence Not Produced on Hearing of Motion — Cannot Be Considered on Appeal. The requirement of the statute that where a motion for a new trial is based upon the exclusion of evidence, such evidence must be produced on the hearing of the motion by affidavit, deposition or oral testimony, is not met by including in the offer of proof an unverified statement of the facts proposed to be shown by the witness' who is upon the stand and whose testimony is excluded.</p> <p>2. Same — Special Findings — Verdict. The special findings are held not to require a judgment contrary to the general verdict.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Mandamus — County Clerk Not Compelled by Mandamus to Perform a Ministerial Duty to Give Effect to an Unlawful Act. A county clerk will not be required by mandamus to perform a ministerial duty when its performance is necessary to give effect to an unlawful act which the board of county commissioners has undertaken, although the board has full responsibility therefor and the county clerk has none.</p> <p>2. Highways — County Commissioners Constructing Improved Highway —Purchase of Road-building Material — Inequitable Distribution of</p> <p>. Costs Thereof. When a board of county commissioners, pursuant to statutory authority, undertakes to construct an improved highway, the board may lawfully purchase road-building machinery for that purpose, and charge the initial cost to the road project; but it does not follow that the large sum which the board might justifiably expend for such machinery for a proposed highway of twenty-nine miles can be charged against a road project of five miles of such highway when it develops that the remaining parts of the proposed highway must be abandoned because of initial irregularities.</p> <p>3. Same. An expenditure of a sum of money which might be justifiable to invest in road-building machinery to construct a proposed highway of twenty-nine miles may be altogether unreasonable in amount when only five and a fraction miles of such highway must carry the entire burden of such expense.</p> <p>4. Same — Implied Powers Conferred on Public Officials. When, by statute, official powers and duties are conferred or imposed upon a public officer or official board, the only implied powers possessed by such officer or board are those which are necessary for the effective exercise and discharge' of the powers and duties expressly conferred and imposed.</p> <p>5. Same — Duty and Discretion of Highway Engineer. When there is no showing that the state highway engineer has abused his discretion in determining the estimate which he will allow to be charged as part of the cost of a road for road-building machinery, and no fallacy is shown in the calculations by which he determined such estimate, his official determination of the matter will not be controlled by mandamus.</p> <p>6. Same — Plan for Distribution of Costs Unreasonable and Unlawful— Mandamus Refused. Pursuant to petitions of resident landowners, the board of county commissioners of Barton county set about the construction of an improved highway of twenty-nine miles across the county. It was determined to create four benefit districts and complete the highway in four separate projects. The board found that the cost of building the highway by contract would be excessive, and it determined, as by law permitted, to build the highway itself. Pursuant thereto it purchased $168,000 worth of road-building machinery. Later the road projects were enjoined because of initial irregularities. The taxpayers particularly interested in the proposed road filed new petitions to built about five miles of it. The board of county commissioners set to work on that project, and as a temporary expedient authorized a bond issue for the total cost of the machinery designed for constructing the entire twenty-nine miles of highway originally contemplated. The state highway engineer declined to sanction the charging of all the cost of the road-building machinery against the five-mile road project, and the county clerk declined to sign and register such bond issue. Held, that mandamus will not issue to compel these officers to perform any official acts necessary to accomplish such purpose of the county board.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Will — Forfeiture Clause — -Provision Against Contest — Validity—Forfeiture Clause Not Violated. A testator by his will devised to his children certain real estate with a provision that “should any beneficiary named herein, by means of a suit or otherwise, attempt to set this will aside, or otherwise interfere with the execution of the same as I leave it, such person so attempting shall have no part of my property, and the share which would otherwise go to such person shall be distributed equally among the remaining beneficiaries.” In an action against one of the devisees for partition brought by the other devisees it was alleged that in direct violation of the forfeiture clause of the will, the defendant presented in the probate court a claim for $600 against the estate; that it was allowed by the probate court and judgment rendered against the estate; that on appeal to the district court the claim was disallowed. The petition made no reference to the nature or character of the claim filed by the defendant against the estate. A demurrer to the petition was sustained. Held, that the act of the defendant in filing a claim against her father’s estate did not amount to a contest of the will or to a violation of the terms of the clause providing for forfeiture, and therefore the petition fails to state a cause of action.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Insane Person — Transferred to State Asylum for Dangerous Insane —Jurisdiction of Probate Court to Hear Application for His Discharge. Where pursuant to an ordinary proceeding in lunacy a person is committed to a state hospital for the insane, and he is thereafter lawfully transferred to the state asylum for the dangerous insane because of his homicidal tendencies, the probate court in a proper proceeding has jurisdiction to hear and determine an application for his discharge in accordance with the provisions of section 9618 of the General Statutes of 1915; and the restrictions against the liberation of inmates of such asylum without full hearing, finding and order of the state board of corrections, prescribed by section 10044 of the General Statutes of 1915, do not pertain thereto nor interfere therewith.</p> <p>2. Appeal — From Judgment of Probate Court Discharging an Inmate of a State Hospital for the Insane. A final, order and judgment of the probate court discharging an inmate of a state hospital for the insane, including the state asylum for the dangerous insane at Lansing, may be appealed by the state to the district court, under the broad appellate and supervisory powers which the district court possesses over all inferior courts and tribunals exercising judicial functions.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Corporate Stock — Nonnegotiable Paper — Purchaser Takes It Burdened with All Its Vices and Defects. One who buys or contracts to buy stock in a corporation does not take it freed of its infirmities according to the rules of commercial paper acquired in due course; he merely takes such legal and equitable rights in the' stock as his vendor has to bestow; and although the buyer may be ignorant of the equities and burdens which inhere in the stock, his ignorance does not relieve the stock therefrom, nor enable him to acquire it discharged of any vice or defect which inheres in it.</p> <p>2. Same. The secretary of a corporation in charge of its stock book fraudulently and without consideration issued to himself 232,500 shares of the corporation’s capital stock. In conformity with an order of the state charter board the corporation set about the task of recalling and canceling this illegal issue. Part of this issue, a certificate for 5,000 shares, had passed from hand to hand until it was purchased by plaintiff upon a contract that he was not to pay for it until it had been duly transferred on the books of the company arid a new certificate therefor issued to him. Plaintiff did not know of the fraud in its original issue, nor that any vice or defect inhered in the stock. He sent in the old certificate to the corporation for transfer. The corporation promptly canceled and suppressed it and declined to issue a new certificate therefor. Plaintiff sued the corporation in conversion for the market value of bona fide stock of the company. Held, that he purchased the stock burdened with its vices and defects and cannot recover.</p>

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

<p>Appeal from Montgomery district court; JOSEPH W. Hold-REN, judge.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Foreign Corporation — Right to Bring Action to Foreclose Mortgage On Real Property in Kansas. A foreign corporation may bring an action in this state to foreclose a mortgage on real property, and the defendants cannot defeat the action by showing that the charter of the plaintiff had been revoked, if the plaintiff shows that the order of revocation was afterwards rescinded, although the defendants contend that the order of rescission was invalid because not authorized by law.</p> <p>2. Deed — Assumption of Mortgage by Grantee — Estoppel to Deny Covenants in Deed. The clerk of a man engaged in the real-estate business is estopped to deny that he assumed and agreed to pay a mortgage described in a deed in which he is named as grantee and which recites that the grantee assumes and agrees to pay the mortgage, where he permits his employer to accept such conveyance and afterward executes a deed conveying the real property at the request of his prin,cipal, all without knowing and without inquiring concerning the nature of the transactions in which the conveyances were made.</p> <p>3. Same. In an action' to foreclose a mortgage on real property, the grantee of the mortgagor and all subsequent grantees are estopped tc deny the validity of the mortgage, where the mortgagor’s grantee, in the deed to him, assumed and agreed to pay the mortgage, and all subsequent conveyances'of the land are quitclaim deeds or are made subject to the mortgage.</p> <p>4. Same — Foreclosure of Mortgage — Six Months’ Period of Redemption. No error is shown in the judgment of the court fixing the period of redemption from sheriff’s sale at six months.</p> <p>5. Same — Request for Special Findings. On a request for special findings of fact, the court found the ultimate facts on which the rights oí the parties depended and from which the correctness of the judgment could be obviously and readily ascertained. Held, that it was not reversible error to refuse to find the evidentiary facts requested by the parties.</p> <p>6. Same. The request for special findings was made too late.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Contract — To Purchase Horse — Horse Not as Contracted For — Buyer-May Refuse to Accept. Where there is an agreement to buy a horse-of a certain kind and grade for a specific purpose, and the one delivered by the seller is not the kind or quality contracted for, the buyer-is not obliged to accept and pay therefor.</p> <p>2. Same- — No Completed Contract to Purchase Horse — Rights and Remedies of Purchaser. Where the buyer promptly, notifies the seller of the-refusal to accept the horse, and that he is holding him subject to the seller’s order, and the seller leaves thq horse in the possession of the-buyer, the latter is entitled to a lien on the horse for the expenses incurred in keeping and caring for him, and to have the horse sold in satisfaction of the lien, and also to recover as damages from the seller-any part of such expenses remaining unpaid after applying thereto the-proceeds of the sale.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Descents and Distributions — Parents by Adoption Inherit from. Their Adopted Child’s Estate. The word “parents,” used in sections of the statute of descents and distributions which provide that if an intestate leave neither wife nor issue the whole of his estate shall go to his parents, and if one of his parents be dead, then to the surviving parent (Gen. Stat. 1915, §§3842, 3843), includes parents by adoption.</p> <p>2. Same — Surviving Natural Parent Also Inherits. There is no statute which destroys capacity of a natural parent to inherit from his child adopted by another, and on death of such a child, intestate, and leaving neither wife nor issue, his surviving parents, by nature and by adoption, inherit his estate.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Will — Action to Set Aside — Mental Incapacity — Undue Influence — Evidence. In an action to set aside a will on the ground of the mental incapacity of the testator and alleged undue influence exercised by his wife, who was the principal benéficiary, findings of fact considered, and held (following Ginter v. Ginter, 79 Kan. 721, 101 Pac. 634) insufficient to sustain a judgment setting aside the will on the ground of undue influence, and further held (following Wisner v. Chandler, 95 Kan. 36, 147 Pac. 849), that notwithstanding the testator was 76 years of age and suffered through senile dementia, the provisions of the contested will and the findings showing the circumstances under which it was dictated and executed, establish the mental capacity of the testator immediately before and at the time of its execution.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Larceny — Evidence Tending to Show Cornmission of Other Similar Larcenies Competent. Under the circumstances stated in the opinion, evidence relating to the subject of commission of other larcenies by the defendant was properly admitted at her trial on the charge of grand larceny.</p> <p>2. Same — Trial—No Substantial Error. Minor assignments of error considered, and held to be without substantial merit.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1.. Appeal — Only Matters Passed Upon by Trial Court Are Reviewable on Appeal. The chief question touching the defense herein being under the circumstances nonappealable, held, unnecessary to consider or determine certain subsidiary questions presented.</p> <p>2. Same. Here for the first time the question of the passage of the statutory amendment under which the action was brought is presented. Held, that this court, sitting as an appellate tribunal, cannot consider alleged errors of the trial court in respect to which such trial court has had no opportunity to act.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Highways — Public Road Established — Claim for Damages Presented and Disallowed — No Appeal — Right to Claim Damages Ended.' Where a road is established by a board of county commissioners and a landowner presents a claim for damages because of the establishment of the road, which is not allowed, and no appeal is taken by him from the order, his right to claim damages is then ended and the board of county commissioners is without authority thereafter to allow .his claim of damages.</p> <p>2. Same — Passageway Under Road for Cattle. The fact that the board thereafter made an allowance towards the building of a passageway for cattle to pass under the road, which was maintained by the township authorities for a number of years, did not create an obligation against the county to maintain the passageway.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Special Findings — Entitle Defendant to Judgment. Special findings considered and held to entitle the defendant to judgment notwithstanding the general verdict.</p>

<p>.SYLLABUS BY THE COURT.</p> <p>1. Replevin — Chattel Mortgaged Property — Mortgage Debt, Paid by Third Party Pending Suit — Subrogation. A guardian, who with her ward signs a promissory note and to secure its payment executes a chattel mortgage on property of the ward, may pay the note out of her own money and be personally subrogated to the rights of the mortgagee as against a third person who acquires possession of the mortgaged property in violation of the rights of the mortgagee.</p> <p>2. Same — Judgment in Favor of Third Party Subrogated to Plaintiff’s Interest. In an action in replevin commenced by a chattel mortgagee to recover possession of the mortgaged property, it is not reversible error to render judgment in favor of one who, although not a party to the action, after its commencement pays the mortgage debt and is entitled to subrogation to the rights of the mortgagee as against one</p> <p>■ wrongfully holding possession of the property.</p> <p>3. Same — By Mortgagee of Automobile — Nature of Judgment to Be Rendered — Value of Automobile. In a replevin action brought by a chattel mortgagee to recover possession of the mortgaged property, it is not reversible error to render-judgment in favor of the plaintiff for the full amount of the mortgage debt if, on the trial, the' parties and the court assume that the value of the automobile was greater than the mortgage debt, or that the plaintiff was entitled to judgment for the amount of the debt, if he could recover any judgment whatever.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Automobiles — Driving at Illegal Rate of Speed — Collision—Damages —Demurrer to Evidence Properly Overruled. In an action to recover damages ■ resulting from the defendant driving his automobile at an illegal rate of speed against the one in which plaintiff was riding, the evidence of the negligence of the defendant is held to be sufficient to ' sustain the action of the court in overruling the demurrer to plaintiff’s evidence.</p> <p>2. - Same — Driving at Illegal Rate of Speed is Negligence — Must Be Proximate Cause of Injuries. The running of an automobile within a city at an excessive rate of speed in violation of a statute is of itself negligence, but the wrongdoer is only liable for such injuries as are the proximate result of the illegal speed; and it is held that this rule was correctly applied by the trial court.</p> <p>3. Same — Negligence — Damage to Automobile — Measure of Damages. Ordinarily the. proper rule for measuring the damages to an automobile resulting from a negligent collision is the difference between the value of the automobile before the injury and its value after the accident, and when that theory-is applied the cost of repairs cannot be included in the damages awarded.</p> <p>4. Same — Value of Injured Automobile — Competent Witness. One who was accustomed to handling cars of the kind injured, had bought and sold several of them, and was fairly familiar with their value, is a competent witness to give an opinion as to the value of the injured automobile.</p> <p>5. Same — Negligence—Other Acts of Similar Negligence Shown on Cross-examination of Defendant. On an issue as to the negligence of a driver of an automobile it is ordinarily not admissible to show acts of negligence on other occasions, but where the defendant has testified as to careful driving, a cross-examination within reasonable limits, as to whether he had not at other times been reprimanded and arrested for fast driving, may be permitted; and the extent of the cross-examination of the defendant in this case is not deemed to be a ground for a reversal of the judgment.</p> <p>6. Same — Damages Not Excessive. The damages awarded plaintiff are held not to be excessive.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Postnuptial Contract — Division of Property — Contract Canceled, Only by Mutual Agreement. A husband and wife became estranged, and believing that it was impossible for them to live together any longer, entered into a written contract for a division of their property which provided that neither should inherit from the other. The contract contained no provisions for either party which might not with equal propriety have been made by married people if no separation had been contemplated. Held, in an action where the validity of such a contract was involved, that the court properly instructed that the mere fact that after ■ the execution of the postnuptial contract the parties became reconciled and resumed marital relations would not be sufficient of itself to warrant the jury in finding that the contract had been set aside; that in order to revoke such contract both parties to it must consider it annulled and that one of them alone could not set it aside, and that in passing upon the question whether it had been canceled by mutual agreement all the circumstances in evidence tending to prove the intention of the parties should be considered by the jury.</p> <p>2. Same — Parol Evidence Incompetent to Change or Modify Contract. In a case involving such a contract the widow sought to prove that at the time the contract was executed her attorney said in the presence of herself and husband that if they resumed marriage relations the contract would be annulled. Held, that the evidence was incompetent under the rule forbidding parol testimony to modify or change the terms of a written contract.</p> <p>3. Same. In such a case it is held that the testimony of the wife concerning her intention with respect to annulling the contract at the time or after the resumption of the marriage relations was incompetent because her intention was not a circumstance from which the jury would have the right to infer what the intention of her husband was.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Divorce — Award of Alimony — Judicial Discretion. The record examined, and held, that the court in awarding- alimony to' the plaintiff committed no abuse of discretion.</p> <p>2. Same- — Allowance of Attorney’s Fee. The sum, allowed as attorney fees to the plaintiff, approved.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Contract — To Procure Insurance on Aeroplane — Contract Indefinite— Loss — Petition for Damages Fails to State Cause of Action. A bill of particulars alleged that the manager of a corporation contracted with the plaintiff, a stockholder, that the corporation would procure insurance on at least one of a number of aeroplanes owned by it, without specifying which one should be insured; that none was insured; that one was destroyed by a contingency against-which insurance was to have been obtained; and that the plaintiff was damaged. Held,, that the contract was indefinite and that a cause of action against the manager for damages was not stated.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Action — To Set Aside Will — Pleading Evidential Facts — Not Good Pleading. In an action by a widow 'to set aside her deceased husband’s will which cut her off with a pittance and left the bulk of his estate to a woman alleged to have lived with, him for years as his concubine, the details of the testator’s illicit relationship with the beneficiary are not a necessary part of the petition where the cause of action is grounded on the fraud and undue influence of the beneficiary in procuring the making of the will. Such details are merely evidential ■ facts, and not the ultimate facts which alone are required to be stated under the rules of good pleading.</p> <p>2. Same. Under the rules of good pleading, the ultimate facts should be narrated and not the evidence by which those facts may be established.</p> <p>3. Pleadings — Certain Recitals Stricken from Petition — No Prejudicial Error. When there remains a cause of action stated in a petition after certain recitals of fact provable as evidence are stricken therefrom, it is not prejudicial error to strike such recitals from the petition.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Negligence — Distribution of Natural Gas — Pleadings—Amended Petition — Contributory Negligence. A petition praying for damages occasioned by negligence of the defendant in distributing natural gas, and amendments to the petition, examined, and held: Soundness of the cause of action was not affected by amendments resting certain allegations of the petition on information and belief; the amendments were not inconsistent with the petition, and did not render the petition ambiguous; the negligence charged in the amended petition was the proximate cause of the injury; contributory negligence barring recovery does not appear on the face of the petition; and the amended petition states a good cause of action, in a sufficiently clear and concise manner.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Paving Contract — Terms of Guaranty Bond Construed. The paving r contract and bond involved herein are examined, and held to guarantee the pavement for ten years only as to the character of the material and workmanship furnished by the contractor, following Kansas City v. Hanson, 60 Kan. 833, 58 Pac. 474.</p> <p>2. Same — Making of Certain Repairs by Bond Company — No Estoppel. The fact that certain repairs were made by the defendants some nine years after the completion of the work held not to estop them from maintaining the defense urged by them indicated in the foregoing paragraph.</p> <p>3. Same — Action for Damages — Statute of Limitations. The action is held to be one on a written contract to keep the pavement in repair for ten years, and having been begun within five years from the expiration of that period it was not barred.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Contract — Relating to “Oil, Gas and Other Minerals Found’’ Under Certain Lands — Minerals Not Severed and Conveyed as Real Estate. An instrument granting “all oil, gas and other minerals found” in and under described land, together with right to enter, drill, operate, and do the things necessary to produce, interpreted, and held not to sever and convey as real estate minerals deposited in the soil.</p> <p>2. Same — Action to Cancel Oil and Gas Lease — Abandonment of Lease Not Shown. An allegation in a petition to cancel a mineral lease, that the lessee removed machinery, casing and property from the premises without productive development, does not, standing alone, show abandonment.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Cancellation op Oil Lease — Evidence Supports Decree. The record is examined and it is held that the evidence fully justified the decree of cancellation rendered by the trial court.</p> <p>2. Same — No Adequate Remedy at Law — Sufficient Averments in Petition. While the petition did not expressly allege that the plaintiff was without adequate remedy at law, such was a fair inference to be drawn from its averments and the proof was sufficient to sustain such allegation had it been made. Held, that the pleading was sufficient.</p> <p>3. Same. The old rule of equity pleading which required an allegation that the complainant was without adequate remedy at law is no longer controlling under our system of courts and of pleading.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Benefit Insurance — Forfeiture of Membership by Engaging in Military Service — Forfeiture Lawfully Waived “During Period of War.” A fraternal beneficiary society which had a constitutional provision that if a member engaged in military service it would operate to forfeit his membership, adopted a resolution that the provision “be and the same is hereby suspended and repealed” during the period of the war, and afterwards it contested a claim for a benefit on the life of a member who had entered military service and had died of wounds received in action 'in France, prior to the adoption of the resolution.</p> <p>Held, that the resolution was retroactive in its operation and that the .beneficiary was entitled to recover on the certificate.</p> <p>2. Same — Resolution Waiving Forfeiture “During Period of War” — Interpretation Question of Law. The force and effect of the resolution was a question of law for the trial court, and no error was committed by the court in instructing the jury that the pleaded fact that the member had entered military service was not a defense.</p> <p>3. Same — Time of Paying and Receiving Assessments — Estoppel. Nor was any error committed in instructing the jury that if the defendant or its agent, by a course of conduct in transacting its business with its members, led the insured to believe that assessments might be paid in a particular manner and at times other than those specified in the by-laws or contract, it would be estopped to claim a forfeiture because the assessments were not paid strictly at the times and in the manner prescribed in the by-laws.</p> <p>4. Same — Instructions. Other rulings in charging the jury are held to be without material error.</p> <p>5. Same — Evidence Supports Finding of Payment of Assessment. The evidence examined, and it is held that the evidence is sufficient to support a finding of a payment of the assessment in question.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Sale of Oil Stock — Written Contract — Buyer’s Right to Rescind Sale— Issue -of Fact for. Jury. Upon the sale of oil stock it was agreed that at the end of ninety days the seller would offer to return the purchase money and if the buyer elected to take it he should surrender the stock. Ten months after the expiration of the ninety days the buyer sued the seller for the recovery of the money he had paid. There was evidence that when the time was up the seller tried to find the buyer but was unable to do so; that the buyer, although knowing the seller’s address, sent him no word regarding the matter. The court directed a verdict for the plaintiff. It is held that the fact that the seller had not offered to return the money was not fatal to his case and the matter should have been submitted to the jury. ‘ •</p>

<p>SYLLABUS BY THE COURT.</p> <p>Homestead — Sufficient Evidence to Establish Claim, of Homestead. Plaintiff’s evidence was sufficient to establish that certain real estate was occupied by herself and her husband in his lifetime as their homestead and that after his death she continued to occupy and claim it as her homestead. There was evidence to the contrary. Held, that the findings of the trial court in plaintiff’s favor are conclusive. (O’Neal v. Bainbridge, 94 Kan. 518, 146 Pac. 1165.)</p>

<p>SYLLABUS BY THE COURT.</p> <p>Mandamus — City Bonds — Aid in Construction of Railroad — Conditions Under Which Bonds Were Voted Not Complied With — Writ Denied. A writ of mandamus will not issue to compel the delivery of railroad bonds voted by a city under sections 8661-8667 of the General Statutes of 1915, where no railroad has been built except 2,675 feet connected by a switch with another railroad, and where from the whole proceeding it can be gathered that it was the intention of all parties that a railroad be built from a city in Oklahoma to the city in this, state voting the bonds.</p>

<p>syllabus by the court.</p> <p>Criminal Law — Failure to Cut and Trim Hedge Fences — Insufficient Complaint. In a prosecution under section 4826 of the General Statutes of 1915, as amended by chapter 253 of the Laws of 1919, for failing to cut and trim a hedge fence along a public highway, it is necessary that the complaint point out the fence with some degree of particularity, and a general charge that the defendant neglects and refuses to keep all hedge fences cut and trimmed along the public highway on land belonging to him in a certain township is insufficient.</p>

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

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Mandamus — Refusal of State Auditor to Issue Warrant — Validity of Claim Determined in Mandamus Proceedings. Where the state auditor refuses to approve a claim against the state for services performed by one acting as an officer, basing his refusal upon the ground that the • claimant was disqualified, to hold the office, and for that reason was not entitled to compensation, the facts not being in dispute, the validity of the claim may be determined in a proceeding in mandamus to compel its approval by the auditor, notwithstanding the legality of the claimant’s title to the office may incidentally be involved.</p> <p>2. Court Stenographer — Relative of District Judge — Stenographer Disqualified to Hold the Office. A relative of the district judge, who was court reporter at the time the statute in reference to his office was revised, and continued thereafter to act in that capacity, is held to be within the operation of a clause inserted in the revision providing that no reporter shall be related to the judge.</p> <p>3. Same — No Adverse Claimcmt. A proceeding to enforce the payment of salary cannot be maintained by one who has performed the duties of a public officer for which he is by law disqualified, even where there is no adverse claimant.</p> <p>4. Same — The Decree of Relationship Which Would Disqualify a Stenographer to Hold the Office Stated. Assuming that the provision of the statute that no court reporter shall be related by blood to the judge is not intended to disqualify as reporter every one having a common ancestor with the judge, however remote, it may reasonably be con- . strued as applicable only to cases of blood relationship within the ninth degree, that connection being sufficiently remote to be practically negligible as affecting the attitude of the persons concerned toward each other — a principle recognized by the common law.</p>

<p>Case No. 23,538. Appeal from Montgomery district court; Joseph W. Holdren, judge.</p> <p>Case No. 23,543. Original proceeding in mandamus.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Promissory Note — Action by Indorsee — Holder in Due Course — Erroneous Instruction. In an action by an indorsee of promissory notes given for the purchase price of a farm tractor where the answer and cross-petition set up failure of consideration because of a breach of warranty in the contract of sale and alleged that plaintiff was not a holder in due course, held, that it was error to instruct that if the plaintiff purchased the notes with knowledge of the terms and condiditions of the contract under which the tractor was sold, the judgment should be for the defendant. (Bank v. Hildebrand, 103 Kan. 705, 177 Pac. 6.)</p> <p>2. Same — Evidence Shows Indorsee To Be Holder in Due Course. It is further held that the depositions taken by the plaintiff and offered in evidence by the defendant and also by the plaintiff show that the plaintiff was a holder of the notes in due course, and there being no testimony to contradict the depositions, the plaintiff was entitled to judgment for the amount due on the notes, notwithstanding the general verdict in defendant’s favor.</p>