Volume 109 — Kansas Reports

<p>SYLLABUS BY THE COURT.</p> <p>•Proceedings in Disbarment of Attorney — Accusations Sustained. An attorney at law should be disbarred for making, in a pleading filed by him, false charges of criminal misconduct against an attorney at law who is a party to the action, where the attorney filing the pleading knew or should have known that the charges were false; for appearing in court to participate in an action, in which he is interested as an attorney, drunk and intoxicated; for changing an affidavit for service by publication without leave of court after judgment in an action prosecuted by him; for bringing a fictitious action and in that action taking the depositions of witnesses for the state, in a criminal prosecution against another party whom he' is defending, for the purpose of obtaining their evidence in the criminal case, and thereafter keeping the depositions in his own possession and never filing them; ■ for bringing actions to quiet title to real property or to foreclose mortgages thereon against persons known by him to be residents of the state and of the county in which the action is brought and stating in the affidavit for publication notice, whether made by himself or his client, that such persons are nonresidents of the state of Kansas; for bringing an action to quiet title to real property or to foreclose a mortgage thereon when he knows that some of the defendants have rights superior to those of his clients, and dismissing the action as to those defendants on their appearance in court to protect their rights, and bringing another action under like circumstances, and again dis-' missing it on the appearance of those defendants; or, for bringing actions not in good faith to enforce the right of his client, hut to extort money from the defendants, or to fraudulently deprive them of their property.</p>

<p>SYLLABUS BY THE COURT..</p> <p>1. Negligence — Collision Bettoeen Motorcycle and Automobile — Evidence Sustains Judgment for Plaintiff. In an action to recover damages for injuries resulting from a collision with a motorcycle upon which plaintiff was riding as a passenger and a motor car driven by defendant it is held there was sufficient evidence to sustain a judgment in plaintiff’s favor.</p> <p>2. Same — Request for Separation of Witnesses Denied — No Abuse of Discretion. Before any testimony was offered the defendant asked to have the rule enforced as to plaintiff’s witnesses, but for the reason that defendant’s witnesses had not appeared, the court refused to enforce the rule until they were present. Held, there was no abuse of discretion in the ruling nor in the refusal of the court to continue the case until defendant’s witnesses could be present.</p> <p>3. Same — Evidence of Physician — Improper Cross-examination. A physician, called merely for the purpose of identifying X-ray plates made by him showing a fracture of both bones of one of plaintiff’s legs, testified that he did not know whether the fracture had been reduced before the plates were made, and that he could not say whether or not it was a compound fracture. Held, that an objection to a question on cross-examination calling for his opinion whether or not a compound fracture could be reduced the same as any other kind was properly sustained.</p> <p>4. Same — Remarks and Rulings of Trial Court Not Prejudicial. Remarks made by the court in the trial of a case and other rulings in respect to evidence considered and held not to be prejudicial.</p>

<p>OPINION DENYING A REHEARING.</p>

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

<p>Error from Cowley district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Antenuptial Contract — Under standingly Entered Into — Enforceable. An antenuptial contract between a widower having four children and a widow having seven, providing that her share of his property if she survived him should be limited to one-fifth, that she should take care of his children as though they were her own, but that her own children should be put to work to earn their own living as soon as they were able, he not to be liable for their support thereafter, and that he might refuse to keep at his home any of them that refused to obey him, is not so unfair as to be unenforceable or to place upon those claiming under it the burden of producing affirmative evidence that it was understanding^ entered into.</p> <p>2. Same — Prospective Wife Unable to Read — No Presumption of Fraud ■ or Imposition. The fact that the prospective wife who signs an ante-nuptial contract cannot read does not of itself raise a presumption that any fraud or imposition was practiced upon her, even in the absence of affirmative evidence that it was read to her or that its contents were stated to her.</p> <p>3. Same — No Deception Shown. The'evidence is held not' to have necessarily established any fact tending to show that any deception was practiced in the present case.</p> <p>4. Will — Wife’s Consent to Husband’s Will. The decision of the trial court giving effect to the wife’s written consent to her husband’s will is held to be supported by the evidence.</p> <p>5. Same — Will by Wife’s Written Consent — May Dispose of Wife’s Homestead Rights. By a will to which his wife consents in writing in the presence of subscribing witnesses a husband may dispose of all his property, including that occupied as a family residence, and thereby cut off the right of his widow to continue in its occupancy as a homestead; and such a will which in general terms bequeaths and devises to persons named all the testator’s property without specifying any items and without making any exceptions or reservations is to be construed as intended to have that effect.</p> <p>6. Same — Disposition of Personal Property. By a will to which a wife gives her consent in accordance with the statute her husband may dispose of all his personalty, including that which is exempt.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Appeal — No Transcript of Evidence Prepared — Findings Show No Cause of Action in Favor of Plaintiff. No transcript of the evidence has been prepared. No evidence has been abstracted. Special findings of fact returned by the jury negatived existence of a cause of action in favor of the plaintiff. Held, the plaintiff’s assignments of error relating to instructions given and refused are not open to consideration, and are' not important if they were.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Mob Violence — Assault amd Battery in Public Street — Encouragement Given by Bystanders. The evidence is held sufficient to support a finding that by reason of the encouragement given by bystanders to the perpetrator of an assault and battery in a public street they became participants in the offense and rendered the city liable under the statute requiring it to answer for damages accruing in consequence of the action of a mob within the corporate limits..</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Life Insurance — Death While Resisting an Attempt to Take Suitcase —No Intent to Rob Deceased Shown. The plaintiff, to establish her claim that the deceased was killed by an assault upon him for the sole purpose of robbery, put upon the stand the only eyewitness to the tragedy, the man who killed him. His story was that he, a special agent for the railroad company, without a warrant attempted to get possession of a suitcase carried by the deceased which he thought contained intoxicating liquor and which he afterwards found did contain such liquor; that after striking the deceased over the head with a rubber club in order to get the suitcase, the deceased choked him until he was compelled to shoot in self-defense. Held, that from this testimony no proof or inference could be derived that the assailant had any intent to rob the deceased, and hence a demurrer to the plaintiff’s evidence was properly sustained.</p> <p>2. Same — Larceny Included in Robbery. Robbery includes larceny and may be deemed forcible larceny, and in order to constitute it there must be an intent to deprive -the owner of the property taken, not temporarily,' but permanently.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Oil and Gas Lease — Action for Cancellation — Contract Not Unilateral —Pleadings. In a petition asking the cancellation of an oil and gas lease for want of mutuality or consideration a recital in the lease that it was given as a part of the purchase price of the land is not overcome by a general allegation that the substantial and real consideration was the royalty provided for, and is fatal to the claim that the contract was unilateral, in the absence of any statement of facts inconsistent with or explanatory of such recital.</p> <p>2. Same — Ninety-nine-year Lease Construed — When Drilling Must Be Commenced. Where an oil and gas lease contains an express provision that it is entirely optional with the lessee as to when he shall be obliged to drill, an agreement that operations shall be begun with reasonable diligence cannot be implied, and the lease cannot be canceled by reason of his delay to commence drilling.</p> <p>3. Same — Demurrer to Petition — Sustained. . On appeal from the sustaining of a demurrer to a petition asking the cancellation of an oil and gas lease executed to a corporation where nothing was pleaded regarding the capacity of the defendant to take or hold such a lease there is no occasion to consider any question in that regard.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Partnership — Grain Elevator Business — One Partner May Contract With Partnership as Ordinary Customer. One of several partners in a business firm may contract -with the partnership as an ordinary customer, and in the latter capacity he is entitled to his due precisely as an outsider, although the mode of collecting his due.by legal process is by an accounting and dissolution of the partnership and not by an ordinary action at law.</p> <p>2. Same — Partnership Considered as Business Entity. While' a partnership is not strictly a legal entity, for practical purposes it may be considered as a business entity. It has its own capital, its own assets and liabilities, and it has a commercial life and credit of its own, virtually though not technically independent of 'the members comprising- it.</p> <p>3. Same — Tortious Act of Servant — Liability of Partners for Contribution. Though a tortious act of the servant of a partnership is attributable in law to his employers, the' partnership, yet where the partners themselves are not guilty of actual delinquency nor otherwise willfully culpable, contribution between the partners for thé tortious act of their servant is lawful; and the rule that no contribution will be enforced between joint tort-feasors has no application.</p> <p>4. Same — Wheat Misappropriated by Manager — Liability of Partners for Contribution. The plaintiff and the four defetadants formed a partnership to transact the business of a grain elevator. They hired a manager to conduct and operate it. Under an agreement with the manager, the plaintiff placed over ten thousand bushels of grain in the elevator to be stored, cleaned and loaded on railway cars. The manager misappropriated a large amount of plaintiff’s wheat, but the partners were free of any personal delinquency therefor. An action was brought by plaintiff to dissolve the partnership, for an accounting, and for the conversion of the wheat by the manager. Held, that whether plaintiff’s claim against the partnership be viewed as a breach of contract, or as a claim arising from a tort attributable to the partnership because perpetrated by the servant of the partnership, contribution between the partners was properly decreed.</p> <p>5. Form op Civil Actions — The Distinction Between Actions at Law and Swits in Equity Abolished. In this jurisdiction, whe're all distinctions between forms of actions at law and of suits in equity are abolished, all matters of justiciable controversy arising between the same parties, whether legal or equitable, and whether already liquidated or merely capable of ascertainment, may be tried and adjudicated in one action.</p> <p>6. Partnerships — Wheat Misappropriated by Manager — Finding of Amount Sustained by Evidence. Record examined, and held, that there' was competent and sufficient evidence to sustain the finding of the jury touching the amount of wheat misappropriated by the servant of the partnership.</p> <p>7. Same — Findings Supported by Substantial Evidence Not Disturbed on Appeal. Where there is substantial evidence to support a finding made by the trial court or jury, the supreme court adopts such finding as an ascertained fact although the record also contains evidence to the contrary; and the supreme court cannot independently undertake to determine the relative weight of the evidence, except in cases where the controlling evidence is documentary or by deposition; and this rule is the same whether the cause be in the nature of an action at law or a suit in equity.</p> <p>8. Same — Insurance of Customer’s Wheat in Elevator — Duty of Partnership to Collect the Insurance. Where an elevator firm procures a policy of fire insurance covering its own grain and that held in trust for which it, is legally liable, and a fire consumes the elevator and its contents, it is the duty of the elevator firm to make claim and proof of loss to the insurance company for the grain thus held in trust and for which it is legally liable; and held,, that under the facts of this case, the plaintiff’s grain stored and destroyed by fire in the firm’s elevator was protected by such insurance, and the failure of the firm to claim and collect the insurance thereon renders it liable to plaintiff for the amount of insurance which should have been collected.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Descents and Distributions — From Whom an Adopted Child May Inherit. A child who after the death of his mother is adopted by his maternal grandfather, inherits from the grandfather on his death,.as his adopted child, and inherits as a child of the mother.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Agency — Sale of Oil and Gas Royalties — Commission—Findings— Conflicting Evidence — Conclusive on Appeal. Following the rule that upon appeal the supreme court cannot weigh conflicting evidence nor determine upon the credibility of witnesses, it is held that the finding of the jury to the effect that defendants agreed to pay plaintiff a fixed sum if she procured a purchaser for an oil and gas royalty, supported as it was by substantial evidence, though contradicted by much evi•dence given in behalf of the defendants, is conclusive upon this court.</p> <p>2. Same — Evidence Supports Finding of Partnership. It is further held that there is sufficient evidence to support the finding of the jury that defendants were partners in the oil and gas transaction and in the contract with plaintiff.</p> <p>3. Trial —• Evidence — Instructions. Errors assigned on rulings in the admission of testimony and in the giving and refusal of instructions, examined and held not to be of sufficient merit to warrant a reversal.</p> <p>4. Same Whsre special findings will admit of an interpretation which will harmonize them with and uphold the general verdict, that interpretation should he given.</p>

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Negligence — Collision—Street Car and Automobile — Contributory Negligence Bars Recovery. The death of plaintiff’s intestate resulted from a collision between a street car of the appellant and an automobile truck upon which he was riding as a passenger, standing on the running board. In an action against the street-railway company, the special findings are examined, and held to show contributory negligence on the part of the deceased which prevents recovery.</p>

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

<p>SYLLABUS- BY THE COURT.</p> <p>1. Compensation Act — Hernia—Refusal of Operation — Release of Employer from Further Liability. The unreasonable refusal of an injured employee to permit a surgical operation where the danger to life from the operation would be..very small, and the probabilities of a permanent cure very large, justifies a court in refusing compensation under the workmen’s compensation law from and after the trial.</p> <p>2. Same — Unreasonableness of Refusal of Operation a Question of Fact. The unreasonableness of the refusal of an injured employee who is,seeking to recover compensation under the workmen’s compensation act, to permit an operation to be performed, is a question of fact to be determined from the evidence.</p> <p>3. Same — Total Incapacity of Workman Not Shown. There was testimony to support the finding that the injured employee was not totally incapacitated.</p> <p>4. Same — Employer Not Estopped to Question Correctness of Award. An employer is not estopped to question the correctness of an award made under section 16 of chapter 226 of the Laws of 1917 by paying the amount found due at the time the award is made where the award provides for weekly payments thereafter.</p> <p>5. Same — A review of an award of an arbitrator appointed under the workmen’s compensation act may be had where there is only partial disability after a short period of total disability, and the award gives compensation for total disability for the full period of eight years.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Mob Violence — Injuries Received at Hands of Mob — Evidence. The evidence examined, and held sufficient to prove that the plaintiff’s injuries were received at the hands of a mob for which the municipality was liable.</p> <p>2. Same — Verdict and Judgment Not Excessive. The evidence touching the injuries sustained by plaintiff at the hands of a mob examined, and held, that the verdict and judgment were not excessive.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Life Insurance — Evidence Supports Verdict Against Suicide. In an action upon an insurance policy in which a recovery against the defendant could not be had if the insured committed suicide it is held that the evidence was sufficient to support a verdict for the plaintiff.</p> <p>2. Same — Communication by Client to Attorney Privileged. Communications made to her attorney by a wife, with regard to a divorce suit pending against her, in the course of a conference on the subject at which the husband is present, are privileged so far as concerns testimony sought to be elicited from the attorney in an action to which neither the husband nor the wife is a party.</p> <p>3. Same. An attorney cannot be required to testify concerning communications made to him in that capacity, notwithstanding no objection is made by the client, who, not being a party to the litigation or present at the trial, has no opportunity to consent or to object to the testimony.</p> <p>4. Same — Statement of Coroner as' to Cause of Decedent’s Death Inadmissible. A report filed with the county clerk by the coroner stating' that he found a death to have resulted from a wound inflicted with suicidal intent and that a formal inquest was unnecessary, is held not to have been admissible as evidence of suicide.</p> <p>5. Same — Appearance of Gunshot Wound — Competent Witnesses. The evidence of the qualification of several witnesses to give opinions as to the probable distance at which a shot was fired, as indicated by the appearance of the wound, is held to have been sufficient to render their testimony on the subject admissible.</p> <p>6. Same — Presumption Against Suicide — Instruction. The contention that an instruction given in relation to the presumption against suicide was likely to have misled the jury, is held not to be well founded.</p> <p>7. New Trial — Newly Discovered Evidence — Insufficient Showing. Upon the hearing of a motion for a new trial on the ground of newly discovered evidence, to be given by one known to have had first-hand information concerning the matter in controversy, the failure to call the witness at the trial is not excused by the fact that the attorneys for the losing party had been told that the proposed new witness was unfriendly to their cause and therefore believed that such witness would be produced by the other party.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Sale of Wheat — Seller Without Title — Buyer Not an Innocent Purchaser — Law of Markets Overt Never Recognized in This Country. There is no law in this country recognizing the effect of a sale in market overt. The only exception to the general rule that no one can by .sale transfer to another the right of ownership in a thing to which he has no right of property is in the cases of money, bank bills and negotiable instruments purchased in due course (which has been adopted for the sake of commerce). Held, no such exception can be recognized in the case of sales of wheat or small grain, notwithstanding the difficulty in tracing to its source the. ownership of such grain when offered for sale to millers and other grain merchants.</p>

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

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

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

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

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Compensation Act — Construction of Statute. Where obviously necessary to carry out the manifest intention of the legislature, the word “and” may be construed to mean “or,” or conversely, but as used in the provision of the workmen’s compensation act, “that if the workman does not leave any dependent citizens of and residing at the time of the accident and injury in the United States or the Dominion of Canada, the amount of compensation shall not exceed in any case the sum of seven hundred fifty dollars,” “and” may not be construed as the disjunctive “or.”</p> <p>2. Same — Right of Alien Dependents to Compensation — Limitation of Liability — International Treaty. In an action for compensation by the dependents of a workman, who were unnaturalized natives of Italy, but residents of Kansas, it was contended that the quoted statute providing that the compensation to be awarded to noncitizens resident in this country shall be for a less amount than shall be given to citizens of this country, it is held that the statute is repugnant to the letter and obvious intent of the treaty between the United States and Italy entered into in 1913, and the limitation is therefore not enforceable.</p> <p>3. Same — Provision Limiting Liability to Alien Dependents Unconstitutional. The statutory provision in question is also in conflict with that clause of the fourteenth amendment to the Federal constitution which provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws.”</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Compensation Act — Accident Did Not Occur “On, in or About” the Stone Quarry. The proceedings in an action for compensation ex.amined, and held, there was no evidence that the plaintiff, a quarry workman, was injured while he was within the zone of danger from operation of the quarry.</p>

<p>opinion on rehearing.</p> <p>SYLLABUS BY THE COURT.</p> <p>Contract — Sale of Wheat — New Trial on Single Issue. The former order is modified by providing for a new trial upon a single issue.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Compensation Act — Injury to an Oiler of Machinery — Accident Did Not Arise Out of and in Course of His Employment. A workman, employed as a night oiler of machinery in an electrical power house, whose only duties were to oil certain engines and pumps in one part of the building, left his work and went a distance of 25 or 30 feet to a narrow •entrance leading into a room where he knew he had no business to be, and which was filled with electrical machinery dangerous to life, but which contained nothing that required thé services of an oiler. While in the room he reached with his hand about 8 inches into a recessed place in the wall and came in contact with electrical appliances and received serious injuries. Held, that his injuries did not result from an accident arising out of and in the course of his employment, and that he is not entitled to recover under the workmen’s compensation act.</p>

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

<p>Appeal from Gove district court; ISAAC T. Purcell, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. County-line Bridge — Defective Work and. Materials — Action for Damages by County With Whom Contract was Made. Where a county contracts with a builder for the construction of a bridge on the county line and pays to the builder the full contract price, although the adjoining county reimburses the contracting county for óne-half of the contract price, the latter county may maintain an action against the builder for damages for the entire contract price where the bridge, on account of noneompliance with plans and specifications, is destroyed by high water.</p> <p>2. Same — Proper Evidence to Prove Defective Workmanship and Materials. To prove that the workmanship and material in the concrete abutment of a bridge was defective, samples taken from the abutment after it had been blasted open with dynamite may be introduced in evidence.</p> <p>3. Same — Cracks in Concrete Bridge. Repairing cracks in a concrete bridge will not remedy defective workmanship and material used in its construction.</p> <p>4. Same — Approaches Not Designed to Support Bridge Abutments. Where a contract for the construction of a bridge does not provide that the approaches shall be so built as to support the abutments, the abutments should be so constructed that they, without the approaches, will support the bridge.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Habeas Corpus — Preliminary Examination — Evidence Sufficient to Hold Defendants for Trial. In a habeas corpus proceeding the district court decided that the evidence given before a justice of the peace in a preliminary examination of petitioners who were charged with a public offense and committed for trial was sufficient to show that the offense had been committed and that there was probable cause to believe that the petitioners had committed the offense. On appeal the decision is affirmed.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Negligence — Blasting—Injury to Dwelling House• — Evidence. The evidence examined, and held, injury to a dwelling house, occasioned by concussion and vibration produced by blasting, was the result of negligence.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Embezzlement — By Officer of Corporation — Sufficiency of Information. The rule that an information charging embezzlement by a bailee must set out the circumstances under which the property was received by the defendant in order that the character of the bailment may be shown has no application to a charge against the officer of a corporation for embezzling its funds.</p> <p>2. Same. The fact that the president of a corporation whose duties include the general supervision of its affairs is described in an information charging him with embezzling its funds, by the additional title of general manager, a position not recognized by the by-laws, is not a ground for' setting aside a conviction.</p> <p>3. Same — Funds in Bank — Defendant’s Custody and Possession of the Same. The funds of a corporation deposited in a bank in its name, which in practice are paid out on checks signed by the president, are in his possession and under his care in such sense as to render him liable for embezzlement in case of his using for his own benefit sums so withdrawn, notwithstanding provisions of the by-laws that the treasurer of the corporation should have custody of the money and that its deposits should be checked against only by him or other persons designated by the management.</p> <p>4. Same — Conversion of Corporate Funds — Accomplished by Drawing Check on Bank Deposit for Officer’s Private Benefit. Conversion of the • funds of a corporation may be accomplished by an officer thereof drawing a check on its .deposit and obtaining money which he uses otherwise than for the benefit of the corporation, although the check when it reaches the bank on which it is drawn is merely marked paid and charged to the corporation’s account, no money being passed over the counter; and the act may constitute embezzlement, although such officer derives no personal benefit from the transaction.</p> <p>5. Same — Corporate Funds in Bank — Cheek Drawn for Private Advantage — Venue in County Where Bank is Situated. Where an officer of a corporation, who has a right to draw upon its deposit in a bank for its benefit, wrongfully draws a check thereon for his own .advantage, which is ultimately paid, he is liable to prosecution for embezzlement in the county where the bank is situated, without regard to where he was when he drew the check and obtained money or other property for it.</p> <p>6. Same — Charge in Four Counts — No Election Required. The overruling of a motion to require the state to elect as to the specific transactions it would rely upon for conviction upon the several counts respectively is held to have been nonprejudicial.,</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Employer’s Liability Act — Duty of Injured Person to Use Reasonable Diligence in Securing Medical or Surgical Aid. It is the duty of a person injured through the negligence of another to use reasonable diligence in securing medical or surgical aid, and he cannot recover for suffering or ailment resulting from his own failure to exercise such diligence; but if that degree of care is used by him in the selection</p> <p>• of physicians or surgeons, and their lack of due care and skill in treatments or operations aggravates or increases the original injuries, such increase is not deemed to be the fault of the injured person, but is regarded in law as a part of the original'injury, which reasonably ought to have • been anticipated by the original wrongdoer, and for which he is responsible.</p> <p>2. Same — Instructions. An instruction on the subject is held to have been appropriate under the evidence and a correct statement of the law.</p> <p>3. Same — Trial—Special Findings of Jury Evasive and Inconsistent. Special findings of the jury relating to the negligence of the defendant and the contributing negligence of the- plaintiff in the reading and comparison of orders issued as to the passing of railroad trains, which resulted in a collision and consequent injuries and death of trainmen, examined and held to be evasive and so inconsistent as not to warrant the entry of a judgment thereon.</p>

<p>OPINION ON MOTION TO REHEAR OR MODIFY.</p> <p>Appeal from Butler district court; Allison T. Ayres, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Liquor Law — -Transportation of Liquor in Automobile — Forfeiture of Automobile — Bights of Innocent Mortgagee. Chapter 217 of the Session Laws of 1919, which declares that automobiles used in the unlawful transportation of intoxicating liquors are common nuisances and provides for their condemnation and forfeiture, is not susceptible of an interpretation that the interest of an innocent holder of a chattel mortgage on an automobile used in violation of the statute is to be preserved from such condemnation and forfeiture. The forfeiture of such interest is merely an incident to the proper and effective execution of the forfeiture declared by the statute.</p> <p>2. Same. Chapter 217 of the Session Laws of 1919 contains no constitutional infirmity because the interest of an innocent holder of a chattel mortgage on an automobile is not preserved from forfeiture when the automobile itself is adjudged to be a common nuisance and forfeited according to the statute, following The State v. Peterson, 107 Kan. 641, 193 Pac. 342, and Grant Co. v. United States, decided by the Supreme Court of the United States, Janizary 17, 1921 (41 Sup. Ct. Rep. 189).</p> <p>3. Same. — “One Isolated Instance of Violation of Statute’’ — No Exemption of Auto from Forfeiture. The contention that the automobile was only used unlawfully in “one isolated instance of violation of the statute,” is not sustained by the evidence; and even if so, no exemption from forfeiture on that account can be fairly discovered in the all-inclusive language of the statute declaring that an automobile thus unlawfully used for the transportation of intoxicating liquors is a common nuisance and subject to forfeiture.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Life iNSURANCE-^De/ímíí in Payment of First Premium — No Policy Delivered — Death of Assured — No Insurance in Force — No Waiver. In an insurance contract it was stipulated that the policy should not be in force until it was delivered and the first premium paid while the applicant was alive and in good health. After payment of part of the annual premium and before the delivery of the policy, the applicant died. After knowledge of his death his former employer under an arrangement for the payment of premiums due to the insurance company from the wages of insured employees, sent a check to the company which covered installments due from insured employees, and included a payment on the contract of the deceased applicant. As soon as the agent discovered that the check covered that payment the money was returned to the employer. Upon a claim that the conduct of the defendant was a waiver of the conditions precedent to a consummated contract, it is held that the evidence did not establish a waiver.</p> <p>2. Same — What Constitutes a Waiver of a Contract Right. To constitute a waiver of a contract right, there must he a clear, unequivocal and decisive act of the party showing an intention to relinquish the right, or acts amounting to an estoppel on his part.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Contract — To Install Heating Plant — Injury to Player Piano — Breach of Contract — Damages. The proceedings in an action for breach of a contract to install a heating plant of guaranteed capacity, examined, and held, injury to a player piano, occasioned by overheating the furnace in an unsuccessful effort to make it fulfill the guaranty, resulted proximately from breach of the contract.</p> <p>2. Same — Rule Relating to Minimizing Damages. Under circumstances disclosed by the evidence, the rule relating to minimizing damages did not preclude recovery.</p> <p>3. Same — Improper Elements of Damages. The contract required the contractor to install the heating plant, but did not require him to replace a portion of a foundation wall which it was necessary to remove in order to install the plant, and the work was not negligently done. Held, the contractor was not liable in damages for settling of the house caused by removal of the wall.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Contract — Putting Roof on Schoolhouse — Sufficiency of Petition. The petition alleged facts sufficient to show that a contract had been entered into between the plaintiff and the defendant.</p> <p>2. Same — Demurrer to Plaintiff’s Evidence Properly Overruled. There was sufficient evidence tending to show that a contract had been entered into between the plaintiff and the defendant to warrant the court in overruling the demurrer to the plaintiff’s evidence.</p> <p>3. Same — Contract Made Through Agent — Agent’s Authority — Fact for Jury. There was evidence sufficient to warrant the court in submitting to the jury the question of the agency of third parties to enter into a contract binding the defendant.</p> <p>4. Same — Existence of Contract — Issue of Fact for Jury. There was sufficient evidence to warrant the court in directing the jury to find whether or not there was a contract between the plaintiff and the defendant.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Procuring Loan — Dispute Over Commissions' — Evidence — Judgment. The record examined, and the evidence held sufficient to sustain the judgment for plaintiff on the single issue of fact for the determination of which this cause was remanded to the district court in Schroth v. Bardrick, 106 Kan. 154, 186 Pac. 749.</p>

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Replevin — Automobile—Defenses Under General Denial — Evidence of Collusion and Fraud Properly Received — Chattel-mortgage Lien — Instructions — Replevin Affidavit Evidence of Value of Automobile. The proceedings in an action for replevin of an automobile, in which the defendant recovered the value of the automobile, examined, and held:</p> <p>1. Recital in an instruction to the jury of the contentions made by the defendant under a general denial constituted record evidence that the contentions were made.</p> <p>2. Under the general denial, evidence that the plaintiff’s claim of right to possession of the automobile was made in collusion with another, to defraud the defendant, was properly received.</p> <p>3. There was evidence on which to base instructions regarding collusion and fraud.</p> <p>4. Instructions stating conditions under which the defendant’s bill of sale would take priority over the plaintiff’s mortgage were not open to the criticisms directed against them.</p> <p>5. The replevin affidavit was properly received in evidence agains't the plaintiff on the subject of value of the automobile.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Life Insurance — Terms of Policy■ — No Insurance if Death Occurs During First Year. A life insurance company issued a policy which provided-that in the event of the death of the insured the company would pay to the beneficiary a certain sum under a schedule, made a part of the policy, which designated the sum to be paid at the end of any year after the date of the policy for twenty years. The schedule provided for the payment of $250 at the end of the first year. The insured died four and one-half months after the policy was issued. Held, that the company was not liable.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Employers’ Liability Act — Petition Shows Both Parties Engaged in Interstate Commerce — Reference to Specific Acts of Congress Unnecessary. In an action against a common carrier by an employee to recover for injuries, where it appears from the petition that both parties were engaged in interstate commerce at the time the plaintiff received his injuries, it is unnecessary that the petition refer specifically to the acts of congress upon which the action is predicated. (Railway Co. v. Brinkmeier, 77 Kan. 14, 93 Pac. 621.)</p> <p>2. Same — Action Under Employers’ Liability Act — Recovery Under Federal Boiler-inspection Act. In an action under the Federal employers’ liability act the plaintiff may recover for injuries caused by the violation of the Federal boiler-inspection act. (U. S. Comp. Stat. 1918, § 8631.)</p> <p>3. • Employers’ Liability Act — Duty of Common Carrier to ■Furnish Employees With Safe Appliances With Which to Work. In an action under the Federal employers’ liability act, and the Federal boiler-inspection act, to recover for injuries caused by the dropping of the crown sheet of the boiler of a locomotive, causing an explosion which injured the plaintiff, held, that there is no force in the contention that his injuries were caused exclusively by his own negligence because there was some evidence tending to show that it resulted from the failure of the defendant to furnish safe appliances.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Master and Servant' — Negligent Driving of Truck by Employee — Employee Acting Within Scope of His Employment — Master Liable for Employee’s Negligence. An employee in a furniture establishment who had been employed to do general work in the store and assist other employees in delivering goods, but had not previously been assigned to the duty of driving trucks, went out to the fairgrounds to help a superior employee who had been given charge of assembling and setting up an exhibit, and when the noon hour arrived the employee was directed by his superior to take a motor truck and drive to his home to get his dinner in order that he might sooner return and continue his work. On the way to his dinner he drove the truck in a negligent manner and struck and injured a pedestrian on the street. Held, that he was then acting within the scope of his employment and in furtherance of his employer’s business, and that his employer was liable for the negligent injury.</p> <p>2. Same — Instructions. The instructions given to the jury examined and held to be without prejudicial error.</p> <p>3. Same — Cowrt’s Power to Supervise Special Interrogatories and Answers Thereto. It is competent for the court to supervise and shape special interrogatories that are submitted to a jury and it may reject questions that are improper or immaterial and limit the questions to ultimate facts on controverted issues.</p> <p>4. Same. The court may also explain the questions and instruct the jury as to the law applicable to them, exercising caution not to express an opinion as to controverted facts; and held, that the action of the court in explaining the questions and advising the jury as to the applicable rules of law was not an invasion of the province of the jury.</p> <p>5. Same. If the answers returned by the jury are indefinite or incomplete or show a misconception of the questions, the court may, on the application of either party or on its own motion, require the jury to make the answers more definite and complete or to correct manifest errors in the answers.</p> <p>6. Same — Amendment of Petition at Close of Evidence — No Error. No error was committed in permitting the plaintiff to amend his petition at the close of defendant’s evidence so as' to state in more detail an element of the negligence charged against defendant.</p> <p>7. Same — Damages Not Excessive. Under the evidence it is held that the damages awarded are not excessive.</p>

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

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

<p>Appeal from Finney district court; Littleton M. Day, judge pro tem.</p>

<p>Syllabus by the court.</p> <p>1. Ruling on Demurrer — Time in Which to Appeal. A trial court’s ruling on a demurrer to a petition is not subject to review when not appealed from within six months.</p> <p>2. Appeal — Insufficient Specifications of Error. A specification of error that the trial court admitted improper evidence, without some showing - as to what the improper evidence consisted of, presents no question for review.</p> <p>3. Deed — Absolute in Form — Parol Evidence to Show Deed to Be an Equitable Mortgage. The rule followed that parol evidence is admissible to prove that a warranty deed absolute in form was an equitable mortgage to secure the repayment of purchase money.</p> <p>4. Same — Findings Supported by Evidence. The evidence was sufficient • to support the trial court’s findings of fact.</p> <p>5. Trial — Conclusions of Lem. The trial court’s conclusions of law were necessitated by the findings of fact.</p> <p>6. Same — Judgment—Motion for New Trial. The judgment was correct, and the motion for a new trial was properly overruled.</p> <p>7. Deed — Absolute Deed in Form — Equitable Mortgage. The plaintiff solicited the defendant for money to purchase a farm in behalf of a friend, and to take a mortgage - on the farm for the full amount of the purchase price, as she had done on a similar occasion for the plaintiff many years before. She declined, giving reasons for not following her former action, but offered to furnish the money and take the title in herself, and to put plaintiff’s friend in possession of the farm under a lease with an option to purchase, if plaintiff would look after the matter for her, and upon his promise to protect her investment and take the land himself if his friend failed to do so. This agreement was made; defendant purchased the farm, and plaintiff’s friend went into possession. The latter defaulted in his payments; these Were made good by plaintiff, and he took over the farm and the lease option by assignment, and continued to pay the interest and taxes. These and other pertinent facts narrated in the opinion, were clearly established by the evidence. Held, that the plaintiff was the owner of the farm,, and the defendant was the equitable mortgagee..</p>

<p>Appeal from Wallace district court; ISAAC T. Purcell, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Postnuptial Contract — Contract Valid• — No Violation of Public Policy. A contract by an old and infirm couple, husband and wife, for the division of their property, in which they agreed to separate because they could no longer continue to live together in comfort by reason of their infirmities and circumstances, and in which it was agreed- that the husband, who was ill, should go to the home of a son by a former marriage, where he would receive proper attention, and the wife be relieved of the burden of attempting to look after him, is held under all the circumstances; a valid contract, and not open to the objection that it violates public policy.</p> <p>2. Same — Party Having Accepted Benefits of Agreement May Not Set It Aside. Where in such a case, shortly after the separation, the wife dies leaving a will devising her property to her own relatives, held, the fact that the husband has accepted the benefits of the agreement, which was fairly entered into and was fully executed, precluded him from setting it aside or from recovering property disposed of under its provisions, and that persons claiming under him occupy no better position.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Negligence — Defective Railroad Crossing — Stalled Automobile — Collision witih Train — Contributory Negligence — Issues for Jury. A crossing of defendant’s railroad was in a defective condition. Without knowledge of its condition the plaintiff drove his automobile upon it, and when the front wheels dropped into a depression and struck the further rail, the engine was killed, and he was thrown against the steering wheel and wind shield with such force as to partially disable him for a period of thirty seconds. Before he could extricate himself defendant’s freight train, then engaged in switching operations, was backed upon him, crushing his car and injuring him. Whether he was in the exercise of reasonable care when he undertook to cross the track was a fair question of fact for the jury, and whether the train- . men, who knew the conditions of the crossing and could have seen the peril of plaintiff and stopped the train before striking and injuring him, were guilty of negligence, was also a jury question; and it is held that the testimony was sufficient to uphold the findings made in favor of plaintiff.</p> <p>2. Same — Allegations of Petition — Instruction as to “Last Clear Chance.” Where the plaintiff in his petition set forth the circumstances under which the collision occurred, and defendant alleged that plaintiff’s injuries were the result of his contributory negligence, a charge which the plaintiff denied, and proof was offered tending to show that the train was backed upon plaintiff after those operating it saw his helpless plight on the crossing, the court was warranted in instructing the jury as to the doctrine of the last clear chance, although the plaintiff had not stated in words in his petition that he was invoking that doctrine, and although he had not admitted that he was negligent in • driving upon the crossing.</p> <p>3. Same — Instructions. Instructions examined, and held to be free from prejudicial error.</p> <p>4. Same — Instructions. A reference by the court to a ground of negligence. alleged in the petition, but upon which no evidence was offered, is held to be harmless.</p> <p>5. Same — Evidence as to Subsequent Repairs of Railroad Crossing. No error was committed in the admission of evidence as to subsequent repairs of the crossing made by the defendant.</p> <p>6. Same — Refusal to Submit Certain Interrogatories. The refusal to submit' a special interrogatory which was involved and confusing and contained an assumption of facts not proven, was not error.</p> <p>7. Same — Daonages Not Excessive. Damages awarded are held not to be excessive.</p> <p>8. Removal of Cause — Application Properly Denied. Petitions and bonds for removal of the case were filed by defendant but not within the prescribed time for removal, and the application was denied. Later, at the instance of the plaintiff, all the defendants except the appellant were dismissed from the case. Appellant did not thereafter renew its application to remove nor bring the matter to the attention of the court, but did filé an answer setting up an affirmative defense and asking for judgment for costs. Held, that the appellant is not in a position to insist that the court was without jurisdiction to try the case.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Criminal Syndicalism — Insufficient Information. In a prosecution under a statutory provision making it a felony to'become a member of a society that teaches certain doctrines which are defined as criminal syndicalism, the information to be sufficient must allege that the defendant became a member of such a society in Kansas; but it need not allege that the teaching of such doctrines by the society referred to had taken place in this state.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Oil and Gas Lease — Time of Expiration. An oil and gas lease examined, and held it expired by its own terms on a stated date, unless extended by production of mineral.</p> <p>2. Same — Defendants Not Estopped to Insist on Expiration. A general finding that the lessors were not estopped to insist on expiration of the lease according to its terms, was sustained by the evidence.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Constitutional Law — Act Creating Court of Industrial Relations— Labor Strike Threatened by Defendants — Injunction Properly Granted —Injunction Violated by Defendants — Act Constitutional — Defendants Properly Punished for Contempt. The defendants, as officers and members of the district board of District No. 14, United Mine Workers of America, were about to call a strike of miners and mine workers in that district, which comprises the coal-producing counties of Kansas. The strike, if called, would prevent the carrying on of-business, commerce, occupations, and work in the state, would stop production, manufacture and transportation of necessaries of life, would inhibit domestic and household activities of the people, would affect the public peace and the public health, would cut off the supply of fuel for the state’s educational, penal, charitable, and other institutions, and would otherwise inflict on the public irreparable injury, for which there was no redress. One object of the strike was to defeat the purposes of chapter 29 of the Laws of 1920, creating a tribunal known as the court of industrial relations, to regulate certain industries, including that of coal mining. In an action brought by the state, the defendants were enjoined from calling a 'strike. Afterwards they violated the injunction, were proceeded against for contempt of court for violating the injunction, and were found guilty, after a trial before the court, without a jury. The conduct of the defendants in calling the strike was punishable as a felony under the statute referred to. Held:</p> <p>1. The state was authorized to apply for, and the court was authorized to grant, the injunction, to avert threatened public calamities, irrespective of the state’s ownership of property affected, and without the aid of a statute.</p> <p>2. The injunction order was not forbidden by section 7149 of the General Statutes of 1915, relating to granting injunctions in specified cases of industrial disputes.</p> <p>3. The injunction order was not invalid as an attempt to enjoin the commission of crime.</p> <p>4. The defendants were not entitled, in the contempt proceeding, to a trial by jury.</p> <p>5. The contempt proceeding was otherwise free from irregularity.</p> <p>6. The act creating the court of industrial relations is not void under the constitution of this state becausei of duality of subject, or defect of title, or because it commingles functions of separate departments of government, or because it attempts to enlarge the original jurisdiction of this court.</p> <p>/7. The business of producing coal in this state bears an intimate ^relation to the public peace, health, and welfare, is affected with a public interest, and may be regulated, to the end that reasonable continuity and efficiency of production may be maintained.</p> <p>8. The act creating the court of industrial relations is a reasonable and valid exercise of the police power of the state over the business of producing coal, and does not impair liberty of contract or permit involuntary servitude, contrary to the constitution of the United States.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Educational Corporation — Duration of Charter. The life of an educational corporation organized under a general statute providing that every corporation shall have succession “for the period limited in 'its charter, and when no period is limited, for twenty years,’.’ where its articles of association provide that it shall exist forever, is not limited to the period mentioned; and without extension or renewal its corporate capacity continues until a limit is placed upon it by subsequent legislation. A later enactment changing the word “twenty” to “fifty” in the clause quoted, and providing that the existence of a private corporation shall begin on the day the charter is filed and continue for fifty years is prospective in its operation and is not intended to diminish a grant already made.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Trust in Real Estate — Absolute Deed from, Parents to Son — Oral Agreement — Trust by Implication of Law. In an action to establish a trust in real estate, brought by parents against a son to whom they conveyed all their real estate, accompanied by an oral agreement that the son should manage the property, pay off the indebtedness, support the family, hold the title to the property during the lifetime of his parents, and upon their death divide the same equally between himself and his sister, the evidence and findings are considered, and held sufficient to sustain a trust arising by implication of law. (Lehrling v. Lehrling, 84 Kan. 766, 115 Pac. 550; Silvers v. Howard, 106 Kan. 762, 190 Pac. 1.)</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Will — Instrument Constitutes a Will — Not a Deed. A written instrument considered, and held to constitute a will and not a deed.</p> <p>2. Same — After-acquired Property — Devise Construed. The language of the instrument is considered in connection with section 11809, General Statutes of 1915 (section 58 of the statute of wills), and held, to clearly manifest an intention upon the part of the testator that after-acquired property pass in the same' manner as if held or possessed at the time of the execution of the instrument.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Injunction — Sale of Exempt Property Rightfully Enjoined. The plaintiff who resided in Sedgwick county, owned some exempt household goods left in Barber county where they were seized and about to be sold to satisfy a justice judgment procured by publication service only. She had appeared specially and moved to set aside the judgment for want-of jurisdiction. The motion being denied, she sued in district court to enjoin the sale because the property was exempt. Held, that the injunction was properly decreed.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Oil and Gas Lease — Gas to Be Furnished Lessor Free — No Gas Well Found — Action for Cancellation. An oil and gas lease provided — “If gas be found in any well or wells first party [the lessor] is to have on demand sufficient gas for domestic purposes on said premises free; the said second party [the lessee] is to have the remainder together with all gas from oil wells.” It is held that under this provision the lessor was not entitled to be supplied with gas otherwise than from producing gas wells — that no obligation to supply him with gas arose from its being found in oil wells.</p> <p>2. Trial — Evidence—Conclusions of Witness. The admission of evidence objected to on the ground of having been given in the form of conclusions is held not to have been prejudicial.</p> <p>3. Agency — Purchase of Lease by Plaintiff — Plaintiff Acting as Agent of Defendants. The evidence is held to have been-sufficient to support a finding that in buying a lease the plaintiff acted as the agent of the defendants and therefore is liable to them for the difference between what he received from them and what he actually paid for the lease.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Conveyance — Warranty Against Incumbrances — Annual Drainage District Assessments Not An “Incumbrance” Within the Covenant. The plaintiff exchanged his Kansas farm for .the defendant’s Missouri farm. The defendant .covenanted that his farm was “free and clear of all incumbrance” except a specified mortgage. The Missouri farm was included in a drainage district where drainage ditches had been constructed. All the real estate in the district was subject to .a statutory lien for the cost of the drainage improvements. This cost was apportioned to the several properties in the district, and was payable in future annual assessments during a period of twenty years, and could not be otherwise discharged at the time the farms were exchanged. The annual assessments were payable at the same time and in the same manner as ordinary taxes, but no such annual assessment was due when the contract of exchange was affected. Held, that this statutory lien on the farm for the future payment of annual assessments for the drainage improvements was not an incumbrance in breach of the covenant within the fair, reasonable, and common meaning of an incumbrance, as that term is used in an ordinary contract for the exchange of farms.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Creditor’s Bill — Property of Debtor Discovered — Findings Supported by Evidence. In an action in the nature of a creditor’s bill, the findings of the court that certain real estate, the record title of which had been placed in the wife of the debtor defendant, was owned by him and that the transfer to his wife of all his personal property was made to hinder and defraud his creditors, are held to be supported by sufficient evidence.</p> <p>2. Same — Declarations of Husband While in Possession of Real Estate Admissible on Question of Ownership. Further held, that his declarations relating to his possession and ownership of the real estate made while he was in possession of it, were admissible in evidence.</p>

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Quo Warranto — Extension op City Limits — Jurisdiction Long Exercised — Presumption of Regularity of Proceedings. In 1889 a city of the second class presented a petition to the judge of the district court asking permission to extend the city limits so as to include several described tracts of land. Permission was granted to include some of the tracts and denied as to others. The city passed an ordinance including one of the tracts denied, and immediately thereafter and continuously for more than thirty years exercised unquestioned authority over that tract by giving police and fire protection, levying taxes, and building sewers. About a year after the passage of the ordinance, another ordinance was passed defining the city limits as they then existed. It included the questioned tract described in the first ordinance. Held, that in an action commenced by the state on the relation of the county attorney, after the lapse of thirty years, it will be presumed that the tract was legally included within the city limits, and that presumption should not be overthrown except by the most clear and convincing evidence.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Landlord and Tenant — Oral Lease — To Begin in Future — Void, • — • Statute of Frauds. An oral contract to lease a tract of farming land for one year, where the term is to begin at a future date, is void under the statute of frauds.</p> <p>2. Same — Tenant Holding Over After Lease Expires — Entitled to Thirty Days’ Notice to Quit. Where a tenant enters a tract of farming land under a written lease for á year, and is permitted by his landlord to’ occupy the property after the expiration of the term, such tenant by operation of law becomes a tenant-from year to year; and, as such, he is entitled to thirty days’ notice to quit prior to the expiration of the then current year.</p> <p>3. Same — Badly Framed Pleadings — Nature of Action — Forcible Detention — Estoppel■ Where the pleadings, chiefly through the fault of plaintiff, are so badly framed that the cause of action (between a landlord and his tenant) cannot be tried under them, and a stipulation is entered into between the parties that the cause may be tried as a possessory action (in forcible detention), the defendant is not estopped to'invoke the proper legal defense thereto, merely because in the discarded pleadings he had relied on another and insufficient defense.</p> <p>4. Same — Expiration of Lease Definitely Fixed — Notice to Quit Unnecessary. Where a tenant by an oral contract rents a tract of land for a year, and the term thereof isi definitely fixed, his right to occupy the property ceases absolutely at the end of his term, and no notice to quit is necessary to terminate his tenancy. ■</p>

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

<p>Appeal from Rice district court; Elric C. Cole, judge, pro tern.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Promissory Note — No Defense Pleaded or Proven. The proceedings in an action on a promissory note examined, and held, a defense submitted to the jury was neither pleaded nor proved, and no pleaded defense was established.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Negligence — Dog Suspected of Hydrophobia — Head Sent by Express for Examination — Failure of Express Company to Deliver the Head — ■ Elements of Damages. The plaintiff was bitten by a dog suspected of having hydrophobia. The plaintiff’s physician shipped the dog’s head to Manhattan for the purpose of ascertaining whether or not the dog had hydrophobia at the time it bit the plaintiff. The box containing the shipment was marked, “Dog’s Head, Rush.” The defendant was informed of the accident to the plaintiff and of the purpose for which the head was being shipped to Manhattan. The head was not delivered. Held, that the defendant is liable for the expense of the shipment, the mental pain caused the plaintiff, the expense incurred for medical treatment to prevent hydrophobia, the pain caused by that treatment, and the damage' sustained by loss of time while taking it, although the treatment proved to be unnecessary.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Guardian and Ward — Ward Attaining Her Majority — Right to Maintain Action Against Former Guardian to Recover Her Property■ — Jurisdiction of District Court. When a minor attains her .majority her right to the possession and control of h.er own property becomes absolute; and she may forthwith commence an action against her former guardian and the guardian’s bondsmen for the recovery of money or property belonging to her which came into the possession of her former guardian by virtue of that guardianship; and the fact that there is a matter of accounting for alleged expenses by the former guardian pending and undetermined in the probate court is immaterial.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Specific Performance — Sale of Real Estate — No Contract Proven. Letters and a telegram relating to a sale of real estate examined, and held, no contract of sale was consummated.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Oil and Gas Lease — Lease Assigned by Lessee — Assignee Liable for Rent. Where an oil and gas lease provides for the payment of rent in ease development is not begun within a stated time, one who takes an assignment of it as security for a debt owing to a bank of which he is cashier thereby becomes liable for the rent subsequently accruing.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Criminal Law — Homicide—Evidence—Statements of Deceased, as to His Purpose in Leaving Home Admissible. In a prosecution for murder in which it is established that when the victim of the homicide left his home a few hours before his death he was carrying a bucket, it is not error to admit evidence that he stated at the time the purpose for which he was taking it — ona having no connection with the killing; and it is held that in the present case such evidence, even if it had been incompetent, would not have been prejudicial.</p> <p>2. Same — Verdict Not Wrongly Influenced by Conduct of Trial Judge. It is held that no sufficient reason for setting aside a verdict of guilty in a murder case upon the ground that it was coerced by the conduct of the judge is shown by proceedings thus summarized: At 4:45 p. m. of Saturday, the second day of the jury’s deliberation, the judge, after being told by the foreman that he believed an agreement was not far off, announced that a separation until Monday morning would be allowed. Upon a suggestion of the defendant’s counsel that the jury be sent out again the judge stated that he was going to take a train in twenty-five minutes but would give the jury time for another ballot. At 4:54 the verdict was returned.</p> <p>3. Same — Homicide—Omission to Instruct Relative to> Manslaughter in Second Degree Not Error. The section of the statute making it manslaughter in the second degree to unnecessarily kill another “either while resisting an attempt by such other person to commit any felony, or do any other unlawful act, after such attempt shall have failed” does not apply where the defendant killed a person while he (the decedent) was in the very act of striking at him with a hammer. ' And it is held that if on any theory of the facts an instruction under that section might have been justified in the present case, the omission to give it cannot be relied upon as error, because of the failure of the defendant’s counsel to make a request therefor.-</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Paying Street — Petition Therefor — Board of Education Not a Competent Signer — Injunction. Under a statute requiring a petition for the paving of a street to be signed by the resident owners of one-half the property fronting upon it, the board of education, whose jurisdiction covers the city and’ certain attached territory, is not made a competent signer by virtue of one of its school sites abutting thereon.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Mandamus — Gas Rates — Former Decree of Federal Court — Defendant Party Thereto — Writ Denied. The parties having by stipulation submitted the one determining question, whether or not from the pleadings it appears that the defendant, The Citizens Light, Heat and Power Company, was a party to the proceedings in which the Federal court entered its decree on December 24, 1920, (January 17, 1921,) and an examination of the record showing that it was such party, held, that the writ prayed for by the plaintiff must be denied..</p>

<p>Appeal from Reno district court; William G. Fairchild, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Constitutional Law — Consolidation of School Districts — Title of Act Sufficient. Chapter 275 of the Session Laws of 1911, entitled:</p> <p>“An act to provide for the voluntary disorganization and consolidation of school districts to provide for the transportation of pupils and to amend sections 7431, 7432, 7436 and 7439 of the General Statutes of 1909,”</p> <p>does not violate the provision of section 16 of article 2 of the constitution which requires that the title to an act shall clearly express its subject matter, although the text of the act is not as broad as its title. The act does provide for the voluntary disorganization and consolidation of school districts and for the transportation of pupils; and the concluding language of the title, “to amend sections 7431, 7432, 7436 and 7437 of the General Statutes of 1909” may be disregarded as literal inadvertence or surplusage.</p> <p>2. Same. An act of the legislature which is sufficient in itself as an independent piece of constructive legislation is not necessarily nor commonly invalid as a whole because it disregards and supersedes in whole or in part an earlier act on the same general subject without formally undertaking to amend the earlier act, nor because a superfluous part of its title announces a purpose to amend the earlier act while the text itself does not so amend it, nor because one section of the later act not vital to its main purpose prescribes the repeal of certain sections of the earlier legislation although no such purpose is indicated in the title.</p> <p>3. School Election — -Alleged Electioneering Misconduct — Did Not Vitiate Election. The electioneering misconduct of a county superintendent in her efforts to induce electors of school districts to vote in favor of establishing a consolidated school under the provisions of chapter 275 of the Session Laws of 1911, as alleged in plaintiff’s petition, examined, and held, that assuming such allegations of misconduct to be true, the elections on the proposition to consolidate the school districts were not vitiated thereby.</p>

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Criminal Law — Continuance Properly Denied. No error was committed in denying the defendant’s application for a continuance.</p> <p>2. Same — Keeping Hotel for Lewd and Immoral Purposes — Rulings of Court. Certain rulings touching the reception of evidence with reference to the reputation of the defendant and of his hotel examined, and held to be free from material error.</p> <p>3. SAME — Requested Instruction Rightfully Refused. A certain requested instruction was rightfully refused, because- covered by others which were given.</p> <p>4. Same — Evidence Justified Conviction. The evidence examined, and found fully to justify a conviction.</p> <p>5. Sa.me — Complaint Not Bad for Duplicity. The motion to quash the complaint for duplicity was properly overruled. ■</p> <p>6. Same — Conviction on One Count Only Acquitted as to All Others. The verdict of guilty under one count operated as an acquittal on the other counts.</p> <p>7. Same — Requisites of Complaint. Rule followed, that each count in a complaint or information must state but one offense, save that it may set forth different steps or stages in the commission of one offense.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Claim Against Estate — Limitation of Action — Credits. The evidence tended to show a credit on the claimant’s account which kept the three-year, statute of limitation from running.</p> <p>2. Same — Want of Diligence in Presenting Claim — Limitation of Action. The claimant waited more than two years and fifty days from the death of the decedent to procure the appointment of an administrator to whom his claim could be presented, and therefore, following Hoover v. Hoover’s Estate, 104 Kan. 635, 180 Pac. 275, and cases cited, it is held he is thereby precluded from recovering, under section 4565 of the General Statutes of 1915.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Contract — Sale of Land — Assumption of Mortgage — Construction of Clause “to Accruing Interest Thereof." Plaintiff bought a farm from defendant and assumed a mortgage thereon. The deed which plaintiff accepted contained a recital—</p> <p>“All of said mortgages bearing date of September 2, 1918, due September 1, 1923, at 6% semi-annual interest, payable to J. L. Petty-john & Co., of Olathe, Kansas, to accruing interest thereof, all of said mortgages grantee assumes and agrees to pay as part of the purchase price of said premises.”</p> <p>The contract was made February 11, 1919, and on March 1, 1919, the semiannual interest, $240, became due and plaintiff paid it to prevent foreclosure, and sued to recover the sum paid. Held, as against a demurrer to plaintiff’s evidence, that the phrase “to accruing interest thereof” related to the interest which would accrue after February 11, 1919, and that this phrase was not susceptible of an interpretation that the plaintiff bound himself to pay that portion of the semiannual interest which had already accrued — had already been earned — when the contract was made.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Motion to Retax Costs — Appellate Jurisdiction. A decision refusing to retax costs which had been assessed and formed a part of a judgment previously affirmed upon appeal relates exclusively to costs and is not open to review, although the amount questioned may exceed $100.</p>

<p>Appeal from Wyandotte district court, division No. 1; Frank D. Hutchings, judge.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Will — An Active Trust Created by Devise — No Title to Vest in Cestui Que Trust. A trust created by a will imposed upon the trustee the power and responsibility of paying to the widow of the testator so much of the income from real estate as might be necessary for her support during her life, and at her death the income was to be paid to a son during his life, and if he left children surviving him, then at his death, the income was to be paid to them for a period of twenty years, at which time the fee title was to vest in them. Held, that the trust is an active and not a dry or passive one, and that it cannot be executed until the time arrives for the final distribution (Grossen- ■ backer v. Spring, 108 Kan. 397, Í95 Pac. 884), and further held, that the only interest acquired in the real estate by the testator’s son is a life use of the income from the time of his mother’s death.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Divorce — Jurisdiction — “Residence” of Wife — Husband an Officer in United States Army at Fort Riley. Findings of fact in an action for divorce considered, and held, residence of the wife of a captain of the United States army at Fort Riley, to which military post he was assigned for duty, was not domiciliary, within the meaning of the divorce statute, which requires domicile of the plaintiff in the state and in the county in which the petition is filed.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Real-estate Dealer’s Commission — Verdict Must Respond to Issue Defined in Instructions. In an action for a real-estate dealer’s commission, the only issue was whether the plaintiffs were to receive the sum of $700 for their services in finding a buyer for defendant’s farm, which was admittedly the original amount agreed upon'between the parties, or whether, because the defendant had to extend time to the buyer, the plaintiffs had later agreed with defendant that their commission should be $300. The trial court instructed the jury to that effect but the jury returned a verdict for $500- which the court declined to receive. The court repeated its instructions that the verdict should be for the plaintiffs for $700 or for $300, as the jury in their discretion might determine, and that this matter was the only disputed issue of fact which the jury had to decide. The jury again retired and then brought in a verdict for $700. Held, that it was proper for the court to decline to receive their first verdict and to require them to return and bring in a verdict responsive to the issue as defined by the court, and that the jury’s discretion did not extend to the rendition of a verdict at variance therewith.</p>

<p>■SYLLABUS BY THE COURT.</p> <p>1. Partition — Nonresident Defendant — Sufficient Affidavit for Service by Publication. An affidavit to obtain service by publication which states that the action is one for the partition of certain real property, and that the defendant is a resident of another state, and therefore the plaintiff is unable to procure personal service upon him, is sufficient although it does not show the interests of the parties in the land or that a cause of action exists against the defendant.</p> <p>2. Same It is not necessary that the language employed in the statute relating to the nonresidence of the defendant or the inability of the plaintiff to secure actual service of summons upon him, be used in the affidavit. It is enough if the statements made substantially show the statutory foundations for service by publication.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Refusal to Probate Will — Jurisdiction of District Court — Issues that May Be Determined. Sections 1 and 2 of chapter 336 of the Laws of 1917 interpreted, and held, the issues of due execution of a will, testa- . mentary capacity of the testator, and his freedom from restraint, may be conclusively determined in an action commenced in the district court to contest an order of the probate court refusing probate of the will.</p> <p>2. Same — Assignments of Error Without Substantial Merit. Assignments of error relating to an instruction given the jury, and the sufficiency of the evidence to sustain the findings of fact, considered, and held to be without substantial merit.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>LIQUOR Law — Evidence Sufficient to Convict. Evidence considered, and held sufficient to establish the unlawful possession of intoxicating liquor.</p>

<p>Original proceeding in quo warranto. Judgment for plaintiff, June 27, 1921.</p>

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

<p>SYLLABUS BY T3E COURT.</p> <p>1. Replevin — Statutory Law of Another State ■ — Legal Presumptions. There is a legal presumption, in the absence of a showing to the contrary, that the statutory law of another state is the same as the law of Kansas.</p> <p>2. Same — Sale of Chattel — Title Retained in Vendor — Recording of Contrast — Innocent Purchasers. Under section 6508 of the General Statutes of 1915, a written contract for the sale of chattels, where title is retained by the vendor until the purchase price is paid, is void as against an innocent purchaser from the vendee unless the contract is recorded in the office of the register of deeds of the county or counties where the property is permitted or intended to be kept.</p> <p>3. Same — Plaintiffs’ Right to Recover Was Question for Jury. The evidence touching plaintiffs’ right to recover possession of an automobile, in replevin, against defendants who had purchased the chattel from plaintiffs’ vendee, examined and held to require its submission to a jury to determine whether the defendants were innocent purchasers.</p> <p>4. Same — Evidence of Value of Automobile for Jury. The evidence touching the value of the automobile in controversy examined, and held, that the determination of its value was a jury question.</p> <p>5. Same — No Agreement as to Value of Automobile. The record examined and held to show no agreement as to the value of the automobile.</p> <p>6. Same — Matters for Review Should First Be Presented on Motion for New Trial. The record examined and held to show that the matters presented in this appeal required that they be deferred until they we-re ruled on by the trial court in a motion for a new trial; and held, also, that the trial court was not led into error through any fault or shortcoming on the part of appellants’ counsel.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Burglary — Information—Distinction between Grounds of Motion to Quash. A motion to quash an information for burglary, on the ground the facts stated do not constitute a public offense, raises the question whether all ingredients of the crime are present, but does not raise the question whether details, not of the substance of the offense, but which good pleading requires should be stated, are present.</p> <p>2. Same — Name of Owner of Building Omitted. An information for burglary may be sufficient as against a motion to quash on the ground no offense is stated, although the name of the known owner of the building be not disclosed.</p> <p>3. Same — Breaking and Entering Store — Ownership of Store — Properly Laid in Occupant of the Store. Under the statute of this state, making it burglary to break and enter, in the nighttime, with felonious intent, a store in which goods are kept, the essence of the crime is violation of the security of the occupancy. The person injured is the one who occupies the,store by keeping goods there, and ownership of the store is properly laid in such occupant.</p> <p>4. Same — Information—Ownership of Store Alleged to be in a “Company.” In an information for burglary of a store and for larceny committed in connection with the burglary, ownership of the store and goods was alleged to be in “The Durnil Dry Goods Company.” Held, it was not necessary further to identify the owner by stating whether the company were a corporation or a partnership.</p> <p>5. Same — Instruction to Jury — Individual Responsibility of Jurors. Under the facts stated in the opinion, it was not prejudicial error to omit to give, upon request, a monitory instruction concerning the individual responsibility of. each juror in determining what the verdict should be.</p> <p>6. Same — Fact Established Beyond Dispute. The proceedings considered, and held, the court did not err in instructing the jury that the crime of burglary had been established beyond dispute, and that the only issue for their consideration was whether or not the defendant participated in the burglary as a principal.</p> <p>7. Same — No Substantial Merit in Assignments of Error. Various assignments of error considered, and held to be without substantial merit.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Negligence — Pedestrian Ran Dotvn by Motor Truck — Personal Injuries —No Negligence Shown. The proceedings examined, and held, assignments of error relating to evidence received and rejected, instructions given and refused, and other subjects, are without substantial merit.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Action — Damages for Wrongful Garnishment — Malice Need Not Be Proved. It having been settled in this state that an action for wrongful attachment, hot brought upon the bond, may be maintained without malice being pleaded or proved, it follows the same rule applies as to wrongful garnishment. The circumstance that the affidavit for garnishment may be made upon information and belief while that for attachment must be verified positively, does not justify the application of a different rule.</p> <p>2. Same — Damages for Wrongful Procurement of Restraining Order— Malice Must Be Shown. No action for the wrongful procurement of a restraining order (not brought upon a bond) will lie without a showing of malice.</p>

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

<p>SYLLABUS by the court.</p> <p>1. Fees and Salaries — Compensation of Register of Deeds — Entitled, to One-half of Certain Excess Fees. After the expiration of her term of office as register of deeds, the plaintiff brought suit against the county to recover one-half the excess fees of the office under the provisions of chapter 193 of the Session Laws of 1917. The court gave judgment in her favor for part of her claim, but deducted from her half of the excess fees $1,245.50, which had been paid for additional clerk hire. It was shown that the county board exercised its discretion and employed these additional clerks, who were paid on verified bills presented by them to the county clerk and allowed by the board. Held, following Voris v. Cowley County, 103 Kan. 876, 176 Pac. 976, plaintiff was entitled to one-half the excess fees and it was error to deduct the amount paid by the county for clerk hire.</p> <p>2. Same — Payment of Monthly Salary — No Splitting of Cause of Action —No Waiver of Excess Fees. Plaintiff presented her claim each month for the amount of her salary and made no claim for excess fees until after her term of office expired. Held, that in doing so she was not splitting her cause of action because her right to excess fees was in no sense involved in the monthly settlemént for salary.</p> <p>3. Same — Chapter 198, Laws of 1919, Cannot Be Given a Retroactive Effect — Vested Rights. At the expiration of plaintiff’s term of office she had a vested right to one-half the excess fees as provided by the act then in force, and the enactment of chapter 198, Laws of 1919, providing that “if any register of deeds has collected fees allowed as clerk hire under the present law, such amount shall be deducted from any salary claimed under this act, and a cause of action shall accrue to the county for the recovery of such fees if the officer is out of office,” cannot be given a retroactive effect so as to deprive her of vested rights.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Action for Services as Attorney' — No Material Error in the Record. The evidence examined and held to support the verdict and findings of the jury.</p> <p>2. Same. Criticised rulings touching the admission of evidence held to have been proper.</p> <p>3. Same. Certain uncomplimentary remarks of counsel held not to have been materially prejudicial. •</p> <p>4. Same. The instructions complained of, one for no assigned reason, and others because unsupported by evidence, held to have been properly given.</p> <p>5. Same. Refusal to give a certain requested instruction approved.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Larceny- — Verdict Sustained by Sufficient Evidence. The proceedings examined, and held, the district court’s conclusion that the jury did not deal with the evidence in an arbitrary manner, and that the verdict was sustained by sufficient competent evidence, must be approved.</p>

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

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

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Quieting Title — Defendants’ Claim of Trust Agreement — Laches Defeats Trust Agreement. Beneficiaries under a written trust agreement must act promptly to enforce their rights when the trust is violated and repudiated. A delay of fourteen years after the recording of a deed in violation of the trust is sufficient to justify a trial court in refusing to enter judgment enforcing the trust, where the agreement, executed thirty years previously, has been lost and cannot be produced on the trial so as to inform the court of the nature and terms of the trust.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Reformation of Deed — Elimination of Assumption of Mortgage — Demurrer to Evidence Properly Sustained on Grounds of Ratification, Laches and Estoppel. The proceedings examined, and held, a demurrer to evidence offered in support of a contention that a deed should be reformed by eliminating assumption of a mortgage by the grantee, was properly sustained on the grounds of ratification, laches, and estoppel.</p>

<p>SYLLABUS BY THE'COURT.</p> <p>Drainage District — Negligence of Foreman — Injury to Workman — District Not Fiable for Damages. Where a drainage district organized upon the petition of two-fifths of the resident taxpayers under a statute the purpose of which is to benefit the public by protecting persons and property from injury by floods, is engaged in clearing out the channel of a river, no liability on its part arises by reason of an injury to one of its workmen through the negligence of his "foreman, there being no specific statutory provision in reference thereto.</p>

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

<p>SYELABUS BY THE COURT.</p> <p>1. Vendor and Purchaser — Sale of Land — Time Essence of Contract— Default of Vendee — Forfeiture of Initial Payments. One who purchases real property under a written contract in which time is made the essence thereof, and makes the initial payment but fails to make the final payments at the time specified, is not entitled to the return of any part of the initial payment upon cancellation of the contract by the vendor, where the contract provides that, on failure of the purchaser to make the final payments at the proper’ time, the initial payment shall be retained by the vendor as liquidated damages.</p> <p>2. Same — Delay in Obtaining Abstract of Title — Delay Chargeable to Purchaser. Where the purchaser of real property undertakes to satisfy the objections made by him to an abstract of title to the property, delay caused by him in satisfying those objections and in examining the abstract cannot be charged against the seller.</p> <p>3. Same — Conflicting Evidence — Findings of Fact Conclusive. The rule followed, that, where from the evidence reasonable minds may reach different conclusions, the findings of the triers of fact are conclusive.</p> <p>4. Same — Vendee’s Objection to Abstract Not Valid. -The fact that an abstract of title to real property fails to show that the seals of notaries public taking acknowledgments to instruments affecting the title were attached to the instruments is not a valid ground for objecting to the abstract where the instruments were recorded more than ten years prior to the time that the abstract is .furnished.</p> <p>5. Same — Tender of Abstract Sufficiently Pleaded. A tender of an abstract of title to real property was sufficiently pleaded.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Trust Funds — Proceeds of Cheek Sent to Bank for Collection — Insolvency of Bank — Preferred Clai/m. Where a check of one having a checking account large enough to cover it is sent by mail for collection to the bank on which it is drawn, which has at thfe time of its receipt and at all times thereafter sufficient cash to meet it, and the bank charges it to the drawer, and at once mails to the owners a draft for the amount, payment of which is prevented by the bank commissioner taking charge of the bank issuing it before it could be presented in due course of business, the owners of the check have a preferred claim for its amount against the assets of the suspended bank.</p> <p>2. Same In an action brought by the payees of the check in the c'rcumstances set out in the foregoing paragraph it is held that no ground for the reversal of a judgment for the plaintiffs is shown by the manner in which they deposited the check in a bank through which it reached the drawee.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Constitutional Law — Statiote Creating Court of Industrial Relations Is Valid. No question save the constitutionality of the industrial court act (Laws 1920, ch. 29) being presented by the defendants, the judgment is affirmed, following The State, ex rel., v. Howat, ante, p. 376, 198 Pac. 686, and Court of Industrial Relations v. Packing Co., ante, p. 629, 201 Pac. 418.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Coram Nobis — Not Available — False Statements of Juror on His Voir Dire. A writ of error cora/m nobis will not lie from a judgment of conviction in a felony case because one of the jurors made false statements concerning his qualifications, although it is alleged that the defendant had no knowledge of the false statements and could not discover that they were false until after sentence had been pronounced.</p> <p>2. Same. That a juror gave false answers concerning his prejudice against a defendant on trial in a felony case is not a fact which, if it had been known to the court, would have prevented a verdict of guilty and judgment thereon, although a new trial might- have been compelled if the matter had been presented to the court in a motion therefor.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Road Benefit District — Petition Signed Conditionally — Conditions Must Be Respected by County Board. Where pursuant to the provisions of the good-roads acts of 1917 and 1919 (Laws 1917, ch. 265, Laws 1919, ch. 246) a petition-for the construction of an improved highway is presented to the board of county commissioners, signed by the requisite number of qualified landowners, which petition contains a condition that the road prayed for shall not be constructed at an average cost exceeding $30,000 per mile, such limitation of cost is valid, and if the county board approves the petition it must respect the limitation of cost prescribed by the petitioners and the county board may be enjoined from constructing the proposed road at any greater expense — following Hines v. Barton County, 106 Kan. 082, 687, 189 Pac. 368.</p> <p>2. Same — Injunction—Limitation of Actions. Under the provisions of sections 1 and 4 of chapter 246 of the Session Laws of 1919, no action can be maintained to restrain the construction of an improved road authorized by the-good-roads acts of 1917 and 1919 or the making of provision for the payment therefor, on account of any illegality in the road petition, or in the proceedings of the board pursuant thereto, or on account of any illegality in the advertising, receiving bids or awarding of contracts, or in the decision of the board to construct the road by day labor, unless such action is begun within thirty days after the matter complained of has been determined or undertaken— following Field v. Reno County, 107 Kan. 397, 191 Pac. 315.</p> <p>3. Same — Conditional Petition — Limitation of Costs of Proposed Road. Any attempt on the part of a board of county commissioners to disregard a valid limitation as to the maximum cost of a proposed road and to incur an expenditure of public funds in excess thereof, although such road improvement is otherwise lawfully projected and undertaken, gives rise to a cause of action in behalf of a taxpayer aggrieved thereby.</p>

<p>Appeal from Linn district court; Jabez O. Rankin, judge pro tern.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. License Tax — Motor Busses — Jitneys—Municipal Control of Public Streets — Valid City Ordinance. Following Desser v. City of Wichita, 96 Kan. 820, it is held:</p> <p>(First) That a city ordinance regulating street traffic which excludes those operating motor vehicles carrying passengers for hire from soliciting or receiving passengers within a certain zone of the city where there is street-car service, is not an unlawful discrimination, nor so arbitrary and unreasonable as to be invalid.</p> <p>(Second) Such legislation is enacted for the public welfare, and not merely to benefit a particular common carrier, and the fact that the measure may result in great benefit to one carrier and great loss to another of a different class, will not necessarily destroy the validity of the ordinance.</p> <p>(Third) Whether the public welfare would be best subserved by extending traffic privileges to a street railway company and by withholding them from those operating motor vehicles within a certain zone of the city, is a legislative question, and the court may not substitute its judgment, as to what the public good requires, for that of the city commission intrusted by law with the discretion and power to determine the question.</p> <p>2. Same — City Ordinance Properly Amended. Upon an examination of the amendatory ordinance which set forth the complete section as amended, it is held that it is not invalid because it did not set out other sections of the ordinance which were not amended.</p> <p>3. Same — City Ordinance — Only One Subject in Title. The ordinance is held to cover but a single subject, which is sufficiently expressed in its title.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Automobile Insurance — Automobile — Change of Ownership — Transporting Passengers for Hire — Policy Terminated. A clause in a policy insuring against loss of an automobile by theft provided that any change in the ownership or interest of the assured, would immediately terminate the policy. Another clause provided that the policy should terminate if the ear should be used for the transportation of passengers for hire. Held, that such prohibited use would avoid the policy whether or not the insured knew of such use, and further held, that the company, under the evidence, was not estopped to urge both defenses.</p>