Volume 111 — Kansas Reports

<p>OPINION ON REHEARING.</p> <p>Appeal from Greenwood district court; Allison T. Ayres, judge.'</p>

<p>SYLLABUS BY THE COURT.</p> <p>Homicide — Murder in Second Degree — No Error in Record of Conniption. The record of a prosecution, conviction and judgment in a case of homicide, wherein the defendant and two confederates armed themselves with revolvers and guns and invaded the premises of a ranchman who was in the peaceable possession of a mule claimed by the defendant, and the incidents which attended their forcible recaption of the mule and culminated in the death of the ranchman at the hands of the defendant, examined, and no error discerned in the judgment rendered on the jury’s verdict of murder in the second degree.</p>

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

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

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

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Wrongful Death — Action in Name of Wrong Party Plaintiff — Substitution of New Plaintiff Allowed — Statute of Limitations. In an action for damages for wrongful death, brought for the benefit of a person lawfully entitled thereto, the substitution, by amendment, of a new party plaintiff who had a right to sue in that behalf, in lieu of a plaintiff who did not have such right, was properly allowed by the trial court; and such substitution did not change the cause of action; nor did the statute of limitations run against the substituted plaintiff during the pendency of the action as originally begun.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Real-estate Agent — No Completed Contract — No Commissions — Unsatisfactory Abstracts. A real-estate dealer contracted with the defendant to find him a purchaser or one who would exchange lands with him — no commission to be paid unless the deal should be consummated. He found one with land to exchange who furnished abstracts of title which the attorney for the defendant refused to approve. Held, that it was not the defendant’s duty to return such abstracts for completion and correction, in order to avoid liability for the commission.</p> <p>2. Same — Retention of Abstracts. As good faith is always requisite in such transactions as the one indicated in the preceding paragraph, and as an instruction on the subject was requested by the defendant, it was not error to charge as to the good faith-of the defendant.</p> <p>3. Same — Contract Relating to Commissions — Signature of Parties. The location of the signatures to a contract is not material provided they are attached with the understanding that all the provisions of the instrument are to be binding.</p> <p>4. Same — Abstracts—Reliance on Advice of Attorney. Under the facts shown it was error to refuse an instruction that the defendant had a right to rely on the advice of his attorney, who declined to approve the abstracts, and refuse to carry out the trade.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Contract — Administrator Contracting with Himself for Attorneys’ Fees— Fiduciary Relations — Violation of Trust. A contract for compensation to be paid by the administrator of an estate of a deceased person for services to be performed by the administrator and his partner as attorneys at law, in an action to be commenced by them to recover damages for the wrongful death of the deceased person, is in violation of the trust reposed in the administrator and cannot be enforced.</p> <p>2. Same — Contract for Contingent Attorneys’ Fees — Contract Champertous and Unenforceable. A written contract between an attorney and his client that the attorney will prosecute an action for a fee contingent on the success of the litigation is rendered champertous and unenforceable by a collateral agreement that the attorney will protect the client against the payment of costs.</p> <p>3. Attorneys at Law — Conduct in Violation of Professional Ethics — Words of Censure by Supreme Court. Where attorneys at law are plaintiffs in an action, and they have acquired their rights to the subject matter of the action in violation of professional ethics, the court will not permit the conduct of the attorneys to pass without censure.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Action on Account — Counterclaim.—Evidence—Findings. Where findings of fact made by a trial court are sustained by evidence, the findings will not be disturbed on appeal.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Damages — Loss by Fire — Evidence—Findings. In an action to recover damages for property destroyed by fire negligently set out by defendant, the evidence is examined and held to be sufficient to support the findings as to the extent of loss sustained.</p> <p>2. Same — Pleadings—-Proof No Departure. In his petition plaintiff asked a recovery for the destruction of a barn. Upon his proof he was awarded damages for the loss of the use of the bam during the unexpired term of a lease. Held not to be a departure.</p> <p>3. Same — Instructions. Instructions examined and held not to be erroneous.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Damages — Loss by Fire from Engine — Equipment of Engine for Prevention of Fire — Instructions. In an action for damages for loss of property destroyed-by fire set by one of the defendant’s engines, the following instruction was requested by the defendant, and refused by the court:</p> <p>“You are instructed that, in equipping its engine for the prevention of fire, defendant was not required necessarily to adopt any particular appliances or the latest appliances dr the best appliances for that purpose, but was only required to adopt appliances of standard or approved pattern or construction for the prevention of the escape of fire from said engine, and to use ordinary care in maintaining and operating it.”</p> <p>Held, the instruction was properly refused, because the rule which it embodied would permit railroad companies to establish their own standard of duty in equipment, and would limit duty to use ordinary care to maintenance and operation only.</p> <p>2. Same — Trial—Additional Instructions After Retirement of Jury for Deliberation — Discretion of Court. The district court has a large discretion in the matter of giving additional instruction? after the jury has retired for deliberation; a judicious exercise of the discretion tends to sure and efficacious administration’’ of justice; and only in the event of abuse, resulting in prejudice, will an exercise of the discretion be ground of reversal.</p> <p>3. Same — Paragraph of Syllabus in Former Case Overruled. The third paragraph of the syllabus in the case of Foster v. Turner, 31 Kan. 58, 1 Pac. 145, is overruled.</p> <p>4. Same — Withdrawing Instructions — Substituting Others. The proceedings examined, and held, the court did not err in withdrawing two instructions and reading to the jury substitutes for them, after the case ha’d been submitted to the jury and it had deliberated for several hours.</p> <p>5. Same — Instructions. Instructions to the jury considered, and held to be free from faults attributed to them.</p> <p>6. Same — Special Findings Not Inconsistent. Special findings of the jury considered, .and held to be consistent with each other.</p> <p>7. Same — Evidence. The special findings and general verdict were sustained by sufficient evidence.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Contract — To Furnish Retail Merchant Canned Beans and Beets — Shortage of Crops — Interpretation of Contract. The following provision of a contract to furnish a quantity of canned beans and beets is, held to mean by fair implication that the produce referred to is to be raised by the seller directly or through growers under contract with him, and that in case of a shortage of such crop from causes beyond his control he is not required to buy other produce to fill the order:</p> <p>“The seller agrees to plant sufficient acreage to cover all goods sold for delivery during the. coming season and to use every effort to insure full delivery. If, however, on account of the shortage of crops, or other causes beyond the control of the seller it is unable to deliver the full amount herein named, it is agreed that the buyer will accept a pro rata delivery with other purchasers, of all grades of goods covered by this contract, without claim for damages.”</p> <p>2. Same — Shortage of Crops — Privilege of Prorrata Delivery — Interpretation of Contract. Where by the terms of a contract to furnish articles the seller is entitled to make a pro rata delivery among its customers, one of them has no ground of complaint because distribution is made in a different proportion among others, except so far as he is thereby prejudiced.</p> <p>3. Same. Where in a contract for furnishing canned produce the buyer agrees in the event of a shortage in the seller’s crops to accept a pro rata delivery with other purchasers the operation of this provision is not affected by the fact that the seller is liable to some of his customers for a failure to make a full delivery.</p> <p>4. Same. Where such a contract has been made, if the seller, after his crop has been injured, agrees to make deliveries to new customers the fact is to be taken into account in determining whether he contracted for a larger delivery than reasonable expectations warranted.</p> <p>5. Same — Goods Commandeered by the Government. Where goods contracted to be delivered to a buyer are commandeered by the government, performance by the seller is to that extent excused.</p> <p>6. Same — Proof of Market value. A technical objection concerning the proof of market value is held not to require a ruling.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Oral Contract Concerning Real Estate — Divorced Husband and Wife— Consideration Remarriage — Contract Fully Performed — Statute of Frauds. A husband and wife were divorced and the homestead awarded to the hus- ' band who thereafter induced his former wife to consent to a remarriage upon his oral promise that from the time of the marriage the homestead should be mutually regarded by them as belonging to her. The day before the second marriage occurred he conveyed the property by warranty deed to a third person, the stated consideration being one dollar. Subsequently, the parties were again divorced, the wife remaining in possession of the property. In an action brought against her to recover title and possession by the grantee in the deed, it is held that the contract having been fully performed when the marriage took place, the doctrine of part performance has no application. “The statute of frauds does not render void the verbal contracts to which it refers. They are valid for all purposes except that of suit.” {Weld v. Weld, 71 Kan. 622, 624, 81 Pac. 183.)</p> <p>2. Same — Concerning Real Estate — Statute of Frauds. The plaintiff, being neither a party nor a privy to the oral agreement, cannot invoke the statute of -frauds as a basis for her action. {Vaught v. Pettijohn & Co., 104 Kan. 174, 178 Pac. 623.)</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Jurisdiction — Insufficient Service — General Appearance — Waiver of Service. After an ineffectual objection to the jurisdiction of the court by reason of the insufficient service of summons upon defendants, they filed an answer and cross petition which, in addition to a challenge of jurisdiction, set up a cause of action against th.e plaintiff and asked for affirmative relief as against him. Held, that by invoking the action of the court to grant them affirmative relief, they submitted themselves to the general jurisdiction of the court and could not thereafter assert error of the court in overruling the challenge of the jurisdiction.</p> <p>2. Contract — Sale of Land — Evidence—Findings. Evidence and special findings relating to a contract for a sale of land examined, and held to be sufficient to uphold the verdict and judgment.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Fraternal Insurance — Suspension of Delinquent Member — Conditions to Reinstatement. The laws of a fraternal beneficiary society examined, and held, failure to pay an assessment within designated time operates, without more, to suspend the delinquent member, and to prevent recovery on the member’s beneficiary certificate, until all the conditions to reinstatement have been complied with.</p> <p>2. Same — Conditions to Reinstatement Not Complied With — No Waiver. The evidence in an action to recover on a beneficiary certificate issued to a member, who died while suspended, examined, and held, retention by the society of money paid to secure reinstatement, did not waive the furnishing of a good health certificate, which, under the law of the society, was a condition to reinstatement. Held further, other facts disclosed by the evidence did not dispense with performance of the condition.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Negotiable Instruments — Certificate of Deposit. A certificate of deposit issued by a bank payable to the order of the depositor in current funds on the return of the certificate properly indorsed six months after date with interest at 4 per cent per annum is a negotiable instrument.</p> <p>2. Same — Innocent Holder of Certificate of Deposit. The'mere fact that such a certificate was issued by a bank in payment for a promissory note transferred to it before the note was due, which was subject to defenses for fraud ' in its inception, does not warrant the inference that the bank took the note with actual knowledge of infirmity and in bad faith, or that it was not a holder in due course.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Municipal Bond — Action on Bond Coupons — Statute of Limitations. The rule that the statute of limitation does not run upon a municipal debt payable only out of a particular fund until that fund has been created does not apply to bond coupons made payable at a stated time, although issued under a statute requiring annual levies to be made sufficient to meet the interest.</p>

<p>SYLLABUS BY THE COURT,</p> <p>1. Assault and Battery — In Defense of Servant — Reputation of Plaintiff as Dangerous and Fighting Man — Competent Evidence. In an action to recover damages for an assault committed, in defense of a third person, testimony was competent to show plaintiff’s general reputation for being a quarrelsome, dangerous and fighting man, and that this was known to the defendant.</p> <p>2. Same — Defense of Servant or Relative — Rule of Self-defense Applies. Plaintiff made an unprovoked assault upon a man twenty-one years of age who was in the employ of the defendant, and a relative by marriage. The assault occurred on the premises of defendant, who warned plaintiff not to strike the young man. Plaintiff struck him with his fist, and while attempting to strike him again, plaintiff was struck by the defendant with the broadside of a pitchfork, breaking his arm.. Held, that the principle of self-defense applies where one resists by force an assault upon a servant or relative.</p> <p>3. Same — Erroneous Instruction as to Justifiable Assault. In such a case an instructiqn that unless the jury found from a preponderance of the evidence that there was reasonable cause by defendant to apprehend that plaintiff designed to commit a felony or to do some great personal injury to the servant, and that there was immediate danger of such design being accomplished, the assault was not justifiable, and the verdict should be for the plaintiff, is held erroneous.</p> <p>4. Same — Use of More Force than Reasonably Necessary — Instructions. In such a case an instruction that the defendant would also be liable to plaintiff even if the jury found the assault was justifiable by the defendant if the latter used more force than was reasonably necessary to prevent a felony or to prevent the doing of great bodily harm to the third person, was erroneous, the rule being that one may use in the defense of a third person so much force as reasonably appears to him to be necessary.</p> <p>5. Same. In such a case the person’s conduct is to be judged by his situation as it reasonably appears to him. (Sloan v. Pierce, 74 Kan. 65, 85 Pac. 812.)</p> <p>6. Same — Great Bodily Harm — Erroneous Instruction. An instruction that' great bodily harm means more than mere injury by the fist such as is likely to occur in ordinary assault and battery, held, when taken in connection with the other instructions referred to, erroneous.</p> <p>7. Same — Right of Master to Defend His Servant. The general rule recognized that the person who interferes to defend one whom he has a right to defend may go to the same extent that the defended party would be entitled to go in the defense of himself.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Fraud — Action to Set Aside Deed on Ground of Fraud — Action Barred by Statute of Limitations. Where a person has been induced to make a quitclaim conveyance of an interest in real estate by the grantee’s fraudulent representations that the grantor had no interest in the property, his action to set aside such conveyance must be brought within two years after the-discovery of the fraud, and the time begins to run when the fraud is perpetrated in a case where the public records required by law to be kept are readily accessible and an examination of them would at any time disclose the interest of the grantor in the property so conveyed.</p> <p>2. Limitation of Actions — Setting Aside Fraudulent Deed — Recovery of Interest in Land. Where one has been fraudulently induced to give a quitclaim conveyance to his interest in real estate, and he brings an action to set aside the conveyance and for a recovery of his interest in the land; the first phase of such action is for relief on the ground of fraud and such action must be begun in two years, and this rule governs although, if the relief on the ground of fraud is timely asked and obtained, the second phase of the action — to recover his interest in the property — may be commenced at any time within fifteen years.</p> <p>3. Same — Notice of Fraud — Admission of Defendant. The testimony of one of the quitclaim grantors, a resident of another state, contained an admission on her part which justified the trial court’s finding of fact that such grantor had more than two years’ notice of the alleged fraud before her action was begun.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Postnuptial Agreement — Husband and Wife — Descents and Distributions— Will. An agreement was made between a husband and wife shortly after marriage in these words:</p> <p>“The undersigned, Jacob J. Marti and Caroline Marti, his wife, both of Grantfork, Madison Co., Illinois, hereby mutually agree that the property both real and personal owned at the present time by each of us, remain intact for the benefit of each one children. That neither party desires to disturb the property rights as existing at the present time.”</p> <p>Subsequently the husband made a will devising all of his property to his children. After his death the widow claimed a share of the property and elected to take under the statute of descents and distributions. Held, that under the agreement each party relinquished the right of inheritance in the property of the other.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. County Property — Within Corporate Limits of City — County Liable for Paving Assessments. Where the plat of a county-seat town shows a block labeled “county square,” the town company later executing to the county a deed therefor without restrictions as to use, and the commissioners assert a right of control, thereby accepting the property, full title thereto is vested in the county, and it is liable for the payment of paving assessments, notwithstanding the square has been continually used as a public park, the city bearing most of the expense of improving and caring for it, and the county having made no use of it except as it may be regarded as sharing in its maintenance as such park.</p> <p>2. Same — Duty of County to Pay Paving Assessments Levied by City. It is the duty of the county to pay parts of a paving assessment charged against property which it owns as they fall due under the tax laws, and in the present instance its obligation is to make a first payment of one-tenth of the assessment with six per cent interest for one year on the total.</p>

<p>SYLLABUS BY THE COURT,</p> <p>1. Promissory Notes — Given for Money Borrowed to Purchase Land — Lien for Purchase Money. The findings of fact to the effect that the plaintiff bank furnished the money evidenced by the notes sued on to purchase the land in question, under an agreement that it would be secured therefor, and that the amounts furnished amounted to one transaction, are held to be sustained by the evidence.</p> <p>2. Same — Lien for Purchase Money — Homestead Bights. Under section 9, article 15 of the constitution, if the money was lent and used for the purpose of purchasing the land in question and thereafter occupied as a homestead, it would not be exempt from sale for the payment of such debt.</p>

<p>Appeal from Dickinson district court; Cassius M. Clark, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Quo Warranto — -Original Proceedings — Discretionary Jurisdiction of Supreme Court — Case Dismissed. Although the supreme court has original jurisdiction in cases in the nature of quo warranto, and for the effective discharge of its duties thereunder it may exercise its inherent supervisory power over inferior courts, yet the exercise of such jurisdiction is not mandatory in all cases, but often discretionary, and in the absence of fraud or other extraordinary cause, that discretion will not be exercised to stay proceedings or otherwise interfere with the orderly administration of justice in an inferior court which has jurisdiction of a substantially similar cause wherein all matters alleged to invoke our original jurisdiction are and can be determined, and where any errors made in that court can be corrected on appeal.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Compensation Act — Arbitration—Power of Arbitrator to Make Lump-sum Award. The workmen’s compensation act forbids an arbitrator to make a lump-sum award for a schedule injury partial in character and permanent in quality, except for the portion of the compensation due and unpaid at the time of the award.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Defective Highway — Personal Injuries — Liability of County for Damages —Township Not Liable. Under chapter 237 of the Laws of 1887 (Gen. Stat. 1915, § 722), it is held that in view of chapter 276 of the Laws of 1899 and subsequent legislation touching the construction and maintenance of certain roads by Wj'andotte county the defendant township is not liable for the injury herein involved.</p> <p>2. Same — Demurrers to Petition Erroneously Sustained. In view of the legislation mentioned in paragraph 1 it is held that the demurrers to the petition by the defendant county were erroneously sustained.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Indemnity Contract — Against Loss on Promissory Notes — Notes Extended — Indemnitors Not Discharged. Persons who sign a contract indemnifying a bank against loss on account of certain notes held by the bank are not discharged from liability by extension of time given to the makers of the notes, although the indemnitors do not consent to the extension of time.</p> <p>2. Same — Contract Assignable. An indemnity contract is assignable.</p> <p>3. Same — Measure of Indemnitors’ Liability. Under such a contract as is described in the first paragraph of this syllabus, the amount of the liability of the indemnitors is measured by the notes. ■ ■</p> <p>4. Same — Several Liability of Indemnitors. Where such a contract of indemnity is several, although signed by more than one, the obligation of each indemnitor is independent of that of the others.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Wrongful Death — Negligent Driving of Automobile — Action for Damages — Statement of Counsel to Jury. In an action for damages for wrongful death caused by one rapidly driving an automobile, it is not error for counsel for plaintiff to say, in the trial statement, that the driver of the automobile was racing with another automobile; that the occupants of the latter were shouting and waving their hands; and that one of them said something about the street being a speedway and said, “Look out for your lives.”</p> <p>2. Same — Evidence of Speed of Automobile — Competent Witnesses. Any person of ordinary ability and means of observation may testify concerning the rate of speed at which an automobile was traveling when he saw it moving.</p> <p>3. Same — Death of Seventeen-year-old Boy — Contributory Negligence — Question for Jury. Under the evidence, it cannot be said, as a matter of law, that a seventeen-year-old, large, healthy, energetic boy who was driving pigs along a street in a city was guilty of contributory negligence by failing to get out of the way of a rapidly moving automobile by which he was struck and killed. The question of contributory negligence was for the jury.</p> <p>4. Same — Negligent Driving of Automobile — Evidence. There was evidence which tended to prove that the defendant was driving his automobile at a rate of speed which warranted the jury in finding that he was negligent.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Foreign Judgment — Entitled, to Full Faith and Credit — Cannot Be Attacked Collaterally. A judgment of a sister state not challenged upon jurisdictional grounds cannot be impeached upon the ground that the successful party obtained the judgment by giving perjured testimony.</p> <p>2. Same. The truth or falsity of the testimony produced was a matter for the determination of the court rendering the judgment and that matter, not being extrinsic or collateral to the issue involved, must be regarded as adjudicated and not open to inquiry in another action.</p> <p>3. Same — Demurrer to Defendant’s Pleading Rightly Sustained. The demurrer to the defendant’s pleadings setting up that the judgment was fraudulently obtained by perjured testimony was rightly sustained.</p>

<p>OPINION DENYING A REHEARING.</p> <p>Appeal from McPherson district court; Frank F. Prigq, judge.</p>

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

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

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

<p>syllabus by the court.</p> <p>1. Accommodation Promissory Note — Good in Hands of Endorsee. An accommodatioa promissory note is good in the hands of an endorsee who holds it in due course, although the note was secured from the maker by the fraud of the payee.</p> <p>2. Same — Unavailable Defenses — Unauthorized Endorsement.- The maker of a promissory note cannot defeat it by showing that those who endorsed the payee’s name in transferring it had no authority to make the endorsement where the payee receives the proceeds arising from the endorsement of the note, claims no further interest in it, and has knowledge of the action commenced by the endorsee to enforce its payment.</p>

<p>syllabus by the court.</p> <p>Insurance — Against "Theft, Robbery or Pilferage" — Obtaining Property by Impersonation, Fraudulent Representation and Fraud — Loss Covered by the Insurance Policy. Under a' contract of insurance issued to protect a dealer in automobiles against “theft, robbery or pilferage,” the act of a swindler who deprived the insured of an automobile by means of a preconceived plan which involved impersonation, misrepresentation and fraud was a species of theft for which the insurance company was liable.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Criminal Law — Conviction oj Failure to Support Minor Child — Venue — Amendment of Decree. In 1915, the defendant’s wife was granted a di-. vorce in Crawford county and was awarded $11,000 worth of property for the support of herself and infant daughter. Thereafter she lived at various' places, and while in Oklahoma sued the defendant for $1,500 for mainte-': nance of the child who from birth has been afflicted with a spinal difficulty necessitating much expense for treatment. She afterwards took up her residence at Fort Scott, Bourbon county, and there caused the arrest of her former husband for failure to support the child, under the desertion act, chapter 163 of the Laws of 1911. The information alleged and the evidence showed the child to be in necessitous circumstances. Held, that the venue was properly laid in Bourbon county although the defendant still resided in Crawford county; and held, also, that the right of the wife to cause the de-j cree to be amended touching the support of the child is no bar to a prosecu-. tion by the state for failure to support.</p> <p>syllabus by the court.</p> <p>Criminal Law- — Neglect of Father to Support His Infant Child — Evidence— Erroneous Instruction — Interpretation of Statute. In a criminal prosecution of a divorced father under section 83 of the crimes act for neglect or refusal without lawful excuse to support his infant child which had been awarded to the custody of the divorced mother because of its tender age and not because of unfitness on the part of the divorced father to have its custody, it was error to instruct the jury as a matter of law that such failure.or neglect was without lawful excuse notwithstanding'the evidence that pursuant to the terms of the divorce decree the father had contributed $11,000 worth of property as alimony to the mother and for the support of the child, and after the mother had exhausted all this property the father offered to pay $25 per month toward its support, and offered to take the child and provide for its support and maintenance in his own'home, and offered to return with the mother to the court which awarded to her the custody of the child and submit to any further order made by that court touching such additional contribution as should be required of him .for the child’s support.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Contract — Completion by Correspondence. To enter into a contract by correspondence, there must be a definite proposition from one side and an unqualified acceptance by the other side.</p>

<p>Appeal from Edwards district court; Roscoe H. Wilson, judge.</p>

<p>Appeal from Ford district court; E. C. Minner, judge pro tern.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Libel — Slackerism and Perjury — Inducement and Innuendo Sufficiently Pleaded. During the war with Germany, the defendant published in its newspaper an article concerning plaintiff, an able-bodied, unmarried man of military age, in which mention was made of plaintiff’s futile efforts to procure deferred classification, and stated that when he was called to a military training camp and enroute thereto a friend got him off the train with permission to return to his home, that the local and district draft boards investigated his case, and that he made contradictory affidavits to excuse the breaking of his jourñey to the military training camp. Plaintiff’s petition exhibited such article, and alleged that it was false and malicious, that it caused plaintiff’s friends and associates to consider him and refer to him as a slacker, and had led them and the readers of defendant’s paper to believe that the plaintiff had sworn falsely and had been guilty of perjury. Held, that the petition stated a cause of action in damages for libel, and that defendant’s demurrer thereto was properly overruled.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Motion to Dismiss — Death of Plaintiff for More Than a Year — No Revivor— Question of Fact. A defendant moved to dismiss a case because the plaintiff had been dead more than a year and no revivor had been had. It was shown that a person had died who bore the plaintiff’s name and who was related to and lived with the, attorney who brought the suit, but that attorney made an affidavit that this was not the plaintiff. On appeal the overruling of the motion is affirmed, notwithstanding the vagueness of the information given in the affidavit referred to concerning the identity of the plaintiff, inasmuch as the disputed matter of fact in that regard can be finally settled at the trial.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Mob Violence — Three Persons Committing a Robbery on a Public Street Not a “Mob" Under the Statute. A city is not liable under section 3822 of the General Statutes of 1915 for the damages sustained by one who is robbed on the street by three or more persons acting together.</p>

<p>SYLLABUS-. BY THE COURT.</p> <p>1. Master and Servant — Interurban.Railway—Confined to Intrastate Business —Not Governed by Federal Safety-appliance Act. An interurban railway company which confines its business to transportation of passengers and goods from place to place within the state, but which rents its cars and transfers its employees to the service of a street-railway company for streetcar traffic in Kansas City, Kan., and Kansas City, Mo., located contiguously on opposite sides of the Kansas-Missouri state line, is not engaged in the sort of interstate commerce which -is governed by the federal safety-appliance act. . ' .•</p> <p>2. Same — Personal Injuries — Action for Damages — Choice of Statutes Under Which Action May Be Brought. ■ In an, action for damages to an injured employee against an int.erurban railway company which confines its business to intrastate traffic, except as that traffic may be altered or qualified by the loan of its cars and employees to another, company for street-railway service operated across a state line, it is immaterial whether such action be brought under the state law or the federal employer’s liability act, where the state and federal acts are substantially similar in text and effect — following Kansas City Ry. v. McAdow•, 240 U. S. 51, 60 L. Ed. 520.</p> <p>3. Same — Services of Employee Transferred to Another Master — Liability for Damages. Where .the services of an e'mployee have been transferred by his master to another master the question whether the employee should look to his own master or to his special master for compensation or damages for injuries depends upon whether or not the employee knew or should have known that his services were thus transferred — following King v. Railway . Co., 108 Kan. 373, 195 Pac. 622.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Statutory Rape — Other Acts of Sexual Intercourse of Defendant and Prosecutrix Competent. In a prosecution for statutory rape, evidence of prior and subsequent acts of intercourse, may be admitted to show lustful disposition of the defendant as «well as the existence and continuance of the illicit relation, as these may tend to explain the offense charged and to corroborate other testimony of the prosecution.</p> <p>2. Same — Information—Knowledge of JCouniy Attorney of Particular Offense Charged. The contention that the defendant could not be convicted of the illicit act charged because the county attorney who filed the information did not have knowledge of the .particular offense when the information was filed is sufficiently met where it appears that the county attorney at the time mentioned was informed of numerous acts of illicit intercourse covering the period in which the act', relied on for a conviction was committed.</p> <p>3. Same — No Error in Instructions. The instructions of the court as to the proof necessary to sustain a conviction, of -the defendant examined and held to be without error.</p> <p>4. Same — Evidence—Verdiet. The evidence in the case is held to be sufficient to sustain the verdict of the jury. . •</p> <p>5. Same — Trial—Absence of Formal ‘Arraignment — Waiver by Defendant. The absence of a formal arraignment and plea of the defendant was effectually waived by the acts of the defendant in going to trial without objection and submitting the question of his guilt to the jury impaneled to try him, contesting every question in the case as fully as if there had been a formal arraignment, and not" raising any objection as to the nonobservance of the formality until the verdict of the jury was returned.</p>

<p>syllabus by the court.</p> <p>Banks and Banking — Numerous Checks Drawn by Depositor Received by Bank in Same Mail — Insufficient -Deposit to Meet All Checks — Order in Which Checks Should be Paid. A stock buyer purchased, cattle for which he gave his check, having no deposit sufficient to meet it. He shipped the cattle to a commission company in-Kansas City in the name of his minor son without his knowledge. The cattle were sold and the proceeds deposited in a Kansas City bank, which notified the bank, on which the check was; drawn of the deposit to its credit having been made by direction of the minor. The check referred to and>a number of others drawn by the same-person were sent for collection to the drawee bank, reaching it by the mail which brought the notice. The drawer'óf the check told the bank cashier that the money belonged to him a$d requested that it be credited to his account, which was done. The bank used the money as far as it would go in payment of the checks, but did not pay that first referred to, the holder of which sued the bank on the theory 'of his having a prior claim against the fund. It is held—</p> <p>1. The direction given by the'actual shipper of the cattle that the fund should be placed to his credit was effective, inasmuch as his son had no real ownership of or interest in the cattle or. their proceeds.</p> <p>2. Knowledge by the bank that 'the plaintiff’s check was given for cattle and that the credit at Kansas City was the proceeds of cattle shipped by the drawer of the check in the name of his son was not sufficient to charge it with notice that the credit resulted from the sale of the plaintiff’s cattle.</p> <p>3. Where a bank received by th'e -shme mail a number of checks drawn against it by the same person, whose deposit is not large enough to meet all of them, if it applies the amount on hand so far as it will go to the payment of the checks in any order it sees fit;'it will not thereby render itself liable to the holder of a check remaining unpaid; assuming that there was no exceptional reason for preference.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Promissory Note — Not Bearing. Internal Revenue Stamp — Transfer■— Holder in Due Course. The fact that previous to the transfer of a negotiable note it did not bear an internal-revenue stamp, and that one was at that time placed upon it by the person negotiating the transfer in behalf of the holder, does not prevent it from being complete and regular on its face at the time of its acquisition by the transferee, nor prevent his becoming a holder in due course. . •</p> <p>2. Same — Holder in Due Course — Good Faith — Unavailable Defenses. In' an action upon a negotiable note complete and regular on its face, where the plaintiff claims to be a holder in due course and proves by records obviously made at the purported time of the transaction that he became the owner before maturity and for value, unless the steps taken by him were merely colorable, a finding that he did not- purchase it in bad faith renders defenses of fraud and illegality in the inception of the note unavailable against him.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Action — Commissions on Sale of Oil Lease — Verdict Not Supported by Evidence or Findings. The verdict, of a jury finding that brokers were entitled to a certain commission upon a sale of property is held to be contrary to the evidence and inconsistent' with the special findings returned with the verdict. • ....</p>

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

<p>Appeal from Pawnee district court; Roscoe H. Wilson, judge.</p>

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

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

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

<p>syllabus by the court.</p> <p>Negligence — Automobile—Railroad Crossing — Contributory Negligence. A mature person who attempts to cross a railroad track without taking any precautions for his own safety, while riding in an automobile with another who is driving, cannot recover damages from the railroad company for injuries sustained in a collision with a car on the track, when by looking he could have seen the approaching car in time to have warned the driver of the danger. (Kirby v. Railway Co106 Kan. 163,186 Pac. 744, followed.)</p>

<p>SYLLABUS BY THE COUBT.</p> <p>1. Jurisdiction op District Court — Action to Set Aside Probate Court Proceedings — To Cancel Fraudulent Deed by Executrix — Not a Collateral Attack. An independent action is maintainable to set aside probate court proceedings for the sale of real estate and to cancel an executrix’s deed conveying the property pursuant thereto when it is shown that the probate proceedings were fraudulently undertaken by the executrix for the purpose of depriving the plaintiff of her interest in and title to the property, that the land was sold and conveyed at private sale to a grantee in collusion with the executrix, that the sale was made at a grossly inadequate price, and that the executrix and grantee had a private understanding that the land was to be held by the grantee for the benefit of the executrix or for the benefit of the grantee and executrix jointly.</p> <p>2. Same — An Independent Action Stated — Not a Collateral Attack. An independent action in a court of general jurisdiction which seeks to set aside the orders and judgments of a probate court in proceedings fraudulently undertaken and consummated therein by an unfaithful executrix, and to cancel and set aside the executrix’s deed to a grantee with whom she was in collusion, is a direct and not a collateral attack upon the proceedings, orders and judgments of the probate court.</p> <p>3. Same. Where all the relief to which a defrauded party is entitled cannot be granted by reopening the judgment and proceedings in a court of limited jurisdiction, redress may be sought in an independent action in a court of general jurisdiction; nor is it necessary that the defrauded party seek such relief as the court of limited jurisdiction can give, and seek only the remainder of the relief to which she is entitled in a court of general jurisdiction.</p> <p>4. Fraud, op Executrix — Evidence—Findings of Fact. Evidence examined and held sufficient to sustain the trial court’s finding on an issue of fact.</p>

<p>Appeal from Allen district court; Robert E. Cullison, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Improvident Issuance op Warrant — Waived by Giving Bond. Improvident issuance of a warrant for arrest was waived by the voluntary giving of a bond for appearance.</p> <p>2. Liquor Law — Charge of Unlawful Possession^-Insufficient Evidence. The defendant was given intoxicating liquor, to drink as much as he desired and return the remainder to the giver. Held, the liquor was not in possession of the recipient, within the meaning of the bone-dry law (Laws 1917, ch. 215, § 1).</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Cancellation op Written Instruments — Conveyances Obtained by Duress and Threats — Evidence Sustains Charge. The plaintiff brought an action to set aside a conveyance, to cancel certain notes and a mortgage, also another agreement, upon the ground that he had been put in fear and compelled to execute them under duress excited by threats-of prosecution and imprisonment for an alleged offense, when in fact the act charged against him was not an offense. The relief asked was granted and it is held that the evidence is sufficient to show the fraud of the defendants participating in the transaction, that duress was established- and that the plaintiff was entitled to the relief given.</p> <p>2. Same — Parties Not in Pari Delicto. Held, further, that plaintiff was not barred from the relief asked on the ground that the parties were equally at fault in the illegal agreements, nor because he yielded to the demands of the defendants.</p> <p>3. Same — Duress Established. A case of duress is made out where one party is compelled to make agreements through fear of prosecution and imprisonment excited by the threats of other parties to the agreements.</p> <p>4. Same — Offer of Restoration by Plaintiff Unnecessary. Under the circumstances shown to have existed the plaintiff could not be denied relief on the ground that he had not offered to restore that which he had re'ceived in the fraudulent transaction, and in fact nothing of^ value had been so received.</p> <p>5. Same — Wife of Plaintiff Not a Necessary Party. The wife of the plaintiff was not a necessary party in the action brought.</p> <p>6. Same. Bank Responsible for Fraud of Its Cashier. The notes and a mortgage were procured to be given through the active fraud of its cashier. As he was acting for the bank, and as the bank received and appropriated the fruits of the fraudulent transaction, it is responsible for the fraud.</p> <p>7. Same — Bank Not a Holder of Note and Mortgage in Due Course. Under the evidence the bank to which the notes and mortgage were indorsed and transferred by the payee bank is not a holder in due course. -</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Defective Highway — Injuries—Demurrer to Plaintiffs Evidence. In an action seeking to hold a township hable for injuries caused by a defect in a public road a demurrer to the evidence was properly sustained because there was no evidence offered to show that the road was a township road.</p> <p>2. Same — Previous Action Against County — No Estoppel. In such an action the township is not estopped by anything that occurred on the trial of a previous action between the plaintiff and the county to recover damages arising out of the same accident.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Licensee — On Railroad Right of Way — Assaulted by Railroad Employee— Employee Not Acting Within Scope of His Employment. Plaintiff, a boy sixteen years of age, was on defendant’s right of way at the invitation of and for the purpose of running an errand for the switch tender when the section foreman called him vile names. At some remark of plaintiff’s in reply the foreman became angry, ran after plaintiff, caught him, tried to choke him and struck him with a broom handle. The switch tender interfered and the section foreman returned to his hand car. Plaintiff said he was going home and started to leave when the foreman got off his car, chased the plaintiff through the right of way fence into a field, through a barbed-wire fence a half block away, caught up with him and assaulted him again. In an action to recover damages from the railroad company, held, that plaintiff was not a trespasser on the right of way but was a licensee, and on the facts stated, held further, that a demurrer was properly sustained to plaintiff’s evidence because it is obvious that a candid mind acting normally could not reasonably infer that the foreman in making the assault and in following up the plaintiff for a half block after he had left the right of way and again assaulting him, supposed he was engaged in an attempt to discharge any duties devolving upon him, or reasonably infer that he was in fact acting within the scope of his employment. (Kemp v. Railway Co., 91 Kan. 477, 138 Pac. 621, and cases cited in that opinion.)</p> <p>2. Same — Pleadings—Allegations of Employment and Agency — Partial Denial Under Oath — Pleadings Interpreted. The petition alleged that one Larson, whose first name was unknown, the section foreman and an agent and employee of defendant in charge of its tracks and right of way, ordered plaintiff to leave the right of way and struck and beat him and that while plaintiff was leaving the place and tracks the said Larson “acting as the agent, servant and employee of the defendant” followed after plaintiff, again wilfully, wantonly, maliciously, wrongfully and violently struck, cursed, abused and beat plaintiff, etc. The part of the answer, verified under section 110, civil code, denied that defendant “had in its service at the . . . place mentioned . . . any man named Larson, employed as section foreman, agent, servant or employee.” Held, h negative pregnant implying an affirmative statement that defendant did have in its employ a section foreman at the time and place mentioned who was in charge of defendant’s tracks and' right of way, but held further, that it cannot be taken as an affirmative implication that the section foreman, while following up and assaulting plaintiff, was acting within the scope of his employment as such agent.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Oklahoma Homestead — Sale—Proceeds Given to Wife — Proceeds Not Subject to Garnishment in Kansas for Husband’s Debt. .The owner of a home-/ stead in Oklahoma was indebted to a bank in Kansas. A sale of the homestead was made, the wife signing the deed under the promise of the husband that he would give the proceeds to her, which he did when the deed was executed, it being the intention of both that she would use the money to purchase another homestead. Shortly thereafter and without investing in a homestead they became residents of Kansas, and the bank sued the husband on his debt, garnishing the wife. Held, under the laws of Oklahoma the husband had a perfect right to make such disposition as he pleased of the proceeds of the homestead, without committing any fraud upon his creditors, and the money therefore became the wife’s property while their residence was in Oklahoma, and being her property, it is not subject to garnishment in Kansas for the husband’s debt.</p> <p>2. Garnishment Proceedings — Party in Interest — Competent Witness. The wife, upon being garnished in an action against her husband, is a party in interest in the garnishment proceedings (Giv. Code, §239), and upon exceptions to her answer, she is a competent witness.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Contract — Rebuilding Oil Rigs — Damage Asked jor Delay — Damages Too Remote, Speculative and Uncertain. In an action involving the amount due plaintiff for rebuilding two oil rigs on lands held by defendant under an oil and gas lease, the defendant contended that if the derricks had been erected a few days earlier he would have succeeded in selling oil and gas leases for $1,500. Held, that an objection was properly sustained to evidence in support of this claim on the ground that the damages sought to be established were remote, speculative and uncertain, there being nothing to show that the parties contemplated that a loss of such profits might be recovered for breach of the contract.</p> <p>2. Same — Instruction Not Misleading. The mere reference in the instructions to the fact that defendant claimed such damages did not authorize a recovery or make the evidence in support of such claim competent.</p> <p>3. Same — Instructions. The rule that instructions should be considered as a whole is applied, and held, that the jury were not misled by the instructions.</p>

<p>Appeal from Sedgwick district court, division No. 3; Jesse D. Wall, judge.</p>

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

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

<p>Appeal from Sedgwick district court, division No. 3; Jesse D. Wall, judge.</p>

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

<p>Appeal from'Marion district court; Roswell L. KiNGj judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Quieting Title — Unused Portion of Railroad Right of Way — Right of Holder of Legal Title to Possession. The holder of the fee title to land taken under condemnation proceedings for railway purposes remains the owner of the property, and has the right to occupy and use such portion of the condemned property as the railway company does not actually require or use for the proper, safe, convenient and efficient discharge of its duties as a public carrier; but such occupancy and use are neither adverse, hostile, nor inconsistent with the rights of the railway company, nor will the lapse of time bar the railway company of its rights acquired and paid for under the condemnation proceedings.</p> <p>2. Same — Possession of Unused Portion of Right of Way — Possession Not Adverse to Railroad Company. Certain lands of plaintiff’s predecessor in title were condemned in 1879 for railway purposes. Hitherto the defendant company has not used or needed all the land condemned, and a portion of of it has been continually occupied and used by the plaintiff and his predecessors in title. Held, that as plaintiff and his predecessors in title were strictly within their rights in occupying and using that portion of the property not yet required for railway purposes, there has been no adverse, hostile, inconsistent use to the prejudice of the railway company, nor has the latter been excluded so as to give rise to an independent right founded on fifteen years’ adverse possession; and an action on the part of the fee title holder to quiet his title against the railway company cannot be maintained.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Common Carrier — Injury to Passenger — Settlement and Release — Mutual Mistake as to Nature oj Injuries — Question oj Fact. The testimony relating to a release of a claim for damages by an injured railway passenger examined and held, that it sufficiently tends to show mutual mistake of the parties as to the nature of the injuries of the passenger and also that the release was 'procured by misrepresentations, to take the case to the jury.</p> <p>2. Same^-Ao Ratification oj Settlement. A certain letter written by plaintiff to the claim agent of the defendant is held not to be a ratification of the settlement.</p>

<p>Appeal from Franklin district court; Hugh Means, judge.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Action on Account — Pleadings—Verification of Answer — Reply. The civil code (§ 104) authorizes the filing of a reply when the answer contains new matter. In an action on a verified account an answer was filed consisting of a general denial and a plea of payment, to which plaintiff filed a reply consisting of a general denial. Pd eld, that the reply traversed only the plea of payment.</p> <p>-2. Same — No Waiver of Verification of Answer — Burden of Proof. On the trial plaintiff insisted that the burden was upon the defendant. The court held that plaintiff must show that it was a corporation. Plaintiff offered evidence on that issue alone and rested. Held, that by filing a reply traversing only the plea of payment and by offering evidence upon the one issue as required by the court, plaintiff did not waive verification of the answer.</p> <p>3. Same — Sufficient Verification of Petition and Account Sued Upon. The petition alleged that plaintiff purchased merchandise at certain times and at prices set forth and alleged in plaintiff’s exhibit A, which was part of the petition, and which consisted of a statement of the account verified by the president of the plaintiff company, stating that he had read the petition and the statement of the account, and that “all statements and items therein are just, true and correct.” Held, that while the language of the petition was not aptly chosen, nevertheless, in determining its effect the allegations must be liberally construed with a view to substantial justice between the parties (Civ. Code, § 117), and that so construed the petition and the correctness of the account are sufficiently verified.</p>

<p>syllabus by the court.</p> <p>1. Compensation Act — Loss of an Eye — Demand — Evidence — Findings — Measure of Damages. The record examined, and the evidence deemed suffi- cient to support the findings that the plaintiff was in the employ of the defendant when injured, and that he made demand for compensation; also that the verdict was for the amount provided by statute under the circumstances shown.</p> <p>2. Same — Evidence—Instructions. No material error discovered in relation to the reception or rejection of evidence, or in regard to the instructions.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Reformation of Contract — Insufficient Evidence. Refusal of the district court to reform a written instrument because the evidence failed to prove beyond a reasonable doubt that the instrument did not express the intention of the parties, approved.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Oral Contract — To Withhold Suit to Set Aside Will. The findings and verdict returned by the jury were supported by sufficient evidence.</p> <p>2. Same — Compromise and Settlement — Forbearance to Bring Suit to Set Aside Will. The plaintiff claimed that her brothers, the defendants, agreed to pay her a certain sum for her withholding a suit to set aside the will and certain conveyances of their father. The record indicates that the plaintiff had been advised and believed that she had a good cause of action, and it is held that under such circumstances an oral agreement to pay a certain sum for forbearance was valid; and such alleged agreement was sufficiently supported by the evidence.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Action to Set Aside Deed — Fraud in Its Execution — Petition States Cause of Action. In an action to set aside a deed because of fraud in its execution, a petition wherein plaintiff alleged that the defendants fraudulently substituted a deed conveying property which plaintiff was induced to sign without reading it, in the belief that it was a contract which she had read and had agreed to sign, and that the substitution was purposely made by defendants to defraud plaintiff of her property rights, states a cause of action, and if the facts alleged are established by the evidence, she will be entitled to the relief sought.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Life Insurance — Terms of Policy — No Liability Until First Premium was Paid — First Premium Not Paid. The pleadings, a stipulation relating to certain facts, and the opening statements of counsel, in an action to recover on a contract for life insurance, examined, and held, a condition of the application that the company should incur no liability until the first annual premium was paid, was not complied with, and the company did nothing to waive the condition.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Injunction — Enjoining Levy of Execution — Demurrer to Petition Properly Overruled. The levy of an execution may be enjoined where it is issued on a judgment on which an execution had been previously issued under which land had been sold for the full amount of the judgment, interest, and costs, the sale had been confirmed, and a deed had been issued, and where there is nothing to show that the title of the purchaser failed or that the judgment creditor did not receive the proceeds of the sale.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Chattel Mortgage — Expiration—No Renewal. The transaction relied on held not to amount to a renewal of the chattel mortgage in controversy.</p> <p>2. Same — Mortgagee Deeming Himself Insecure — Right to Possession. The rule followed that a chattel mortgagee who in fact deems himself insecure may foreclose regardless of the grounds for such belief, the instrument providing that he may take possession and sell the property if at any time he “shall deem the debt unsafe or insecure.”</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Contract —To Thresh Wheat — Consideration — Breach by Defendant — Damages — Evidence. The evidence examined and found sufficient to support the allegations of the petition touching the contract sued on, to thresh the plaintiff's wheat as soon as cut.</p> <p>2. Same. The evidence is found to support the verdict as to the amount of damages stated therein.</p> <p>3. Same. Consideration for the alleged contract, and acceptance thereof, held to be fairly established.</p> <p>4. Same. Sufficient basis appears for the damages awarded by the jury.</p> <p>5. Same. No material error appears touching the admission of evidence.</p>

<p>Appeal from Shawnee district court, division No. 1; James A. McClure, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Promissory Note — Transferred Without Endorsement — Transferrer Entitled to Notice of Dishonor Same as Endorser. Where the transferee of a negotiable note seeks to hold fhe payee and transferrer of the instrument as an endorser of it although he did not in fact endorse it, on the statutory ground that the transferee is entitled “to the right to have the endorsement of the transferrer,” it is a statutory prerequisite to the perfection of the transferrer’s liability as such endorser that presentment for payment must be made to the maker on the date when the note is due, and that prompt notice of its dishonor be given to the endorser; and a letter from the transferee to the transferrer written two months and eleven days after such maturity of the note, telling him of the maker’s default, and asking whether the consideration for the note was returned to the maker, with a conditional request to remit, was not a notice in conformity with the statute, and the transferer is not liable.</p> <p>2. Same — New Trial Properly Denied. Matters presented on motion for a new trial considered, and held that no error in overruling such motion can be based thereon.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Bill op Sale — Personal Property — Title Note Given — Lien on the Property Created. A bill of sale given to buyers, and an instrument in form a title note, given by one of the buyers to the seller, as part of the same transaction of sale, construed together, and held to evidence a sale and to create a lien on the property described in the bill of sale.</p> <p>2. Same — Property Subsequently Mortgaged — Priority of Liens. One of the buyers, privy to the giving of the title note as security for part of the price, could not, by subsequent mortgage, acquire a superior lien on the property.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Real-estate Agents — Commissions Earned. The evidence is held to support a finding that the plaintiffs as real-estate agents were the procuring cause of the sales on which they asked commissions.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Telephone Rates — Fixed by Order oj Public Utilities Commission — Temporary. Injunction by District Court. It is not error for a district court to grant a temporary injunction against an order made by the public utilities commission adjudging current telephone rates to be “just, reasonable, compensatory, and lawful,” where the evidence submitted on the application for the temporary injunction tends to show that the rates are unjust and unreasonable and do not provide an adequate return on the property, according to the valuation placed .upon it by its owners, and the order was made without certain evidence which the company, at the request of the commission, had agreed to furnish and was made without notice to the company that it would be made at that time in the absence of the evidence requested.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Rep a vino Streets — Liability of City and Benefited Property Owners for Cost Thereof — Statute Construed. Under chapter 118 of the Session Laws of 1921, one-third of the entire cost of repaving a street is to be borne by the city at large and the remainder of the cost is to be assessed against the benefited property, and in this division the cost of paving the street intersections is not to be segregated from the total cost nor added to that part of- the burden imposed by the statute on the city at large.</p> <p>2. Same — ‘Assessments — Aggrieved Taxpayers — ■Party Entitled to Maintain' Action. Taxpayers specially aggrieved by the action of .public officials in levying taxes against their property have, a right of action provided by .the code to enjoin such levy or assessment, if such remedy is promptly invoked; but they have no general legal right to question the validity of such levy or assessment by instituting an original action in mandamus in the supreme court to compel the public officers to perform their official duty.</p> <p>3. Mandamus — To Compel Public Officials to Perform Their Duties — State Proper Party Plaintiff. An action to compel public officials to perform their duty should be brought in the name of the state on the relation of the county attorney or attorney-general, and such action cannot ordinarily be maintained by a private citizen.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Larceny — Articles from Different Floors of Department Store — Chargeable as Single Offense. The stealing of several articles upon different floors of a department store during one visit of the defendant thereto may properly be charged as a single offense in one count of an information. And it is held that the evidence justified a finding that the articles here involved were taken without the defendant having left the building.</p> <p>2. Same — Evidence of Good Reputation of Defendant — Instruction.- When the jury is told that evidence of the previous good reputation of the defendant in a criminal case should be considered for its bearing upon his credibility as a witness as well as upon the broader question whether.there is a reasonable doubt of his guilt, no error is committed in refusing to add that such evidence stands as a recommendation that he will speak the truth.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Taxation — Provision of Section 11163, Gen. Stat. 1916, Relating to Taxation oj United States Bonds Unconstitutional. The portion of section 11163 of the General Statutes of 1915 which provides that, where bonds of the United States have been purchased during the year preceding March 1, a sum shall be listed for taxation as money on hand on March 1, computed by dividing the value of the bonds by twelve, and multiplying the quotient by the number of months of the year remaining after deducting the time the bonds were owned, violates the constitutional principles of equality and uniformity in property taxation in this state, denies purchasers of government bonds the equal protection of the laws guaranteed by the federal constitution, and violates the federal statute exempting bonds of the federal government from state taxation.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Street Improvements — Petition Therefor — Certain Religious and Benevolent Corporations are Resident Property Owners. The proceedings examined, and held, certain religious and benevolent corporations were resident property owners, within the meaning of the statute relating to street improvements in cities of the second class.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Corporate Stock — Sale by Stockholder — False Representations — Demurrer to Evidence Properly Sustained. In an action by a stockholder against the president of a corporation for damages for inducing him by false representations to sell his stock to the president, it is held that the proof failed to support the allegations of the petition, and a demurrer thereto was properly sustained.</p> <p>2. Same — Refusal of Amendments to Petition — No Error. Certain amendments sought to be made to the petition held to be sufficiently covered by the allegations already contained' therein.</p> <p>3. Same — Excluded Evidence. Objections touching the exclusion of certain evidence held to be without substantial merit.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. ^Real-estate Agent — When Commission is Earned. Where a real-estate agent is employed to find a purchaser ready, able and willing to buy on terms acceptable to the seller, it is not required in order to earn his commission that he bring the parties together personalty or introduce them, nor is it the law that in order to earn his commission he must procure a binding contract signed by the purchaser.</p> <p>2. Same. In this case land had been listed on certain terms for sale. The agent procured a purchaser at terms slightly different and communicated the fact to the owner who, on April 21, telegraphed in reply, “will take offer and vacate May fifth, sooner if possible.” He was informed by letter that the terms stated in his telegram were satisfactory to the purchaser, and that there was no need of a written agreement. The purchaser was ready, able and willing to complete the sale; the only reason it fell through was because the defendant insisted upon the purchaser signing a written contract, dated about April 27, providing for possession to be given-within thirty days from that date, or sooner if possible. Held, that the agent had earned his commission when he brought the parties together upon terms agreeable to them, and that the seller could not relieve himself from liability to his agent by insisting upon different terms which prevented a Sale.</p> <p>3. Same — Verdict jqr Plaintiff Erroneously Set Aside. Because, upon the undisputed facts, it is apparent that the court set the verdict aside and granted a new trial on a mistaken view of the law, the judgment is reversed and .the cause remanded with directions to enter judgment on the verdict.</p>

<p>Appeals from Shawnee district court, divisions Nos. 1 and 2; James A. McClure and George H. Whitcomb, judges.</p>

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

<p>SYLLABUS BY THE. COUBT.</p> <p>1. Jurisdiction — Court of Industrial Relations — Authority to Fix Scale of Wages and Hours of Labor for Employees in a Packing House Plant. The court of industrial relations has authority to make an order establishing wages to be paid employees and fixing the hours of labor to be observed in a packing house plant employing approximately three hundred men, where a controversy has arisen over wages and hours of labor and a meeting has been called to take a strike vote, and where instead of voting to strike, the employees have voted to submit the controversy to the court of industrial relations and have submitted that controversy to that court.</p> <p>2. Same — Jurisdiction of Industrial Court Limited to Matters Embraced in Notice Given. The court of industrial relations cannot make orders to be observed by the operators of a packing house plant beyond the matters embraced within the notice given, unless the operators consent that matters outside the notice may be investigated.</p> <p>3. Same — Packing Plant Being Operated at Loss — Power of Industrial Court. Under proper circumstances, the court of industrial relations can make an order, temporary in effect, slightly raising the wages of employees in a packing house plant and fixing the hours of labor, although the plant at the time the order is made is being operated at a loss.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Negligence — Railroad Crossing — Certain Special Findings Unsupported by Evidence. In an action against the railroad management because of an automobile being run into at a street crossing it is held that the evidence was sufficient to sustain findings of negligence in causing a train to approach a station and cross a street less than a block from it at too great speed, and in failing to give proper- signals, but not to sustain findings that the collision was due to defects Jn the crossing or to unnecessary obstructions to vision on the right of way.</p> <p>2. Same — Whether Driver of Auto and Plaintiff Were Engaged in Common Enterprise — Question for Jury. The evidence is held not to show conclusively that the plaintiff and the driver of the automobile were engaged in a common enterprise in such sense as to render the former chargeable with the negligence of the latter, that question, in the circumstances shown, being one of fact to be submitted to the jury.</p> <p>3. Same — Contributory Negligence of Passenger in Automobile. Where the driver of an automobile and a person accompanying him are not engaged in a common enterprise and the situation is such that due diligence requires the driver to stop before attempting to cross a railroad track to assure himself that no train is approaching at a dangerous distance, the person accompanying him is not negligent as a matter of law in failing to see that such stop is made.</p> <p>4. Same — Contributory Negligence. The evidence is held not to show the plaintiff to have been personally guilty of contributory negligence as a matter of law.</p> <p>5. Same — Verdict—Finding in Conflict with Evidence. A verdict for the plaintiff is set aside because it is necessarily founded on a mere estimate of a distance at which an approaching train could be seen from a certain point, which is in conflict with evidence based on actual measurements that are not otherwse contradicted.</p> <p>6. Same. Several assignments of error are held not to require a ruling.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Will — Election by Conduct to Take Under Will. Under the settled rule that in order to constitute an election to take under a will the choice must be made clearly, unequivocally and understandingly, it is held that the record showed on the part of the plaintiff an election by conduct to take under the will of his deceased wife.</p> <p>2. Same — Evidence—Findings. The findings of fact held to be fairly supported by the evidence and to justify the result reached.</p> <p>3. Same — Estoppel—Inconsistency. Estoppel and inconsistency of conduct discussed and distinguished.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Compensation Act — Settlement With Injured Employee — Claim by Widow— Limitation oj Action. Where an employer makes settlement with an injured employee, obtaining a release of all claims on his part under the workmen’s compensation act, and some months later the employee dies, an action by his widow under that law cannot be maintained unless a claim upon the employer has been made in her behalf within six months after her husband’s death.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Vacation of Default Judgment — Grounds Therefor. A judgment taken by default and obtained without fraud or fault of the plaintiff cannot be vacated on the ground of unavoidable casualty or misfortune where the failure to defend occurred through the inattention and negligence of the defendant.</p> <p>2. Same — Mental Capacity of Defendant — Question of Fact. Whether or not the defendant against whom the judgment was rendered was mentally competent and had the capacity to understand the nature of the action or the necessity for making a defense, was a question for the trier of the facts, and there being evidence to support the decision of the trial court, its judgment is conclusive.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Collision — Automobile and Truck — Injuries—Demurrer to Plaintiff’s Evi- ■ dence Properly Overruled. Certain evidence considered and held competent.</p> <p>2. Same. In an action to recover damages against defendant caused by a collision between an automobile in which the plaintiff was riding and a truck used in the business of the defendant, held, there was no error in overruling a demurrer to the evidence.</p> <p>3. Same — Whether Driver of Truck was Servant of Defendant was Question for the Jury. The defense to the action was that the truck belonged to an independent contractor who was engaged in the truck business and under a contract furnished the truck and driver and the gasoline, for which the company paid him twenty dollars a day. The defendant’s evidence showed that it was an oral contract and that nothing more was said than that the company wanted the truck to go to its leases wherever the work was being done. Sometimes one driver was sent by the owner of the truck and sometimes another. The driver reported each morning and gathered up the men in the employ of the defendant and hauled them from town to the place in the country where the defendant was laying a pipe line. The driver stayed at the pipe line and was sent occasionally for drinking water, and transported the tools from place to place. He was sometimes sent back to town on errands. The defendant’s testimony tended to show that the boss of the gang of workmen gave the driver no directions as to the way he drove the truck. The driver himself testified that the boss who had charge of the gang directed the operation of the truck and told him what to do and where to go, and when. Held, that the question whether the .driver of the truck was a servant of the defendant (although he continued to be the general servant of the contractor and paid by the latter for his work) was a question for the jury to determine from a consideration of all the circumstances under which the truck was hired and used.</p> <p>4. Same. The contract by which the truck and the driver was hired being oral, held, that where the evidence is conflicting or where different inferences might well be drawn from the testimony concerning the oral contract, the matter was properly left for the jury to determine.</p> <p>5. Same — Facts Which Would Make Defendant Liable for Negligence of Driver of Truck Properly Stated in Instruction. On the facts stated in the opinion, held, that an instruction was proper which charged that if the jury should find from the evidence that the defendant employed or hired a truck with a driver from the owner of the truck, and under the terms of the hiring was to have general charge and control of the truck and driver and to direct generally the work to be done, the time and manner of its doing, and to have full and complete control of the operation of the work it should direct to be done by the truck and driver, the defendant would be liable for damages sustained as a result of the driver’s negligent acts when using the automobile in the service of the company.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Master and Servant — Negligence—Personal Injuries — Proper Party Defendant. In an action for damages for negligence to an employee of a traveling circus, the evidence examined and held to show that the defendant corporation was the proper party defendant and properly held liable for the negligence which caused his injuries.</p> <p>2. Evidence — ¡ Correcting Mistake in Depositions Refused — No Error. A statement or supplementary certificate of a notary and stenographer who took depositions reciting that he had made a mistake in copying the questions and answers, which conformed to no rule of evidence, was properly held inadmissible.</p> <p>3. Same — Title to Corporate Property — Cross-examination of Witnesses. Cross-examination of witnesses to show possible explanations of nominal transfers of title to corporate property was properly permitted.</p> <p>4. Same — Competent Evidence. Certain files in the action, the summons, sheriff’s return, and answer of defendant, and the testimony of the clerk of the court touching what pleadings had been filed, were admissible in evidence.</p> <p>5. Same — Demurrer Properly Overruled. Demurrer to evidence and motion for directed verdict, filed in defendant’s behalf, were properly overruled.</p> <p>6. Same — Special Question's. A special question which assumed the truth of a disputed fact was properly refused submission to the jury.</p> <p>7. Sam:e — Rejected Evidence. Matters offered in evidence and rejected, and brought on the record in support of the motion for a new trial examined, and held not to require the granting of a new trial.</p> <p>8. Bonds — Forthcoming Bond — Bond to Pay Judgment. The difference between a forthcoming bond and a bond to pay a judgment which discharged an attachment discussed.</p> <p>9. Evidence — Special Findings. Special findings of a jury on pertinent issues of fact, when supported by evidence, need not be set aside on a motion to that effect.</p> <p>10. Instructions. Instructions given and refused, examined and no error discerned therein.</p> <p>11. Negligence — Actionable Negligence Shown. An employer who hires a boy of fourteen years to travel, with a circus, on a promise to pay him wages, board and lodging, but the only lodging furnished him is a pile of canvas under circus wagons on a flat car without sides, whereby the lad while asleep is flung from the flat car as the circus train travels around a curve on the railway, is guilty of actionable negligence.</p>

<p>OPINION DENYING A REHEARING.</p> <p>Appeal from Reno district court; Jesse D. Wall, judge pro tem.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Criminal Law — Larceny—Evidence of Accomplice. The fact that a witness was an accomplice in the commission of the crime charged, goes to the credibility of his evidence and not to its competency, and if the jury are fully convinced of the truth of his testimony and are fully satisfied that it is sufficient to establish the guilt of the defendant, they may convict upon the uncorroborated evidence of the accomplice.</p> <p>2. Same — Evidence Supports Conviction. The evidence examined and held to be sufficient to support the conviction of defendant.,.</p> <p>3. Same — Instruction. A questioned instruction is held to be without material error.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Natural Gas Rates — Power of Court of Industrial Relations and of Public Utilities Commission to Modify or Change Established Natural-gas Rates. During the time the court of industrial relations was vested with the duties and functions of the public utilities commission, that court, and the commission prior to and subsequent to that interval, had power to set aside and change the rate for natural gas furnished to the inhabitants of the city of Winfield, notwithstanding the city’s objection thereto, and notwithstanding the existence of a contract between that city and the party which supplied the natural gas, which contract had been made and' promulgated by a city ordinance prior to the enactment of the public utilities law; and whatever might be urged against the impairment of such contract by the other party thereto, the changes in the rates and service by order of the state tribunal did not as against the city violate the contract clause of the federal constitution.</p> <p>2. Same — Contracts Between City and Public Utility — City Acts as Agent of the State — Power of State Over Such Contracts. In exercising the power of making contracts with public utilities, and in enacting ordinances with reference thereto, a city acts as an agent of the state in its governmental character, and it is within the power of the state to withdraw that authority and confer it upon another governmental agency, such as the court of industrial relations or the public utilities commission, and such later governmental agency has the power with the express or implied assent of the utility concerned to alter the contract and other incidental regulations theretofore established by the city.</p> <p>3. Same — Supplying Gas to City — Supervision of Public Utilities Commission. Where the gas supplied to a city in this state through a local distributing company is furnished by a gas transportation and sales company which has its chief soui'ces of supply in Oklahoma, and which similarly transports and delivers gas to many other cities in Kansas, the rates and service in such city are subject to the original jurisdiction of the public utilities commission under its regulatory and supervisory powers conferred by statute.</p> <p>4. Same — Installation of Devices for Regulating Gas Pressure — Order of Commission Valid. The public utilities commission has power to order the installation of devices for regulating gas pressure, and the fact that its order to that effect is experimental, and the use of the pressure regulating devices only required for six months, does not affect its validity.</p> <p>5. Same. Under authority of statute the city of Winfield contracted in 1906 for natural gas at prescribed rates and pressure, and enacted an ordinance to the same effect. Under the powers vested by the public utilities act of 1911, and acts of 1919, 1920 and 1921, the court of industrial relations and the public utilities commission made orders which changed the rates and pressure defined by the contract and city ordinances of 1906. The gas sup- . ply of Winfield is chiefly derived from a transportation company which similarly supplies other cities in that part of the state, and the rates and gas pressure in Winfield have a substantial and consequential effect on the rates and gas pressure in other cities. Held, that the matter of regulating gas rates and gas pressure in Winfield is within the original jurisdiction of the tribunal which exercises the powers conferred by the public utilities act and supplemental legislation.</p>

<p>Appeal from Pawnee district court; Roscos H. Wilson, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>City Bonds — Transmission Line for Electricity — Election—Number of Votes Required. A provision of the statute authorizing cities, among other things, to construct a transmission line to obtain electricity from a plant outside its boundaries, that no bonds shall be issued under it except upon “a vote of a majority of the qualified electors of such city,” means that those voting in favor of the bonds must form a majority of all entitled to vote at the election, and not simply a majority of those voting thereat.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Annexation of School District — Adjacent to a Consolidated Union School District — Statute Construed. The provisions of chapter 230, Session Laws of 1921, regulating the manner in which a school district contiguous to a consolidated or union district “already established under the act of 1911,” might become a part of such consolidated district, is held to apply to a consolidated or union district already in existence at the time chapter 275, Laws of 1911, was enacted, the expression “already established” as used in section 1 of the act of 1921 being construed to mean putting in a settled or an efficient state or condition an existing legal organization. (Armstrong v. George, 84 Kan. 248, 114 Pac. 209.)</p> <p>2. Same — Provision of Statute Ignored — Annexation Void. In an action attacking the validity of proceedings by which it was attempted to consolidate a school district with a union district which had been in existence since 1908, it is held that the failure to comply with the requirements of chapter 230 of the Session Laws of 1921 rendered the proceedings void.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Homicide — Evidence—Privileged Communications. A statement made by a client to an attorney during consultation may be introduced in evidence against the client over his objection where the statement had no connection with the subject matter about which the client was consulting the attorney.</p> <p>2. Same — Qualification of Juror. On a motion for a new trial, where the truth of the answers given by a juror concerning his qualification to sit as such is questioned and evidence is introduced tending to show that the juror had not answered correctly and other evidence that he had answered truthfully is presented, the finding of the trial court that the juror was qualified will not be disturbed in this court.</p> <p>3. Same — Motion for New Trial — •Newly Discovered Evidence — No Showing of Diligence. An order denying a motion for new trial requested on the ground of newly discovered evidence will not be reversed where there was no showing of diligence to procure the evidence for use on the trial.</p> <p>4. Same — Evidence—Identification of Person by Voice Over a Telephone. A witness may identify another person by the latter’s voice over a telephone in conversation with him. The completeness of the identification goes to the weight of the evidence,' not to its admissibility.</p> <p>5. Same — Murder in First Degree — No Bequest for Instructions Concerning Lesser Degrees of Crime — None Given — No Error. Where a defendant on trial charged with murder in the first degree does not request any instruction concerning murder in the second degree nor any instruction concerning any of the degrees of manslaughter, and the evidence establishes that if he is guilty at all he is guilty of murder in the first degree; it is not error for the court to fail to instruct the jury concerning murder in the second degree or manslaughter.</p> <p>6. Same — Murder Resulting from Conspiracy — Instructions. There was evidence sufficient to justify the court in giving instructions concerning the law of murder resulting from conspiracy.</p> <p>7. Same — No Reversible Error Shown. To secure a reversal of a conviction of murder in the first degree, reversible error must be shown.</p>

<p>Appeal from Sedgwick district court,, division No. 2; William Keith, judge pro tem.</p>

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

<p>Appeal from Shawnee district court, division No. 1; James A. McClure, judge.</p>

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

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

<p>SYLLABUS BY THE COUET.</p> <p>1. Liens — Action Pending — Judgment Lien Prior to Attachment IAen Acquired Pendente Lite. When an action is begun alleging a mining partnership between plaintiff and defendant, and that plaintiff had advanced expense money on the partnership account, and that the defendant owed the plaintiff therefor, and plaintiff alleged and claimed a first lien on the defendant’s interest in the property to satisfy its claim, a later attachment of defendant’s interest in the parnership property by another creditor is an attachment pendente lite, and when the first plaintiff’s claim to a lien is perfected by a judgment in its favor such lien has precedence over the attachment.</p> <p>2. Same — Priorities. An attachment of property lis pendens does not displace the rights of parties in litigation already pending in which their claim to a lien is in course of determination, and when such prior asserted lien is vindicated and perfected by a judgment, the satisfaction of such judgment has precedence over the rights acquired by the attaching creditor.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Specific Performance — Sale of Land — Good Title Implied. In a contract for the sale of land there is an implication that the vendor has a good title and a right to convey unless such implication is expressly excluded by the terms of the contract.</p> <p>2. Same — Sale of Land — Imperfect Abstract — Investigation by Purchaser — No Unreasonable Delay. Although an abstract of title is not specifically required by the contract, if parties proceed on the theory that the vendor shall furnish evidence that he has a good title and a right to convey, and he does furnish an abstract as evidence of his title which shows defects in the title and which requires time for investigation by the purchaser and for the completion of the record of title, the vendor is not in a position to claim that the purchaser is in default while making such investigation if an unreasonable time is not taken for that purpose.</p> <p>3, Same — Sale of Land — Covenants of General Warranty Implied. The rule that “in the absence of express stipulation covering the subject, a deed with the usual covenants of warranty is implied” {Dewey v. Hines, 87 Kan. 834, 126 Pac. 1093), is followed and applied.</p> <p>4. Same — Sale of Land — Place of Payment of Pnce Designated in Contract. Under the negotiations and acts of the parties it is held that they fixed the place of payment for the land and the closing of the transaction at a depository bank, and not at the residence of the vendor.</p> <p>6. Same — Sale of Land — Useless Tender of Price Not Required. In order to put the vendor in default and warrant the commencement of an action for specific performance, a formal tender of the balance of the purchase price is not required where the vendor’s acts amount to a repudiation of the contract and show that a tender would be unavailing.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Compensation Act — Injuries—Partial Disability — Measure of Compensation. The proceedings in an action for compensation examined, and held, the plaintiff was entitled to compensation for permanent partial disability of his hand, in addition to schedule compensation for loss of two fingers.</p> <p>2. Same — No Consent to Arbitration. A finding that the defendant did not consent to arbitration, approved.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Pleading and Practice — Action Brought in Name oj Defunct Corporation— Receiver of Assets Substituted as Plaintiff — Petition Amended — Appearance by Defendant — Jurisdiction Acquired. A petition was filed on which summons was issued and. served, a corporation being named as plaintiff, although in fact it had been dissolved some time before, its assets having passed into the hands of a receiver. On application of the receiver he was substituted as plaintiff and allowed to amend the petition accordingly. Thereafter the defendant filed a motion raising nonjurisdictional matters. It is held that no error was committed in allowing such amendment and that at least from the time of the defendant’s entering a general appearance by the filing of such motion an action was pending against him.</p> <p>2. Trial — Case. Submitted — Submission Set 'Aside — Judicial Discretion. It is held to have been within the discretion of the court, before the decision of a cause submitted and taken under advisement, to set aside such submission and hold the matter for further hearing.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Action to Cancel Note — Purchase of Stallion — Failure of Warranty — Request to Amend Petition Refused — No Error. In an action to cancel a note given for the purchase of a stallion, .on the ground that the animal was worthless as a breeder, when the case was called for trial the plaintiff sought to add an item of damage for care and feed for the horse, by what he called .a supplemental petition. This was excluded by the court, and on the motion for a new trial no showing was made as to any evidence on this point. Held, no error to exclude such item of damage.</p> <p>2. Same — Findings Supported by Evidence. The plaintiff claimed a warranty ' that the horse was a ninety -per cent foal getter. Much of the evidence was to the effect that he was represented as one whose fluid test was ninety per cent pure. There was evidence of a physical defect. The jury on conflict- . ing testimony found for the defendant. Held, that such finding, having been approved by the trial court, must stand.</p> <p>3. Same — Impeaching Verdict of Jury. Jurors cannot be heard to impeach their verdicts by disclosing the mental operations and sentimental considerations by which their conclusions were reached.</p>

<p>OPINION DENYING A REHEARING.</p> <p>syllabus by the court.</p> <p>Libel — Newspaper Publication — Limitation of Actions. The time during which a plaintiff was in the military service of the United States in the World War cannot be computed as part of the period allowed by the civil code within which an action for libel may be brought.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Insolvent Corporation — Actions Against Corporate Officers ¡or Mismanagement — No Interest on Damages Before Judgment. In an action by an assignee of an insolvent corporation to recover from executive officers of the corporation losses and damages resulting from their mismanagement and illegal acts, interest on the damages is not recoverable before judgment.</p> <p>2. Same — Improper Charges Against Offending Officers. Nor are the offending officers, under the circumstances of the case, chargeable with the expenses of the administration of the assignment.</p> <p>3. Same — Evidence—Knowledge by Officials of Mismanagement of Business. The evidence examined and held to be sufficient to uphold the finding that the defendants had knowledge of the mismanagement and wrongs through which the losses and damages resulted, and to sustain the judgment that was rendered.</p> <p>4. Same — Faithfulness of Assignee Not an Issue in This Action. Whether or not the assignee faithfully administered his trust and collected all recoverable demands due to the estate was not open to consideration and determination in the present action.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Setting Aside Conveyance — Fraud and Undue Influence — Insufficient Evidence. Although a deed based upon a valuable consideration, as well as a mere gift, may be set aside under some circumstances because of the relations of the parties, where no further showing of fraud or undue influence has been made, and no proof of fair dealing has been supplied, it' is held that in the present case the evidence does not support a finding that the contract in question was procured by fraud or undue influence.</p> <p>2. Contract — Agreement to Give or Convey Land — Consideration Support During Life. A writing by which the owner of land, in consideration of the other party thereto supporting her during her life, agreed to give and convey it to him “either by last will and testament, or in lieu thereof, this instrument to operate in all respects as a good and sufficient conveyance,” is held, even if not operative as either a deed or a will, to be effective as a contract that he should have the land at her death.</p> <p>3. Same — Substantial Performance by Grantee. The fact that after the execution of the contract described in the foregoing paragraph the grantor allowed a will she had previously executed, which devised to the grantee the land in question and other property, to remain until her death unrevoked and unchanged shows an acceptance on her part of his performance of his agreement to support her. The performance of other agreements on his part is held to have been sufficiently excused.</p> <p>SYLLABUS BY THE COURT.</p> <p>Contract — Conveyance of Land — Consideration Maintenance of Grantor During Dife — Contract Valid. The fact that one has made a binding contract to leave to another all the property remaining to him at his death does not prevent his making a later valid contract that a tract of land then owned by him shall upon his death go to a different person in consideration of his caring for him during the rest of his life. The first contract has relation to the property which up to the time of his death remains subject to his disposal and the use in good faith of a particular piece of property, although comprising practically his entire estate, to secure his maintenance during his life, withdraws it from that category. Even if a will is made devising the tract in pursuance of the second contract the person named as devisee acquires his rights with respect thereto through the contract, the devise serving merely to transfer the formal legal title in accordance with the agreement.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Indemnity Insurance — Against “Theft, Robbery and Pilferage” — Automobile Obtained by False Representations and Forged Cheek — Loss Covered by Insurance Policy. Following Motor Co. v. Insurance Co., Ill Kan. 225, 207 Pac. 205, it is held that under a contract of insurance against “theft, robbery or pilferage,” the act of the swindler, by which the owner of the insured property is swindled out of it through false pretenses or other fraudulent trick or device with the preconceived intent and plan of the swindler not to pay for it, is a species of theft for which the insurance company is liable.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Master and Servant — Personal Injuries — Proper Party Defendant — Substitution. Where an action by a railway employee for injuries sustained in railway service is properly brought against the director-general of railroads and federal agent under the transportation act of 1920 and judgment is secured thereon, and where an appeal is taken on behalf of the director-general, the personal name of the director-general is a mere formality; and such appeal will be considered on its merits and not dismissed on the technical ground that the person holding that office has retired and another person has succeeded him in office and no motion for substitution has been formally made and allowed.</p> <p>2. Same — Findings and Judgment Sustained by Evidence. The evidence examined and held to support the jury’s findings of fact and the judgment entered pursuant thereto, and no prejudicial error discerned therein.</p>

<p>Appeal from Shawnee district court, division No. 1; James A. McClure, judge.</p>

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

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

<p>Appeal from Franklin district court; Hugh Means, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Agency — Sale oj Real Estate — Sale Made — Commission Earned. In an action to recover a real-estate broker’s commission the defense was that the commission was to be paid only on condition that a purchaser was found who would make certain payments in cash. There was no dispute over the fact that the plaintiff found a purchaser with whom the defendant made a contract for an exchange on terms satisfactory to himself, taking the purchaser’s notes secured by mortgage on the land without providing for a cash payment, and promised to pay plaintiff the commission as soon as he could cash one of the notes. Later he denied that he owed the plaintiff anything. Held, that the court was justified in finding that the parties understood that plaintiff was to wait only a reasonable time for the payment of his commission and that when defendant refused to pay and denied liability plaintiff could maintain an action to recover.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Action to Set Aside Deed and Mortgage — No Error in Record. The record fails to show any error in the trial of this action to set aside a deed made by one of the plaintiffs to her daughters, and a mortgage given by one of the plaintiffs to her sister, the defendant, and asking partition, or in the decree entered.</p> <p>2. Same — Statute of Limitations. Whether the action was barred by the statute of limitation need not, in view of the result reached, be considered.</p> <p>3. Same — Accounting and Allowance for Services Approved. The accounting made by the trial court and the allowance to the defendant for services rendered touching the real estate involved, approved.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Specific Performance — Sale of Real Estate — Covenant Against Encumbrances — A Lateral Sewer Not an Encumbrance. The proceedings in an action by the vendor of a dwelling house and city lots to compel the vendee to perform, examined, and held, a lateral sewer, occupying two feet of the margin of the lots, laid nine feet in the ground, and connected with the house, did not constitute an encumbrance, within the meaning of the contract to convey, which provided the property should be free of all encumbrances.</p> <p>2. Same. Privilege of the city to enter the premises for the purpose of maintaining efficiency of the sewer, should occasion arise, is an increment of benefit, and not an encumbering easement.</p> <p>3. Same — Estoppel. The proceedings examined further, and held, the vendee was estopped to assert existence of an encumbrance.</p>

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

<p>syllabus by the court.</p> <p>1. Slander — Words Charging a Felony — Actionable Per Se. In this action for • slander the words used by the. defendant are held to have charged the plaintiff with a felony and of themselves were actionable.</p> <p>2. Same — Admission of Evidence — Rulings. Rulings on the admission of evidence examined and held to be without material error.</p> <p>3. Same — No Error in Instructions. Instructions relating to the slander charged and established by the evidence examined and held to be without prejudicial error.</p> <p>4. Same — No Release or Bar to Recovery of Damages Shovm. After discovering that the crime which defendant had imputed to plaintiff had not been committed, defendant apologized to plaintiff for the wrong and with it gave him a dollar which was retained for a few hours and then returned. Held, that the gift, under the circumstances, did not constitute a release or bar a recovery for slander as there could be no release unless there was a meeting of the minds of the parties and a mutual understanding that the payment and acceptance of the money was in settlement of defendant’s liability.</p> <p>5. Same — Apology or Retraction No Defense. The apology or retraction of defendant did not operate as a bar to a recovery of damages and was only admissible as tending to show an absence of malice and in mitigation of damages.</p> <p>6. Judgment — Return of Verdict — Duty of Clerk to Enter Judgment. Upon a return of a verdict it is the duty of the clerk to enter judgment in conformity to the verdict unless an order is made reserving the case for future argument or consideration.</p> <p>7. Same — Interest on Judgment. Plaintiff in whose favor a verdict is returned cannot be deprived of interest on his judgment by the failure of the clerk to enter the judgment as the law directs.</p> <p>8. Same. A judgment entered allowing interest thereon from the time of the verdict is held not to be erroneous although a motion for a new trial was filed which was not denied and a formal judgment was not entered until twenty-five days after the verdict was returned.</p>

<p>syllabus by the court.</p> <p>1. Negotiable Instrument — Bank Check — Delay in Presentation for Payment — Indorsee Holder in Due Course — Liability of Drawer of Check. The proceedings in an action to recover from the drawer of a check, by an indorsee who acquired the check from the payee, twenty-four days after it was issued, examined, and held, the time which elapsed between the issuing of the check and its negotiation was not so unreasonable as to deprive the holder of the privileges of a holder in due course.</p> <p>2. Same — Bank Check — No Notice of Infirmity... The' proceedings examined further, and held, the plaintiff had no notice of infirmity in the instrument, and the circumstances under which he acquired it had no tendency to indicate bad faith.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Forcible Detainer — May Be Maintained by One Cotenant Against Stiqmer to the Title. A proceeding under the forcible entry and detainer statífí§ may be maintained by one of several tenants in common'against a stranger' to the title.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Sale — Auto Tire Tubes — Action for Price Thereof — Evidence As to Items of Credit Claimed. In an action to recover for the sale of automobile tire tubes, the cross-petition set up divers items for which credit was claimed. As to one, of $411.85, for tubes returned by the defendant’s customers on account of light weight, certain items of credit contained in letters of the defendant to its customers were incompetent and properly rejected.</p> <p>2. Same. As to such item of $411.85 there was sufficient competent evidence introduced to take it to the jury, and it was error to exclude it from ffieir consideration.</p> <p>3. Same — Negative and Leading Interrogatories. Rule followed and held, improper to submit to a jury negative and leading interrogations.</p> <p>4. Same — Improper Claim for Damages. Under the evidence the withdrawal from the jury of a claim of credit for damages for failure to stamp the inner tubes sold the defendant, held proper.</p> <p>5. Same — Claim for Loss of Profits Speculative and Uncertain. A claim for loss of profits examined and held to have been speculative and uncertain and therefore properly withdrawn from the juiy.</p> <p>6. Same — Question of Trade Custom Immaterial. The parties contracted by verbal negotiation confirmed by various letters, which letters set forth the terms of the contract as each party understood them. Held, that the question of trade custom was immaterial and this was properly withheld from the jury.</p> <p>7. Same — Item of Credit Improperly Withheld from Jury. An item of $180.95 of credit claimed by the defendant on account of a five per cent discount on tire tubes sold in May and remitted for on June 10 thereafter, held to have been proper for consideration and its exclusion erroneous.</p> <p>8. Same — No Conflict Between Evidence and Verdict. The asserted irreconcilable conflict between the evidence and the verdict held to be without substantial merit.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Master and Servant — Injuries—Findings Not Inconsistent with General Verdict. In an action by a servant agáinst his master for damages for personal injury caused by the negligence of the latter, it is not error for the court to deny a motion for judgment on the answers to special questions submitted to the jury where those answers are not inconsistent with the general verdict.</p>

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

<p>Appeal from Douglas district court; Hugh Means, judge.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Oil and Gas Lease — Lease assigned by Lessor — Action for Breach of Covenant in Lease — No Misjoinder of Plaintiffs — No Misjoinder of Causes of Action. The lessor in an oil and gas lease assigned an undivided one-tenth interest in the lease to each of his seven children. The lessee assigned to operating companies. The implied covenants of the lease, to develop fully and with diligence the oil resources of the land, and to prevent the land from being drained of oil by wells drilled on adjoining land, were broken, and the express covenant to render a stipulated oil royalty was broken. The lessor and his assignees joined in an action for damages against the .lessee and his assignees. The district court sustained a demurrer to the petition, on the ground of misjoinder of causes of action. Held, the district court erred.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Oral Contract — Sale of Land to Unknown Purchaser — Sale Completed— Binding Contract. An oral contract may be made between the owner of land and another representing a purchaser, which, if recognized by the parties interested and treated as a sale by an actual transfer, or by an agreement in writing binding the parties, will constitute a sale, although at the time of the oral agreement the person selling may have no knowledge of the name of the person purchasing.</p> <p>2. Same — Land Listed with Agent for Sale — Independent Sale Made by Owner to Unknown Purchaser — Instructions. Before being notified that his agent had arranged a sale of his land, the owner received an offer for the land by telephone from an agent in another town, and orally agreed upon terms of sale; the sale was confirmed by letter the following day and was afterwards consummated on the same terms. At the time of the conversation over the telephone the owner did not know the name of the purchaser. Held, that instructions were erroneous which charged that in order to make an oral arrangement of that kind binding the contract when carried later into effect, the party selling must know the name of the party wishing to purchase.</p>

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Appeal — Defective Abstract of Record — ■Motion to Dismiss Appeal. The want of a transcript of the evidence and a consequent defective abstract, and the want of an abstract of the pleadings, do not necessarily require the dismissal of an appeal; such defects merely restrict the scope of the appellate review.</p> <p>2. Same — Absence of Transcript — Presumptions as to Findings of Court. Where there is no transcript and the accuracy of appellants’ statement of the evidence is disputed by the appellees, the supreme court must assume that the trial court’s findings of fact are correct and that they were supported by the evidence.</p> <p>3. Street Improvements — Publication of Ordinances and Resolutions. Under the trial court’s findings of fact, the ordinances and resolutions relating to the special improvements in controversy were lawfully published.</p> <p>4. Same — Charge of Fraud — Findings. All controversy concerning alleged fraud of city officials and private contractors is terminated when the trial court finds that there was no fraud, and when the evidence to support such allegations of fraud is not submitted for appellate review.</p> <p>5. Same — Findings of Trial Court. When the evidence has not been preserved, an assignment of error based upon the trial court’s refusal to make requested findings of fact cannot be reviewed.</p> <p>6. Same — Incidental Expenses. A reasonable sum to cover items of incidental expenses necessarily incurred in constructing special improvements may lawfully be included in the cost thereof — following Bailey v. City of Wichita, 108 Kan. 282, 284, 194 Pac. 928.</p> <p>7. Same — Apportionment of Costs Assessed Against Abutting Property Owners. Where the cost of special improvements on city streets is fairly apportioned and fairly assessed against the abutting properties benefited thereby, in compliance with a statute fairly designed to render approximate justice to the property owners concerned, there is no confiscation nor other breach of constitutional law, although the assessments in some instances may aggregate more than the current market value of the properties taxed therefor.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Criminal Law — Aiding an Attempt to Escape from Jail — Sufficiency of Information. An information drawn under section 3564 of the General Statutes of 1915, charging two persons with assisting each other in attempting to escape from jail, sufficient^ charges the legality of the confinement and that each had knowledge that the other was lawfully confined, where the information sets out the charge under which they were confined and were awaiting trial and charges them jointly with the commission of that offense.</p> <p>2. Same — Two Offenses Charged — Motion to Quash Information Denied— No Error. Error in overruling a motion to quash an information which charges two offenses under one statute becomes immaterial where the defendant is tried on one charge only, the jury is instructed on that charge, and the defendant is found guilty thereon, and nothing is said concerning the other charge set out in the information.</p> <p>3. Same — Voluntary Admissions of Guilt by Defendant — Competent Evidence'. Admissions made by one on trial charged with a felony may be introduced against him; and, if those admissions amount to a confession of guilt, they may be introduced against him when it appears that they were voluntarily made.</p> <p>4. Same — Aiding in Attempt to Escape Jail — Incompetent Evidence. Two defendants on trial under a charge of assisting each other in attempting to escape from the jail in which they were both confined may not show the evidence that was introduced on the preliminary examination on which they were held for trial under the charge pending against them at the time they attempted to assist each other to escape.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Larceny — Theft of Harness — Clerical Error in Descriptive Words in Information — Not Prejudicial. In a prosecution for grand larceny for the theft of a set of harness belonging to a farmer, a clerical error in the legal description of the owner’s farm according to the United States survey, is immaterial. Such error may be disregarded as surplusage, or corrected by amendment during the trial as mere matter of form under section 72 of the criminal code; and where there is no showing that defendant was misled or prejudiced thereby, no trial error can be based thereon.</p> <p>2. Same — Evidence—Genuineness of Signature. The rule of the criminal code, section 216, which provides that the testimony of three expert witnesses is requisite to prove the genuineness of a note, bill, draft, certificate of deposit or other similar writing is limited to crimes wherein the genuineness of the note or writing is itself the subject of the crime and a vital question involved therein; and has no application to crimes in which such-note or writing is not primarily involved, and where it is a mere item of evidence tending- to establish a crime which has no relation to such note or writing.</p> <p>3. Same — Evidence Supports Verdict and Judgment. The evidence examined and held sufficient to identify the stolen harness and to justify the verdict and judgment.</p> <p>4. Same — Immaterial Remarks of Trial Judge. On appeal, it is of no consequence that before the jury rendered its verdict the trial court expressed serious doubt as to the sufficiency of the evidence to establish the defendant’s guilt; although if such doubt had persisted in the trial court’s mind after the verdict was rendered it would have been its duty to set the verdict aside and grant a new trial.</p>

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

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

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. State Board op Education — Right of Access to Books and Records. The state board of education, or any member of it, has the right of access to the books and records of the board at any time during reasonable hours, whether the board is in session or not.</p> <p>2. Director op Federal Vocational Education — Right af Access to Books and Records. The director of the federal and state vocational education funds has the right of access to the books and records pertaining to his duties at any time.</p> <p>3. Superintendent op Public Instruction — Powers and Duties. The state superintendent of public instruction cannot refuse to approve the vouchers of those employed by the state board of education for the purpose of administering the federal and state vocational education funds, where the employees have performed the duties required of them by law. .</p> <p>4. Same — No Control Over Certificates to Teachers, Institute Conductors and Instructors. The state superintendent of public instruction does not have the power to refuse state certificates to teachers, or certificates to institute conductors and instructors, or to reject applications for such certificates or for the renewal thereof, and does not have power to make rules and regulations concerning the issuance of such certificates.</p> <p>5. Same — May Not Rank and Accredit Schools and Colleges. The state superintendent of public instruction does not have authority to rank and accredit schools and colleges in this state.</p> <p>6. State Board op Education — Meetings—How Called. The state board of education may meet at any time that it deems necessary, without being called together by its chairman, the state superintendent of public instruction.</p> <p>7. Declaratory Judgments — Statute Constitutional. The State, ex rel., v. Grove, 109 Kan. 619, 201 Pac. 82, followed.</p>