Volume 113 — Kansas Reports

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Action' to Recover Real Property — Statute of Limitations. In an action to recover the possession of real property under an oral contract by which the deceased owners agreed that they would receive the plaintiff, a minor, into their family and treat him as their own child and rear and nurture him as though ¿he were born to them, and by which contract he was to render to them his services and obedience during his minority, for which the deceased owners agreed that the plaintiff should receive at their death one-half of all their property, both real and personal, of which they might die seized, the fifteen-year statute of limitations controls; and the action is not barred if it is commenced within that time.</p> <p>2. Same — Fifteen-year Statute of Limitations. The plaintiff cannot be defeated in his right to recover by reason of the fact that he did not commence his action until near the expiration of fifteen years after the cause of action accrued.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Divorce and Alimony — Divorce Granted — Appeal—No Notice of Intention to Appeal Filed Within Ten Days. To obtain a review of a judgment granting a divorce there must be a compliance with section 7582 of the General Statutes of 1915, which provides, "A party desiring to appeal from a judgment granting a divorce must within ten days after the judgment is rendered file a written notice in the office of the clerk of such court, duly entitled in such action, stating that it is the intention of such party to appeal from such judgment; and unless such notice is filed no appeal shall be had or taken in such cause.”</p> <p>2. Same — Statute Requiring Notice of Appeal to Be Filed Within Ten Days Constitutional. Section 7582 of the General Statutes of 1915, quoted in paragraph 1 of the syllabus, is not unconstitutional as imposing an unreasonable limitation on the right to appeal.</p> <p>3. Same — Title of Act Includes Provisions Governing Divorce and Alimony. The title, “An act concerning the code of civil procedure,” is broad enough to include the provisions of the act concerning divorce and alimony.</p> <p>4. Same — Division of Property — Allowance for Alimony. In an action for divorce where a division of property and alimony allowance has been made by the trial court on disputed testimony, the same will not be disturbed unless the record discloses that such division and allowance was manifestly unjust.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Collision on Public Highway — Motorcycle and Automobile — “Rule oj the Road’’ Interpreted. The rule of the road, which requires a traveler in a vehicle on a highway to seasonably turn to the right when meeting a vehicle does not apply to one who is traveling outside of the traveled way.</p> <p>2. Same. One traveling on the highway in a vehicle on the right side of the traveled way, which is of ample width, smooth and unobstructed, is not justified in assuming that a vehicle approaching him on the highway, but traveling outside of the traveled way, will drive into the traveled way and to the other side thereof.</p> <p>3. Same — Personal Injuries — Negligence Must Be Proven — Proximate Cause of Injury Must Also Be Shown. A collision between two vehicles upon a highway, with resulting injury, is not sufficient to establish liability; but before plaintiff can recover he must allege and prove negligence of defendant which was the proximate cause of the collision.</p> <p>4. Same — Negligence of Defendant and Contributory Negligence of Plaintiff— Both Questions for Jury.. The evidence examined and held that the question of the negligence of the defendant, and also the question of the contributory negligence of the plaintiff, were properly left to the jury.</p> <p>5. Same — Proper Cross-examination of Party to Action. When a party to an action is a witness in his own behalf it is error to restrict his cross-examination upon matters which clearly affect his credibility as a witness.</p> <p>6. Same — New TriaD-Newly Discovered Evidence. It is not error for the court to refuse a new trial because of newly discovered evidence if, in view of all the circumstances, the newly discovered evidence would not be likely to change the result.</p> <p>7. Same — Misconduct of Plaintiff — Soliciting Jury Service. The fact that the plaintiff, at his solicitation, was put upon the panel of jurors at a term of court at which his case was to be tried, while a practice not commended, is not sufficient, standing alone, to require the court to grant a new trial because of misconduct of the plaintiff.</p>

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

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

<p>Syllabus by the coubt.</p> <p>1. Replevin — Automobile—Purchased in Violation of Statute — No Defense to Action by Mortgagee. The purchase of an automobile in total disregard of a statute governing the sale and transfer of such property is void and affords the purchaser no defense in a replevin action instituted by a plaintiff having a lawful claim to the property.</p> <p>2. Same — Unrecorded Chattel Mortgage — Good Between Mortgagor and Mortgagee. A chattel mortgage, although unrecorded, is perfectly good between mortgagor and mortgagee, and the mortgagee’s rights thereunder are good against a person whose only claim thereto is based upon a purchase from the mortgagor in disregard of a statute governing the sale and transfer of automobiles, which statute also provides that all sales which do not conform thereto are void.</p> <p>3. Same — Evidence—Statutes of Other States. In an action in replevin, pertinent statutes of another state are admissible in evidence without special reference thereto in the pleadings.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Foreclosure op Mortgage — Payment to Alleged Agent — Burden of Proof of Agency. In an action to foreclose a mortgage, the moidgagors resisted payment on the ground that it was paid before maturity to an agent-of the mortgagee. Held, it was incumbent upon them to prove such agency and payment, and where there was a failure so to do, it was error for the court to refuse to foreclose the, mortgage.</p> <p>2. Same — «Toj Whom Payments on Mortgage Were to Be Paid — Refusal to Make Special Finding. Where the plaintiff alleged, and the testimony showed, that semiannually, and a short time before the maturity of each of the interest coupons attached to the note, it mailed to the defendants a printed notice which contained the statement, “No one is authorized to collect for us. Make all remittances direct to the Pioneer Mortgage Company, Topeka, Kansas,” held, it was error for the court, on proper request, to refuse to make a finding showing such action by plaintiffs</p> <p>3. Same — Possession of Note and Mortgage — Evidence. The lack of possession of a note and mortgage is sufficient to put the debtor on inquiry as to the authority of the alleged agent to receive payment.</p> <p>4. Same — Disposition of Funds in Hands of Corporation — Presumption. Where no disposition is shown of funds once in the hands of a corporation it is presumed to still retain them.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Evidence — Fire from Gasoline Lamp — Testimony Contrary to Physics and Common Knowledge — Res Ipsa Loquitur. In an action to recoup loss paid according to policies of insurance on account of fire, the petition and proof were that the fire was set by explosion of a gasoline lamp. The petition charged the explosion was caused by a defect in the lamp, which was definitely described. The proof that the defect was the proximate cause of the explosion contradicted elementary principles of physics, and facts within the common knowledge and experience of people generally. Held, the doctrine of res ipsa loquitur did not apply, and a demurrer to the plaintiff’s evidence was properly sustained. •</p>

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

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

<p>SYLLABUS by the court.</p> <p>Contract — Construction of Drainage Ditch — Supervision of Engineer — Conclusiveness of His Decisions. This language in a contract for the construction of a ditch is held not to make the engineer’s estimates of the amount of earth excavated conclusive:</p> <p>“The engineer shall in all cases determine the quantities of the several kinds' of work to be paid for under this contract, and he shall decide all questions as to lines, levels, etc. Any doubt as to the plans and specifications will be explained by the engineer and his interpretation shall be final and binding upon the parties hereto.”</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Fraternal Insurance — Terms of Certificate — May Be Changed and Modified — Change Binding Upon Members. In 1895 an incorporated fraternal beneficiary association issued a certificate to a member, one provision of which was that on reaching 69 years of age he should be entitled to receive $900, to be deducted from the amount of the death benefit. The certificate recited that it was issued upon the express condition that he should in every particular comply with all the laws, rules and regulations of the order. One of its laws in force at the time empowered its National Council “to amend the Constitution, Ritual, Laws and Rules of Discipline.” In 1898 the laws .of the association were amended so that they no longer contained a provision for such a $900 payment, but did provide for annual payments of $300 after a member holding a $3,000 certificate should reach the age of 70 years and become physically disabled. In 1899 a statute was enacted for the regulation of such associations which expressly forbade the payment of any disability benefits at a younger age than 70 years, and by implication prohibited any payments because of age unless accompanied by disability. In an action brought by the holder of the certificate for the recovery of $900 on the ground of having reached the age of 69 years it is held that he was bound by after-enacted laws changing the rates and benefits; that the amendment of the laws of the order and the enactment of the statute referred to cut off his right to recover on the ground of having reached a particular age, no disability being claimed. And it is further held that the action of the association in raising the amount of his monthly assessment from $3 to $3.60 was valid.</p> <p>2. Pleading and Practice — Effect of Overruling Demurrer to Petition. Where upon the overruling of a demurrer to a petition the defendant answers and goes to trial, taking no appeal from that ruling, the decision upon the legal questions involved does not become the law of the case, and he is entitled to whatever judgment the established facts warrant.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Promissory Note — Limitation of Action — Note in Custodia Legis — Suspension of Statute. The fact that the ownership of a promissory note was in dispute between payee and a third party over whom defendant had no control, or was field as collateral security by a third party over whom, defendant had no control, or was in custodia legis in another action in which the defendant was not a party and over which he had no control did not suspend the running of the statute of limitations in his favor.</p> <p>2. Same — Demurrer to Bill of Particulars Properly Sustained. Where a bill of particulars showed on its face that the cause of action was barred by the statute of limitations, it was proper to sustain a demurrer thereto.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Contract — Adoption of Minor — Conditions Performed by Minor — Contract Enforceable. A contract between foster parents and the mother of an infant to adopt the child, treat her as their own, supported by sufficient consideration, the conditions of which were performed by the child until she reached her majority and was married, may be enforced and made the basis of a valid claim against the estate of the foster parents, although the statutory steps for a formal adoption were not taken in the probate court.</p> <p>2. Same — Evidence Supports Finding and Judgment. The evidence examined and held to be sufficient to support the findings and judgment to the effect that the contract alleged had been made and was enforceable.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Chattel Mortgage — Mortgage Unrecorded, — Mortgagor’s Death While in Possession of Mortgaged Property — Mortgage Valid. A bank was given a chattel mortgage to secure a loan of money, and failed to record it in the proper county. Afterwards the mortgagor died in possession of the mortgaged property, and his executor sold it in due course of administration of the estate. Held, the mortgage was a valid lien as to the executor, and entitled the mortgagee to the proceeds of the sale, as against the claims of creditors without lien or equivalent special interest at the date of the mortgagor’s death.</p>

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

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

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

<p>SYLLABUS BY THE COUKT.</p> <p>1. Sale — Flour—Sold Under Certain Brand — Breach of Implied Warranty— Competent Evidence. In. an action by the purchaser of a quantity of flour, sold by the manufacturer under a certain brand, for the recovery of the price paid for it, the issue being whether there was a breach of an implied warranty that it was of the grade and quality usually made and sold under that name, evidence of representations made by the seller’s agent at the time of sale as to the character of the flour is competent as tending to show the kind of flour indicated by the designation employed.</p> <p>2. Same. Where flour when received after a shipment of 17 days is found to have a bad odor and to be unfit for use, evidence that the sacks in which it came were in perfect condition and were not stained in any way has some tendency to show that when shipped it was in the same condition, and is sufficient to justify submitting to the jury the question whether such was the case.</p> <p>3. Same — Trial. Various trial rulings are held not to require a reversal.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Compensation Act — Judgment in Lump Sum. In an action under the workmen’s compensation law judgment may be rendered in a lump sum where the injured employee requested arbitration, which was not granted, and where the injuries could have been ascertained by observation and by X-ray pictures.</p> <p>2. Same — Answer to Special Questions — Plaintiffs Incapacity — Judgment to Be Rendered. In an action under the workmen’s. compensation law where the answers to special questions submitted to the jury disclose the length of total and partial incapacity of the injured employee, the wages he received, and the extent of his partial incapacity, judgment may be rendered on the answers to the special questions for an amount different from that named in the general verdict; and erroneous instructions, if any, which affect the general verdict only will not compel a reversal of the judgment.</p> <p>3. Same — Findings of Jury. The findings of the jury concerning the extent of the plaintiff’s injury were supported by evidence.</p> <p>4. Same. The findings of the jury were supported by evidence.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Promissory Note — Finding of Payment — Finding Conclusive. There being evidence fairly tending to support the finding of the jury that a promissory note on which the action was brought had been paid, that finding is conclusive upon the question in this court.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Judgment — Service by Publication — Application to Open TJp Judgment Should Have Been Sustained. Where judgment by default was entered on service by publication only, on defendants residing in Ohio, and where the defendants, at the same term of court, after notice to plaintiff, moved to set aside the service because they had no actual notice of the pendency of the action in time to appear and defend', and because of irregularities in the proceedings, including a false statement in the affidavit for service by publication, and that substantial rights would be lost to them unless the judgment were opened up and they were permitted to defend; held, that there was a sufficient compliance by defendants with the provisions of section 83 of the code and that their motion should have been sustained, the judgment opened, and applicants permitted to defend.</p>

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

<p>SYLLABUS- BY THE COURT.</p> <p>1. Nuncupative Will — Established by Sufficient Evidence. The evidence examined and held sufficient to justify the trial court in finding that a nuncupative will had been made.</p> <p>2. Same — May Be Admitted to Probate Under Clear and Convincing Evidence. A nuncupative will may be admitted to probate where the evidence to prove it is clear and) convincing, although that evidence may differ in some particulars.</p> <p>3. Same. Questions asked of one who is making a nuncupative will, when asked solely for the purpose of ascertaining the maker’s desire, will not destroy the will nor defeat its being admitted to probate.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Real-estate Agents — Purchaser Found — Contract Made — Commission Earned. Where a real-estate- agent, and an owner whose property the agent has sold, agree that the agent will wait for his commission until the purchaser makes a certain payment, the owner cannot refuse to accept the payment from the purchaser and then refuse to pay the agent his commission.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Bridges — Bridge Within City Limits — Liability of County for Maintenance —Discretion of County Commissioners. Chase county, in 1914, contributed $16,000 and Cottonwood Falls $5,000 for constructing a concrete bridge across the Cottonwood river wholly within the incorporated limits of Cottonwood Falls. The bridge was a part of the main thoroughfare of the city. Afterwards the city paved the bridge and sought to charge the expense therefor to the county. The county denied liability and refused payment. Held, that the aid given by the county in the construction of the bridge was voluntary and that the county was not liable to maintain or repair the bridge.</p> <p>2. Same — Construction and Maintenance of Bridges Within Cities — Interpretation of Statutes. In enacting chapter 80 of the Laws of 1917, providing a system for the construction and maintenance of bridges and culverts within the jurisdiction of the board of county commissioners, it was not the intention of the legislature to deprive incorporated cities of their control over their streets and alleys, nor to relieve them of the liability incident to such control. Section 7 of the act, which provides, “That all bridges or culverts built in this state at county expense, or for which the county has granted aid, shall be known as ‘county bridges’ or ‘county culverts,’ and shall be maintained thereafter under the direction of the county board and county engineer at county expense,” does not require the county to "maintain or keep in repair bridges constructed by the county and located wholly within the limits of incorporated cities.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Action — Misjoinder oj Causes of Action. Several plaintiffs brought an action and complained that each was induced to buy stock in a corporation by fraudulent representations, and asked for the cancellation of their individual subscriptions and the return of the money which each had paid for the stock, and it appeared that the sales were distinct and separate transactions made at different times and by different defendants under varying circumstances, to the different plaintiffs, and where the causes of action, although somewhat similar in’kind, do not affect all the parties, iheld, that the plaintiffs may not unite the several causes of action in the same petition.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Oil and Gas Lease — Assignment and Subsequent Assignment of Part Interest in the Lease — Contract of Lease and Subsequent Assignments Construed— Liability of Assignee to Pay Share of Rent. The owner of 160 acres of land executed an oil and gas lease thereon containing a provision that in case oil or gas was found in paying quantities the lessor was to receive an additional payment of $5,000 out of the first production. The lessee assigned his interest in a specified 80 acres of the lease by an instrument providing that whichever party to such instrument first struck oil on his part of the lease, the other should pay half of the $5,000 thereby made payable to the lessor, and that the contract was binding upon legal representatives, successors and assigns of the parties. The assignee in turn assigned an undivided half of his interest, by a writing in which the new assignee agreed to pay half of all rentals and royalties accruing on account of the lease and of all bonuses provided therein payable out of the proceeds of oil, and was authorized to pay all future rentals, the assignor agreeing to make reimbursement for its share thereof. Thereafter the original lessee struck oil on the acreage he had retained and paid the lessor $5,000. It is held that the second _assignee was liable for the payment of $1,250 to the lessee.</p>

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

<p>syllabus, by the court.</p> <p>1. Homicide — Record Examined and No Error Found in the Judgment. The record in a homicide case examined and no error in the judgment discerned therein.</p> <p>2. Same — Not Error for State to Shorn That Deceased Did Not Use Weapons When Fighting. In a prosecution for murder, where evidence for defendant had tended to show that the deceased had assailed the defendant with lumps of coal and other missiles, and that he was coming towards defendant carrying a shovel and threatening to beat the life out of defendant when the latter shot him, and that the deceased was a quarrelsome, fighting man, it was not error for the state to show that the deceased was never known to use weapons of any sort in any of his fights, either as boy or man.</p> <p>3. Court’s Instructions — An Excerpt From the Court’s Instructions Not Sufficient to Predicate Error. An inaccurate excerpt of a line and a half excised from the text of an instruction covering four printed pages of the abstract forms no basis upon which error may be predicated, and presents nothing for review.</p>

<p>Appeal from Shawnee district court; Jam:es A. McClure and George H. Whitcomb, judges.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Nuisance — Storage of Kerosene and Gasoline Not a Nuisance per se. The storage of kerosene and gasoline is not a public nuisance per se. Whether or not it becomes a nuisance depends upon the location,-or the manner in which such storage is installed and conducted.</p> <p>2. Same. The facts examined, and held, not sufficient to support a judgment enjoining as a public nuisance the erection of tanks for the storage of kerosene and gasoline.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Improvement op County Roads — Railroad Right of Way Properly Assessed to Aid in Costs of Construction of Hard-surfaced Road». Under chapter 246 of the Laws of 1919 as amended by chapter 218 of the Laws of 1921 the right of way of a railroad company may be assessed as other “real property and the improvements thereon” for its proportionate share of the cost of constructing a hard-surfaced road.</p> <p>2. Same — Method of Assessment of Railroad Right of Way. The board of county commissioners in making an assessment against the property of a railroad company in a benefit district for the cost of constructing a hard-surfaced road should follow the same general method as is followed with reference to other property which is hable for its proportionate part of such cost.</p> <p>3. Same — State Tax Commission’s Valuation of Railroad Property — Improper basis of Valuation for Costs of Road Improvements. Sihce all railroad property, real, personal and mixed, is classed as personal property for the purpose of general taxation, the state tax commission’s valuation of all such property constructively within the limits of a road benefit district is not a proper basis for fixing the valuation of a railway company’s “real property and improvements thereon,” actually within such road benefit district, for the purpose of assessment to pay the cost of constructing a hard-surfaced road.</p> <p>4. Same — Costs of Road Improvements — Statute Does Not Authorize an Assessment on Personal Property. Chapter 246 of the Laws of 1919, as amended by chapter 218 of the Laws of 1921, does not authorize the levying of an assessment on personal property for the construction of a hard-surfaced road; and the levying of an assessment on the rolling stock and other personal assets of a railroad company for such a purpose will be enjoined.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Embezzlement — Obligation of Embezzler to Make Restoration — Consideration for Note Given in Settlement of Civil Liability. One who embezzles money is under a legal and moral obligation to restore the amount misappropriated to the party from whom it was embezzled, and this obligation affords adequate consideration for notes and security given for restitution or payment.</p> <p>2. Same — Promissory Note Given to Settle Civil Liability — When Not Compounding a Felony. Before one who has become a surety on notes given in settlement of a civil liability arising from an embezzlement can avoid liability upon the grounds that they were given for an illegal consideration and to compound the embezzlement, it devolves upon him to show that they were given under duress or upon an agreement to conceal the crime, stifle a prosecution therefor or withhold evidence in relation thereto.</p> <p>3. Same — Promissory Note — Insufficient Evidence to Show Illegal Consideration. The evidence examined and held to be insufficient to show that the notes in question were based on an illegal consideration.</p>

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Illegal Contract — Violation of Antimonopoly Statutes — Contract Unenforceable. A contract for the purchase of tractors providing that the purchaser shall maintain the seller’s published list prices violates the anti-monopoly statutes of this state, is unenforceable, and damages cannot be recovered for its violation.</p> <p>2. Same — Mo Part of Contract Enforceable. Where a contract is illegal and void because it violates the antimonopoly laws of this state, and where the illegal and void provision affects the whole of the contract, no part of it is enforceable.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Contract — Purchase of Land — Advance Payment — Default of Purchaser — Recovery of Initial Payment. Plaintiff made a contract to buy defendant’s farm for $9,000 and paid $1,000 thereon and was let into possession. He afterwards left the premises and his father and brother removed all plaintiff’s chattels therefrom, but the trial court found that these facts did not constitute abandonment. When the date of the final payment, $8,000, fell due, plaintiff made default, and defendant reentered and took possession of the farm. Held, that under the circumstances defendant’s reentry did not of itself operate as a rescission of the contract, nor give the plaintiff the right to recover the $1,000 paid — following Morris v. Derr, 55 Kan. 569, 40 Pac. 908.</p>

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Habeas Corpus — Custody of Minor Child — Jurisdiction. In an original proceeding in habeas corpus to determine the custody of a child, the court, after considering the evidence, concludes that the interests of the child will be best served by placing it in the custody of other parties.</p> <p>2. Same — Custody of Minor — Jurisdiction of Supreme Court. The supreme court has jurisdiction, by habeas corpus, to take the custody of a child away from an unsuitable party and place that custody in another, although the juvenile court in a proceeding under sections 3065-3079 of the General Statutes of 1915, the law concerning dependent, neglected, and delinquent children, has placed the child under the control of the party from whom the petitioner desires to take it.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Agency — Existence of Agency Disputed — Question of Fact for Jury. Where the existence of an agency is disputed its existence or nonexistence is ordinarily a question of fact for the jury to be determined on proper instructions.</p> <p>2. Same — Erroneous Instructions. Where the existence of an agency is the principal issue in a case it is error for the court, in its instructions, to assume its existence.</p>

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

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

<p>Appeals from Lyon district court; William C. Harris, judge.</p> <p>Case No. 24,979 dismissed. Case No. 24,534 reinstated.</p>

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

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