Volume 116 — Kansas Reports

<p>SYLLABUS BY THE COURT.</p> <p>Specific Performance — Oral Contract for Sale of Real Estate — Law of Forum Governs — Contract Void Under Statute of Frauds. An action for damages for refusal to purchase real property according to a contract for the sale thereof cannot be maintained in this state where the contract was not signed by the person purchasing the property nor by an agent authorized by him' in writing so to do, although the contract was made in another state for the sale of real property in that state and was enforceable according to the laws of that state.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Note and Mortgage — Defense of Duress — Threats Insufficient to Constitute Duress. A threat in the alternative to give one a beating at some remote, future, indefinite time is not such a threat of personal violence as will constitute duress.</p> <p>2. Same — Duress. It is not duress for one to threaten to take such legal proceedings as the law affords to recover damages for claimed injuries.</p> <p>3. Same — Duress—Threat Not a Threat of Criminal Prosecution. A threat by one who claims damages from another to prosecute him to the full extent of the law is not tantamount to a threat of criminal prosecution.</p> <p>4. Same — Threats Amounting to Duress. Threats of personal violence or of criminal prosecution to amount to duress must be of such a character or made under such circumstances as to destroy the will of the one threatened to such an extent as to compel him to act in a manner contrary to his will and to his detriment.</p> <p>5. Same — Instruction Relating to Duress. An instruction that threats of criminal prosecution must be of such a character as to overcome the will of a person of ordinary firmness is erroneous, but, held,, under the facts in this case, not to constitute reversible error.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Redemption — Mortgage Given for Purchase Price — Default Before One-third of Purchase Price Is Paid — Period of Redemption Six Months. Where a purchaser of real property has given a hen to secure payment of the purchase price, and makes default before one-third of the price is paid, and the lien is foreclosed and the property sold, the judgment debtor has six months as prescribed by statute (R. S. 60-3466) in which to redeem the property.</p> <p>2. Same — Assumption of Mortgage Indebtedness as Part of Purchase Price Does Not Constitute Payment on Purchase Price. An assumption of a mortgage indebtedness as part of the purchase price of real estate does not constitute a payment in a computation of the amount paid on the purchase price for the purpose of determining whether the defaulting purchaser is • entitled to six months or to eighteen months to redeem the property from foreclosure sale.</p> <p>3. 'Same — Defendants bought a farm for $40,000, paying $7,000 in cash therefor, and assuming a first mortgage for $14,000 and giving a second mortgage for $19,000. Default was made which matured the second mortgage and it was foreclosed and the property ordered sold to satisfy it. Held that defendants had paid less than one-third of the purchase price of the farm and were therefore entitled to no more than six months in which to redeem.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Electricity — Franchise for Transmission of Electric Current Between Two Incorporated Cities — Petition for Election — Requisite Number of Petitioners Legally Determined. The act (R. S. 12-824) authorizing incorporated cities, into or through which any corporation has built or proposes to build lines for the transmission of electric current between two or more incorporated cities, to grant franchises upon prescribed conditions, and providing that such franchise shall not be granted until notice of the proposition shall be given, and that if, within a prescribed time, ten per cent of the legal electors should petition the city authorities to submit the proposition to a vote of the electors of the city, it should be so submitted and the city authorities governed by the result of such vote. Held, on a controversy as to the sufficiency of petitions presented to the city commission asking that a proposition for such franchise be submitted to a vote of the electors, that the evidence produced failed to show that the petitions presented contained ten per cent of the legal electors of the city; and further held that the city commission to which was committed the power and discretion to ascertain and determine whether the petitions contained the requisite number of legal electors, having decided that they did not, its determination in the absence of evidence of fraud or misconduct of the commission, equivalent to fraud, is binding upon the parties concerned and conclusive upon the courts.</p> <p>2. Same — Transmission of Electric Current Between Incorporated Cities— Cities Authorized to Grant Franchise. The act referred to authorizes incorporated cities to grant franchises for the purposes named therein without regard to whether the cities are operating under a commission form of government or a mayor and council.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Party Wall — Written Contract — Arbitration Not a Prerequisite to Suit in Ejectment. The provision for arbitration in a party-wall contract examined and, held, not to require an offer to arbitrate as a prerequisite to a suit in ejectment by one of the parties.</p> <p>2. Same — Party Not Precluded by the Facts Shown From Maintaining Ejectment. One is not precluded from maintaining a suit in ejectment for part of his real property occupied by a party wall built by an adjoining lot owner by knowledge that the wall was being built, when both parties thought it was being built one-half on the land of each, which proved to be a mistake.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Drainage Water — Ditch Cut By County Commissioners — Lands Overflowed —County Mere Agency of State — County Immune From Liability for Damages. Rule followed that in the absence of some statute imposing liability, a county, being a mere agency of the state, is not liable in damages sustained by private parties through the alleged negligence of its board of county commissioners.</p> <p>2. Same — No Statute Awarding Damages Against the County for Negligence of Its Officers. For the purpose of draining a county road the board of county commissioners cut an artificial embankment reared by a drainage district as a means of flood protection. The county board installed in the embankment a floodgate designed to let the drainage water flow into the river but to prevent the river water from backing on to the adjacent land. The floodgate was either defective or got out of repair, whereby the plaintiffs’ lands were flooded by high water from the river and their crops destroyed. Held, there being no statute awarding damages against the county for the negligence of its officers the county is not liable for the loss and damage sustained by the plaintiffs.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Negligence — Railroad Crossing Accident — Proximate Came of Injuries— Findings oj Jury. In an action for damages for injuries received in a railroad crossing accident, where the juiy finds- for the plaintiff and that defendant was negligent in permitting cane and vegetation to grow upon its right of way and the evidence and instructions are not before us, we cannot say that the negligence found was not a proximate cause of the injury.</p> <p>2. Same — Injury to Guest oj Driver oj Automobile — Findings oj Two Proximate Carnes oj Collision — Negligence of Railroad Company Liable for Collision. When a guest in an automobile is injured in a railroad crossing accident and in an action for damages therefor against the railroad company the jury find negligence of the defendant to be a proximate cause of the injury, the fact that the jury also find that the manner in which the automobile was driven was a proximate cause of the injury will not relieve the railroad company from liability.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Real-estate Agent — Express Contract for Definite Sum as Commission. The proceedings considered, and held, the evidence was sufficient to sustain plaintiff’s claim that he had an express contract to receive a definite sum as commission for an exchange of real estate made through his efforts.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Association — In Form a Massachusetts Trust — Possessing the Powers and Privileges Characteristic of a Corporation — A Legal Entity Distinct from the Persons Who Compose It. An association, in form a Massachusetts trust, which, in the absence of the constitutional definition of a corporation (Art. 12, § 6), would constitute a trust and not a partnership, but which, according to the trust instrument, possesses powers and privileges characteristic of a corporation, is, by virtue of the definition, a corporation to the extent that it is a legal entity distinct from the persons who compose it.</p> <p>2. Same — Promissory Note — Signed by Officers of Associations — Officers Not Personally Liable. A negotiable promissory note was signed “The Victory Oil Company, by U. G. Charles, President. Attest: Fred C. Young, Secretary.” The Victoiy Oil Company is an association of the character indicated in paragraph 1. Charles and Young-were respectively its president and secretary, and were duly authorized to execute the note. Held, section 20 of the negotiable-instruments law (R. S. 52-220), exempts them from personal liability on the note.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Sale op Personal Property — Oral Contract — Contract Valid Where Made— Governed by the Lex Loci Contractu. An oral contract for the sale of personal property, valid in the state where made, and not repugnant to the laws of the state where the contract was sought to be enforced, is binding on the vendee, although the contract was invalid under the statute of frauds of the state where the personal property was located and where presumably it was to be delivered by the vendor.</p> <p>2. Same — Personal Property in Oklahoma — Valid Oral Contract oj Sale Made in Kansas — Contract Invalid in Oklahoma — Contract Enforceable in Kansas. By an oral contract, made in Kansas, plaintiff agreed to sell and defendant agreed to buy a quantity of zinc ore piled at a mine in Oklahoma, at an agreed price of $398. Defendant breached the contract and defended on the ground that such a contract, not being in writing and nothing paid on it and nothing delivered pursuant to its terms, was invalid under the Oklahoma statute of frauds. Held, the contract being valid in Kansas, the plaintiff may recover the purchase price in a Kansas court of competent jurisdiction.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Contempt — Action for Separate Maintenance by Wife — Abandonment for Less Than One Year. When, a husband abandons his wife without just cause, she may maintain a suit for separate maintenance, though the abandonment has not been for a period sufficient to constitute a cause for divorce.</p> <p>2. Same — Refusal to Obey Order for Temporary Alimony — Under the Facts an Order for Commitment for Contempt Was Erroneous. In a suit for separate maintenance, the court made an order for the defendant to pay a specified sum for temporary alimony and suit money by a day certain. Upon a hearing for contempt for nonpayment it was shown that defendant had property which, if sold, would bring enough, or nearly enough, to pay the sum due. Defendant offered to sell the property, or permit it to be sold, for that purpose. Held, it was error to commit him for contempt until the sum was paid. The property should have been sold, under order of the court if necessary, and the proceeds applied upon the sum due.</p> <p>3. Same — Duty of Husband to Make Reasonable Provision for Maintenance of His Wife. It is the duty of a husband to make reasonable provision from his money, property, or labor, for the maintenance of his wife, and he is not relieved of that duty by the fact that the wife, without fault on her part, is compelled to live apart from him.</p> <p>4. Same — In a Proper Case a Husband May Be Committed for Contempt for Refusal to Provide Maintenance for His Wife. The court may, in a proper case, commit a husband for his refusal to provide maintenance for his wife, even though to do so requires him to labor.</p>

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

<p>syllabus by the court.</p> <p>Liquor Law — Evidence—Instructions. Various rulings complained of in a liquor prosecution are held not to warrant a reversal.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Labor on Sunday — Information Charges in Separate Counts — Not Necessary to Allege That Defendant Was Not Within Statutory Exceptions. In an information charging in separate counts violations of sections 3661 and 3664 of the General Statutes of 1915, it is not necessary to allege that the defendant did not come within the exceptions named in sections 3662 and 3665.</p> <p>2. Same — Information Not Bad for Duplicity. An information, drawn under section 3664 of the General Statutes of 1915, charging that the defendant kept his groceiy store open for business on Sunday and did expose divers goods, wares, and merchandise for sale on that day, is not bad for duplicity.</p> <p>3. Same — Keeping Store Open for Sale of Certain Goods Not Prohibited by Statute. Keeping a store open on Sunday for the sale of drugs, medicines, provisions, and other articles of immediate necessity or exposing them for sale is not prohibited by section 3664 of the General Statutes of 1915.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Illegitimate Child — Action for Support — Evidence Supports the Verdict. In a proceeding in bastardy to compel the father to assist in the support of his illegitimate child, the evidence examined and held to support the verdict.</p> <p>2. Same — Motion for New Trial — Contradictory Evidence by Witness — Discretion of Trial Court. And where, in such a proceeding, a witness testified on the hearing of a motion for new trial that part of his testimony given on the trial of the case was false, it was in the sound discretion of the trial court whether a new trial should be granted.</p> <p>3. New Trial — Newly Discovered Evidence — When Insufficient to Warrant New Trial. Ordinarily a new trial is not allowed on the ground of newly discovered evidence when such evidence seems to be competent only for the purpose of impeaching witnesses of the opposite party, or, when it is merely cumulative.</p> <p>4. Assignment op Error — Not Well-founded. Various assignments of error considered and held not to be well-founded.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Mandamus — Distribution of Copies of the Revised Statutes of 1923 — Parties Entitled to Free Copies. The duties of the secretary of state with reference to the distribution of copies of the Revised Statutes of 1923 are determined by the statute relating specifically to that matter and are not enlarged by the general provision of an earlier act to the effect that the state is to furnish to the several divisions of the district court in certain counties copies of session laws and general statutes thereafter published.</p>

<p>ORIGINAL PROCEEDINGS IN MANDAMUS.</p> <p>MEMORANDUM OF DECISIONS.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Contract — Sale oj Land — Deferred Payments — Default of Purchaser — Remedies Open to Seller. Where a contract for the sale of land provides that certain payments shall be made by the purchaser and there shall be compliance with other conditions; and also that in case of defaults by the purchaser the seller shall have the option to declare a forfeiture of the contract and of all rights of the purchaser thereunder, and there is a failure of the purchaser to comply with the conditions of the contract, the seller is at liberty to ignore his right to a forfeiture and avail himself of the ordi- • nary remedies of the law for a breach of the contract by enforcing performance of the same and of his rights under, it.</p> <p>2. Same — ■Limitation of Action — Not Pleaded — Not Available on Appeal. The defense of the statute of limitations not having been pleaded by defendant nor brought to the consideration of the trial court, is not available to him on appeal.</p>

<p>syllabus by the court.</p> <p>Agency— Commissions — Verdict Not Supported by Any Evidence — Verdict Set Aside. A verdict contrary to unconflicting evidence, for one-half the amount plaintiff should recover if entitled to recover, should be set aside at the instance of defendant.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Master and Servant — Injury from Falling Stone in Coal Mine — Unsafe Place to Work — Negligence of Employer. A workman laying track for a steam shovel in a strip pit coal mine was injured by a stone, which had been loosened by the steam shovel but not removed, falling from the high-wall near -the water can to which he went for a drink. The wall could have been inspected and the loosened stone removed with little trouble and expense. Where the injury occurred the wall was not constantly changing as the work progressed but had been made several days before. Held, that a judgment for damages resulting from the injury predicated upon the negligence of the employer in not furnishing the workman a safe place in which to work will not be disturbed.</p>

<p>Appeal from Pottawatomie district court; Martin A. Bender, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Conspiracy — To Injure Reputation and Character of Another — Unlawful Arrest and Imprisonment. When several parties conspired together to place a woman in a compromising position with a man afterwards to be selected, and afterwards, in furtherance of the conspiracy, lured the woman to the room of the plaintiff and took or caused to be taken into the room intoxicating liquor without the consent of the plaintiff so as to make it appear that plaintiff was engaged in unlawful conduct, and then called the police and caused the arrest and imprisonment of the plaintiff to his defamation and injury, the defendants are liable for the damages suffered by the plaintiff although he had not been selected when the plan was originally conceived, but was subsequently included in the plan and in the accomplishment of their wrongful purpose.</p> <p>2. Same — Admissions of Coconspirator Competent Evidence. Admissions of one of the defendants tending to show the conspiracy and accomplishment of the wrongful purpose of the defendants are admissible in evidence, although a prima facie case to fully establish the conspiracy had not yet been made.</p> <p>3. Same — Order of Proof Within Judicial Discretion. In such a case the order of proof is largely within the discretion of the trial court, and the admission of the evidence at the time it was received cannot be regarded as prejudicial error where the accomplishment of the wrongful purpose of defendants was in the end well established.</p> <p>4. Same — -No Material Error in Instructions. Instructions given to the jury relating to the conspiracy examined and held to be without material error.</p> <p>5. Same — Refusal to Submit Requested Interrogatories. There is no error in the refusal to submit a special interrogatory where it embraces several distinct questions and calls for a recitation of considerable of the evidence.</p> <p>6. 'Same. A reasonable rule requiring timely presentation of special questions may be enforced, and ordinarily the court may refuse to submit special questions not presented until after the jury has been instructed and counsel are about to begin argument.</p> <p>7. Same — Evidence—Vepdict—Judgment. The evidence examined and held to be sufficient to sustain the verdict and judgment.</p>

<p>SYLLABUS BY THE COURT. .</p> <p>Promissory Notes — Evidence Showed No Déjense — Verdict Properly Directed for Plaintijj. The proceedings in a suit on promissory notes considered, and held, the court properly directed a verdict for plaintiff as against defenses of nonexecution and want of consideration.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Agency — Tort oj Agent oj Railroad Company — Whether Act oj Agent Was Within Scope oj His Authority Question of Fact for Jury. In an action against a railroad company for an injury done by one of its agents while attempting an arrest it is held that the evidence tended to show his conduct to have been within the scope of his authority and that the instructions complained of are free from material error.</p>

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

<p>SYLLABUS by the court.</p> <p>1. Criminal Law — Complaint Sufficiently Charged a Felony. The complaint examined in a criminal case and found to sufficiently charge a felony.</p> <p>2. Same — Evidence Sufficient to Bind Defendant Over to District Court for Trial. The evidence considered and found sufficient to bind the defendant over to the district court for trial.</p> <p>3. Same — No Reversible Error in Record — Judgment Modified as to Costs. Various assignments of error considered and held to be without substantial merit.</p>

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