Volume 4 — Kansas Court of Appeals Reports

<p>1. Counter-claim — Evidence and Findings Insufficient. When the evidence and findings of the jury show that the defendant has wholly failed to establish his counter-claim, for damages against a cause of action confessed in favor of the plaintiff, the latter is entitled to judgment, notwithstanding a general verdict for the defendant.</p> <p>2. Findings — Inability of Jury to Ansiver. When the jury, in answer to special questions as to material facts, say that they are unable to answer from the evidence, such answers are equivalent to findings thereon adverse to the party upon whom rests the burden of their proof.</p>

<p>Memorandum. — Error from Wyandotte court of common pleas; T. P. Anderson, judge. Action by The Missouri Valley Lumber Company against John Reid and others to foreclose a lien for jnaterials. Judgment for defendants. Plaintiff brings the case to this court.</p>

Memorandum. — Error from Wyandotte court of common pleas; T. P. Anderson, judge. Aution by H. F. Johnson against The Concordia Fire Insurance Company on a policy of insurance. Judgment for plaintiff. Defendant brings the case to this court.

Memorandum. — Appeal from Brown district court; R. M. Emery, judge. Prosecution for an illegal sale of intoxicating liquor. Defendant, O. M. Keys, was convicted. He appeals.

<p>Memorandum. — Error from Wyandotte court of com-* mon pleas ; T. P. Anderson, judge. Action by II. F. Johnson against The Niagara Fire Insurance Company of the City of New York to recover on a policy of insurance. Judgment for plaintiff. Defendant brings the case to this court.</p>

<p>Memorandum.— Error from Shawnee circuit court; J. B. Johnson, judge. Action in replevin by E. H. Perry & Co. against Robert Eaves and John Spear. Judgment for defendants'. Plaintiffs bring the case to this court.</p>

Memorandum.— Error from Atchison district court; Robert M. Eaton, judge. Action in replevin by James G. Frazer against John H. Barry, as sheriff of Atchison county. Judgment for defendant. Plaintiff brings the case to this court.

Memorandum. — Error from Nemaha district court; J. F. Thompson, judge. Action by M. A. Shuemaker, as administratrix of the estate of S. C. Shuemaker, deceased, against Theodore Wolfley, as administrator of the estate of Nathaniel Morris, deceased, to recover an alleged balance due on a partnership account. Judgment for plaintiff. Defendant brings the case to this court.

<p>Memorándum. — Error from Pottawatomie district court; William Thomson, judge. Proceeding by The United States National Bank of Atchison, Kansas, against A. B. Pomeroy and others as garnishees. Judgment for garnishees. Plaintiff brings tbe case to this court.</p>

<p>1. Habeas Corpus — Imprisonment, When not Illegal. While habeas corpus is a proper remedy for every illegal imprisonment, both in civil and criminal cases, an imprisonment is not illegal in the sense of this rule merely because the process or order under which a party is held has been irregularly issued or is erroneous.</p> <p>2. - Order for Arrest — Defendant, When not Discharged. Where a creditor in a civil action files in the office of the clerk of the court in which the action is pending an affidavit of his authorized agent, stating therein the nature of claim, that it is just, and the amount thereof, and showing that the defendant is guilty of one or more of the several fraudulent acts enumerated in section 148 of the code, and the affidavit also contains a statement of the facts claimed to justify the belief that the defendant is guilty of the fraudulent acts so charged against him, and there is also filed in said office a proper bond as required by law, the said clerk thereby acquires jurisdiction to issue an order for the arrest of the defendant; and, in such case, wherfe the process so issued is regular upon its face, and is executed by the sheriff in the manner required by law, the defendant will not be discharged on habeas corpus merely because an attachment may have been previously issued against him in the same case and levied,, upon sufficient property to satisfy the plaintiff’s claim.</p>

Memorandum.— Error from Shawnee circuit court; J. B. Johnson, judge. Action by The Home Insurance Company against The Atchison, Topeka & Santa Pe Railroad Company to recover $1,370 paid on a policy of fire insurance. Judgment for defendant. Plaintiff brings the case to this court.

Memorandum.— Error from Morris district court; M. B. Nicholson, judge. Action by Asahel Henry Beach against A. Moser, jr., and others, to recover on a guardian’s bond. Judgment for defendants. Plaintiff brings the case to this court.

<p>1. Evidence — Demurrer. A demurrer to the evidence should be overruled when the evidence fairly tends to establish every material allegation of the petition.</p> <p>2. Street-bailway — Sights. A street-railway has not exclusive rights to the use of its tracks and ground covered by it, and is constructed and operated on the theory that it is not an additional burden on the highway, but is merely an additional use contemplated when the street was laid out. This necessitates a liberal construction in favor of the rights of the public, and the law is averse to concede any exclusive rights to the portion of the street to railway companies, except where the necessities of the case demand.</p> <p>3. -Contributory JSTegligenee. Where one acts erroneously through fright or .excitement, induced by another’s negligence, or adopts a perilous alternative in the endeavor to avoid an injury threatened by such negligence, or when he acts mistakenly in endeavoring to avoid an unexpected danger negligently caused by the defendant, he is not guilty of contributory negligence as a matter of law.</p> <p>4. Personal Injury — Damages—Pleading. A personal injury from a single wrongful act or negligence is an entirety, and affords ground for only one action. In that action recovery may be had for all damages suffered up to the time of trial and for all which are shown to be reasonably certain or probable to be suffered in the future ; and when these are the necessary and proximate result of the act complained of, they need not be specially averred, but are recoverable under the general allegation of damages.</p>

<p>1. Injured Employee — Action■—Negligence — Evidence. Negligence is not to be presumed, but must be proven; and when the evidence in an action for damages against a railroad company under paragraph 1251, General Statutes of 1889, shows that the employee charged with being negligent exercised toward the injured employee the care and diligence which a prudent person would ordinarily exercise under like circumstanees, no liability is established against the company.</p> <p>2. -No Liability. Under the facts in this case, held, that the railroad company is not liable for damages on account of the accident.</p>

Memorandum. — Error from Wyandotte district court; H. L. Alden, judge. * Action by The Farmers and Mechanics Lumber Company against John Doorley and others on a bond. Judgment for plaintiff. Defendants John Doorley and George Gruble bring the case to this court.

Memorandum. — Error from Leavenworth district court; Robert Crozier, judge. Action in ejectment by John C. Douglass against R. B. Craig. On defendant’s death Imogene Craig was substituted. Judgraent for defendant. Plaintiff brings the case to this court.

<p>Pleading — Failure of Proof . Where the testimony fails to establish the allegations of the petition, not only in some particular or particulars, but in its general scope and meaning, there is a failure of proof, and the plaintiff cannot recover. -</p>

<p>1. Limitation or Action —Running in Favor of Trustee. When one person holds the legal title to real estate as trustee for one who is the equitable owner, the statute of limitations will not run, as between them, until there is a renunciation of the trust, or until the party holding the legal title by .some act or declaration asserts a claim adverse to the real owner.</p> <p>2. -Adverse Possession. Open, notorious, exclusive possession of real estate is notice to the world of whatever title, or interest the person so in possession may have therein.</p> <p>3. -Bona Fide Mortgagee. The defendant in this action being in the actual, open, notorious and exclusive possession of ■ the real estate in controversy at the time the plaintiff’s mortgage was executed, and when the plaintiff acquired the same, the mortgage was taken and is held subject and inferior to the title of the defendant.</p>

Memorandum.— Ei-ror from Shawnee district court; John Guthrie, judge. Action by Annie C. Barney against Guilford Dudley and William O. Ewing for damages for an alleged conversion of a life-insurance policy. Judgment for plaintiff. Defendants bring the case to this court.

Memorandum. — Error from Shawnee circuit court; J. B. Johnson, judge. Action by The Merrimack River Savings Bank against W. S. Curry and others on a bond. Judgment for defendant Curry. Plaintiff brings the case to this court.

<p>Memorandum. — Error from Wabaunsee district' court; William Thomson, judge. Action by Amaya Given against The Chicago, Rock Island & Pacific Railway Company for killing a horse. Judgment for plaintiff. D fondant brings the case to this court.</p>

<p>1. Contract — Cause of Action — Pleading. Where the plaintiff has a cause of action on a contract, he must state the contract, and cannot properly state his cause of action without stating the contract.</p> <p>2. Tort — Implied Contract — Set-off. Whenever one person commits a wrong or tort against the estate of another, with the intention of benefiting his own estate, the law will, at the election of the party injured, imply or presume a contract on the part of the wrong-doer to pay to the party injured the full value of all benefits resulting to such wrong-doer. And when the injured party elects to waive the tort, his cause of action may be used as a set-off. (Fanson v. Linsley, 20 Kan. 235.)</p> <p>3. -Contract — When not. Implied. Where one person commits a wrong or tort against another, without any intention of benefiting his own estate, and his own estate is not thereby benefited, the law will not imply or presume a contract on the part of the wrong-doer to pay for resulting damages; and such cause of action cannot be used as a set-off. (Fanson v. Linsley, supra.)</p>

Memorandum. — Error from Shawnee district court; Z. T. Hazen, judge. Action by The State of Kansas against Van R. Blush to compel defendant to support an alleged illegitimate child. Judgment for plaintiff. Defendant brings the case to this court.

Memorandum. — Error from Wyandotte district court; Henry L. Alden, judge. Action by J. E. Greer and Frank O. Mills, partners as Greer, Mills & Co., against John N. Payne and others for an injunction. Judgment for defendants. Plaintiffs bring the case to this court.

<p>Conditional Sale — Failure to Record — Bona Fide Purchaser. A conditional sale of a piano was made in the state of Indiana by • B. to A. under a contract providing that the title thereto should be retained by B. until the same was fully paid for. By the laws of Indiana such a contract was legal and valid, and no record thereof was required in order to protect the holder. Subsequently the purchaser, in violation of the terms of the contract, and without the knowledge of the seller, removed the piano to this state, and sold and delivered it to H., who purchased in good faith, without notice of the retention of title by A. Upon discovery by B. of the whereabouts of the piano, this action was commenced against H., the purchaser, to recover its possession. Held, ThatB. was entitled to recover, notwithstanding such contract was not deposited with the register of deeds of the county in this state to which the piano was wrongfully removed by A.</p>

Memorandum. — Error from Cherokee district court; J. D. McCue, judge. Action by Eliza J. Thompson, as guardian of Corydon C. Thompson, an insane person, against Roseberry Pierson, to recover damages for an alleged assault and battery. Judgment for plaintiff. Defendant brings the case to this court.

Memorandum. — Error from Bourbon district court; S. H. Allen, judge. Action by Hubert Lardner against James Windle and others to restrain the officers of school district No. 110, Bourbon county, from issuing bonds. Judgment for defendants. Plaiqtiff brings the case to this court.

Memorandum. — Error from Bourbon district court; S. H. Allen, judge. Action by L. A. Brake against L. Bolinger and others to recover damages for a breach of covenants of warranty. Judgment for plaintiff. Defendants bring the case to this court.

Memorandum. — Error from Coffey district court; Charles B. Graves, 'judge. Action by George W. Love against The Kansas Loan and Trust Company on a contract for a loan Judgment for plaintiff. Defendant brings the case to this court.

Memorandum. — Error from Montgomery district court; J. D. McCue, judge. Action by Elizabeth Morrow against The Atchison, Topeka and Santa Fe Railroad Company to recover for personal injuries. Judgment for plaintiff. Defendant brings the caseto this court.

Memorandum. — Error from Osage district court; William Thomson, judge. Action by William Johnson against James A. Borin on a contract for services performed. Judgment for plaintiff. Defendant brings the case to this court.

Memorandum. — Error from Miami district court; •John T. Burris, judge. Action by John C. Sheridan against Elias J. Snyder and others for partition and other relief. Judgment for defendants. Plaintiff brings the case to this court.

Memorandum. — Error from Miami district court; John T. Burris, judge. Action by The National Bank of Paola against Richard H&mpsOn, as administrator of the estate of John Morris, deceased, and others, on a note and mortgage. Judgment for defendants. Plaintiff brings the case to this court.

Memorandum. — Error from Labette 'district court; J. D. McCue, judge. Action' by James S. Young against The Missouri, Kansas & Texas Railway Com.pany to recover for personal injuries. Judgment for plaintiff. Defendant brought the case to this court.

Memorandum. — Error from Coffey district court; Charles B. Graves, judge. Action by Annie M. Chamberlain against The Missouri Pacific Railway Company to recover damages on account of fire. Judgment for plaintiff. Defendant brings the case to this court.

Memoeandum.— Error from Miami district court; John T. Bueeis, judge. Action by Mrs. E. A. Corbett against P. P. Brady, Elizabeth C. Brady, J. J. Lord, E. Lord and William Johnson upon a note and mortgage'. Judgment for plaintiff. Defendants bring the case' to this court.

Memorandum. — Error from Miami district court; John T. Burris, judge. Action on a contract of guaranty by The Davis Sewing Machine Company against L. C. Gibbons. Judgment for defendant. Plaintiff brings the case to this court.

Memorandum. — Error from Crawford district court; J. S. West, judge. Action by W. J. Eldridge against John T. Deets, as sheriff of Crawford county, to enjoin a sale under an execution. Judgment for defendant: Plaintiff brings the case to this court.

Memorandum. — Appeal from Crawford district court; J. S. West, judge. Prosecution for violation of the prohibitory liquor law. Defendant, E. B. Cropper, was convicted. He appeals.

Memorandum.— Appeal from Cherokee district court; A. H. Skidmore, judge. Prosecution for unlawful sales of intoxicating liquors. Defendant, Thomas McManus, was convicted, and appeals.

<p>1. Eminent Domain — Valid Statute. Article 9 of chapter 23, General Statutes of 1889, authorizing the appropriation of real estate for the use of railroad companies for right of way, does not contravene the provisions of section 4, article 12, of the constitution of Kansas. (Hunt v. Smith, 9 Kan.-138.)</p> <p>2. -Proceeding in Bern — Notice Includes All Parties Interested. Condemnation proceedings under the statutes are essentially proceedings in rem, and when commissioners have been duly appointed and qualified and given notice by publication that they will proceed at a given time and place to commence the condemnation of a right of way for a railroad company through the county, it is the duty of all persons owning property that is liable to be affected by such appropriation to take notice of all future proceedings, and thereby protect their rights.</p> <p>3.--Proceeding Defined —Deposit Subject to the Disposal ,of a Court. The condemnation of the right of way for a railroad company, the appraisement of the land appropriated for railroad purposes, the assessment of damages to the residue of the tract of land from which it is taken and the money deposited in the county treasury in accordance with the report of the commissioners represent the whole right of way and interest of every'person concerned in the land, and the money, when deposited with the county treasurer, becomes in law the property of the party entitled to it, and is subject to the disposal of a court having jurisdiction to determine the rightful owner thereto.</p> <p>4. -Where Proceedings Are Regular, Ejectment Will not Lie. Where condemnation proceedings have been conducted in strict conformity to the requirements of the law, and compensation for the land appropriated as right of way has been secured by the deposit of money with the county treasurer of the county where the land is situated, and the owner of the land fails to appeal or take any legal action in the matter until the completion and operation of the railroad, he is then estopped from maintaining an action in ejectment to evict the railroad company froTu the right thus acquired.</p>

<p>Memorandum. — Error from Bourbon district court; . J. S. West, judge. Action by E. F. Ware against C. A. Nelson and M. B. Weedon to recover a balance due for rent. Judgment for defendants. Plaintiff brings the case to this court.</p>

Memorandum. — Error from Woodson district court; L. Stillwell, judge. Action by Madison Frame against Henry Ashley and others to recover the amount of a deposit in the Woodson County State Bank.Judgment for plaintiff. Defendants bring the case to this.court.

Memorandum. — Error from Franklin district court; A. W. Benson, judge. Action by W. C. Hutchison, as receiver of The Bank of Richmond, against C. E. Putnam on a contract of subscription. Judgment for plaintiff.

<p>Memorandum.— Error from Montgomery district court; J. D. McCue, judge. Appeal by John W. Glass from an order of the Board of County Commissioners of Montgomery county rejecting a bill for salary as county clerk, Judgment for appellant. Appellee brings the case to this court.</p> <p>The statement of the case, as made by Johnson, P. J., is as follows :</p> <p>This was an appeal in the court below. The defendant in error, John W. Glass, appealed to the district court of Montgomery county, Kansas, from an order of the board of county commissioners of said county rejecting a bill presented for a balance claimed to be due on his salary as county clerk. The claim was disallowed, and the appeal perfected. The defendant in error filed a petition on said appeal, which contained the following statements :</p> <p>That the appellant, John "W. Glass, was elected county clerk of Montgomery county at the general election held November 5, 1893 ; that he qualified and entered upon the performance of his duties as such clerk on January 8, 1894, and has ever since performed such duties ; that chapter 141, section 2, of the. Session Laws of Kansas of 1889, fixed his salary as county clerk at $2,400 per annum, payable quarterly ; that on the 8th day of April, 1894, there was due him, for salary for the first quarter, $600 ; that on March 3,1891, the legislature of the state of Kansas passed and enacted an act entitled “An act regulating the fees and salaries of county treasurer, county clerk, county attorney, probate judge, register of deeds, clerk of the district court, surveyor, superintendent of public instructions, coroner and sheriff of Montgomery county, Kansas ’ ’; that said law is unconstitutional and void ; that on the 9th day of April, 1894, he presented to the county commissioners of Montgomery county, Kansas,' a bill for $450 for his salary as county clerk for the first quarter, which bill said commissioners allowed and paid him ; that at the time the bill was presented, allowed and paid as aforesaid there was an additional amount of $150 due him on his salary and fees for said first quarter, under the constitutional and valid laws of the, state of Kansas; that on April 13, 1894, he presented a bill to said commissioners for said additional sum of $150, and it was rejected, whereupon he appealed from the decision disallowing said bill to the district court; that there is due, owing and unpaid to Mm from said commissioners the sum of $150, and interest thereon from April 13, 1894, at the rate of 6 per cent! per annum, for which amount judgment was asked.</p> <p>At the October term, 1894, the.appellee, the board of county commissioners of said Montgomery county, Kansas, filed a general demurrer to said petition. The court heard and overruled the demurrer, and the appellee elected to stand on its demurrer. The said court 'rendered judgment against it therein, and in favor of the appellant, for $150, and interest thereon at the rate of 6 per cent, per annum from April 13, 1894. To all of which the plaintiff in error excepted, and now brings the case here on error, and asks a reversal of the ruling and judgment of the court below.</p>

<p>Memorandum.— Original application byL. D. Roberts for a writ of habeas corpus.</p>

Memorandum.— Error from Miami district court; John T. Burris, judge. Action by W. M. Mills against the City of Osawatomie to recover on a contract for electric lights. Judgment for plaintiff. Defendant brings the case to this court.

Memorandum.— Error from Montgomery district court; J. D. McOue, judge. Action by Emmett O. Adams, as agent for Elizabeth B. Weaver and others, against The St. Louis & San Francisco Railway Company to recover on a draft. Judgment for plaintiff'. Defendant brings the case to this court.

Memorandum. — Error from Osage district court; William Thomson, judge. Action in replevin by M. L. Campbell against J. V. Quinton. Judgment for, defendant. Plaintiff brings the case to this court.

Memorandum. — Error from Reno district court; L. Houk, judge. Action in replevin by John Rex-road against H. N. Johnson, as constable of the city of Hutchinson. Judgment for defendant. Plaintiff brings the case to this court.

Memorandum. — Error from Sedgwick court of common pleas; Jacob M. Balderston, judge. Action by Duvalson Gf. Weaver and others against George P. Lock and others. From an order discharging an attachment plaintiffs bring the case to this court.

Memorandum. — Error from Sumner district court; James A. Ray, judge. ' Action on a note and mortgage by Harriet Bohanna against John A. Murray and others. Judgment for plaintiff. Defendant Murray brings the case to this court.

<p>1. Excess Fare — Failure to Keep Ticket Office Open. When the railroad company fails to keep its ticket office open as required by paragraph 1325 of the General Statutes of 1889, it cannot demand, charge or receive from a passenger more than the regular fare of 3 cents per mile, and the company or its employees have no right to expel him from the train for refusing to pay more.</p> <p>2. -Invalid Buie of Company. A rule of a railroad company which requires a passenger either to pay an amount in excess of the highest amount that can be legally charged for his passage or be expelled from the train is not a valid rule.</p> <p>3. -No Funds for Excess Fare. Where an illegal excess fare is demanded from a passenger and he does not have the •amount demanded, he cannot avoid being expelled from the train by paying the illegal excess fare.</p> <p>4. Special Findings — Befusal not Error When Immaterial. Where special questions are furnished by a litigant, with a request to the judge to submit them to the jury, if they are immaterial and the facts sought to be determined need not be passed upon by the jury, either because they do not relate to the issues raised or are uncontradicted, and are necessarily included in the general verdict, it is not error to refuse to submit them to the jury for answers.</p> <p>5. -Properly Refused. The court does not err in refusing to require the jury to find the amount allowed the plaintiff for mental suffering, when it has instructed them that they cannot allow the plaintiff anything for mental suffering except such as grows directly from and is the result of the physical pain and suffering endured.</p> <p>6. Trial — Improper Remarks of Gounsel. When counsel for > both sides of a case make improper statements to a jury in the. argument of a case, the plaintiff in error should repudiate the improper statements of its counsel before objecting to the statements of the counsel for the opposite part37. ></p> <p>7. Ejectment erom Train — Damages not JSxeessive. A verdict of $296.34 for damages for labor and inconvenience, physical and mental pain and suffering, and humiliation, upon such a state of facts as is shown in this case, is not excessive.</p>

Memorandum. — Error from Cowley district court; M. G. Troup, judge. Action by H. H. J. Johnson against The German American Insurance Company and others on an insurance policy. Judgment for plaintiff. Defendant insurance company brings the case tó

Memorandum. — Error from Harper district court; U. W. McKay, judge. Action by Florence Dawson against D. F Sholley to enforce an alleged stockholder’s liability Judgment for defendant. Plaintiff brings the case to this court.

Memorandum. — Error from Harvey district court; F. L. Martin, judge. Action in replevin by T. C. Brewer, as assignee, against James Ryan and others. Judgment for plaintiff. From an order refusing to substitute E. L. Parris as plaintiff, Parris brought the case to this court. Parris having died, C. M. Beachy was substituted as plaintiff in error.

Memorandum. — Error from Greenwood district court.; C W. Shinn, judge. Action by A. M. Hunter, as assignee of Jewett & Lowen, against'J. A. • Smith, as sheriff of Greenwood county, to recover the value of goods sold under orders of attachment. Judgment for plaintiff. Defendant brings the case to this court.

Memorandum. — Error from Sedgwick district court; C. Reed, judge. Action by John Y. Farwell and others against W. W. Hays for an alleged conversion of goods. Judgment for plaintiffs. Defendant brings the'case to this court.

Memorandum.— Error from Lyon district court; Charles B. Graves, judge. Action by M. M. Mason against Tbe Atchison, Topeka & Santa Fe Railroad Company to recover damages on account of a shipment of cattle. Judgment for plaintiff. Defendant brings the case to this court.

Memorandum. — Error from Harper district court; G. W. McKay, judge. Action in attachment brought by T. S. Moffett and John Moffett, copartners as Moffett Bros., against Frank Boydstun. From an order sustaining the motion of Euphemia Kittie Boydstun to discharge the attachment plaintiffs bring the case to this court.

<p>Memorandum. — Error from Sedgwick district court ~ C. Reed, judge. Action by J. V. Daugherty against Barbara A. McCalla and others, to set aside a conveyance and for other relief. D. M. Tipton cross-petitioner. Judgment for the cross-petitioner. Defendants bring the case to this court.</p>

<p>1. Insurance — Interest of Mortgagee — Change of Title. When a loss of insured property occurs according to the terms of the policy, and the insurance policy has attached to it a subrogation contract which stipulates that the loss, if any, is payable to a mortgagee or his assigns, as his interest may appear, the owner of the mortgage is the insured to the extent of his interest, and a change of title which increases his interest in the insured property, even to absolute ownership, will not release the insurance company from its liability to pay the loss.</p> <p>2. - Change from Lien-holder to Absolute Owner. A change in the title of insured property which increases the interest of the insured from a lien-holder to absolute' ownership is not such a change of ownership as requires notice to be given to the insurance company under the terms of a subrogation contract which stipulates that the mortgagee shall notify the insurance company of any change of ownership.</p>

Memorandum. — Error from McPherson district court; Lucien Earle, judge. Action by Benjamin J. Stucki against The Travelers Insurance Company to recover a penalty for refusing to release of record a mortgage. Judgment for plaintiff. Defendant brings the case to this court.

Memorandum. — Error from Sedgwick court of common pleas; Jacob M. Balderston, judge. Action by The Fairmount Town Company against T. Alexis Berry on a contract for sale of realty. Judgment for plaintiff. Defendant brings the case to this court.

<p>Mortgage — Assumption by Vendee. Where W. mortgaged certain lands to S., and afterward W. and wife executed a deed conveying said lands to D., and there is a covenant in the deed, that the premises conveyed are free and clear from all incumbrances, except a mortgage of $1,500, which is assumed by the party of the second part, and in an action to foreclose the mortgage a personal . judgment is sought against D. for the mortgage debt, and D. answers that he did not in any manner ever assume the mortgage indebtedness, and there is no evidence that he ever accepted the deed, or in any manner assumed the mortgage debt, held, that the court did not err in holding that he was not liable for the payment of the mortgage indebtedness.</p>

Memorandum. — Error from Reno district court; L. Houk, judge. Action by The National Bank of Commerce against The Board of Education of the City of Hutchinson and George H. Rice to foreclose, a mechanic’s lien. Judgment for plaintiff. Defendant board brings the case to this court. .

Memorandum. — Error from Cowley district court; M. G. Troup, judge. Action by J. Mack Love, William Upton, and Eliza Hill, as executors of the last will and testament of James Hill, deceased, against LaQuincy Phillips and LaQuincy Phillips and Edward D. Keys, as administrators of the estate of James Phillips, deceased, to set aside a judicial sale and sheriff’s deed. Judgment for plaintiffs. Defendants bring the case to this court.

Memorandum. — Appeal from Reno district court; F. L. Martin, judge. Prosecution for unlawful co- ' habitation. Defendant, W. E. Hook, was convicted. He appeals the case to this court.

<p>Memorandum. — Error from Cowley district court; A. M. Jackson, judge. Action by The Winfield Building and Loan Association against J. C. McMullen to recover upon a bond. Judgment for defendant. From an order granting a new trial defendant brings the case to this court.</p>

Memorandum.— Error from Greenwood district court; C. A. Leland, judge. Action by The Dartmouth Savings Bank against Wm. C. Mahanes. and others to foreclosure a mortgage. Judgment for plaintiff. Defendants bring the case to this court.

Memorandum. — Error from Sedgwick court of com- ■ mon pleas; Jacob M. Balderston, judge. Action by The Citizens Bank against Rufus Cone for an alleged conversion of personal property. Judgment for plaintiff. Defendant brings the case to this court.

Memorandum. — Error from Sumner district court; James A. Ray, judge. Action in ejectment by James H. Holland against Henry Stunlde. Judgment for plaintiff. Defendant brings the case to this court.

Memorandum. — Error from Greenwood district court; G.W. Shinn, judge. Action by S. E. Myers against George Knabe and others to foreclose a mortgage. Judgment for defendants. Plaintiff brings the case to this court.

<p>Memorandum.— Error from Stafford district court; J. H. Bailey, judge. Action by The Wosiern Kansas Loan and Mortgage Company against George A. Davis and others to recover on a promissory note. Judgment for defendants. Plaintiff brings the case to this court. Action revived in the name of William Scott, as receiver.</p> <p>The statement of the case, as made by Johnson, P. J., is as follows :</p> <p>The Western Kansas Loan and Mortgage Company commenced an action in the district court of Stafford county against George A. Davis and Ozella Davis upon a promissory note dated September 12, 1888, for the sum of $370.06, due in 45 days from date thereof, payable at Macksville, with interest at 12 per cent, from date. This note was secured by chattel mortgage on certain property therein described. This note of $370.06 was given as collateral of certain other promissory notes given by Davis to the Eirst Bank’of Macksville, which had been renewal notes for various loans and dealings between Davis and the Eirst Bank of Macks-ville and were afterward transfer-red to the Western Kansas Loan and Mortgage Company, whose money had been handled by the bank, and for which the bank had been transacting business. After issue had been joined between the parties in the original action, the whole matter was by agreement of parties referred to a referee, to hear the evidence and make a report to the court of his findings of fact and conclusions of law thereon. The referee after qualifying and giving notice to the parties of the time and place of trial, proceeded to hear the evidence and arguments of the respective parties and made a report in writing of Ms findings of fact and conclusions of law therein, and filed the same with the clerk of the district court. After the referee filed his report the plaintiff below filed exceptions to the report of the referee, and the' same was presented to the court by the respective parties. The exceptions to the report were overruled, and the plaintiff duly excepted to the judgment of the court in overruling its exceptions. On motion of the defendant below the report of the referee was confirmed, and a judgment rendered by the court in accordance with said report. The plaintiff below filed its motion to set aside the judgment and grant-it a new trial, which motion was overruled, and plaintiff duly excepted and made case, and filed its petition in error with case made attached in the supreme court, and the same was duly certified to this court for its decision.</p> <p>After the case was certified to this court the case was revived in the name of William Scott, as receiver of the Western Kansas Loan and Mortgage Company.</p>

Memorandum. — Error from Ness district court; Y. PI. Grinstead, judge. Action by Missouri A. Selders against The Chicago, Kansas & Western Railroad Company and another in ejectment. Judgment for plaintiff. Defendant company brings the case to this court.

Memorandum. — Error from Rice district court; A. M. Lasley, judge pro tbm. Action by John M. English against Henry Swartz and John Osthoff to recover on a redelivery bond. Judgment for plaintiff. Defendants bring the case to 'this court.

<p>1. Carries—Negligence—Proof. Under the bill of particulars filed in this case, the plaintiff is entitled to prove any negligence on the part of the company while the cattle were in its possession which caused the damages complained of.</p> <p>2. Live Stock — Shipment—Liability for Injuries. Where stock is shipped under a written shipping contract which provides, among other things, that; as a condition precedent to the right of the shipper to recover damages for loss or injury to said stock, he shall give notice in writing of his claim therefor, the shipper must prove such notice .to have been given before he can recover.</p> <p>3. - Valid Contract. The fact that the railroad company collected an excessive 'freight-rate at the destination of the stock does not show fraud in the execution of the shipping contract, and such contract is not invalid because of such overcharge.</p>

<p>1. Contract — Acceptance—Specific Performance. Where there have been written communications between H., a resident of Kansas, and E., a resident of Missouri, concerning the purchase and sale of a tract of land owned by E. in Kansas, in which correspondence E. proposes to sell the land to H. foi; a certain sum of money, to be sent to him at his home in Missouri as soon as the acceptance of the proposition, and H. writes E. that he will take the land at the sum proposed, but that he will deposit the money in a bank at the town of K., in Kansas, and E. does not consent to the conditions in the proposed acceptance, and H. afterward deposits the amount of money with the bank and demands of E. a deed for the land, and E. refuses to accept the deposit and execute a deed for the land, held, that there has not been such a contract between the parties as a court of equity will enforce by specific performance.</p> <p>2. - Mutuality. There can be no valid contract for the sale and conveyance of the land unless the parties have mutually assented to the same conditions — until there is a clearly defined offer on the one hand, and an acceptance on the other of the very terms offered.</p> <p>3. -No Mutuality. Where an executory contract consists of mutual promises both parties must be bound, or it will be void for want of mutuality.</p> <p>4. -Enforcement of Contract. No contract for the sale and purchase of land can be enforced by decree of specific performance unless it is mutual in its character and certain in its terms.</p>

Memorandum. — Error from Hamilton district court; A. J. Abbott, judge. Action by T. H. McHenry against John W. and James Bishop on a promissory note. Judgment for plaintiff. Defendants bring the case to this court.

Memorandum. — Error from Ford district court;, A. J. Abbott, judge. Action by Hanauer, Kobn & Co. against Julius Wulfsohn and others in attachment. Barton Brothers intervened and moved to dissolve the attachment. From an order denying said motion Barton Brothers bring the case to this court.

<p>Memorandum:.— Error from Ford district court; A. J. Abbott, judge. Action by Hanauer, Kohn & Co. against Julius Wolfsohn and others for an attachment. From an order denying a motion to discharge a certain attachment Barton Brothers bring the case to this court.</p>

<p>11 emorandum.— Error from Ford district court; A. J. Abbott, judge. Action by Arabella Shepherd against E. P. Shepherd for 'alimony and the custody of children. Judgment for plaintiff.' Defendant brings the case to this court.</p>

Memorandum.— Error from Finney district court; A. J. Abbott, judge. Action by Robert W. Murray against John D. and Mary C. McFall to foreclose a mortgage. Judgment for plaintiff. Defendants bring the case to this court.

Memorandum. — Error from Gove district court; S. J. Osborn, judge. Action by J. B. Beal against Edwin A. McMath on an account.. Judgment for plaintiff. Defendant brings the case to this court.

<p>Memorandum.— Error from Decatur district court; Gr. Webb Bertram, judge. Action by The Elgin Wind-power and Pump Company against Charles A. Van Pelt and others to recover on promissory notes. Judgment for plaintiff. Defendant Van Pelt brings the case to this court.</p>

<p>1. Reply Unnecessary. No reply is necessary when the answer filed amounts simply to a general denial of the allegations set up in the petition.</p> <p>2. Promissory Note — Payment of Indebtedness. The giving of his promissory note for a portion of an antecedent indebtedness of the maker will not be regarded as a payment or extinguishment of such indebtedness in the absence of an understanding to that effect by the parties to such transaction.</p>

Memorandum. — Error from Rawlins district court; A. C. T. Geiger, judge. Application of Daniel Beedy to purchase school-land. On appeal from, the probate court .the district court dismissed his petition, and he brings the case to this court.

Memorandum. — Error from Rawlins district court; (i. Webb Bertram, judge. Action by O. P. Dewey and A. B. Dewey, partners as O. P. & A. B. Dewey, against John M. Burton to recover certain alleged interest ■ moneys collected and not remitted. Judgment for defendant. Plaintiffs bring the case to this court.

Memorandum. — Error from Ellis district court; . S. J. Osborn, judge. Action by M. J. R. Treat against Hill' P. Wilson and another to restrain the collection of a judgment. From an order dissolving a temporary injunction the plaintiff brings the case to this court.

Memorandum. — Error from Norton district court; A. C. T. Geiger, judge. Action by Mahulda A. Duvall against William and Emma Simpson to reform a deed. Judgment for plaintiff. Defendants bring the case to this court.

Memorandum.— Error' from Rawlins district court; G. Webb Bertram, judge. Action by G. P. and A. B. Dewey, copartners as C. P. & A. B. Dewey, against John M. Bnrton and others on a guaranty of a note. Judgment for plaintiffs. Defendants bring the case to this court.

Memorandum. — Error from Rawlins district court; A. C. T. Geiger, judge. Action by A. E. Randall against John M. Burton for an alleged conversion of a stock of goods. Judgment for plaintiff. Defendant brings the case to this court.

Memorandum. — Error from Ellis district court; Lee Monroe, judge. Action by The Acme Harvester Company against Ed. F. Madden to recover on an alleged guaranty of payment of certain notes. Judgment for defendant. Plaintiff brings the case to this court.

Memorandum. — Error from Sheridan district'court; Charles W. Smith, judge. Action by W. H. Carnahan against Walter Lloyd to recover on an agreement to assume and pay a real estate mortgage. Judgment for defendant. Plaintiff brings the case to this court.

Memorandum. — Error from Rawlins district court; A. O. T. Geiger, judge. Action in replevin by D. M. Osborne & Co. against Josiah Connor and Josh. Holmes. Judgment for defendants. Plaintiff brings the case to this court.

Memorandum. — Error from Cloud district court; F. W. Sturgbs, judge. Action in replevin brought by The Weir Plow Company against Edward Marshall. Judgment for plaintiff. Defendant brings the case to this court.

<p>Memorandum.— Error from Cloud district court; F. W. Sturges, judge. Action by The King Iron Bridge and Manufacturing Company against Valley Township, in Osborne county, on á bridge contract. Judgment for plaintiff. Defendant brings the case to this court.</p>

Memorandum. — Appeal from Saline district court; R. F. Thompson, judge. Prosecution for violations of the prohibitory liquor laW. Defendant, William H. Nield, was convicted on five counts.

Memorandum. — Error from Republic district court; F. W. Sturges, judge. Action by M. E; and I. B. Hall, partners, as M. E. & I. B. Hall, against The Long Island Insurance Company, of Brooklyn, N. Y., to recover on a policy of fire insurance. Judgment for plaintiffs. Defendant brings the case to this court.

<p>Memorandum. —Error from Osborne district court; Cyrus Heren, judge. Action by Euretta Mix against Jenkin W. Morris and others on a note and mortgage. Judgment for plaintiff. Defendants Jenkin W. Morris and John Norton bring the case to this court.</p>

<p>Memorandum.- — Error from Cloud district court; P. W. Sturges, judge. Action in ejectment brought by C. W. Vandemark against Mrs. C. Jones and others.. Judgment for defendants. Plaintiff brings the case to this court.</p>

Memorandum.— Error from Lincoln district court; W. G. Eastland, judge. Action by The Saline Valley Bank against Eula Morgan, as administratrix of the estate of W. F. Morgan, deceased, on appeal from the probate court, to recover balance due on a judgment. Judgment for plaintiff. Defendant brings the case to this court.

Memorandum.— Error from Geary district court; M. B. Nicholson, judge. Action by J. E. Hayner, Augustine-K. Root, and Frederick W. Drury, partners as J. E. Hayner & Co., against O. H. Trott and Josephine Blakely, as administrators of the estate of Wm. S. Blakely, deceased, to recover commissions paid. Judgment for defendants. Plaintiffs bripg the case to this- court. The statement of the case, as made by Gilkeson, P. J., is as follows : During the years 1884 and 1885, Wm.

Memorandum. — Error from Lincoln district court; W. G. Eastland, judge. Action in replevin by E. A. Casner against Robert and J. T. Crawford. Judgment for defendants. Plaintiff brings the case to this court.

<p>1. Promissory Note — Indorsement — Unverified Pleading. Where, in an action on a promissory note by a person who is not the payee thereof, the petition says nothing about any indorsement of the note, but contains the allegation that said note was “for value sold and delivered to this plaintiff,” such allegation may be put in issue by a pleading not verified by affidavit.</p> <p>2. - Unverified Denial — Plaintiff Must Prove Transfer. Where a defendant files an unverified answer denying the transfer of the note sued upon, and that the plain tiff was the owner and holder thereof, held, that it devolved upon the plaintiff to prove that the note had been transferred to him.</p>

Memorandum. — Error from Marshall district court; R. B. Spilman, judge. Action by E. M. McAtee against W. H. H. Freeman and Fred. Lynd on an appeal bond. Judgment for plaintiff. Defendant Freeman brings the case to this court.

Memorandum. —Error from Mitchell district court; Cyrus Heren, judge. Action.by The Citizens’ Savings Bank of Concordia, Kansas, against George Buist to enforce the liability of a stockholder. From an order directing the issuance of an execution defend-, ant brings the case to this court.

<p>Memorandum. — Error from Dickinson district court; James Humphrey, judge. Action by George W. Wright against the City of Abilene to recover for personal injuries. Judgment for plaintiff. Defendant brings the case to this court.</p>

<p>1. Note akd Mortgage — Construction—Negotiability. Where a bond which is otherwise negotiable in specific terms makes a mortgage deed which was given to secure its payment a part of that contract, held, that each and every condition, provision and stipulation contained in said mortgage deed thereby became a part of said bond to the same extent that it would have been had the same been written in full upon the face of said instrument; and where said mortgage deed contains any promise or stipulation which, if inserted in the bond, would render it non-negotiable, such will be the legal effect of that clause which makes the mortgage deed a part of the contract.</p> <p>2. -Assignment — Notice—Payment. Where the assignee ■ of a non-negotiable instrument fails to give notice of such assignment to the party to whom he looks for payment, a payment made to the original payee, without notice of the assignment by the maker, will be a satisfaction of his liability.</p>

Memorandum. — Error from Crawford district court; J. S. West, judge. Action by The McCormick Harvesting Machine Company against George E. Reiner and J. C. Prentice, copartners as Reiner & Prentice, to recover on promissory notes. Judgment for defendants. Plaintiff brings the case to this court.

Memorandum. — rError from Miami district court; John T. Burris, judge. Action in ejectment by H. B. Smith against Paul Greenlee. Judgment for plaintiff. Defendant brings the case to this court. The statement of the case, as made by Dennison, J., is as follows: This is an action in ejectment brought in the district court of Miami county by H. B. Smith against Paul Greenlee and wife to recover the possession of lot 20 in block 10 in the city of Osawatomie.

<p>1. Case Followed. The ease o£ Beeh v. Baden, 3 Kan. App. 157, cited and followed.</p> <p>2. Courts or Appeals — Jurisdiction. Where a verdict has been set aside and a new trial granted, the refusal of the court to render judgment on the special findings of the jury is not such a judgment or order as we are authorized to reverse, vacate or modify under the authority granted by paragraph 4641, General Statutes 1889.</p> <p>3. -Review of Order Granting a New Trial. Where one of the specifications of error contained in the petition in error and the brief is the order of the court sustaining a motion for a new trial, which contains 17 grounds upon which such new trial is asked and granted, the plaintiff in error is required affirmatively to show that none of the grounds of the motion was sufficient before reversal can bo had.</p> <p>4. -Brief— Contents. Where no argument is made or authorities cited in the brief of plaintiff in error upon the specification of error in granting a new trial, and we can discover no such error as would justify us in reversing the order of the court in granting such new trial, we cannot say that the court erred in making such order.</p>

<p>Memorandum. — Appeal from Osage district court; William Thomson, judge. Prosecution for illegal sales of intoxicating liquors. The defendant, Robert Mitchell, was convicted. He brings the case to this court.</p>

Memorandum.— Error from Franklin district court; A. W. Benson, judge. Action in ejectment by Matilda Johnson against Mary E. Wilson and others. Judgment for plaintiff. Defendants bring the case to this court.

Memorandum. — Error from Douglas district court; A. W. Benson, judge. Proceeding in habeas corpus by Mary Stevens against John C. Moore, as sheriff of Douglas county. The petitioner was remanded to the custody of the sheriff, and brings the case to this court on petition in error.

<p>1. Courts or Appeals — Parties—Review of Order of Substitution. Where in an action to recover the contract price of 1,000 bushels of corn which the plaintiff claimed to have sold to the de- * fendants, the amount sued for was deposited in court, and a third party was substituted as defendant in lieu of the persons against whom the action was instituted, and the plaintiff was required by the court to contest with such third party their respective rights to the proceeds of such sale, and a judgment was thereafter rendered that, of the sum so deposited in court, a certain specific portion should be paid to such substituted defendant, and the plaintiff thereupon instituted proceedings in error to this court, but failed to make the original defendants parties to such proceedings, held, that the question as to whether the trial court erred in such order of substitution cannot be inquired into.</p> <p>2. Instructions, Properly Refused. No prejudicial error is committed by the trial court in refusing to give to the jury certain special instructions asked by the plaintiff where the propositions of law therein correctly stated have already been covered by the general instructions.</p>

<p>1. Petition and Pribcipe — no Signatures — Amendment. Where a petition and a prsecipe for summons are filed with the clerk of the court, neither of which is signed by the plaintiff or his attorney, the defect is merely formal, and the party should be allowed to correct by amendment. The defect is purely technical and does not affect the substantial rights of the party. (Code, § 140.)</p> <p>2. -New Service Unnecessary. Such defects do not oust the court of its jurisdiction where a summons has been issued by the clerk and personally served upon the defendant. Upon amendment being made, no new summons need be issued or served, and the action will be held to have been begun at the date of the issuance of the original summons.</p>

Memorandum. — Error from Wyandotte district court; Henry L. Alden, judge. Action by The Kansas City, Fort Scott & Memphis Railroad Company against The Board of Commissioners of Wyandotte county and M. W. Stewart, as treasurer of said county, to recover back illegal taxes paid. Judgment for plaintiff. Defendants bring the case to this court.

Memorandum. — Error from Atchison district court; Robert M. Eaton, judge. Action by John M. Lane and H. L. Whitaker against M. E. Larkin, as sheriff of Atchison county, and others, to enjoin them from proceeding under an execution. Judgment for plaintiffs. Defendants bring the case to this court.

Memorandum. — Error from Shawnee circuit court; J. B. Johnson, judge. Action by Phillip Zimmerman against T. B. Barnes and others to foreclose a mortgage. Defendant S. M. Crockett filed a cross-petition. Judgment for defendant Crockett. Defendant Barnes brings the case to this court.

Memorandum.— Appeal from Wyandotte court of common pleas ; W. G. Holt, judge. Prosecution for unlawful sales of intoxicating liquors. Defendant, Charles Blunk, was convicted on one count. He brings the case to this court.

Memorandum. — Appeal from Wyandotte district court; Henry L. Alden, judge. Prosecution for a violation of an ordinance of The City of Kansas City. Defendant, Julius Hescher, was convicted in the police court, and appealed. The district court dismissed the appeal. Defendant brings the case to this court.

Memorandum.— Appeal from Wyandote district court; Henry L. Alden, judge. Prosecution for violation of an ordinance of The City of Kansas City. Defendant, C. E. Fagan, was convicted in the. police court, and appealed to the district court. From an order dismissing the appeal he brings the case to this court.

<p>1. Pleadings— Statutory Provision. Where, in any form of action or special proceeding, the statute prescribes certain pleadings to present the issues therein, no other pleadings are necessary.</p> <p>■ 2. Garnishment — Evidence. In a contest between a creditor and a garnishee defendant, the creditor may show any fact tending to prove that the property in the hands of the garnishee defendant belongs to the defendant debtor.</p> <p>3. General Assignment — Preference of Creditors — Valid Peed. Where an assignment is made by an insolvent debtor for the benefit of his creditors, and the deed of assignment contains a provision directing the trustee to distribute the estate in a manner inconsistent with the statute relating to general assignments, such provision will not avoid the conveyance, but should be treated as a nullity by the assignee, and the estate distributed by him as . the statute prescribes.</p>