Volume 79 — Kansas Reports

Lobdell, judge. STATEMENT. J. N. Dyerly was charged with the violation of an ordinance of the city of Kinsley by peddling goods in the city at retail and soliciting persons to buy goods without first having obtained a license therefor. He was convicted in the police court, and appealed to the district court, where there was a trial without a jury.

<p>Appeal from Sedgwick district court; Thomas C. Wilson, judge.</p>

<p>Error from Miami district court; Winfield H. Sheldon, judge.</p>

<p>- Error from Coffey district court; Frederick A. Meckel, judge.</p>

<p>Railroads—Delay in Transporting Stock—Measure of Damages. In an action for delay in transporting live stock, resulting in ■ a loss of market, an instruction given properly stated the measure of damages.</p>

<p>Error from Kiowa district court; Gordon L. Finley, judge.</p>

<p>Error from Marion, district court; Oscar L. Moore, judge.</p>

<p>Quo Warranto — Dissolution of Pretended Corporation. A burial association was dissolved because not organized or conducted according to law..</p>

<p>Error from Kearny district court; William Easton Hutchison, judge.</p>

<p>Error from Labette district court; Thomas J. Flannelly, judge.</p>

<p>Replevin—Preliminary Rulings. Rulings relating to the affidavit and order of delivery in replevin held to haye no bearing upon the trial on the merits.</p>

Error from Brown district court; William I. Stuart, judge. STATEMENT. This is an action brought by R. F. Buckles against the Northeast Kansas Telephone Company to recover for legal services rendered, and for retainer fees covering a number of years. F. M. Pearl was the law partner of Buckles during the time, and- also a director and secretary of the telephone company. He refused to join as plaintiff and was made a defendant.

<p>Error from Rawlins district court; Abel C. T. Geiger, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Railroads—Delay in Transportation—Action for Damages—• Petition. In an action for damages resulting from delay in the transportation of goods by a common carrier, where the petition in general terms alleges a shipment and contains nothing to suggest a special contract, it is not error to deny a motion to require the plaintiff to amend by stating whether he shipped under an oral or a written contract.</p> <p>2. - Contract Limiting Common-law Liability. Assuming it to be the law that where a railroad company has once accepted goods subject to the ordinary liabilities of a common carrier such liabilities can not be lessened by an agreement subsequently assented to by the shipper, the rule can have no application where the parties at all times contemplated the making of a written contract defining their obligations with respect to the shipment.</p>

Error from Scott district court; Charles E. Lob-dell, judge. STATEMENT. The defendant in error employed the plaintiffs in error, a firm of real-estate agents, to sell a large tract of land for him, and contracted to pay them for their services the amount for which the land was sold in excess of $6 per acre. The contract of employment was oral.

Error from Crawford district court; Arthur Fuller, judge. STATEMENT. This action was commenced in the district court of Crawford county by the C. Albers Commission Company to recover a judgment against Robert L. Forrester and Joseph M. Forrester, partners doing business under the firm name of Forrester Brothers.

<p>SYLLABUS BY THE COURT.</p> <p>1. Damages —■ Negligently Conétructed Bridge — Liability of County. A county, while engaged in building a bridge upon a public highway, acts as a subdivision of the state government, and is not liable for the negligent performance of such work unless expressly made so by statute.</p> <p>2. -Defective Bridge—Overflow of Land. Under the provisions of section 579 of the General Statutes of 1901 a bridge is defective only when the defect affects its safety or usefulness as a part of the public highway.</p> <p>3. -Same. A county constructed a bridge where the public highway crossed a stream. The bridge as constructed was in perfect condition for all the purposes of a highway, but by-reason of the abutments being too low it obstructed the flow-of the water during- unusually heavy rains, so as to cause it to overflow adjacent farm lands and injure the crops thereon. Reid, that section 579 of the General Statutes of 1901 does not create any liability against the county in favor of the owner of such lands.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Descents and Distributions—Non-resident Wife—Gift of Land by Husband. A husband may, in good faith, make a gift of land owned by him in this state of which his wife has made no conveyance without defrauding her, if she has never resided here; but to make the gift effective to bar her statutory right accruing after his death he must consummate it. by a conveyance, and the grantee must not be guilty of actual fraud in obtaining it.</p> <p>2. - Fraudulent Attempt to Defeat Widow’s Statutory Right. Certain facts stated in the opinion are held to show a fraudulent attempt to defeat a widow’s statutory right in land owned by her husband in his lifetime, of which neither he nor she had made a conveyance.</p>

<p>Error from Shawnee district court; Alston W. Dana, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Tax Deeds—Dates—Clerical Error. That a date named in a tax deed is out of harmony with other recitals does not justify assuming it to be the resu.lt of a clerical error, at least unless the date named is an impossible one or is in direct and irreconcilable conflict with some other recital referring to the same matter.</p> <p>2. -Recitals Not Required by the Statute. A statement in a tax deed of a fact showing that it was improperly issued is fatal to its validity, although occurring in the course of a recital not required by the statute.</p> <p>3. -Deed Void on its Face. A tax deed which recites that it is based on a certificate issued for the payment of the taxes of the year prior to that in which the taxes accrued for which the land was sold is vulnerable to an attack made on that account, even after having been of record for more than five years.</p>

Error from Sumner district court; Carroll L. SWARTS, judge. STATEMENT. This action was brought by Smith against White and ten others on a promissory note for $550, being one-half the purchase-price of a stallion. The note is nonnegotiable in form, payable to J. D. Smith, and indorsed by him to F. S. Smith. It was signed by the eleven defendants.

<p>SYLLABUS BY THE COURT.</p> <p>Tax Deeds—Taxes Not a Lien on the Land Included. A compromise tax deed which shows on its face that it is based on a tax-sale certificate assigned by the order of the board pf county commissioners requiring the payment of taxes which were not at the time a lien upon the land is void on its face, notwithstanding it has been of record more than five years.</p>

<p>Error from Ness district court; Charles E. Lob-dell, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Master and Servant — Injury to Employee — Non-delegable Duty of Master. Where the method adopted by a salt company for carrying on its business involves the occasional dislodging of masses of salt, thereby covering the floor of a room with fragments moving with such force as to expose to danger employees who are there in the discharge of their duties, and the only adequate way to protect them from such danger is to warn them just before such dislodgment, the giving of such warning is a non-delegable duty of the employer,, and its omission imposes a liability for any consequent injury-to an employee, regardless of any question of co-service.</p>

Error from Allen district court; Oscar Foust, judge. STATEMENT.

<p>Error from Barton district court; Jermain W. Brinckerhoff, judge.</p>

<p>Error from Franklin district court; Charles A. Smart, judge.</p>

Error from Wyandotte court of common pleas; Wiliam U. Holt, judge. STATEMENT. The plaintiff, Carrie Edens, sued John J. Fletcher and twelve other defendants, including the municipality of Kansas City, Kan., and the mayor and chief of police of that city, for damages resulting from the intoxication of her husband by liquors sold to him by the defendants at a place where it is alleged they maintained a common nuisance.

<p>SYLLABUS BY THE COURT.</p> <p>1. Municipal Corporations ■— Control of Streets — Removal of Shade Trees — Injunction. Assuming that the question whether a shade tree growing in the street should be removed is one to be determined by the city officers, not subject to review by the courts, yet in order for their determination to be conclusive it must be made fairly and in good faith; if made arbitrarily, action under it may be enjoined as an abuse of discretion.</p> <p>2. -Sidewalks—Removal of Shade Trees. The officers of a city may not, against the objection of the abutting owner, remove a shade tree from the street merely for the sake of enabling them to place a sidewalk in a position different from that prescribed by ordinance.</p> <p>3. - Authority to Remove Shade Trees. The removal by officers of the city of shade trees growing in the street may be enjoined where the only reason offered to justify such re- . moval is insufficient as a matter of law, and no , other purpose is disclosed.</p>

Error from Labette district court; Elmer C. Clark, judge. STATEMENT.

<p>Error from Norton district court; William H. Pratt, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Contracts—Mineral Lease—Forfeiture—Waiver. Where the lessee under an oil-and-gas lease violates the provisions of the lease so that the lessor might declare the instrument terminated but does not do so, and afterward the lessor and lessee agree that for a valuable consideration, to be given by the lessee, the lessor will accept the same as a full compliance with the conditions of the lease, and' such consideration is given and accepted as stipulated, the transaction will constitute a waiver of the prior violations of the lease and restore it to its original validity and vigor.</p> <p>2. - Sale of Minerals—Enforcement—Enjoining Interference by Landowner. Where the holder of a contract for the purchase of the oil and gas in and under certain real estate commences a suit to cancel an outstanding lease on the land, and the owner of the land is made a party to such suit, but no allegations in the pleadings indicate that he has done or intends to do anything adverse to the rights or interests of the plaintiff, and there is no evidence presented which shows any such action or intent, and it does not appear, when the decree is entered, that the plaintiff then has any subsisting interest in the premises, it is error to grant an injunction in favor of the plaintiff and against such landowner restraining him from interfering with the plaintiff in the use of the land for the purpose of exploring for gas and oil.</p>

Error from Cloud district court; William T. Dillon, judge. STATEMENT. Held: and which we call a No. 2 contract, or commission contract.” “Q. In that conversation did you discuss with him the fact that for weeks and months Mr. Strain had been in a failing condition?

<p>Error from Johnson district court; Winfield H. Sheldon, judge.</p>

Original proceeding in quo warranto. STATEMENT. This is an original proceeding in quo warranto, by the state of Kansas on the relation of the attorney-general, to. oust the defendant from exercising the duties of judge of the circuit court of Wyandotte county.

<p>SYLLABUS BY THE COURT.</p> <p>1. Public Schools—Location—Dangerous Access—Compulsory Attendance. Where children entitled to school privileges in a city, if required to attend a certain school designated by the board of education, would be exposed to daily dangers to life and limb so obvious and so great that in the exercise of reasonable prudence their parents should not permit them to incur the hazard necessarily and unavoidably involved in such attendance, they should not be compelled to attend the school so designated.</p> <p>2. - Separate Schools—Denial of Equal Facilities—Abuse of Discretion. The board of education of a city of the first class may provide separate schools for white and colored children in the grades below the high school, provided equal education facilities are furnished; but where the location of a school for one of these classes is such that access to it is beset with such dangers to life and limb that children of the class for which it is designated ought not to be required to attend it such children are denied equal educational facilities, and the action of the board requiring them to attend such school apd denying them admission to any other is an abuse of discretion.</p>

<p>Error from Allen district court; OSCAR Foust, judge.</p>

Original proceeding in habeas corpus. STATEMENT. The petitioner was convicted for selling to a coal-miner employed in a mine at the Central Coal and Coke Company, to be used in the mine, a quantity of black powder, which was not in an original package containing twelve and one-half pounds, securely sealed, in violation of chapter 250 of the Laws of 1907, which provides : “It shall-be unlawful for any individual, firm or corporation to sell, offer for salé or deliver for use…

<p>SYLLABUS BY THE COURT.</p> <p>1. Constitutional Law—Title of an Act—Elections. The provision of the Australian ballot law (Laws 1893, ch. 78, §25; Laws 1905, ch. 222, § 3) to the effect that in cases of contested elections packages of ballots which have been sealed up and deposited with the county clerk shall be opened only in open session of the contest tribunal is not unconstitutional because not within the.scope of the title to the act.</p> <p>2. Elections—Contest—Opening Sealed Ballots. The provision referred to forbids the opening of such ballots in a proceeding for the taking of depositions before the probate judge preliminary to the trial of a contested election to the office of senator.</p>

<p>Error from Brown, district court; William I. Stuart, judge.</p>

<p>Interstate Commerce—Execution Levied on a Car. The facts found held not to show that a car on which an execution was levied was used in interstate commerce.</p>

Error from Douglas district court; Charles A. Smart, judge. STATEMENT. This action was begun in the district court of Douglas county on the first day of March, 1898. It was brought by the attorney-general, for and on behalf of the state, and for the benefit of the state permanent school fund, and in pursuance of a resolution and order of the board of commissioners for the management and investment of the school fund.

<p>SYLLABUS BY THE COURT.</p> <p>1. Practice, Supreme Court—Abstract of the Record—Preparation. The duty of preparing a sufficient abstract devolves upon the plaintiff in error. The provision of rule 10a exempting him from the necessity of abstracting all the evidence to support a claim on his part that it does not show or tend to show a certain fact is an exception in his favor, and he should take care not to abuse the privilege which it accords him.</p> <p>2. - Abstract of Evidence. The provision of rule 10a referred to does not restrict the claim of a plaintiff in error to one fact or finding, and he may, in good faith and in proper case, make the claim that several of a large number of essential facts or findings of fact are unsupported by the evidence without being obliged to abstract all the evidence to support it.</p> <p>3. - Counter-abstract—Costs. In all except extreme cases, of palpable bad faith the defendant in error should meet a claim of the character described by promptly furnishing a counter-abstract. If it should finally appear that the-claim or a substantial portion of it was not reasonably well founded, the cost of the counter-abstract, or so much of it as was unnecessarily required, may be taxed to the plaintiff in error.</p>

<p>Error from Greenwood district court; Granville P. Aikman, judge.</p>

<p>Error from Cherokee district court; Corb A. Mc-Neill, judge.</p>

<p>Error from Ford district court; Gordon L. Finley, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Slander-—Privileged Communication. A communication to an officer of the law charging a person with a crime, made in an honest effort to recover stolen property and for the purpose of detecting and punishing the criminal, is privileged.</p> <p>2. - Absence of Malice—Privileged Communication—Demurrer to Evidence. In an action for slander based upon such communication, where there is no evidence of malice, a demurrer to the evidence is rightly sustained.'</p> <p>3. Libel—Evidence. The publication in a newspaper of a notice that property has been stolen and offering a reward for information leading to the conviction of the guilty persons, which refers to no particular person as guilty, is not libelous; and, where such article contains no ambiguous expressions or insinuations which require extraneous testimony to explain, the matter can not be rendered libelous by proof that persons who were familiar with other facts understood the article to refer to plaintiff.</p>

<p>Error from Dickinson district court; Oscar L. Moore, judge.</p>

Error from Wyandotte court of common pleas; William G. Holt, judge. STATEMENT. This was an action commenced by Charles Lasca, a minor about six years of age, by Nick Lasca, his father and next friend, to set aside a judgment rendered September 9, 1901, in the same court in favor of Nick Lasca and Anna Lasca, father and mother and next friends of Charles Lasca, a minor, against the Missouri Pacific Railway Company for $95 and costs.

<p>SYLLABUS BY THE COURT.</p> <p>Railroads—Injury to Passenger—Negligent Operation of Train ■—Evidence. The plaintiff, a passenger on one of the defendant’s trains, desired to stop at the station of Carneiro. . After the train left the last station before Carneiro a train employee announced that Carneiro would be the next stop. Soon afterward the train stopped a half mile or more from the station, where there were no facilities for the discharge of passengers. It was night, very dark, and raining very hard. The plaintiff could not see where he was and undertook to leave the train. While he was in the' act of swinging to the ground from the lowest step of his car the train started, and he was precipitated into a ditch beside the track and injured. Accepting all the plaintiff’s evidence as true, it is held that negligence on the part of the defendant was not established.</p>

<p>Error from Reno district court; Peter J. Galle, judge.</p>

<p>Error from Shawnee district court; Alston W. Dana, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Descents and Distributions—Adopted Child. An adopted child has no right of inheritance from its adoptive parents other than those given by the law under which it is adopted.</p> <p>2. -Limitation of .Adopted Child’s Bight of Inheritance. Where the law under which a child is adopted limits its right of inheritance to the estate of the adoptive parents, such child can not, after the death of its adoptive father, inherit, from the deceased brother of such adoptive father or his other collateral kindred.</p> <p>3. - Same. The law of the state of Illinois providing for • the adoption of minors which took effect April 22, 1867, in defining the rights of minors so adopted, reads: “And thenceforward the relation between such person and the adopted child shall be, as to their legal rights and liabilities, the sarhe as if the relation of parent and child existed between them, except that the adopted father or mother shall never inherit from the child; but to all other persons the adopted child shall stand related as if no such .act of adoption had been taken.” (Laws of Illinois, 1867, p. 134.) Held, that the right of in~ heritance given to an adopted child under this law is limited to its adoptive parents, and it can not take from the estate of their collateral kindred.</p>

<p>Error from Wyandotte court of common pleas; James S. Gibson, judge pro tem.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Parties—Surety■—Action to Compel Principal to Pay. A surety on a matured debt may maintain action against the principal to compel its payment without showing any fraudulent disposition of property or other special reasons for fearing loss.</p> <p>2. Judgments—Action by Surety to Compel Principal to Pay. Where such an action is brought by the surety in the same court in which the obligation on which both are liable has already been placed in judgment against the principal, a proper method for accomplishing the purpose sought is the rendition of a personal judgment for the amount involved, with a provision that when collected it shall be paid into court for the benefit of the owner of the original judgment.</p> <p>3. -Immaterial Error—Surplusage. In such a case the addition of an order that if the judgment be not paid within a stated time the principal be cited to show cause why he should not be held to be in contempt of court is not ground of reversal, but may be rejected as surplusage.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Evidence—Paternity of a Child of Divorced Parents—Descents and Distributions. Where an action of ejectment has been commenced by a person claiming to be the child and sole heir at law of the deceased owner of the land in controversy, the mother of the plaintiff, who was divorced froni the plaintiff’s alleged father, is a competent witness to establish the heirship of the plaintiff.</p> <p>2. - Husband and Wife—JDivorce—Witnesses. A man and a woman were married to each other, and of this marriage a daughter was born. Afterward the father abandoned his wife and child. The wife lived with her father, who. was a . lawyer and judge. She requested him .to obtain a divorce for her. Afterward he informed her that a decree had been entered in her favor. She then married again and lived with her husband until he died. She married again. After the daughter, who was born of the first marriage, reached the age of maturity, her father died leaving an estate. The daughter brought an action to recover the real estate, as his only surviving heir at law. In such action the mother of the plaintiff was permitted upon these facts, orally shown, to testify as to the paternity of the plaintiff. The, mother was not a party to the action and did not claim any interest in the estate of her child’s father. Held, not error.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Tax Deeds—Grantee—Executor of Purchaser of Certificate— Presumption. A tax deed which has been of record more than five years, and which is regular in every respect except that the conveyance is made to the -executors of the estate of the person to whom the certificate of sale was issued and their heirs and assigns, should, under the rule of liberal construction adopted in such cases, be admitted in evidence as a muniment of title, when it appears in the regular chain of conveyances.</p>

<p>Error from Butler district court; Granville P. Airman, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Homesteads—Abandonment—Change of Residence—Voting in Another State. The sixth subdivision of section 2572 of the General Statutes of 1901, reading, “If a person shall go into another state' or territory, and vs-hile there exercise the right of suffrage, he shall be considered and held to have lost his residence in this state,” is'intended merely for the guidance of the judges of election in passing upon the qualifications of voters, and does not prescribe a test for determining the residence of the claimant of a homestead in this state. The fact that one has voted in another state or territory does not conclusively establish the loss of a homestead right which depends upon a residence here.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Tax Deeds—Burden of Proving Invalidity. Where in an action to test the validity of a tax deed the plaintiff owns the fee title, and the defendant is in possession under the tax deed, which the court holds to be good on its face, the burden is upon the plaintiff to show facts which make the deed ineffective.</p> <p>2. -Possession by Holder of Tax Deed—Presumption. While it is incumbent upon the holder of a tax deed to take possession thereunder within two years after it is recorded, or at least to prevent adverse possession during that time, yet in an action against a tax-deed holder in possession to test the validity of the tax deed, commenced more than five years after the deed has been^ recorded, this question must be presented by the pleadings or it can not be considered.</p> <p>3. - Charging Taxes on Tax-roll in September Instead of November. Where at a tax sale land, for want of bidders, is taken by the county, and after five years the certificate is assigned and a deed made under the provisions of section 7672 of the General Statutes of 1901, the mere fact that the recitals of the deed show that the taxes which accrued while the land was held by the county were charged against the land on the tax-roll in the month of September of each year, instead of November, will not render the deed void.</p> <p>4. Practice,' Supreme Court—Findings of Fact—Review of:Evidence. A question of fact decided by a court upon conflicting evidence will not he reviewed in this court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Limitation op Actions—Tolling the Statute—Indorsement of Rents on Note by Mortgagee in Possession. When a mortgagee in possession of the mortgaged real estate by tenant applies the rents received thereon to the payment of taxes and for repairs, and indorses the balance as payments upon the note secured by the mortgage, with the mortgagor’s knowledge but without any direction to do so or other authority than such as may be implied from these facts, such indorse- * ments do not remove the bar of the statute of limitations in an action to collect the mortgage debt.</p>

<p>Error from Trego district court; JACOB C. Ruppenthal, judge.</p> <p>STATEMENT. '</p> <p>The owner of a section of land in Trego county, Kansas, died in Los Angeles, Cal., in 1897, having theretofore made a will by which he attempted to give all of his personal property to his widow, as well as a life-estate in his real property, the remainder to go, one-half to his heirs and one-half to three different charities in Evanston (there being no description as to what Evanston was intended). The will was duly probated in California, and a copy recorded and probated in Trego county, Kansas.</p> <p>The deceased had no surviving parent, and no children. His heirs consisted of brothers, sisters, nephews and nieces. The plaintiff in error is entitled to one-fifth of whatever interest passed by devise to his heirs.</p> <p>The widow ignored the will and undertook to deed the entire section of land to the defendant in error, Phares. The plaintiff in error brought this action in ejectment to recover an undivided one-tenth interest in the land from Phares.</p> <p>The case was tried to the court without a jury. The court held, in substance, that the widow, in neglecting to take under the will, elected to take under the law without affirmative action; that the bequest to, the charities in Evanston was void for indefiniteness; that the will conveyed a one-fourth interest in the land to the heirs, or one-twentieth to the plaintiff in error, and that the widow took the remaining three-fourths under the law; in short, the bequest to the charities failing, that the portion attempted to be devised remained a part of the estate undisposed of and fell to the widow.</p> <p>The plaintiff in error contends that the testator had a right to, and did, legally devise to his heirs a one-half interest in the land, and that she is entitled to one-fifth of the one-half interest.</p> <p>This is the only question in the case—whether the plaintiff in error is entitled to a one-tenth or a one-twentieth interest in the land.</p>

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

<p>SYLLABUS BY' THE COURT.</p> <p>1. Words and Phrases—''‘Actions.” The word “actions,” as-used in section 1261 of the General Statutes of 1901, includes; both civil and criminal actions as defined in the code of civil procedure. ></p> <p>2. - "Process.” The word “process,” as used in the statute above mentioned, includes writs used in both civil and criminal actions for bringing parties into court.</p> <p>3. Monopolies—Information. An information, drawn under the antitrust laws of this state, wherein the offenses charged consist of many sales of commodities made in violation of section 2435 of the General Statutes of 1901, is not fatally defective because in its introductory statement several combinations, associations, trusts and corporations are mentioned generally, of which the defendant is averred to have been a member when the alleged sales were made.</p> <p>4. --— Hearsay, Testimony—Admissions by a Corporation Officer. Upon the trial of a defendant under an information similar to the one mentioned in paragraph 3 the state, for the purpose of sustaining the averment that* the defendant was a member of an unlawful combination when the alleged sales were made, produced a witness who heard the president of the defendant corporation deliver an address, and the witness was permitted to repeat statements made in such address. At the time this address was delivered the defendant had been but recently organized, and was then entering upon its first year’s business. The defendant was engaged in the manufacture and sale of all kinds of harvesting machinery, and was prepared to transact a large business, having a capital of .$1,000,000, and an immense quantity of merchandise on hand. ’The address was delivered to a meeting composed of local ¡agents and dealers in harvesting implements from the states ■of Missouri, Kansas, Oklahoma, and Colorado, who had been ■called together for the purpose of consulting about matters ■concerning the trade in such implements generally, and particularly about the defendant, a new company supposed to ' be of unusual strength and capacity, but not well known. To obtain reliable information about the defendant its president was invited to deliver an address to the meeting upon that .subject. • The invitation was accepted and the address delivered. In this address the speaker stated that the combination of which the defendant was a member had obtained control of ninety-five per cent, of the capital used in the manufacture of harvesting machinery, and a majority of the'companies heretofore engaged in that business were already in the combination, and they hoped to get the ‘remainder; that the company expected to make prices uniform, and so manage the business that both the companies and their agents would make more money than they had done. Held, that the admission of such evidence was not error.</p> <p>5. -• Information—Number of Offenses Charged—Waiver. In an information similar to the one mentioned in paragraph 3 the sales charged against the defendant were alleged separately, each in a different count. Several counts, however, averred the sale as of the same date, with nothing to indicate whether they were made in the same transaction or not. No question was raised as to this defect during the trial, unless by the motion to quash, in which the grounds stated read: “The information is so uncertain that the defendant can not plead thereto; the offenses are not stated with certainty.” The evidence shows that the sales were separate and distinct transactions. The trial proceeded apparently upon the theory that the sales were separate. Each sale was established by the same evidence. Toward the close of the trial the claim was presented for the first time, by requests for special instructions to the jury, that the several counts charged but one offense, which instructions were refused. It does not appear that the defendant was prejudiced thereby. Held, not error.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Evidence—Judicial Notice—“R. M. L. D.” Courts will take judicial notice that the initials “R. M. L. D.,” when used in the records of the internal revenue office to designate the business for which a permit has been issued, mean “retail malt liquor dealer.”</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Criminal Law—Arson—Ownership—Property “of Another."' Under the laws of this state the legal identity of husband and wife does not prevent a husband who burns his wife’s house-from being guilty of arson.</p> <p>2. -- Instructions—Intent. Where, on the trial of a criminal charge, the court presents in its instructions to thF jury the principal questions involved, the defendant can not predicate error upon an omission to give a special instruction which was not requested.</p> <p>3. - New Trial—Misconduct of Jury. It is not error to refuse an application for a new trial unless such refusal is. in some way prejudicial to the substantial rights of the applicant.</p>

<p>Error from Harper district court; Preston B. Gillett, judge.</p>

<p>Error from Labette district court; Nelson Case, judge pro tem.</p>

<p>1. School Districts — Parties — Control of Litigation. Where an attorney appeared on behalf of a school district, and it was not shown that he was authorized by the school-district meeting to do so, it was said the director of the school district had full general authority to represent the district and control the action.</p> <p>2. - Attorneys—Substitution—Dismissal of Action. The school board’s motion to dismiss the action was allowed, but it was said the proper procedure would have been, when the attorney refused to comply with the director’s wishes, to apply to the court for a substitution of attorneys.</p>

<p>Case-made—Right to Make Lost. Held that where after judgment time to make a case has expired the right so lost can not be restored by filing a motion for^ a new trial on the ground of newly discovered evidence.</p>

<p>1. Larceny—Information—Waiver. An information charging larceny and describing the stolen property as a given sum of money, without attempting a further description or stating that the informant was unable to give one, was sufficient as against an objection to the introduction of evidence and a motion in arrest of judgment, no motion to quash having been filed.</p> <p>2. Criminal Law—Continuance—Absent Witness. A motion for a continuance on account of an absent witness was properly denied, the affidavit in support of the motion failing to show-sufficient effort to compel the witness’s attendance.</p> <p>3. Larceny—Proof. Evidence reviewed and held sufficient to support a verdict of guilty in a prosecution for larceny.-</p>

<p>Error from Ford district court; Edward H. Madison, judge.</p>

<p>Error from Finney district court; William Easton Hutchison, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Contracts—Anticipatory Breach—Damages. Where a party to an agreement for the sale of personal property, before the time for performance arrives, expressly refuses to perform it, the promisee may treat such renunciation as a breach and at once bring an action therefor.</p> <p>2. -Refusal to Perform — Evidence — Conclusiveness of ■Findings. The finding of the jury that á party did so refuse to perform his agreement, if sustained by competent evidence and approved by the district court, can not be set aside in this court merely because there was evidence to the contrary.</p> <p>3. Variance—Immaterial Error. A judgment can not be reversed for an immaterial variance between the pleading and the proof which has not misled the complaining party to his prejudice. ■ -</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Evidence—Setting Out a Fire—Admissions by an Agent— Spontaneous Exclamations—Hearsay. A bam was destroyed, by a fire which originated the day before on a neighboring ranch, whose manager with others discovered' the danger while the fire was at some distance and vainly endeavored to save the building. In an action by the owner of the barn against the owner of the ranch, testimony that while the barn was burning the manager said that he had himself sfet out the fire was not competent evidence that he had in fact done so. The declaration of the manager was not rendered competent by reason of his being the defendant’s agent, for it was a mere narration of a past transaction, not relating to, explaining or characterizing any act in which he was then engaged; and the circumstances do not indicate that it was such a spontaneous exclamation made under the stress of nervpus excitement that its truth could be presumed without being sworn to.</p>

Error from Finney district court; William Easton Hutchison, judge. statement. King Brothers commenced an action against the Denver & Rio Grande Railroad Company in the district court of Finney county. An order of attachment was issued in that action November 3, 1903, which was duly levied by the sheriff upon nine stock-cars belonging to the Rio Grande railroad company, but then in the possession of the defendant herein, the Atchison, Topeka & Santa Fe Railway Company.

<p>Error from Bourbon district court; Walter L. Simons, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Railroads—Discrimination—Common-law Obligation. Independent of any statute—as a part of its common-law obligation—a railroad company is required to treat its patrons impartially and to avoid unjust discrimination.</p> <p>2. - Discrimination in Charges. Any discrimination in charges on the part of a common carrier is unjust for which no sufficient reason exists in the character of the service.</p> <p>3. -Same. The requirement that one shipper shall pay a. higher rate than another for substantially similar services rendered under substantially similar conditions is an unjust, discrimination, of which any one may complain who is thereby injured.</p> <p>4. -Reasonable Rates—Rights of Shipper. A shipper has1. a right to demand that the rates charged him shall not only be reasonable in themselves, in respect to the profit to the carrier, but reasonable in respect to the charges made for similar services under similar circumstances to other shippers who are or who may be his business competitors!</p> <p>5. - Unjust Discrimination — Recovery of Overcharges. Where a tariff of a railroad company fixes a rate on shipments originating on its own line or on certain enumerated connecting lines it assumes the obligation to carry at that rate for shippers whose shipments originate on other lines as well, and if such a shipper is required to pay for such services at a higher rate than that named in the tariff he is entitled to recover the amount of the overcharge.</p> <p>6. Jurisdiction—Recovery of Overcharges—Common-law Remedy—Interstate Commerce. Where the plaintiff does not rely upon the interstate commerce act, but bases his claim on common-law principles, an action for such recovery may be brought in the state court, although the shipments involved were made across state lines.</p>

Dana, judge. STATEMENT. The grievance committee of the Topeka bar association filed a report in the district court of Shawnee county that they had upon complaint made an investigation of the professional conduct of Anthony P. Wilson and A. P. Tone Wilson, jr., and therein charged the defendants, informally, with the . various unprofessional and immoral acts afterward embraced in formal charges.

Error from Johnson district court; Winfield H. Sheldon, judge. STATEMENT. This suit was commenced by Oscar 0. Ayres in the district court of Johnson county against John G. Brooks, his unknown heirs, etc., F. C. Schroder, his unknown heirs, etc., and the unknown heirs of Thomas J. Lockridge, their devisees, administrators, executors ( and trustees.

Error from Doniphan district court; William I. Stuart, judge. STATEMENT.

<p>SYLLABUS BY THE COURT.</p> <p>Municipal Corporations — Franchise — Monopoly. Where a franchise is granted by a city to a gas company authorizing it to furnish to the city and its inhabitants natural gas for light, heat and power, in consideration of which the company agrees to pay to the city annually the sum of $300, a further provision that such payments are to continue only so long as the gas company enjoys its franchise without competition is not contrary to public policy as tending to destroy competition and create a monopoly.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Notice — Pendency of Action — Publication Service. The evidence is reviewed and held to he sufficient to support the finding that the defendant, the Garrett Biblical Institute, had actual notice of the pendency of the action in time to appear . in court and make its defense.</p>

<p>Error from Sedgwick district court; Thomas C. Wilson, judge.</p>

<p>Error from Cherokee district court; CORB A. Mc-Neill, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Damages—Action on Injunction Bond. In an action on an' injunction bond only those damages which are the direct and proximate result of the injunction are recoverable.</p> <p>2. -Remote—Injunction—Sale of Municipal Bonds. Where a temporary injunction restrains a city from issuing or disposing of certain bonds for the purpose of erecting and equipping an electric lighting plant, damages alleged to have been caused by the increased cost of machinery and building material during the time the injunction remained in force are too remote and can not be recovered.</p> <p>3. -- Enjoining Sale of Bonds—Depreciation in Value. In such an action, where it is alleged that during the pendency of the injunction the market value of the specific bonds depreciated, the difference between the market value of the bonds at the time the injunction was granted and their market value at the time the injunction was dissolved is a proper element of damages, for the reason that the loss occasioned by the depreciation is the direct and proximate result of the injunction.</p> <p>4. Injunction—Indemnity Bond—Action by the State. Section 242 of the code of civil procedure, which provides that no injunction shall operate until the party obtaining the same shall give an undertaking, has no application to suits brought by or on behalf of the state in the exercise of its sovereignty.</p> <p>j5. - Same. Injunction being an equitable remedy, -it,is within the power of the court to provide that it shall not issue until the party applying for the same shall give an undertaking to indemnify the defendant from loss or damage occasioned thereby, and this power extends to cases brought by or on behalf of the state.</p> <p>6. - Same. Where a temporary injunction is granted by the district court in a suit brought by the state on the relation of the attorney-general, which is afterward dissolved, and on the application of the state the supreme court grants an order continuing the injunction in force pending proceedings in error, on the condition that the plaintiff shall furnish a bond to secure to the party injured all damages sustained if it be finally decided that the injunction ought not to have been granted, held, that a bond executed under such circumstances is a valid and binding obligation, and an action can be maintained thereon.</p>

<p>Error from Brown district court; William I. Stuart, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Railroads—Injury to Employee—Notice to Defendant—Declarations by Plaintiff. Statements of the cause of the injury in a notice given by an employee of a railroad company as provided in chapter 341 of the Laws of 1905 may, when offered in evidence by the company, be considered by the jury as affecting the credibility of the plaintiff as a witness; and this also applies to his statement taken by the company soon after the injury, which should be considered in connection with his physical and mental condition at the time as affecting his understanding; but neither the notice so given nor ■ the statement so made can be held, as a matter of law, to bar his claim.</p> <p>2. Personal Injuries—Excessive Damages. ■ Considering the nature of the plaintiff’s injuries, .whereby both of his legs were broken, and the evidence relating thereto, -the award of $4000 damages, approved by the trial court, can not be set aside by this court as excessive.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Tax Deeds — Consideration for Assignment of Certificate — Erroneous Computation. A tax deed is not rendered void by the fact that the certificate was assigned by the county for slightly less than the amount necessary to redeem, when the discrepancy is occasioned by an error in computation.</p> <p>2. - Interest — Erroneous Computation. Where such discrepancy is traceable to the amount charged as interest the presumption is that it resulted from an error in computation.</p> <p>3. -Consideration for Assignment of Certificate—Interest. The amount of such discrepancy will not be regarded as substantial if the interest charged is less than would result from a computation in which the fractions of a cent are carried out in full throughout, and greater than would result from a similar computation in which such fractions are rejected at every stage.</p>

Error from Sedgwick district court,- THOMAS C. Wilson, judge. STATEMENT. This action was brought by the plaintiff in error to recover personal property of the total alleged value of . $455, which had been mortgaged by the defendant, Bobbitt, to one Goodin.

<p>SYLLABUS BY THE COURT.</p> <p>Homicide—Immaterial Error. Sundry assignments of error considered, and held, that no prejudice to the appellant’s substantial rights appears.</p>

<p>Appeal from Johnson district court; Winfield. H. Sheldon, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Criminal Law—Abortion—Venue. The crime defined in section 44 of the crimes act, being section 2029 of the General Statutes of 1901, is committed in the county where the acts therein prohibited are perpetrated, and the jurisdiction to prosecute persons charged with such crime is confined to such county.</p> <p>2. - Evidence—Venue. Where a person is charged with having committed the offense above referred to in a particular county, and is convicted thereof in the district court of such county, but no evidence is produced to establish where the crime was committed, the conviction can not stand.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Perjury—Evidence. In a prosecution for perjury the judgment of acquittal in the cause in which the perjury was committed is not admissible to prove the defendant’s innocence. (The State v. Williams, 60 Kan. 837, syllabus, 58 Pac. 476.)</p> <p>2. -Plea in Bar. A party can not, after securing an acquittal by perjury, successfully plead such acquittal in bar of a prosecution for the perjury so committed.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1.' Murder—Evidence and Verdict. The evidence examined and ' found sufficient to uphold the verdict.</p> <p>2. -Evidence—Threatening Language by Defendant. Rulings upon the admission and rejection of evidence held not to have been erroneous.</p> <p>3. - Self-defense. In a prosecution upon the charge of murder by shooting, the issue being self-defense, the court was asked to give this instruction: “It is not essential that the defendant show that deceased actually had a deadly weapon; it is sufficient in that respect if he show that the conduct of the deceased was such as to evidence [induce] a reasonable belief that he had one.” Held, that the subject was sufficiently covered by a charge that in order to have been justified in his act the defendant must have believed upon reasonable grounds that the deceased, having the apparent power to take his.life or inflict upon him great bodily harm, was about to do so when he fired the fatal shot.</p> <p>4. Criminal Law—Notice of Offense Charged—Entries in Justice’s Docket. It is not sufficient ground for a plea in abatement that the docket of the justice of the peace before whom a preliminary examination was held shows merely a finding that a crime has been committed (its character not being stated) of which there is probable cause to believe the defendant guilty, and an order that he be held to answer the charge as filed against him in the district court, where the information charges the same offense as that described in the warrant.</p> <p>5. -Sentence. Where a defendant is convicted of murder in the second degree a definite punishment should be assessed; yet if an indeterminate sentence is pronounced the validity of the conviction is not affected, but the cause may be remanded for resentence.</p>

<p>Original proceeding in quo warranto.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Criminal Law—Insanity—Homicide. The law recognizes every . form of insanity or delusion which renders an accused mentally incapable of knowing the nature and quality of an act he is doing, and that what he is doing is wrong, as relieving-him of criminal responsibility for the act; but no delusion or mental weakness which falls short of rendering the mind incapable of such discernment obviates the criminal character of and penalty for the act.</p>

<p>Master and Servant—Injury -to Employee—Defective Appliances. Where an employee’s injuries were caused by a defective coal-chute the special findings showed that the defendant was negligent, and a judgment for the plaintiff was affirmed.</p>

<p>Error from Wilson district court; Leander Still-well, judge.</p>

<p>Error from Crawford district court; Arthur Fuller, judge.</p>

<p>Fraudulent Representations—Reliance Upon—Pleadings. A cross-petition, when liberally construed, held !(>• state grounds for setting aside a deed.</p>

<p>Appeal from Kiowa district court; Gordon L. Finley, judge.</p>

<p>Attorneys—Unjustifiable Conduct Not Requiring Disbarment. The conduct of the attorney complained of disapproved but held not to require disbarment.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Receivers—Eligibility—Acquiescence in Appointment—Waiver. In a suit to dissolve a partnership and to close up the partnership business an accounting was had, after which the court, without objection, appointed the defendant partner as receiver to dispose of the partnership assets. After the receiver had acted for more than a year without objection, and the estate was mainly settled, the plaintiff raised the question that the defendant was an interested party and therefore disqualified to act as receiver. Held, that the long acquiescence of the plaintiff in the appointment is tantamount to consent, and that he could-not afterward question the legality of the appointment.</p>

<p>Error from Sedgwick district court; David Smyth, judge pro tem.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Damages—Overflow of Property Caused by the Negligence of, Another. The measure of damages to a residence property which has been overflowed through the negligence of another is (1) the difference in the valúe of the property immediately before and imediately after the overflow, no allowance to be made for the possible or probable recurrence of the overflow; or, (2) if the injury to a building can be made good by repairs, then the reasonable cost of necessary repairs, with the loss of rent incident thereto added; or, (3) if reasonable repairs have been made but the building has not been, or can not be, restored thereby to its former value, then the measure of damages may be the .difference between the value thereof immediately before the overflow and after the repairs are made, with the reasonable cost of repairs and incidental loss of rent added.</p> <p>2. -- Evidence. In an action to recover damages the plaintiff is entitled to prove his loss under any proper theory as to the measure thereof.</p>

<p>Error from Finney district court; William H. Thompson, judge.</p>

Error from Johnson • district court; Winfield H. Sheldon, judge. STATEMENT.. Arthur Woodson, on June 27, 1905, was a passenger on a train of the Atchison, Topeka & Santa Fe Railway Company, having purchased a ticket at Kansas City, Mo., to Kiowa, Kan. The train left Kansas City between nine and ten o’clock that evening. Wood-son rode in a chair-car. The conductor examined his ticket, punched it, and put a check in his hat, as is usually done in such cases.

<p>SYLLABUS BY THE COURT.</p> <p>Marriage—Evidence. Marriage may he proved by the acknowledgment and declarations of the parties, their cohabitation and conduct, and by general reputation, and such proof may be produced without first showing that record evidence or the testimony of an eye-witness of the marriage is not available.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Master and Servant—Injury to Employee—Unguarded Machinery—“Factory Act.” Where four men are employed to work at a certain machine in a manufacturing establishment, and the rules permit each one to take a turn at resting while the others work, a resting employee is engaged in the performance of duty the same as if he were occupied at the machine. •</p> <p>2. -■ Servant within the Scope of His Employment. While resting an employee may not needlessly wander from the proper sphere of his work into other departments of the establishment and be within the scope of his employment; but if no resting-place be prescribed and no boundaries be fixed within which he must confine himself he may use his discretion in selecting a place to rest, and may, with due circumspection, rightfully occupy any of the vacant pldces in the plant near his own machine and in touch with his work from which he is not expressly forbidden.</p> <p>3. - Same. In such a case the employer’s duty to guard machinery according to the factory act (Laws 1903, ch. 356) extends to all places which employees might reasonably be expected to use in the performance of their duties, including the taking of turns at resting.</p> <p>4. - Same. In this case it is held to be a jury question whether a resting employee who was injured by an unguarded set-screw located twenty-five or thirty feet from his own machine was at an unauthorized place.</p> <p>5. - Contributory Negligence. An employee within the scope of his employment may assume that set-screws revolving so rapidly they are not visible have been guarded according to the provisions of the factory act and need not inspect machinery for them; and if he is injured by coming in contact with such a set-screw, of whose existence and danger he is ignorant, he is not guilty of contributory negligence.</p> <p>6. Damages—Pecuniary Expectancy of Parents from Continued Life of a Son. Under the facts of this case it is held that a father and mother had the, right to expect to receive pecuniary benefits from the continued life of their son, and that sufficient data appeared from which the jury could compute the damages they sustained from his death.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Master and Servant—Injury to Employee—Safety of Appliances—Expert Testimony. Whether a particular device for operating a circular saw is reasonably safe is a proper subject for expert testimony.</p> <p>2. -Assumption of Risk. In an action by an employee to recover for injuries received in operating a defectively -constructed machine, where it is shown that although he knew what the construction was he did not know of the resulting-danger, it is no defense for the employer to show that he was equally ignorant.</p>

Error from Wyandotte district court; J. McCabe Moore, judge. STATEMENT. A span of the Kansas City Southern Railroad bridge crossing the Kansas river was washed from its piers by the flood of 1908. The Riverside Iron-works Company was engaged in replacing it. In so doing the company employed a number of workmen—some iron-workers and some painters. Green, the plaintiff, was one of the painters.

Error from Allen district court; Oscar Foust, judge. STATEMENT. Gottlieb Hartwig died May 28,1905, leaving a will naming his son William as his executor. Among his effects were found several promissory notes, among others notes for $2500 and $800, respectively, payable to the order of William Hartwig, and one for $1500 payable to the order of Frederick Hartwig, another son. These notes were each secured by mortgages to the payees, which had been recorded.

Error from Wilson district court; Leander Still-well, judge. STATEMENT. The Pittsburg Vitrified Paving & Building Brick Company had leases of the oil-'and-gas rights on large tracts of land in Wilson and Montgomery counties, and on the 5th day of November, 1903, entered into a contract agreeing to assign its oil rights in certain pleases of a considerable portion of such lands to George C. Videtto, B. A. Dolan and John C. Scott.

<p>SYLLABUS BY THE COURT.</p> <p>Office and Officers—Veterans’ Preference Law—Appointment Validated by a Curative Aet. An appointment to the office of county assessor under the provisions of section 18 of chapter 408 of the Laws of 1907, made by a board of county commissioners in January, 1908, in violation of the provisions of the “old soldiers’ preference law,” is rendered valid by the curative provisions of chapter 76 of the'Laws of 1908, concerning assessment and taxation.</p>

<p>SYLLABUS BY THE OOUET.</p> <p>Damages — Conversion of Bank Stock — Pleading and Proof. Where, in an action for damages for the refusal of a corporation to transfer stock upon its books upon due demand, the only allegation respecting damages is that the defendant converted the stock to its own use, to the damage of the plaintiff in the sum of twenty cents per share, judgment ought not to be rendered for that amount where the only proof of damages is the production of the certificate of stock assigned to the plaintiff containing recitals that the shares are one dollar each, fully paid up.</p>

<p>Error from Wyandotte district court; J. McCabe Moore, judge.</p>

Error from Cowley district court; Carroll L. Swarts, judge. STATEMENT. Petition in usual form of ejectment. Answer, general denial; pleads title and possession in defendant. Reply admits possession of defendant; general denial. Judgment for plaintiff for title and possession; tax deeds under which defendant claimed decreed to be void. Demand by defendant for value of his improvements and for lien for taxes.

<p>Error from Stafford district court; Jermain W. Brinckerhoff, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Damages—Excessive—Trespass—Landlord and Tenant. In an action by a tenant against the owner of a dwelling-house to ■ recover damages for removing a portion of the roof of the house for the purpose of rendering it uninhabitable and compelling the tenant to vacate, causing injury to the plaintiff, a verdict for $800 will not be set aside as excessive.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Contracts—Interest. Under a contract reciting that “this contract, entered into this 24th day of March, between Banks Brothers and Rosa C. Scholz, whereby . . . the said Banks Brothers . . . agree to pay to the said Rosa C. •Scholz the sum of $120 per year after the year 1905 for each year they carry a certain mortgage of $12,000, payable to E. G. Drake, which they have assumed,” where the 12,000-dollar note referred to was paid and the mortgage released December 30, 1905, the instalment of $120 falling due January 1, 1906, should be paid.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Written Contract—Parole Evidence—Set-off. The rule forbidding the admission of an oral agreement varying the terms of a written contract is not violated by permitting the defendant in an action upon a promissory note to prove as a set-off an amount which is due from the plaintiff upon an oral contract made at the time the note was given, and which formed a part of its consideration.</p> <p>2. Statute op Frauds—Promise to Answer for Debt of Another. Whether the promise of one who expressly assumes liability for a debt for which another is already bound is original or collateral is ordinarily a question of fact, to be determined in the light of all the surrounding circumstances.</p> <p>3. Agency—Authority—Ratification. Although the plaintiff in an action upon a note learns for the first time at the trial of" the case that the defendant claims a special contract was made in his behalf by the agent who procured the note, which formed a part of its consideration, if upon acquiring such information he continues to assert his rights upon the note he can not defeat the effect of such contract, if it is shown to have been made, by denying that his agent had authority to bind him thereby.</p> <p>4. New Trial—Surprise. One who submits a case tried without a jury, without asking opportunity to procure further testimony, is not in a position to ask as a matter of right a new trial on the ground that he was surprised by the evidence of the adverse party.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Petition—Quantum Meruit—Contract Repudiated—Agent’s Commission. A petition which alleges an agreement of plaintiffs to procure a purchaser and to assist in effecting a sale of the owner’s land for a certain compensation, but that after a purchaser had been procured and before the sale was effected the landowner wrongfully repudiated the agreement and completed the sale without plaintiffs’ assistance, and that plaintiffs then elected to treat the contract as ended and to bring an action for the value of the services rendered, for which they ask judgment, states a good cause of action.</p> <p>2. -Surplusage—Proof of 'Contract. An averment in such petition that the landowner had died since the sale was made, and that by reason of his death plaintiffs had become incompetent to testify to conversations and transactions had with him and were therefore unable to prove the terms of the oral agreement entered into for the sale of the land, does not destroy the other averments of the petition nor operate to defeat a recovery in quantum, meruit.</p>

<p>Error from Bourbon district court; Walter L. Simons, judge.</p>

<p>Error from Miami district court; Winfield H. Sheldon, judge.</p>

Error from Neosho district court; James W. Finley, judge. STATEMENT. The gas company received in the aggregate $4800, which it deposited in the bank, and which sum was made up by the payment to the company of $5 by each consumer as a condition precedent to receiving gas. Th§ payment was made upon the following written contract: “Second.

<p>SYLLABUS BY THE COURT.</p> <p>Injunction—Paving Railroad Right of Way Used as a Street —Adverse User. An order refusing an injunction to restrain the contractors of a city from paving a part of a railway company’s right of way, long used without objection as part of a public street, should, under the facts found by the district court, contain provisions to the effect that the improvement shall not give to the'city or to the public any title to the land, or any interest that can ripen into a title by user or that will obstruct the company in the use of its right of way for the purposes for which it was granted, or impair its title thereto.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Written Contract —• Ambiguity—Parties—Parol Evidence. Where it appears from a written contract that it was intended to bind some particular parties, but the contract does not 'show with certainty who the parties to it were, parol proof may be admitted to establish the identity of such parties.</p> <p>2. Petition—Election of Counts. In order to meet the possible exigencies of the proof it was competent for the plaintiff to allege its right of recovery in two counts, one on the contract and the other for money had and received, although both are founded on the same transactions.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Attorneys — Disbarment. The evidence examined and held to support a judgment of disbarment.</p> <p>2. - Wrongful Detention of Money ■—• Non-professional Business Transaction. Where a lawyer accepts employment to act for some one else in a business transaction, such as the sale of a tract of land, in the course of which he receives money belonging to his employer, his wrongful detention of it is a «sufficient ground for his disbarment, although he may not have been called upon to give legal advice or to tale part in litigation.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Contempt—Accusation—Violation of Intoxicating-liquor Injunction. An accusation for contempt of court, filed in a suit brought to suppress a nuisance under the prohibitory liquor • law, which charges defendants with keeping a place where intoxicating liquors were sold and persons permitted to resort for the purpose of drinking such liquors in violation of a temporary injunction, need not state the names of the persons to whom sales were made or the kind of liquors sold.</p> <p>2. - Justification—Error in the Injunction Suit. A party to a suit will not be permitted to disobey an order of the court on the ground that the court committed error in the proceedings.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Larceny—Ownership of the Property—Wheat in a Freight-car on a Railway Side-track. Where a freight-car loaded with wheat is standing upon the side-track of a railway company for the .purpose of being switched by the railway company to an adjacent mill, where it is to be unloaded, and, while the car is so situated, wheat is stolen therefrom, the railway company is the owner of the wheat taken to the extent that a charge of larceny under section 2073 of the General Statutes of 1901, predicated upon such ownership, will be sustained.</p> <p>2. Public Documents—Transcript of Evidence Taken at Preliminary Examination by County Attorney’s Stenographer. Where the state furnishes the county attorney with a stenographer, who takes the evidence given at a preliminary examination for and under the direction of the county attorney, and afterward transcribes the same for the county attorney, who uses it in the examination of witnesses on the trial of the same case in the district court, such transcript is not a public document, but is the private property of the county attorney, and the attorney for the defendant has no legal right to the possession or use thereof.</p> <p>3. Criminal Procedure—Statement to Jury—Irrelevant Matters. It is not error for the court, where a minor is being tried for a crime, to prevent counsel from discussing, when stating the case to the jury, facts which are immaterial and evidently intended to excite the sympathy of the jury, as that the defendant’s mother is a widow; that he is good to her; that he is industrious, and gives his money to her; and that the punishment fixed by law for the offense charged is very severe.</p> <p>4. -Discretion of the Trial Court. A trial court has a wide discretion in controlling the manner in which trials are conducted before it, and a reviewing court will not interfere in the exercise of such discretion unless the rights of a litigant are prejudiced thereby.</p> <p>5. Larceny—Proof. The evidence in this case examined and found sufficient to sustain the conviction.</p>

<p>Appeal from Chautauqua district court; Granville P. Aikman, judge.</p>

<p>Error from Greeley district court; Charles E. Lob-dell, judge.</p>

<p>Error from Montgomery district court; Thomas J. Flannelly, judge.</p>

<p>Error from Wallace district court; Jacob C. Ruppenthal, judge.</p>

<p>Error from Cowley district court; Carroll L. Swarts, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Practice, Supreme Court—Costs—Waiver. In the absence of any statute or rule of court on the subject the right of a party to have expenses he has incurred taxed as costs will be deemed to have been waived if not asserted until after a judgment has been rendered and satisfied, when no excuse is shown for the delay.</p>

<p>Error from Crawford district court; Arthur Fuller, judge.</p>

Original proceeding in quo warranto. STATEMENT. This is an action in quo warranto to oust the defendant from exercising corporate franchises in this state.

<p>Error from Atchison district court; Benjamin F. Hudson, judge.</p>

Error from Shawnee district court; Alston W. Dana, judge. STATEMENT. On August 14, 1903, Louis Ginter executed his will, giving one-half of his property to his wife, $100 each to three married daughters, $50 to his son-John, and the remainder of his estate to his son Fred. Fred was named as executor, was given the care and management of the estate for five, years', and was allowed the same period in which to pay bequests.

<p>Error from Miami district court; Winfield H. Sheldon, judge.</p>

<p>Error from Graham district court; Charles W. Smith, judge.</p>

Error from Brown district court; William I. Stuart, judge.. STATEMENT. Amos Moore, of Brown county, was indebted to several parties, among whom were the Kansas City Live Stock Commission Company and the Bank of Hamlin. The debt due the bank was evidenced by four promissory notes, aggregating the sum of $219.43. The notes became due August 10, 1906, September 14, 1906, and October 10, 1906, respectively. This indebtedness was unsecured.

Error from Harvey district court; Peter J. Galle, judge. STATEMENT. J. P. Bauman & Sons, a partnership, are wholesale merchants doing business in New York City. McManus Brothers, also á partnership, are merchants doing business at Newton, Kan. Oh November 12, 1903, a traveling salesman of Bauman & Sons called upon McManus Brothers at their place of business and received an order from them for a bill of goods, amounting to the sum of $354.64.

<p>Error from Ford district court; Gordon L. Finley, judge.</p>

Error from Scott district court; Charles E. Lob-, dell, judge. STATEMENT.

<p>SYLLABUS BY THE COURT.</p> <p>.1. Highways—Vacation—Unopened and Unused County Roads. Where open and unobstructed lands lying- wholly outside the corporate limits of a city have been regularly platted and laid out as an addition and the streets dedicated to the public, such ■ streets or roads can not be regarded as unopened and un- . ; used within the meaning of, section 6058 of the General Statutes of 1901, making county roads vacant which have remained unopened for public use for seven years.</p> <p>2. -Non-user. Neither the failure of the county authorities formally to open up and work the streets in such an addition nor the fact that such streets -have not been used by the public will make them in láw closed or unopened streets, where everything was done at the time the plat was filed which was necessary to open them for public use.</p>

Error from Labette district court; Elmer C. Clark, judge. STATEMENT. A brother of the plaintiff died at Kansas City on the evening of August 22, 1906. The widow sent a telegram to the plaintiff asking him to come. She also sent a telegram to the plaintiff’s sister, at Denison, Tex.

<p>SYLLABUS BY THE COURT.</p> <p>1. Elections—Extension of Water-mains—Vote Required. A provision in, a city ordinance that a water-works „ company shall extend the water-mains “when requested to do so by a majority of all votes cast at any general or special election at which the proposition of such extension shall have been submitted to the people” means that the company is not required to make an extension unless a.majority of all those voting on any proposition at such election vote in favor of the extension.</p> <p>'2. Contracts—Modification—Authority of Agent of a Corporation. The power to make agreements modifying the franchise and contract made between the water-works company and the city is not incidental to the office of secretary of the company or of superintendent of the water-plant, and an agreement of that kind, if made by such officer, is not binding on the company in the absence of evidence of authority to make it or of ratification by the company.</p> <p>:3. --• Forfeiture—Estoppel—Contract Executed by a Receiver for One Party. The water-works company shut down the plant on the alleged ground that the earnings were insufficient to meet operating expenses, and a receiver for the company was appointed, with the consent of the city, who proceeded to operate the plant and to supply water to the city. Held, that the receiver was in a sense a trustee for the city and the company, and the city was not in a position to insist on a forfeiture for the non-supply of water while it was receiving water from the receiver, nor to claim damages from the company as if no water had been furnished.</p> <p>4. Damages—Liquidated. Where damages provided for in a contract are uncertain' in their nature and can not well be ascertained by any pecuniary standard, and where the parties themselves, understanding the peculiar circumstances surrounding the transaction, are better able to estimate the loss that may be sustained by delay or failure of performance, they are permitted to fix the amount of damages to be recovered.</p> <p>5. -Same., A provision in the contract stipulating that if the water-works company shall be temporarily unable to supply water no rentals shall be paid during such period, and that if the disability be the fault of the company the rebate for water rent shall be for double the time the works are thus disabled, should be regarded as liquidated damages recoverable by the city.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Personal Injuries—Assumption of Risk—Contributory Negligence—Instructions—Special Findings. The errors assigned are that the court gave improper instructions, refused to give proper instructions that were requested, and denied a request to require the jury to return a more definite answer to a ques- • ■ tion submitted. The record is examined, and it is held that no error appears in the rulings complained of.</p>

<p>Error from Wyandotte court of common pleas; William G. Holt, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Limitation op Actions—Suit to Defeat a Tax Title—Commencement of -Action—Publication Service. Within the meaning of the section of the act relating to taxation requiring a suit to defeat a tax title to be commenced within five years from the time of recording the deed (Gen. Stat. 1901, § 7680), an action against a non-resident who is outside of the state is to be deemed begun where the plaintiff, without causing a summons to be issued, has filed his petition and affidavit for publication and caused a suitable notice to be delivered to the publisher- of the only newspaper printed in the county, with directions for its insertion in the next issue thereof, provided such directions are carried out and a proper publication results.</p> <p>2. - Attempt to Commence an Action. If section 20 of the code of civil procedure, providing that an action shall be deemed commenced at the date of the first publication, applies to such a case, the steps stated in the foregoing paragraph must be regarded as constituting an attempt to begin it within the meaning of the further provision of the same section that “an attempt to commence an action shall be deemed equivalent to the commencement thereof . . . when the party faithfully, properly and diligently endeavors .to procure a service.</p>

Error from Chautauqua district court; J. A. Ferrell, judge pro tem. STATEMENT. The plaintiffs, W. M. Dabney and George L. Lane, were partners engaged in the business of drilling oil and gas wells. The defendants were partners, under the name of the Home Oil & Gas Company, and were the owners of an oil-and-gas lease of land upon which the plaintiffs contracted to drill a well.

<p>SYLLABUS BY THE COURT.</p> <p>1. Statute op Frauds—Assignment of Interest in Real Estate— Signature—Executed Contract. The holder of four certificates of sale of school-land attempted to transfer his rights thereunder to his wife. They occupied the land as a homestead. A written assignment in proper form was indorsed upon each certificate and an acknowledgment to the signature of the assignor duly attached. The assignor failed to subscribe his name on one of the assignments, but all were duly-acknowledged before the same officer. The certificates thus indorsed were all delivered to the assignee, and afterward treated by the parties as a complete, final and satisfactory transaction. The assignee paid twelve dollars in consideration of the assignments. Both parties continued to occupy the land as a homestead. Eight months afterward the husband died. More than three years afterward his daughter commenced an action to recover one-half of her father’s interest in the land covered by the certificate which he omitted to sign, claiming-that the want of his signature made the assignment void under the statute of frauds. Held, that as the transaction was completed, and had been acquiesced in by the parties, the statute of frauds did not apply.</p> <p>2. Compromise Tax Deed—Issuance before Expiration of Redemption Period. Under section 76*72 of the General Statutes of 1901 a tax-sale certificate was assigned on the 18th day of March. A deed was issuqd to the holder of the certificate on the 18th day of September following. Held, that the deed was issued before the expiration of six months after the date of the tax-sale certificate, as provided by such section, and is therefore void.</p>

<p>Error from Barton district court; Jermain W. Brinckerhoff, judge.</p>

<p>Error from Shawnee district court; Alston W. Dana, judge.</p>

<p>Error from Kingman district court; PRESTON B. Gillett, judge.</p>

<p>Error from Marion district court; Oscar L. Moore, judge.</p>

<p>Error from Jefferson district court; Marshall Gephart, judge.</p>

<p>Error frond Ness district court; Charles E. Lob-dell, judge.</p>

<p>Error from Wyandotte district court; J. McCabe Moore, judge.</p>

<p>Error from Woodson district court; OSCAR Foust, judge.</p>

<p>Error from Cheyenne district court; Abel C. T. Geiger, judge.</p>

<p>Error from Shawnee district court; Alston W. Dana, judge.</p>

<p>Error from Rawlins district court; William H. Pratt, judge.</p>

<p>Appeal from Cowley district court; Carroll L. Swarts, judge.</p>

<p>Error from Lyon district court; Frederick A, Meckel, judge.</p>

<p>Error from Kiowa district court; Gordon L. Finley, judge.</p>

<p>Error from Wilson district court; Leander Still-well, judge.</p>