Volume 83 — Kansas Reports

<p>Appeal from Republic district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Condemnation Proceedings — Measure of Damages. On an appeal from the condemnation of land it is proper, in proving damages, to consider all the capabilities of the property and its most advantageous uses as it is actually situated. (Irrigation Co. v. McLain, 69 Kan. 334.)</p> <p>2. - Tract Surveyed and Mapped — Plat Not Recorded— Damages to Entire Tract. On the trial of an appeal from the award in a proceeding to condemn a portion of a tract taken for a drainage canal the fact that the owner of the tract had it surveyed and mapped for residence and gardening plats, no plat dedicating streets and alleys through the tract having been recorded, does not debar such owner from having damages assessed to the remainder of the entire tract not taken for the ditch, although the jury find and assess damages to the tract on the basis that it is most valuable for residence purposes.</p>

<p>Appeal from Riley district court.</p>

<p>Appeal from Miami district court.</p>

<p>Appeals from Miami district court.</p>

<p>Appeal from Miami district court.</p>

<p>Appeal from Douglas district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Foreign Corporations — Service of Process. The various methods provided by statute for obtaining service of process on foreign corporations are cumulative. (Betterment Co. v. Reeves, 73 Kan. 107, syllabus.)</p> <p>2. Practice, District Court — Denial of Frivolous Motion to Quash Summons — Time of Trial — Discretion. Upon the denial of a motion to quash a summons and to set aside the service, if it appears to the court that the motion is not made in good faith or is frivolous, it is, and was before the adoption of the new code, within the discretion of the court to continue the case for the term, or to assign it for hearing at the same term, reasonable time being given to make up the issues. Held, in this case, the discretion was not abused.</p> <p>3. - Time to Produce Evidence. In the absence of both a motion for a continuance and an affidavit conforming substantially to the requirements of the statute, a party can not predicate error upon a lack of time to produce his evidence.</p> <p>4. - Change of Venue — Disqualification of the Judge. A motion in this action for a change of venue, on the ground of the disqualification of the judge, was filed, and was supported by an affidavit that a certain bank had indirectly a large interest (shown by other evidence to be .at least $5000) in the subject matter of the action, and that the judge “is a director in said bank, actively engaged as such in its management, and acts as legal adviser for and advises the board of directors and officers of said bank concerning legal matters and interests of said bank, and for his services so rendered to said bank receives a stipulated annual salary, and that such relations have existed for a continuous period dating back to the time the subject matter of this suit first came into existence, and prior to the time the indebtedness of the said W. H. Jones to said bank was first made, and that the subject of said indebtedness, and the ability of said Jones to pay the same, and his means so to do, have been the subject of discussion by the directors of said bank with and in the presence of the judge, in connection with other business matters of said bank.” There was no counter evidence, and no counter statement by the judge. Held, it was error to deny the motion.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Title — Doubtful or Nonmerchantable. A title need not in fact be bad in order to make it unmarketable or nonmerehantable. The question is- whether a reasonably prudent man, familiar with the facts and apprised of the question of law involved, would accept the title in the ordinary course of business. Nor is it enough, even, that the court on the whole consider it good. If there be doubt or uncertainty sufficient to form the basis of litigation, the title is unmarketable.</p> <p>2. -Action to Recover Purchase Money — Determination of Question of Law upon which Sufficiency of Title Depends. In an action to recover back purchase money for the failure of the vendor to comply with an agreement to furnish a marketable title, where the parties whose possible claims may affect the title are not before the court, the question of law upon which the title turns will not be determined, but the title will be deemed unmarketable if the question is one upon which it is apparent that other courts might entertain a different opinion.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Contracts — Transaction Held to be a Sale — Place of the-Contract — Foreign Corporation — Authority. A contract by a foreign corporation to deliver goods on board of cars in another state, consigned to parties in this state, upon their-order, and containing stipulations for the advertisement of' the goods by the consignor and for the return upon certain conditions of goods unsold, is examined, and it is held, (1) that there was a sale of the goods so delivered, and (2) that, the transaction was not “doing business in this state” re-, quiring a certificate of authority as provided in section 1726-of the General Statutes of 1909.</p> <p>2. Practice, Supreme Court — Motion to Dismiss Appeal — Issue-Determinable in the Trial Court. An action by such foreign corporation for the price of goods so delivered under the contract referred to was dismissed for want of authority to do. business in this state. After an appeal had been taken from that order the goods were shipped back to the consignor, but, were not accepted. It is held, that a motion to dismiss the. appeal because of such return can not be sustained. The matter is defensive, to be determined in the district court if presented there in the usual course of practice.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Sales — Manufacturer — Implied Warranty. A sale by a manufacturer of a certain kind of telephones made in the usual course of business for the general trade does not carry with it an implied warranty that the telephones will meet the purposes and expectations of the buyer.</p> <p>.2. - Sale on Approval — Retention beyond Specified Time, without Complaint or Offer to Return. Where a sale of an article was made on sixty days’ approval, in which the buyer was given the right to return it if at the end of that time it failed to give efficient service, but if it proved efficient the buyer was to accept and pay for it at a stipulated price, the retention and use of the article for more than a year, without complaint, no return of or offer to return it having been made, justified a recovery of the contract price of the article by the seller.</p>

<p>Appeal from Sedgwick district court.</p>

<p>Appeal from Kearny district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Mandamus — Prerequisite to Action — Bank Guaranty Act— Admission of National Banks. An action of mandamus to compel the bank commissioner to admit the national banks of the state to the benefits of the bank guaranty act can not be maintained until some national bank desires and unavailingly asks for admission.</p> <p>2. - Statutory Construction. The court can not undertake to interpret a statute merely because there is a difference of opinion as to its meaning, and can only require a bank commissioner to perform some specific act or duty; and until a national bank invokes the benefit of the guaranty law there is no duty for him to perform in that connection, nor any basis for the issuance of the compelling writ of mandamus until such application has been refused.</p>

<p>Appeal from Wyandotte court of common pleas.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Office and Officers — Judge Pro Tem. Continuing to Act after Death of District Judge — Orders Not Void. A district judge v/as unable on account of sickness to attend in a county of his district at a time fixed by statute for the opening of a term of court therein, and the members of the bar elected one of their number to act as judge pro tem. The sick judge died during the term, and the judge pro tem. continued thereafter to discharge the duties of judge, with the acquiescence of all the members of the bar, the court officers and litigants, for the entire term, and even decided a motion for a new trial which was continued by agreement of counsel to a time subsequent to the appointment and qualification of the judge appointed to fill the vacancy, the new judge having been notified thereof and failing to attend. Held, that the judge pro tem, was a de facto judge, acting under color of authority; that none of his judgments or orders as such is void, or subject to collateral attack.</p> <p>2. Practice, Supreme Court — Construction of Petition — Sufficiency of Evidence — Objections First Made on Review. When the sufficiency of a petition, and of the evidence in support of a judgment for the plaintiff thereunder, are attacked for the first time in this court, the petition will be liberally construed, and slight evidence will be held sufficient for the purpose of sustaining the judgment.</p>

STATEMENT. The insurance company insured property of Hanks which was afterward destroyed by fire through the negligence of a railway company. Hanks settled with the railway company, receiving $3200 on account of the loss. The railway company claimed that the settlement was for the entire loss. Hanks claimed that he was to have $500, the amount of the policy of insurance, in addition to the sum of $3200 so received. The policy contained a subrogation clause.

STATEMENT. In this action W. B. Henry alleged that the Atchison, Topeka & Santa Fe Railway Company undertook to, and did, transport his goods, of the value of $2500,. from Topeka to Kansas City, that when the goods reached their destination and he demanded delivery of the same the railway company wrongfully refused to-give him his goods, and that subsequently they were injured and destroyed.

<p>Appeal from Clark district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Attachment — Sale of Property — Dissolution—Determination of Plaintiff’s Right to Proceeds under a Chattel Mortgage. Where an action in attachment is begun, and property is attached therein and is sold by order of court and converted into money, and thereafter the attachment is dissolved and the action dismissed, a court may, while the money remains in the custody of its officers, hear and determine, on motion therefor, the claim of the plaintiff (who claims to have a chattel mortgage on the property) as to his right to have the money — the proceeds of the sale — delivered to him instead of to the defendant in the action.</p>

<p>Appeal from Stanton district court.</p>

<p>Appeal from Neosho district court.</p>

<p>Appeal from Neosho district court.</p>

STATEMENT. This action was brought by the Mound City Gas, Coal and Oil Company, which had obtained an oil, coal and gas lease upon a tract of land of which Henry Carbon was the owner, against the Goodspeed Gas and Oil Company, which claimed a subsequent lease on the same premises.

<p>SYLLABUS BY THE COURT.</p> <p>Railroads — Injury to Employee — Contributory Negligence— Condition of Defendant’s Track — Special Findings. In an action for the death of a freight conductor, through being caught and crushed between two cars during switching operations, held:</p> <p>(a) Evidence that as a coupling was about to be made he was seen to try to raise a lever which operated the automatic device, and then to step “upon the track, and that after the accident the apparatus was found to be out of order, was sufficient to prevent the fact of his going between the cars from being deemed contributory negligence as a matter of law.</p> <p>(&) Evidence that close by his feet, near the middle of the track, there was found á lump of coal about the size of a man’s head, bearing indications of having been stepped on, and that a mark near it showed where some one’s foot had slipped, justified an inference that he had fallen over it and that his death was occasioned thereby.</p> <p>(c) Evidence that the lump of coal appeared to have been exposed to the weather for some time, that other smaller lumps had been permitted to lie upon the track indefinitely, and that weeds and grass were growing between the rails to the height of four to seven inches, warranted a finding of actionable negligence on the part of the company in respect to the condition of the track.</p> <p>(d) A finding that there was no evidence that the conductor was familiar with the condition of the track is to be interpreted as meaning that under all the evidence the jury were not satisfied that such was the case.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Criminal Law — All Witnesses Whose Names are Indorsed on Information Need Not be Called. On the trial of a criminal action' the state is not obliged to examine all the witnesses whose names are indorsed on the information, and in a prosecution for assault with intent to kill it is not error for the court to refuse to require the state to examine the person assaulted, his name being indorsed on the information as a witness.</p> <p>2. Evidence — Defense of MentqJ, Irresponsibility — Collateral and Immaterial Evidence. The defense to a prosecution for assault with intent to kill was mental irresponsibility occasioned by seeing the person assaulted stealthily enter the defendant’s home at night and hearing his wife’s confession concerning her relations with such person. The defendant testified that he had previous information from the person himself, and from others, respecting the licentious conduct of such person with women other than the defendant’s wife, and the defendant described the effect this.information had upon his mind, in connection with what he saw and what his wife told him, on the night referred to. Held, the details of the person’s licentious conduct with other women, as related by himself and others to the defendant, were not material. Held, further, that an offer of the defendant to show by a woman, who was a witness, that the person assaulted had tried to seduce her was properly denied.</p> <p>3. - Same. On the trial of the action referred to the wife of the defendant, as a witness in his behalf, related in detail her relations with the person assaulted as she told them to her husband on the night of her surprise. She told of salacious suggestions made to her by such person on a certain occasion. She was then asked if she assented to them, but was not permitted to answer. Held, the ruling was correct, because the issue was the defendant’s mental condition following what she told him, and not her chastity.</p> <p>4. - Matters of Common Knowledge — Difference between Solar and Standard Time. On the trial in question the time when the moon set on a given night became relevant. The state introduced in evidence an almanac which stated that its calculations were given in solar time. Held, it was not essential to the admissibility of the evidence that it be accompanied by testimony explaining the difference between solar and standard time, the matter being one of common knowledge.</p> <p>5. - Controversy Foreign to Issue Introduced by Defendant —Errors in Investigation Immaterial. In the course of his relations with the defendant’s wife the person assaulted told her of trouble the defendant had had with another woman, and that the defendant had paid money to fix it up. This conversation was included in the confession made to the defendant by his wife, and was narrated by her while on the witness stand as a witness in his behalf. The defendant proceeded to air the incident referred to before the jury, produced a witness who gave the details of the settlement with the woman, and testified himself that he had not been guilty of adultery. The state in rebuttal produced evidence that the defendant had committed adultery with the woman, and that sl:e did not understand the written terms of the settlement she made with the defendant. Held, the controversy thus introduced into the case by the defendant was wholly foreign to the issues on trial, and that any errors committed in its investigation are immaterial.</p> <p>6. -Hypothetical Question — Expert Opinion Based on Testimony of a Witness. A medical expert heard the defendant’s testimony and was asked to give an opinion respecting the defendant’s sanity, “based wholly upon his testimony.” Held, the question sufficiently indicated that the testimony was to be accepted as true and so made the foundation of the expert’s opinion.</p> <p>7. Manslaughter — :Fourth Degree — Voluntary Manslaughter at the Common Law. Section 27 of the crimes act, which provides that “every other killing of a human being, by the act, procurement or culpable negligence of another, which would be manslaughter at the common law, and which is not excusable or justifiable, or is not declared in this article to be manslaughter in some other degre, shall be deemed manslaughter in the fourth degree,” imports into the crimes act the offense of voluntary manslaughter at the common law.</p> <p>8. - Absence of Malice — Intent to Kill. At the common law the absence of malice was entirely compatible with the intent to kill which voluntary manslaughter included, and this compatibility continues to characterize the offense as it appears by adoption in the crimes act.</p> <p>9. - Assault with Intent to Commit Manslaughter. Section 41 of the'crimes act, which provides that “every person who shall be convicted of an assault with an intent to commit any robbery, rape, burglary, manslaughter, or other felony, the punishment for which assault is not hereinbefore prescribed, shall be punished by confinement and hard labor not exceeding five years, or by imprisonment in the county, jail not less than six months,” creates the statutory offense of “assault with intent to commit manslaughter.” As applied to manslaughter at the common law, this section means that if a person assault another under such circumstances that, should death ensue, the crime would be manslaughter at the common law, he shall be punished in the prescribed way.</p> <p>10. - Same. If a person assault another with a deadly weapon, in heat of blood, upon reasonable provocation, without malice and without legal justification or excuse, but with intent to kill, he may be convicted of assault with intent to commit manslaughter under section 41 of the crimes act.</p> <p>11. Criminal Law — Charge under Section 88 of Crimes Act— Conviction under Section ¿1. A person charged with an assault on purpose, of malice aforethought and with intent to kill, under section 38 of the crimes act, may be convicted of an assault with intent to commit manslaughter under section 41 of that act.</p>

<p>Error from Sedgwick district court.</p>

<p>Error from Reno district court.</p>

<p>Appeal from Jackson district court.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Cities ■ — • Street Improvements — Remonstrance by Property Owners — Time—Jurisdiction. Section 1420 of the General Statutes of 1909, authorizing the city council of cities of the second class to improve streets and to levy special taxes in payment therefor, provided a majority of the resident owners of property liable to taxation therefor shall not within twenty days from the last publication of the resolution file their protest against such improvement, is interpreted to mean that the property owners have the full period in which to express their approval or disapproval; and if, after a majority have protested, and before the expiration of the twenty-day period the majority protesting become the minority by changes in the ownership of real estate, the council has power to proceed.</p> <p>2. Judgments — Motion for Temporary Injunction — -Res Judicata. Where the merits of a case are fully tried out in an application for a temporary injunction by the introduction of witnesses by both parties, and at the request of the parties the court makes separate findings of fact and conclusions of law denying the temporary injunction, and on the final hearing it is stipulated that the findings made at the time the temporary injunction was refused should stand as admitted facts, held, that the court committed no error in holding the plaintiffs estopped from retrying issues of fact determined at the former hearing.</p>

<p>Appeal from Chautauqua district court.</p>

<p>Appeal from Butler district court.</p>

<p>SYLLABUS BY THE COURT.'</p> <p>Corporations — Amount of Capital Stock Assessable as Personal Property. The method of arriving at the amount of a gas company’s capital stock assessable to the corporation as personal property considered, and rules governing the subject stated.</p>

<p>Appeal from Shawnee district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Railroads — Crossing of Tracks — Reasonableness of Order— Injunction — Parties. A railroad company is entitled to maintain an action of injunction to determine the legality, justice and reasonableness of an order made by the board of railroad commissioners authorizing another railroad company to build its line across the track and switch yards of the former company, and in such action the board of railroad commissioners and the railroad company proposing to build the crossing may be properly joined as defendants.</p> <p>2. Judgments — Collateral Attack — Action against a Resident and a Nonresident. The decision that a resident defendant was rightly joined with a nonresident defendant summoned in another county may be reviewed on appeal, but the decision of the question by a court having jurisdiction of the subject matter of the action is not open to collateral attack.</p> <p>3. Words and Phrases- — ■“Restraining Order” — “Temporary Injunction.” Where the district court designates and treats an injunction order issued by it as a temporary restraining order the supreme court, in which a habeas corpus proceeding is brought to release the defendant from imprisonment imposed for violating the order, will also treat it as a temporary restraining order, although such order recites that it is to continue in force until the further order of the court.</p>

<p>Appeal from Miami district court.</p>

<p>1. Wills — Mental Capacity — Undue Influence. A finding that a testator had mental capacity and was not unduly influenced when she executed a will was sustained by evidence.</p> <p>2. Evidence — Transactions with Persons Since Deceased. A statement by a devisee that he had had no communication with the testator was properly admitted.</p>

<p>Appeal from Allen district court.</p>

<p>Appeal from Shawnee district court.</p>

<p>Negligence — Crossing Railroad Tracks in Front of Motionless Engine — Starting Engine without Signaling. Where a team while crossing a railroad track was frightened by the steam from an approaching engine, in an action for resulting damages it was held (1) that it was not necessarily negligent for the driver to attempt to cross in front of the engine, which had been standing still for five minutes and the crew of which gave no signal that it was about to be started, and (2) that it was for the jury to say whether the starting of the engine without such signal, after the driver was seen to be attempting to cross in front of it, was negligence on the part of the railroad company.</p>

<p>Appeal from Miami district court.</p>

<p>Appeal from Wilson district court.</p>

<p>Appeal from Wyandotte court of common pleas.</p>

<p>Appeal from Lyon district court.</p>

<p>Appeal from Allen district court.</p>

<p>Appeal from Cherokee district court.</p>

<p>Officers — Appointment—Veterans’ Preference Law. In an action to oust a county assessor from office on the ground that his appointment was made in violation of the old soldier preference law (Gen. Stat. 1909, § 7879), the issue being whether the county commissioners acted in good faith, judgment rendered for the defendant on the evidence.</p>

<p>Public Officers — Individual Liability for Performance of Duties. The rule applied that executive officers are not. individually liable for the performance of duties involving discretion and judgment, in the absence of malice, oppression in office or willful misconduct.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Petition — Action on Forfeited Recognizance. Under a statute authorizing the forfeiture of a recognizance only where , the principal’s failure to appear is without sufficient excuse, it is not necessary for the petition in an action upon .a forfeited recognizance to negative the existence of such an excuse.</p> <p>2. Actions and Remedies — Forfeited Recognizance — Accrual of Action. The provision of the criminal code (Grim. Code, § 153) that an action upon a recognizance shall not be brought until after the adjournment of the court has no application to a recognizance given for the appearance of a defendant before a justice of the peace, notwithstanding the statute provides that such recognizance shall be certified to the district court and that “like proceedings shall be had thereon as upon the breach of the condition of recognizance for appearance before that court.” (Crim. Code, § 46.)</p>

<p>Appeal from Shawnee district court.</p>

<p>SYLLAEUS BY THE COURT.</p> <p>1. Partition — Compensation for Improvements Made by a Co-tenant. Where an owner of land fraudulently transferred a tract to his son for the purpose of defeating his wife from obtaining a widow’s statutory share therein at his death, and where after his death it was determined in a trial of title that the transfers were void and that his widow was entitled to one-half of the land, the son is not entitled to an allowance in a partition proceeding for improvements made upon the land before his father’s death and while he was engaged in ,- the attempt to defraud the widow.</p> <p>2. - Same. It is competent for a court in making parti- . tion of land among cotenants to award compensation for lasting and valuable improvements which enhanced the value of the land arid were made in good faith by one of the cotenlants.</p>

<p>Appeal from Cloud district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Municipal Corporations — Commission Form of Government. Before the commission form of government provided for by chapter 82 of the Laws of 1909 can be applied in a city of the second class it must be adopted at an election held pursuant-to a notice as prescribed in section 36 of the act.</p> <p>2. -Elections — Notice. Where the- last publication of the notice of a city election to adopt the commission form of government in a city of the second class was only five days before the date fixed for the election, and less than a majority of the-registered voters voted upon the proposition, the commission form of government was not adopted, although a majority of the votes cast were in favor of the proposition and the vote was canvassed and the result declared accordingly.</p> <p>3. Office and Officers — Mandamus. The councilmen of a city will not be compelled by mandamus to canvass votes for persons to fill offices which do not exist.</p>

<p>SYLLABUS BY THE COURT.</p> <p>District Judge — Appointee’s Tenure of Office. The judge of the second division of the district court of Wyandotte county, appointed to that office by the governor on April 23, 1909, pursuant to the authority of chapter 112 of the Laws of 1909 (Gen. Stat. 1909, §§2445-2458), will hold his office until the next- regular election after, his appointment, which will be the general election to be held in November, 1910, when his successor may be chosen.</p>

<p>Appeal from Montgomery district court.</p>

<p>Appeal from Wilson district court.</p>

<p>1. Judgments- — Collateral Attack — Publication Service — Misnomer. In a suit to quiet title, where the notice by publication erroneously gave the defendant’s middle initial as “V” instead of “U,” a judgment for the plaintiff was not void.</p> <p>2. -Purchaser Bound by Judgment against His Grantor. One who subsequently took a conveyance from the defendant in the suit to quiet title was hound by the judgment rendered against his grantor.</p>

<p>Appeal from Doniphan district court.</p>

<p>Appeal from Elk district court.</p>

<p>Appeal from Shawnee district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1*. Limitation of Actions — Money Loaned for Indefinite Period —Accrual of Action — Demand. Where a loan is made with the understanding that the borrower is to use the money for some considerable but indefinite time, and until its return is requested, the statute of limitations does not run against an action for its recovery until payment has been demanded.</p> <p>2. Statute op Frauds — Oral Agreement in Consideration of Marriage — Time of Performance — Implied Contract to Pay Child for Services. In an action for the value of services performed by a minor for his stepfather proof of an oral agreement to pay for them may establish a right to recover, by-overthrowing the presumption that they were rendered by reason of the relation of the parties, notwithstanding the contract itself may be unenforceable under the statute of frauds because made upon consideration of marriage and not to be performed within a year.</p>

<p>Appeal from Cloud district court.</p>

<p>Appeal from Marion district court.</p>

<p>Appeal from Marion district court.</p>

STATEMENT. George Hackney in his lifetime was a stockholder of the First National Bank of Topeka. In July, 1905, the bank failed, and James T. Bradley was appointed receiver. Immediately thereafter the comptroller of the currency, for the purpose of enforcing the individual liability of the stockholders of the bank under the provisions of the national banking act, made an assessment of 100 per cent upon each share of stock.

<p>syllabus BY THE COURT.</p> <p>Negligence — Placing Employee at Work in Dangerous Place —Notice. It is negligent in a railroad company to place an employee in an imminently dangerous place to work, without warning or instruction for his guidance, when he is ignorant of the dangers to be apprehended and of the means by which to avoid them.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Interest — Unliquidated Damages. In an action for unliquidated damages the jury may not allow interest upon the amount of damages awarded.</p>

<p>Appeal from Finney district court.</p>

<p>Appeal from Wyandotte court of common pleas.</p>

<p>Appeal from Clark district court.</p>

<p>Appeal from Hamilton district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Sales — Contract Not Sufficiently Definite and Certain. An order for $360 worth of jewelry, to be made up of articles named in a price list contained in the order, is void where it can not be determined from the writing itself either the quantity, quality or price of any of the articles specified which the plaintiffs were bound to ship and which the defendant agreed to purchase.</p> <p>2. •-Delivery Prerequisite to Action for the Purchase Price. The plaintiffs sued to recover for goods, wares and merchandise sold and delivered according to the terms of a written order. On the trial the plaintiffs introduced the original order and rested. Held, that if the order had constituted a valid and binding contract the court rightly sustained a demurrer in the absence of any testimony showing a delivery of the goods to the defendant.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Fees and Salaries — Probate Judge — Payment for Services Not Rendered. Section 1 of chapter 339 of the Laws of 1903 contemplates that the salary therein provided shall be paid only after the performance of some service required by such section, and a peremptory writ of mandamus compelling the payment of such salary where no service has been performed is erroneous.</p> <p>2. Mandamus — Payment of Claim Reduced to Judgment. Where a claim against a county has been reduced to judgment, and such judgment has become final, payment may he enforced by mandamus.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Independent Contractor — Contractee Generally Not Liable for Negligence of Contractor. The general rule is that when a person lets out work to another, the contractee reserving no control over the work or workmen, the relation of contractor and contractee exists, and not that of master and servant, and the contractee is not liable for the negligence or improper execution of the work by the contractor.</p> <p>2. - Work Intrinsically Dangerous — Injury to Third Party —Liability of Contractee. To the foregoing rule there are many exceptions and limitations, one of' which is that an owner, or a contractee, is responsible for injuries to a third party, caused by work done by an independent contractor, where the contract directly requires the performance of work ' intrinsically dangerous, however skillfully done.</p> <p>3. - Same. The mere liability to injury from doing the work contracted for can' not be the test, for injuries may happen in any undertaking, and many are attended with great danger if carelessly managed, although with proper care they are not 'specially hazardous.</p> <p>4. - Same. The intrinsic danger of the undertaking upon which the exception is based is a danger which inheres in the performance of the contract, resulting directly from the work to be done and not from the collateral negligence of the contractor.</p> <p>5. Mines and Mining — Negligence of Independent Contractor— Liability of Mine Owner. It can not be held as a matter of law that mining generally is so intrinsically or inherently dangerous as to make the owner of a mine liable for the negligence of an independent contractor resulting in injuries to a servant of such contractor, where it is not shown that the mine was unsafe when the contract was made or that the owner reserved some control of its operation:</p> <p>6. Instructions — Omission to Submit Disputed Question of Fact. Where it is a disputed question of fact whether a person who employed the workmen and superintended the operation of a gyp.sum mine was an independent contractor or the superintendent for the owner, it is error to instruct the jury that the owner is liable for fatal injuries to a laborer employed in the mine, caused by the negligence of the person so superintending the mine, without submitting to the jury the disputed question of fact as to the relation of the superintendent to the owner.</p> <p>7. Evidence — Relevancy—Em/ployer’s Indemnity Insurance— Agent or Independent Contractor. Where it was a material question for the jury whether one acting as superintendent of a mine was so superintending it for the owner as its employee, or operating it for himself as an independent contractor, evidence that the owner held insurance indemnifying it against loss and damages from accidents to laborers in the mine, and of the terms of the policy, and of the correspondence between the owner and the insurance company and with, the alleged contractor, was competent as tending to show the real relation between the person so superintending the operation of the mine and the mine owner.</p> <p>8. Negligence — Findings and Evidence. The evidence is held to be sufficient to sustain the findings of negligence in the operation of the mine, causing the injury complained of, and of the absence of contributory negligence.</p>

<p>Appeal from Barber district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Factory Act — Injury to Employee — Violation of Statutory Duty — Proximate Cause of Injury. Under the provisions of section 5 of the factory act (Gen. Stat. 1909, § 4680) liability depends upon whether disobedience of the statute contributed directly to injury or death; and if in any case the failure to provide a statutory safeguard be not superseded by an intervening cause, and consequently is registered in the final event as a contributing cause, liability attaches although some other cause may have intervened and may also have contributed.</p> <p>2. -Purpose of the Statute in Requiring Safeguards. The purpose of the factory act in requiring safeguards for elevators, hoisting shafts and well holes (Gen. Stat. 1909, § 4676) was not merely to keep employees from falling down the ppenings, but was intended to secure them against injury from moving elevators as well.</p> <p>3. -Instructions — Defendant’s Duty Stated in the Language of the Statute. The legislature assumed that juries • are capable of understanding the language of section 1 of the factory act requiring safeguards for elevators and elevator shafts (Gen. Stat. 1909, §4676), and an instruction stating the measure of duty in that respect in the language of the statute is sufficient.</p>

<p>Appeal from Lyon district court.</p>

<p>Appeal from Crawford district court.</p>

<p>Appeal from Labette district court.</p>

<p>Appeal from Crawford district court.</p>

. Appeal from Saline district court. STATEMENT. This is a prosecution commenced before D. R. Wag-staff, a justice of. the peace of the city of Salina, in Saline county, Kansas, against P. F. Edquist and the -Belle Springs Creamery Company, a corporation. Defendant Edquist filed his motion to quash the amended complaint on February 9, 1910, which motion was by Justice Wagstaff denied. Thereafter trial was had, Edquist was acquitted, and the creamery company was convicted.

<p>SYLLABUS BY THE COURT.</p> <p>1. Criminal Law — Appeal by the State — Order Quashing Part of an Information. The state may appeal from an order-quashing- one count of an information, although another count-charging a different act is held sufficient or is not attacked.</p> <p>2. - Appeal by the State — Order Requiring Separate Statements of Matter Pleaded in One Count. Under the statute(Crim. Code,. § 283) authorizing- an appeal by the state in a criminal action “on quashing or setting aside an . . .. information” an appeal may be had from an order requiring-matter pleaded in one count to be separately stated in different counts.</p> <p>3. -Right of Appeal — Rendition of Final Judgment.. Where a motion to quash an information is sustained, and the state refuses to amend, the fact that no. formal final, judgment is entered discharging the defendant is not ground ' for dismissing the appeal.</p> <p>4. Information — Statutory Offense — Agreement to Prevent-Competition. In a prosecution under the statute (Gen. Stat-1909, § 5185) forbidding agreements to prevent competition in the sale of articles, or to control their price, it is not necessary that the information describe the nature of the agreement complained of, further than to characterize it in the language of the statute as intended and adapted to accomplish certain results.</p> <p>5. Statutes — Repeal by Implication — Antitrust Law. The antitrust law of 1889 (Gen. Stat. 1909, §§ 5185-5193) is not repealed by that of 1897 (Gen. Stat. 1909, §§ 5142-5152.)</p> <p>6. Information — Duplicity. An information is not bad for duplicity which charges in one count acts which would constitute a misdemeanor under either of the antitrust laws referred to.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Criminal Law — Larceny—Accomplice—Notice. In a criminal action, where the defendant is charged with' aiding and abetting another in the larceny of property, an instruction is properly refused which charges that in order to be guilty of the crime of larceny the defendant must have had knowledge that the property stolen was not the property of the person he was aiding and abetting.</p> <p>2. - Instructions — Weighing Testimony of Confessed Accomplice. In such an action, where one of the principal witnesses against the defendant was an accomplice who admitted stealing the property, the failure of the court to instruct the jury that great caution should be exercised in ■ weighing the testimony of an accomplice is not error, in the absence of a request for an instruction of this character.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Information — Duplicity. Sections 38 and 42 of the crimes act (Gen. Stat. 1909, §§2526, 2530) each contains but one offense. A count, therefore, in an information which contains the language of one of these sections only is not bad for duplicity.</p> <p>2. Evidence — Entries on Police Judge’s Docket by Acting Officer. Where a justice of the peace is acting as police judge, as provided 'by section 1428 of the General Statutes of 1909, the entries on his docket are proper evidence to show the proceedings had in a case pending before him the same as if he were the regular police judge.</p> <p>3. Instructions — -Refusal—Material Portions Given Elsewhere. The refusal to give an instruction requested will not be held erroneous where the material portions of such instruction are elsewhere given.</p> <p>4. - Applicability to the Issues. An instruction will not be deemed erroneous where, there is evidence which applies to the law stated therein and justifies the finding of the jury thereunder.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Intoxicating Liquors — Possession —• Evidence — “Dwelling House.” Upon an information for maintaining a nuisance in violation of the prohibitory liquor law, instructions giving in substance the rule of evidence prescribed by the statute (Gen. Stat. 1909, § 4396) were not erroneous as applied to the facts shown by the evidence, although the court limited the term “a dwelling house,” as used in the statute, to the defendant’s dwelling house.</p> <p>2. -Information■ — Immaterial Variance from Statutory Language — “Resort”—“Permitted to Resort.” Where no objection was made to an information for maintaining a nuisance in which it is charged that the defendant kept and maintained a place where persons “resorted” for the purpose of drinking intoxicating liquors as a beverage, instead of a place where persons were “permitted to resort” for such purpose (the language of the statute), and the case was tried and instructions were given in all respects as would have been done if the precise words of the statute had been used, the defendant was not prejudiced and the variance is immaterial.</p>

<p>Appeal from Cloud district court.</p> <p>STATEMENT.</p> <p>This suit was brought to enjoin the commissioners •of Cloud county from removing a county bridge which ■cost more than $8000, and from rebuilding it in another place, without an affirmative vote of the electors authorizing it and without the notice and the plans and specifications required by law. On the application of C. G. Anderson for the injunction testimony was heard, and on this the court made the following findings of fact and conclusions of law:</p> <p>“findings of fact.</p> <p>“(1) The plaintiff is a citizen of this state, a taxpayer of Cloud county, and since about the year 1900 has been the owner and in possession of the premises described in the petition of plaintiff, to wit, lots 7, 8 and 11, section 22, lot 3, section 23, lots 3 and 4, section 26, lots 1 and 3, and N. E. % and S. E. *4 of N. W. %, section 27, and lots 2 and 6, section 28, all in township 5 south, range 3 west, in Cloud county, Kansas, said farm containing 640 acres, more or less.</p> <p>“(2) That the Republican river, a meandered stream, adjoins and bounds said farm on the north, except that a small portion of the S. E. % of section 21 in said township and range, same being about three and one-half acres of low, sandy land, lies between a portion of plaintiff’s- north line and the said river.</p> <p>“(3) That there is now and has been since 1903 a regularly laid out and traveled public highway, running in a northerly and southerly direction through the premises of plaintiff, said highway being known as the ‘McCrary road.’</p> <p>“ (4) That there is and has been since the laying out and opening of said highway, and as a part thereof, where the same crosses said Republican river, a large and substantial iron bridge, erected by Cloud county at an expense of $10,457, and being the bridge sought to be removed by the defendants in this case. .</p> <p>“(5) That the McCrary road was established and laid out across a part of the plaintiff’s farm, and across the land lying north of plaintiff’s farm, on which rests the.south end of the bridge, some time before the bridge was built over and across the Republican river at the point where said highway crosses said river; that said bridge was wholly built by Cloud county, and is a county bridge kept and maintained by said county.</p> <p>“(6) That said bridge is located on the said Mc-Crary road, about seventy-one yards north of the north line of plaintiff’s farm, and on the farm of Charles Huscher — that is, the south end of said bridge is about seventy-one yards north of the north line of plaintiff’s land, and there is a small tract of land of about three or three and one-half acres, belonging to said Huscher, that is south of said bridge; that the land of the plaintiff does not abut or adjoin upon said highway at the place where said bridge' is located, and that no part of the said farm of plaintiff lies north of the said bridge.</p> <p>“(7) That the highway and approach to said bridge on the south, running toward the city of Concordia, was repaired and put into good condition for public travel at the time said bridge was erected, the city of Concordia contributing thereto the sum of $5000, and said bridge and highway have been continuously used and are now used for public travel, said highway being one of the'main travelled roads into the city of Concordia.</p> <p>“(8) That after the said, bridge was erected the river branched on the west part of plaintiff’s farm, a portion cutting a new channel around to the south and east and uniting with the old channel on the east part of plaintiff’s farm, thereby forming an island of about 50 acres in extent.</p> <p>“(9) That plaintiff’s principal improvements, consisting of dwelling houses, barns and out buildings of a substantial nature, and of the value of several thousand dollars, are situate on the said island and front upon said highway.</p> <p>“(10) That the defendant, the board of county commissioners, has maintained a temporary pile bridge across the south, or new, channel of the Republican river, said south channel being the one forming the island heretofore spoken of, and such bridge has been so maintained by the county of Cloud since or shortly after said McCrary road was established.</p> <p>“(11) That, in addition to the McCrary road mentioned in former findings, the plaintiff has ingress and egress to his premises by other public' roads touching his premises on the south and east for a distance of about one-half mile on the south line of lot 3, and west line of lot 4 of said section 26, which furnish full and free access to and from his farm and premises.</p> <p>“ (12) That no proceedings have ever been taken by the defendant board to vacate said highway known as the' McCrary road or any portion thereof, and said board is attempting to remove said bridge without vacating said road or compensating the plaintiff.</p> <p>“(13) The defendant board entered into a written contract on September 20, 1909, with the Western Bridge and Construction Company, for the building of a steel bridge over the Republican river on a public highway between sections 28 and 29, in township 5, range 3. in Cloud county, Kansas, for the sum of $8326. Said contract provided among other things for the removal of a certain bridge across the same river, about a mile down the stream, and being the bridge on the McCrary road, heretofore spoken of, to the new location between sections 28 and 29, the building of additional spans and approaches thereto, and the making of a complete bridge across said river at its new location.</p> <p>“(14) The said contract was let to the lowest responsible bidder, upon sealed proposals, based upon written plans and specifications therefor, with an estimate of the cost thereof, and said plans and specifications and estimate of cost were on file.in the office of the county clerk of said county for more than thirty days next preceding the awarding of said contract; that, after said plans and specifications and estimates had been prepared and filed in the office of the county clerk, notice to bidders and notice of the intention of the board of county commissioners to appropriate $4000 of the county funds upon said structure were published, and said notices were posted in the county clerk’s office from and including the 19th day of August, 1909, to the 20th day of September, 1909; that said contract was awarded at a regularly adjourned day of the September, 1909, session of said board of county commissioners of Cloud'county, Kansas; that there are no irregularities in the awarding of said contract on the part of said board or anyone; and that the newspaper in which said notices were run was the official county paper of Cloud county, Kansas.</p> <p>“(15) That the board of county commissioners orally and at the same ■time agreed with the said Western Bridge and Construction Company that the only sum that would be paid for the removal, rebuilding and building of said new bridge from the funds of Cloud county would be $4000, and no more, that the balance of the consideration or pay for said work and material would be paid by the township of Sibley of said county and the commercial club of the city of Concordia, Kan., that the amount to be paid by said parties last named was $4326, and that this sum was to be paid over by said parties to the said board of county commissioners and by the said board to be paid to said bridge company ; that all of said conditions were agreed to and accepted by the said Western Bridge and Construction Company, and that the said board of county commissioners will not expend on said removal and rebuilding of said new completed bridge any sum in excess of $4000.”</p> <p>“CONCLUSIONS OP LAW.</p> <p>“(1) That the plaintiff has the right to bring and maintain this action.</p> <p>“ (2) That the defendant, the board of county commissioners of Cloud county, Kansas, has full control of the bridge in question and the right to move the same pursuant to the contract entered into, and to have the same rebuilt at the proposed new location.</p> <p>“(3) That plaintiff is not entitled to the injunction prayed for.”</p> <p>From this decision Anderson appeals.</p>

<p>Appeal from Leavenworth district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Statutory Construction — Reenactment—Intermediate Statute Limiting Original Act Not Repealed. An act which limits the operation of an earlier one is not repealed by implication by a reenactment of the original statute, incidental to its amendment in some other respect, but continues in force as a limitation upon the amended statute.</p> <p>2. Cities and City Officers — Limitation on ■ Bonded Debt— Statute Exempting Waterworks Bonds Not Repealed. Where an act authorizes a city to issue bonds for waterworks, and provides that their issuance shall not be affected by an earlier statute forbidding the creation of a bonded debt in excess of a stated percentage of the property subject to taxation, a subsequent reenactment of such earlier statute, incidental to an amendment merely changing the percentage, does not by implication repeal the provision exempting waterworks bonds from the limitation.</p> <p>S. -- Limitation on Indebtedness — Bonds Issued Contemporaneously — Priority. Assuming that under the statutes above described waterworks bonds should ordinarily be included in estimating the amount of outstanding indebtedness for the purpose of ascertaining whether the statutory five per cent limit has been reached, if the city’s financial condition is such that two sets of bonds, one for waterworks and one for a city hall, may lawfully be issued by giving the latter priority in time, both may be issued at the same time without violating the statute; and where under such circumstances city-hall bonds are first.voted and first authorized by ordinance, their issuance must be deemed substantially contemporaneous with that of waterworks bonds which bear the same date and mature at the same time, but which are actually executed a few weeks earlier.</p>

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

<p>Appeal from Neosho district court.</p>

<p>Appeal from Shawnee district court. .</p>

<p>Partnership — Existence—Demurrer to Evidence. Evidence of the existence of a partnership held sufficient as against a demurrer.</p>

<p>Appeal from Morris district court.</p>

<p>Appeal from Reno district court.</p>

<p>1. Circumstantial Evidence — Burglary. Circumstantial evidence held sufficient to sustain a verdict of guilty in a prosecution for burglary.</p> <p>2. -Instructions — Degree of Proof. Rulings relating to instructions upon the degree of proof in a criminal prosecution, where the state’s evidence was circumstantial, approved.</p>

<p>Gambling — Information—Immaterial Error. On a prosecution for gambling the information was technically defective, but was.not misleading, and the overruling of objections to it was not material error.</p>

<p>Appeal from Rawlins district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. County High Schools — Curative Statutes. Chapters 210 and 215 of the Laws of 1909 are curative statutes, designed to validate the action taken in counties where a majority of those voting on the proposition had voted to adopt the Barnes high-school law (Laws 1905, ch. 397) and where high schools had been established and maintained in accordance with that law for one year, although such law was not adopted by a majority of all those voting at the election, as the law at that time required.</p> <p>2. Constitutional Law — Uniform Operation — Special Laws— Amendatory Statutes — Taxation. Chapters 210 and 215 of the Laws of 1909 are not in conflict with section 17 of article 2 of the constitution, declaring that laws of a general nature shall have a -uniform operation and restricting the enactment of special laws, nor with section 16 of the same article, relating to amendatory statutes, nor with section 4 of article 11 of the constitution, forbidding the levy of taxes unless in pursuance of a law stating the object of the same. The reasons urged against the validity of these statutes are not sustained, and they are held to be valid laws.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Judgments — Motion to Vacate — Parties — Action to Quiet Title. Where one who is not a party to a judgment, more than three years after the rendition thereof, seeks to vacate the judgment by filing a motion attacking the jurisdiction of the court, and therein also seeks to vacate a sheriff’s deed to land sold in execution of the judgment, and serves notice upon one who is in possession of the land under claim of ownership and who, by leave of court, files an answer setting forth his claims to the land, and the court tries the issues joined as an action to quiet title, held, that, although such proceeding is irregular, the judgment resulting from such trial will not be set aside, it appearing that a full and fair trial was had and the judgment was well supported by the evidence.</p> <p>2. Mortgagee in Possession — Rents — Accounting — Counter Claim. Where, in such a proceeding, the defendant claims title to the land, but prays in case his title be held to be invalid that he be adjudged to be a mortgagee in possession, he is not estopped from asserting his claims against the land by failure to render in his answer an account of rents received. Any claims for rents received should be pleaded by the plaintiff. as a counter claim in reply.</p>

<p>Appeal from Leavenworth district court.</p>

<p>Appeal from Leavenworth district court. .</p>

<p>SYLLABUS BY THE COURT.</p> <p>Judgments — Appealable Orders — Decision of Probate Court— Additional Inventory. A decision of a probate court denying the application of an interested party for an order requiring the administrator to make an additional inventory of property claimed to belong to the estate, but omitted from the inventory on file, is a final decision of a matter arising under the jurisdiction of that court, and an appeal may be taken therefrom.</p>

<p>Appeal from Ellis district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Homesteads — “Occupied as a Residence” — Execution Sale. Under the facts stated in the opinion it is held that a tract of land is not occupied as a residence by the family of the owner so as .to exempt it from sale upon execution for his debts.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Instructions — Erroneous Charge Not Acted upon by Jury— Immaterial Error. An erroneous instruction is not ground for reversal where the amount of .recovery shows that the jury did not act upon it.</p> <p>2. Abstract op the Record — Evidence and Verdict. In preparing an abstract to present the question whether there was evidence to support a verdict the appellant may, and should,, omit testimony which is merely repetition,</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Statute op Frauds — Executed Parol Antenuptial Contract. In an action by a widow to maintain her rights derived through the execution of a parol antenuptial contract, the contract having been executed by both parties thereto, the statute of frauds has no application. Such executed contract is valid.</p> <p>2. Fraternal Insurance — -Change of Beneficiary — Antenuptial Agreement. Where in the part performance of an antenuptial contract a husband procures a change in a certificate of insurance, in which his children were the sole beneficiaries, so as to make his Wife an equal beneficiary with the children, and where she has fully executed the antenuptial contract on her part, she thereby obtains an equitable interest in the certificate; and he can not thereafter, without her consent, surrender the certificate and obtain the issuance of a new one in which a third party is named as the sole beneficiary, and thus devest her of her interest in the certificate which was procured pursuant to such contract.</p> <p>3. -Possession of Beneficiary Certificate. The rights of a. beneficiary named in a certificate of insurance in nowise depend upon the possession thereof by the beneficiary.</p>

<p>Appeal from Reno district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Estoppel — Compromise and Settlement. A compromise of a disputed claim, made upon sufficient consideration, with knowledge of facts upon which an alleged defense thereto is based, will operate as a surrender of such defense, when the adverse party has executed the terms of the settlement on his part.</p>

<p>Appeal from Reno district court.</p>

<p>Appeal from Dickinson district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Contracts — Option to Continue a Lease in Force — Flection to-Renew — Term. A lease by its terms terminated in one year,, but contained in addition a provision which reads:</p> <p>“It is also agreed by party of the first part that party of the-second part may, at their option, continue this lease to July 1, 1908, by paying thirty three and one third (33%) dollars on the first day of every month during its continuation.”</p> <p>Held, that under this stipulation the lessee, by exercising-his option at the expiration of the year, elected to extend his lease two years, or to July 1, 1908, and became liable to pay rent for that time. It was unnecessary in order to become-liable for rent to exercise his option every month.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Deeds — Reservation. The effect of a clause in an instrument, otherwise in the usual form of a warranty deed, reserving the use and possession of the premises for the life of the grantor, with the right to a reconveyance whenever demanded, is referred to but not decided.</p> <p>2. -Delivery. The rule that before a deed can operate as a valid transfer of title there must be a delivery of the instrument (Wuester v. Folin, 60 Kan. 334) is applied to the evidence, and it is found that there was no evidence to sustain a finding of delivery.</p> <p>3. Practice, Supreme Court — Directing Judgment — Retrial of Issues of Fact. Where an issue was fairly tried after full opportunity had been afforded to present the case, and there was no accident or surprise nor any ruling causing a party to withhold his evidence, and all the facts appear to be fully presented by the evidence, leaving only questions of law to be decided, this court may, under the revised code, .in the furtherance of justice, direct the entry of a proper judgment by the district court when the judgment of that court is reversed.</p>

<p>Appeal from Shawnee district court.</p>

<p>Appeal from Wilson district court.</p>

<p>Appeal from Crawford district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>:l. Title and Ownership — Divorce Decree Vesting Legal Title to Home in Trust for Use of Children During their Minority. A judgment for divorce gave the custody of minor children to their mother, and provided that the legal title to the homestead should be vested in her for the use and benefit of the children or the survivor of them until the youngest should come to the age of majority, to be held and used as the home of the mother and children until that time. It is held, that the judgment did not give to the mother the title in fee simple, but only the use of it for the purpose declared and for the time limited therein.</p> <p>'2. Ejectment — Principal in Possession of Land Purchased by Agent — Repudiation of Agreement — Reimbursement of Agent ■ — Lien. After the youngest child became of age the father claimed to own the land referred to in the decree above mentioned, having obtained the patent therefor, and the mother, . still being in possession, claimed to own it absolutely under the decree. In this situation the mother sought the assistance of her son to procure for her a conveyance from his father as a compromise of the conflicting claims. The son procured the conveyance to himself, according to the agreement with his mother, and offered to make a conveyance to her for the sum she had authorized him to give, although he had in fact paid less,, but she refused to pay and repudiated the agreement. The son then brought an action of ejectment against the mother. It is held, that a judgment for the mother is erroneous, and that the son, upon delivery of a proper conveyance, should recover whatever sum is found to be equitably due to him, and if not paid should have a lien upon the land therefor.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Contracts — Statute of Frauds ■ — ■ Mutuality — Specific Performance. The signing of a contract to convey real estate by the party to be charged in a suit for specific performance satisfies the statute of frauds; and want of mutuality in the contract because the party suing did not sign is not a defense to the action.</p> <p>2. - Time Not of the Essence — Abstract of Title. The mere naming of a day on or before which a contract for the conveyance of real estate shall be consummated does not make time of the essence of the contract, and if an abstract showing marketable title is to be produced it may be perfected, and title even may be perfected, within a reasonable time beyond the day named.</p> <p>S. Practice, Supreme Court — Cause Remanded for Judgment on the Evidence. At the close of the plaintiff’s evidence in a suit for specific performance a demurrer to the evidence was interposed, which the court took under consideration while the trial proceeded. When both parties had rested the court reverted to the demurrer to the plaintiff’s evidence and erroneously sustained it. Held, another trial is not necessary, and that the cause will be remanded for judgment according to the evidence.</p>

<p>Appeal from Butler district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Railroads — Injury to Passenger Alighting in the Dark from■ Train Leaving His Station. In an action for damages for the-death of a passenger evidence was adduced to show that it was the custom on the defendant’s night trains to turn down the lights and furnish pillows for passengers who would pay for-their use; that a passenger who was asleep on such a train-when it reached the place of his destination, at one o’clock in the morning, was awakened immediately after it left the station; that, assisted by the porter, he went forward in an apparently drowsy condition and stepped off the train and was. killed; that the conductor was near by and observed the passenger’s departure; and that the train was not stopped nor its speed slackened, nor the passenger restrained, although the-danger was apparent to the trainmen. It is held, that a demurrer to the evidence was properly overruled, and that there was no error in refusing a request for an instruction to find for the defendant.</p>

<p>Appeal from Seward district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Findings of Fact — Referee—Amendment by the Court. Findings of fact returned by a referee may be amended by the court, at least in any case where the changes merely reflect the different view of the court as to the effect of testimony accepted by the referee as truthful.</p> <p>2. Railroads — Weight of Shipment in Bulk — Bill of Lading Prima Facie Evidence — Connecting Carriers. Where coal is shipped by rail in bulk the weights stated in the bill of lading are prima facie evidence of the amount received, in favor of the consignee, against the initial carrier or a connecting carrier that collects charges upon the basis of such statement, notwithstanding such weights were reported by the consignor to the carrier and adopted by it without verification, and notwithstanding the bill of lading contains the words “weights subject to correction.”</p> <p>3. - Coal Lost in Transit — Evidence. In an action by a consignee to recover for coal lost in transit the plaintiff’s evidence held insufficient to show that such losses occurred before delivery to him.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Public Schools — Dismissal of Teacher — Procedure. Where the members of a school-district board meet and unanimously agree that a teacher who has been employed and is teaching their district school is incompetent and negligent and should be dismissed, and two members of the board, with the knowledge and consent of the third, meet with the county superintendent and unanimously agree that the teacher should be ■discharged, but take no formal action except that the superintendent directs that the members of the board return to their homes and have a full meeting of the board and prepare and sign a notice of dismissal and have it returned to him for his signature, which is done, and a notice of dismissal is signed by each member of the board and by the county superintendent, and such notice is served upon the teacher, such teacher is thereby dismissed in compliance with the statute.</p> <p>■2. - Tribunal to Determine upon Teacher’s Dismissal. While the school-district board and the county superintendent constitute, in a sense, a tribunal to determine whether a teacher who has been employed and is conducting a school should be dismissed under the provisions of section 7468 of the General Statutes of 1909, it is not necessary that there should be any formal organization of such tribunal; it is sufficient if the board or a majority thereof act in conjunction with the county superintendent in such dismissal.</p> <p>3. - Same. If a school-district board decides to have a meeting with the county superintendent for the purpose of considering the dismissal of a teacher, and two members of the board meet with the county superintendent at a time and place of which the third member has notice, the unanimous decision of the two members of the board and the county superintendent is effective, although the third member of the board unavoidably or intentionally fails to attend such meeting.</p>

<p>Appeal from Sumner district court.</p>

<p>Appeal from Sedgwick district court.</p>

<p>Appeal from Allen district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Cities — Vacation of Blocks and Streets — Change of Boundaries. Section 15 of chapter 261 of the Laws of 1889, vacating certain specified blocks in the city of Cimarron, and’section 67 of the same act, vacating the streets and alleys within the boundaries of vacated blocks, when read together had the effect of vacating solid portions of the town site more than five acres in extent. Section 1 of chapter 66 of the Laws of 1893, excluding from any town site portions thereof more than five acres in extent theretofore vacated by the legislature, applied to such portions of the city of Cimarron and operated to exclude them from the corporate limits of the city.</p> <p>2. -Special Act Conferring Corporate Power — Stare Decisis. If the question were a new one, section 1 of chapter 66 of the Laws of 1893, as applied to the facts of this case, would doubtless be held to confer corporate power by special act and consequently to be unconstitutional. Since, however, the section was held to be constitutional in 1899 in the case of Allen v. Town Co., 60 Kan. 857, affirming Town Co. v. City of Smith Center, 6 Kan. App. 252, the doctrine of stare decisis applies and the former decision will not be disturbed.</p>

<p>Appeal from Franklin district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Judgments — Res Judicata — Acquittal in Criminal Action. An. acquittal upon a criminal charge is not a bar to a civil action brought against the defendant by the state, although in order to recover it must prove him to have been guilty of the offense.</p> <p>2. -Injunction — Liquor Nuisance — Former Adjudication. In an action by the state to enjoin the maintenance of a place where intoxicating liquors are unlawfully sold it is error to render judgment for the defendant upon the ground that under the same evidence he had already been acquitted of a criminal charge of maintaining such a place.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Abortion — Evidence. The evidence in this case, direct and circumstantial, was sufficient to justify the submission of the case, under proper instructions, to the jury.</p> <p>2. Criminal Law — Evidence — Opinion of Experts. Where physicians testify, as experts, to the measurements and appearance of a fetus found by them in the body of a deceased woman, and that from such measurements and appearance they each had an opinion as to the age of the fetus and as to whether the woman at her death was quick with child, it is competent to allow such witnesses to testify each to his opinion.</p>

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

<p>Appeal from Reno district court.</p>

<p>1. School Land — Forfeiture — Estoppel. Where proceedings were taken to forfeit a contract of purchase of school land the subsequent conduct of the holder of the original certicate es-topped him from asserting his claims as against a second purchaser.</p> <p>2. Evidence — Burden of Proof and Presumptions — Forfeiture— School Land. Testimony held insufficient to overcome the presumption raised by the statute making certain facts prima fade evidence of a valid forfeiture of a school-land contract.</p>

<p>Appeal from Wilson district court.</p>

<p>1. District Judge — Appointee—Tenure of Office. The tenure of office of one appointed district judge to fill a vacancy decided.</p> <p>2. -- De Facto Officer — Validity of Acts. Where one appointed district judge to fill a vacancy continues to act as such after the election and qualification of his successor, he is a de facto officer, and his acts as such officer are valid.</p>

<p>Appellate Jurisdiction — Stay Order. Upon a motion to set aside a stay order, because made without authority, it is held that it is a necessary incident to the exercise of appellate jurisdiction that the reviewing court shall be able by appropriate action to preserve an existing status, so that when an appeal is determined the fruits of the decision shall not be lost because in the meantime conditions have changed.</p>

<p>Appeal from Brown district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Limitation of Actions — Suspension of the Statute. A husband and wife executed a note secured by mortgage on their land, and the husband thereafter died, having previously conveyed the title to his wife. The widow rented the farm to her son-in-law, and during such tenancy the widow died. The son-in-law, with his wife, continued in possession of the farm, and before the expiration of five years from the maturity of the note made a small payment on the debt. They continued in possession for a number of years, until this action to foreclose the mortgage was brought, with the acquiescence of the brothers and sisters of the wife; and her husband, with her consent, made several payments upon the indebtedness and paid the taxes on the land, all of which payments were made from the proceeds of crops raised upon the land. No interval of five years elapsed between such payments. He neither paid nor contracted to pay any rent to any of the heirs. Held,, that such payments prevented the running of the statute of limitation in favor of any of the heirs against the mortgage debt.</p> <p>2. Tenancy in Common' — Possession of Mortgaged Premises— Interest — Bent. A tenant in common in possession of mortgaged real estate with the acquiscence of the other cotenants, and in the absence of any contract to pay rent, owes a duty to the other cotenants to pay the interest maturing on the mortgage and the taxes accruing on the land.</p>

<p>Appeal from Shawnee district court.</p>

<p>Appeal from Scott district court.</p>

<p>Appeal from Lyon district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Words and Phrases — “Legal Representative” — Parties Entitled' to Receive Life Insurance Money. A fraternal insurance-association issued a certificate of membership to a man who named his wife as beneficiary. It was provided that in case the wife died before he did he might name another beneficiary, but if he failed to do so, or if for any reason there-was none when the insurance should be payable, the money-should be paid, to his legal representative. The wife died; the husband died some years afterward; an administrator of his estate was appointed, to whom the association paid the money. The insured left three minor children, who commenced an action against the administrator and his sureties-to recover the money. Held, that they ought not to recover. The administrator was the legal representative of the deceased within the meaning of that term, and was entitled to-the money as a part of the estate of the insured.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Mechanic’s Lien — Right to a Lien. A mechanic’s lien is purely a creation of statute, and those claiming such a lien must bring themselves clearly within the provisions of the statute authorizing it.</p> <p>2. - Lessee Held Agent of Owner — Lien against Interest of Each. The statute gives a lien to anyone contracting with the owner of land or his agent for materials furnished or work done in repairing or improving a building thereon, and where the owner rents his property to another and stipulates in the lease that improvements may be made on the property by the lessee and the expense thereof deducted from the rentals to be paid by him, the lessee may be regarded as the ag'ent of the owner, and those doing the work and furnishing the material for improving the property will be entitled to a lien on the interest and estate of the lessee and the owner.</p> <p>3. Words and Phrases — “Repairs.” Under the circumstances of the case the term “repairs,” as used by the parties in the lease, is held to be intended to cover, and does cover, improvements made by the contractors.</p>

<p>Appeal from Franklin district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Practice, Supreme Court — Case-made—Time of Service— Certificate of Trial Judge. Where there is conflicting testimony in this court as to whether a case-made was served before the expiration of the time allowed, the certificate of the trial judge that the service was made in due time will control.</p> <p>2. Limitation op Actions — Suspension of the Statute. The payee of a note who has assigned it as collateral security has still such an interest therein that a written acknowledgment made to him by the debtor may serve to toll the statute of limitations.</p> <p>3. -- Same. In virtue of the statute (Gen. Stat. 1909, §§ 5214, 5215) making payments to the record owner of a mortgage binding upon the real owner, a part payment to a mortgagee who has made an unrecorded assignment is sufficient to toll the statute of limitations.</p> <p>4. Contracts — Aoeord and Satisfaction — Extension Agreement —Performance. Where the parties to an overdue note enter into a written agreement, founded upon a sufficient consideration, by the terms of which a part of the debt is forgiven and the time for paying the reduced amount is extended, a provision therein that a default in the payment of the interest shall mature the new principal implies that the debtor is not to forfeit the benefit of the reduction by a failure to meet promptly the terms of the readjustment.</p>

<p>Appeal from Reno district court.</p>

<p>Appeal from Greenwood district court.</p>

<p>Appeal from Jackson district court.</p>

<p>Appeal from Reno district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Limitation of Actions- — Instrument in Writing — Death of Obligor — Appointment of Administrator. Ann Wiseman executed three notes, one dated September 16, 1904, one December 1, 1904, and one May 1, 1905, each payable to the appellee and due one day after date: The maker died December 31,. 1905, and an administratrix of the estate of the deceased was. appointed May 28, 1909. This action was brought against the administratrix July 1, 1909, in the district court of the county. Held, that the action was not barred by section 106 of the executors and administrators act or by section 17 of the code of 1909.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Descents and Distributions — Cousins. Cousins do not inherit immediately from each other, but only mediately, through the parents of each, and children can not inherit immediately from a cousin of their parent.</p> <p>2. -Heirs of Aliens. Under the provisions of the alien land act (Laws 1891, eh. 3) resident citizens of the United States could not inherit lands in this state through the opera- . tion of the statute of descents and distributions when they must trace their descent through a cousin of their parent, who was an alien at the time of his death.</p> <p>3. Quieting Title — Possession by Plaintiff — Title of Defendant. In an- appeal from a judgment quieting title to lands, where there was sufficient evidence to sustain a judgment in favor of the plaintiff finding that when the action was brought he was in the peaceable, quiet possession of the real estate, claiming title, the first inquiry must necessarily be as to what title the defendant has; for, of he have no title, he can not question that of the plaintiff.</p> <p>4. - Same. The evidence in this case examined and held to be sufficient to warrant a finding that when the action was brought the plaintiff was in the peaceable, quiet possession of the real estate, claiming title, and, it appearing that the defendants never acquired any title themselves, the judgment is affirmed.</p>

<p>Appeal from Rice district court.</p>

<p>Appeal from Elk district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Railroads — Injury to Stock upon Right of Way — Statutory Fence. Where the road of a railway company which runs, through the farm of the plaintiff was legally fenced through the farm, except for a distance of thirty feet, over which the owner built a fence, including gates, for his own convenience, which fence diverged about fifteen feet from the right of way and connected at each end with the fence of the railway company, thus leaving a passageway between his fields and also to a private crossing of the railroad, it will be deemed to be a substantial inclosure of the railroad with a fence within the statute, and the owner can not recover for the killing of an animal which passed through a gate on his land, where the only negligence alleged is the failure of the railway company to perform the statutory duty of fencing-its road through his farm.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Deposition of a Party — Restraining Order — Judicial Discretion. Under the circumstances stated in the opinion it is held that the district court did not abuse its discretion in restraining the plaintiff from taking the depositions of the defendants before the trial, and that, aside from the justifiableness of the order, the plaintiff suffered no injury to her substantial rights in consequence of it.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Statutes — Implied Repeal — Assessors—Census. A statute requiring assessors to make an annual report of the number of inhabitants in their respective districts is not superseded by a later act requiring them once in ten years to make returns showing, among other things, the age, sex, color and nativity of each inhabitant.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Affidavit — Opening Judgment — Verification—Amendment— Limitation of Actions. An affidavit of a party who applies to have a judgment opened up and to be let in to defend, verified before his attorney, is irregular and voidable, but is not void, and hence it may be amended by a proper verification; and when the amended affidavit is filed it will relate back to the original affidavit.</p> <p>2. Parties — Opening Judgment Rendered upon Publication Service. Anyone whose rights are affected by a judgment rendered without other service than by publication is entitled to have the judgment opened up when he complies with the provisions of section 83 of the code of 1909, whether or not he was named as defendant in the action.</p> <p>3. Judgments — Publication Service — Application ' to Open — Validity of Judgment Challenged. The fact that he may have challenged the validity of the service and the jurisdiction of the court to render any judgment will' not justify the denial of his application to have the judgment opened up and for an opportunity to set up his rights and defenses.</p>

<p>Appeal from Clark district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Parties —■ Quieting Title. An action to quiet title to real estate may be maintained in the name of one who holds merely a naked legal title, without beneficial interest.</p> <p>2. Judgments — Publication Service — Affidavit—Oath Not Administered. A judgment based upon service by publication can not be held to be absolutely void upon a showing that the affidavit for publication, although good upon its face, and beaiing the signature of the purported affiant and the jurat of a notary public, was not in fact sworn to.</p> <p>S. - Vacation — Rights of One Not an Innocent Purchaser. Where the buyer of real estate causes the deed to be made to a person having no beneficial interest, who conveys to him after procuring a decree quieting title, he is bound by an order vacating the decree, although made without notice to him, and can claim no rights as an intervening innocent purchaser.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Libel — Petition—Demurrer. In an action for libel, as in all other cases, allegations of fact in a petition should, as against a general demurrer, be taken as true.</p>

<p>Appeal from Cheyenne district court.</p>

<p>Appeal from Sumner district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Guardian and Ward — Action against Guardian for Money Due — Erroneous Accounts — Fraud. An action for a balance claimed to be due from a guardian to his ward at the time the latter reached the age of majority is not an action for relief on the ground of fraud, although the petition contains allegations that certain charges against the ward in the guardian’s annual accounts are erroneous and should not be allowed.</p> <p>2. - Action u/pon Statutory Liability — Statute of Limitations — Accrual of Action. A cause of action against a guardian for a balance of money due to his ward at the time the latter reached the age of majority;accrues at that time, and is a liability created by statute, to which the three-year period of limitation prescribed by the second subdivision of section 17 of the code of 1909 applies, although the action is upon the guardian’s bond against the guardian and his surety.</p>

<p>Appeal from Franklin district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Elections — District Judge — “Regular Election” — Tenure of. Office of Appointee. An election at which judges of the district court are to be chosen for a full term in any of the judicial districts of the state is, as to .that office in every district, a “regular election” within the meaning of the constitutional provision that “in case of vacancy in any judicial office, it shall be filled by appointment of the governor until the next regular election that shall occur more than thirty days after such vacancy shall have happened.” (Const, art. 3, § 11.)</p>

<p>Injunction — Taxation—Irregularities. Where a city clerk unlawfully added a penalty to a special tax in certifying to the county clerk the amount of tax to be extended on the tax roll, the collection of the tax could not be enjoined without first tendering the amount lawfully due.</p>

<p>1. Master, and Servant — Injury to Employee — Duty of the Master. In an action for damages by an employee who was injured by the explosion of dynamite that had been placed in a drilled hole in a stone quarry the plaintiff was not required to prove who drilled and loaded the hole or that anyone in authority for the defendant knew of the existence of the loaded and unexploded hole.</p> <p>2. •-- Same. A master’s duty requires him to make and carry out regulations to render the work of his employees reasonably safe.</p> <p>3. -- Negligence of Fellow Servant — Duty of the Master. The fellow-servant rule has no application when the negligent employee is charged with a duty which the master is bound to fulfill.</p> <p>4. - Assumption of Risk. An employee does not assume the risk of dangers against which the master is under a duty to protect him.</p>

<p>Appeal from Ellsworth district court.</p>

<p>Appeal from Sedgwick district court.</p>

<p>1. Monopolies — Purpose of an Association — By-laws—Dissolution. Where the by-laws of an association charged with violating the antitrust law are fair on their face, but the practical interpretation given to them by the association makes it obnoxious to the statute, it is grounds for dissolution.</p> <p>2. - Same. In determining whether an association whose by-laws are fair on their face is violating the antitrust law the court can look beyond the by-laws to discover the true nature and actual purpose and effect of the organization.</p> <p>3. - Extent of 'the Monopoly. The fact that ten per cent of the business sought to be monopolized by an association of traders remains in the hands of outsiders does not take the case out of the antitrust statute.</p> <p>4. - Freedom of Contract. The judgment in this case, condemning a vicious combination, conspiracy and trust to monopolize and restrain trade and prevent competition, does not infringe upon the right of an individual to trade or to refuse to trade with whomsoever he pleases, or the right of individuals to associate themselves in good faith for lawful purposes.</p> <p>5. -Illegal Practices Enjoined — Order of Dissolution Stayed. An association of live-stock traders and its members were violating the antitrust law. The district court enjoined the illegal practices and dissolved the association. The association was capable of performing, and did perform, many valuable services to the market, aside from its wrongful acts. On appeal the judgment granting the injunction was affirmed. The order of dissolution was stayed, and this branch of the case continued to give the defendants an opportunity to amend the by-laws of the association and to conduct their business according to law.</p>

<p>Practice, Supreme Court — Abstract of the Record — Settlement of Disagreement. The abstract set out copies of records which it recited had been introduced in evidence. The counter abstract denied that such records had been introduced in evidence, but did not deny their existence or the accuracy of the copies. On a motion to settle the disagreement, held, that the records would be treated as not having been formally in evidence in the trial court, but as being before the supreme court for whatever use may upon the final hearing be found to be proper.</p>

<p>Appeal from Sedgwick district court.</p>

<p>Appeal from Wyandotte court of common pleas..</p>

<p>Appeal from Marion district court.</p>

<p>Appeal from Butler district court.</p>

<p>Appeal from Stanton district court.</p>

<p>Appeal from Ford district court.</p>

<p>Appeal from Seward district court.</p>

<p>Appeal from Franklin district court.</p>

<p>Appeal from Johnson district court.</p>

<p>Appeal from Johnson district court.</p>

<p>Appeal from Miami district court.</p>

<p>Appeal from Smith district court.</p>

<p>Appeal from Pratt district court.</p>

<p>Appeal from Miami district court.</p>

<p>Appeal from Cowley district court.</p>

<p>Appeal from Crawford district court.</p>

<p>Appeal from Labette district court.</p>

<p>Appeal from Graham district court.</p>

<p>■ Appeal from Clay district court.</p>

<p>Appeal from Shawnee district court.</p>

<p>Appeal from Marshall district court.</p>

<p>Appeal from Sedgwick district court.</p>

<p>Appeal from Hamilton district court.</p>

<p>Appeal from Sumner district court.</p>

<p>Appeal from Wyandotte court of common pleas.</p>

<p>Error from the court of appeals, northern department.</p>