Volume 87 — Kansas Reports

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Corporation — Preferred Stock■ — Contract—Dividends. The • capital stock of a corporation was issued and subscribed in the ratio of three-tenths preferred stock to seven-tenths common stock, and the by-laws, adopted at the organization, provide: “The preferred stock shall carry a six per cent per annum preferred, noncumulative dividend, payable semiannually on the first days of July and January of each year after January 1st, 1906, out of the net profits of the preceding -. fiscal year, and a pro tanto dividend if such dividend fall short of 6 per cent; and the preferred stock may be called in as a whole or in pro rata installments at 101 and accrued dividend and cancelled at the option of the board of directors on three months notice at any dividend paying period after two years dividend has been paid thereon.” Held, (1) that such by-law constitutes a contract between the preferred stockholders and the corporation which a court of equity will enforce when the specified conditions exist which entitle the preferred stockholders to a dividend and it is refused them; (2) the cost of operating the plant in furnishing gas within the city, including necessary repairs, extensions, fixed charges, taxes and other necessary expenses, only, shall be charged as expenses to be deducted from the entire receipts from the business to determine the net profits.</p> <p>2. -■— Same. If net profits, as above defined, had accrued in the business from year to year it was not within the discretion of the board of directors to declare or not to declare a dividend on such preferred stock; If the funds were available for the purpose, the preferred stockholders were entitled to a dividend as a matter of right. .</p> <p>3. - Same. The duty to declare a dividend upon such preferred stock is, however, subordinate to the obligation of the corporation to the public. And if it was necessary to use all of the earnings in the enlargement of the plant in order to fulfill such obligation the declaration of a dividend was not required.</p> <p>4. - Gas Franchise — Extension of Service. Although the contract of the corporation with the city requires it to extend its service upon the application of five patrons, a duty to make an extension may arise without the making of such application.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Street Railway — Use of Street under Color of Ordinances— Estoppel. Under the circumstances stated in the opinion, it is held that the city of Kansas City should be estopped from now questioning the legality of certain completed changes in one of its streets made by the street railway company under color of ordinances of the city, to accommodate its railway.</p> <p>2. - Damages to Abutting Property Owner. In such a case the street changes, although not warranted by the ordinances, are to be considered as having been lawfully made, the city having had power in the first instance to authorize them, and an abutting property owner should not be allowed damages for resulting injury to his property on the theory that the work was unlawful and created a nuisance.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Sales — Warranty—Inspection of Goods — Laches. A sale of goods, in which a quality thereof is described, implies a warranty that the goods are of the quality described, provided the purchaser has had no prior opportunity to inspect them, but relies upon the description thereof.</p> <p>2. --- Same. There is no rule of law applicable to all cases by which it can be determined whether a purchaser, on delivery to him of goods bought without inspection but on warranty, has unreasonably delayed discovering and reporting to the seller a defect. The apparent or concealed nature of the defect and all the circumstances of each particular case should be considered and the conclusion of fact should be submitted to the jury under proper instructions.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Judgment — No Service — Void—Set Aside., A judgment was. rendered upon default, reciting a service upon one of the .defendants named therein by publication only. The defendant's name was not included in the affidavit for publication nor in the petition, and he was not a party to the action. It is held that the judgment, so far as it purports to affect that defendant or his property, is a nullity, and there was no error in setting it aside on motion of a party holding property by conveyance from the supposed defendant which the judgment purported to bind.</p> <p>2. A Void Tax Deed. A tax deed which shows the sale of several separate and distinct tracts in bulk for a gross sum is void upon its face. (Worden v. Cole, 74 Kan. 226, 86 Pac. 464.)</p> <p>3. Title — Abandonment. The claim that the owner of land has lost his title by abandonment in favor of the tax-title holder, under the facts of this case, is not sustained.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Cities — Recording Plat of Addition — Fee of Streets — Dedication. By virtue of section 6 of chapter 78 of the General' Statutes of 1868, the filing and recording of a plat of an addition to a city by the proprietor thereof vests the fee of' the streets shown by the plat in the county for public purposes, and no formal acceptance by. the city or user by the’ public is necessary to perfect the dedication.</p> <p>2. -Same. When the title to a city street has once become-vested in .the county for the public benefit, such title can not. be impaired by any inaction or delay on the part of public-officials in devoting the property to the uses to which it has-been dedicated. No equities can arise in favor of an individual who takes private possession. His occupancy is subject to the paramount right of the public, and such right may be asserted' against any private, appropriator whenever the public convenience or necessity may suggest.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Guardian — Appointment—Must Be of Record. An appointment of a guardian of minors by a probate court must be made of record, and the nonexistence of such a record negatives any appointment.</p> <p>2. - Same. A probate court is powerless to divest minors of their title to real estate except through a guardian duly appointed in this state and in. substantially the manner prescribed by the statute.</p> <p>■3. Limitation of Action — Recovery of Land Sold as Guardian. The five-year limitation prescribed under subdivision 2 of section 15 of the civil code does not apply in an action for the recovery of land which was sold by one as guardian who was not so appointed.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Taxation — Paving Street on Railroad Right of Way. A city of the second class caused a street, which is parallel to the railway tracks and includes a-strip of the right of way, to be paved. The strip has been used as a part of the street for over twenty years without objection by the railway company, and has not hitherto been necessary for right-of-way purposes. In a former action is was held that the city should not be enjoined from paving -such a strip as a part of the street then being improved, but that such improvement should not give to the city or public any title to the land, or any interest that could ripen into a title by such user, or that would interfere with the use of the right of way. (Railway Co. v. O’Leary, 79 Kan. 664, 100 Pac. 628.) The city now seeks to charge the cost of paving such strip, together with other land used with it as a street, against the adjoining property, including the property of the railway company. It is held: (1) That there is no authority to make special assessments ■ upon the property of the railway company to pave this part . of its right of way; (2) that the railway company may maintain an action to enjoin the collection of the tax assessed therefor; (8) that a tender of the amount of the legal assessments which may be paid in annual installments was-not required before commencing this action; and (4) that the decision in the former action is not an adjudication of the validity of the assessment in question.</p>

<p>HEADNOTE BY THE REPORTER.</p> <p>1. Taxation — Tax Deed — Contiguous Lots — Presumptions. Two or more lots which are contiguous, compact and used as a single tract may be listed and valued together and sold at tax sale for a single consideration.</p> <p>2. - Where a tax deed is five years old it will be presumed that contiguous lots therein described were used, occupied and sold as a single tract.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Pleadings — Accounts'—Jury Demanded — Reference Ordered. At the commencement of this trial the court, by a motion to refer, was required to determine, over the objection of, one party, whether the motion should be allowed or a jury trial awarded. Held, that the pleadings are determinative of the question, and that no error was committed in , sustaining the motion to refer.</p> <p>2. -Same. The claim for services and the forty-seven items of expenses set forth in the petition, with proper credits of payments thereon, constitute one account only. The an- . swer challenges the correctness, of the charge for services and of the items of expenses therein, and sets forth thirty-four items of alleged payments, which, if correct, should have been included in the account. Held, that no mutual accounts were involved.</p> <p>3. -Same. That one party kept one side of the account and the other party the other side thereof is immaterial in determining whether there were mutual accounts.</p> <p>4. -Evidence — Variance. Upon the trial of this case the defendant offered evidence of payments claimed to have been made by it to plaintiffs, other than those set forth in its itemized statement. Held, that the exclusion thereof, in the absence of a request to amend the answer, was not error.</p>

<p>HEADNOTE BY THE REPORTER.'</p> <p>Mortgage Foreclosure — Defense—Fraud. The record examined, and it is held that no evidence appears that is sufficient, if taken as true, to establish a valid defense to the mortgage.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Libel — Newspaper Statement — Truth Admitted, — Innuendo. An action for libel will not lie for publishing in a newspaper a statement, admitted to be true, to the effect that the plaintiff, a practicing attorney, was sent to jail for contempt of court, whether the court had or had not jurisdiction of the proceedings out of which the alleged contempt arose, and regardless of whether or not the plaintiff was in fact innocent of the offense for which the court imposed such imprisonment.</p> <p>2. -Same. The statement in a newspaper that the plaintiff, a practicing attorney, was a witness before the court and “refused to answer the court’s questions as to what he had done with the money which he had collected for the estate, which he had not turned over to the proper parties,” is held not to charge plaintiff with the crime of embezzlement or with misconduct as an attorney, and therefore is not libelous per se.</p> <p>3. - Same. The following was published in ‘reference to the plaintiff:</p> <p>“Hanson was one of the attorneys in the Linderholm case, and in closing up the estate it became necessary that Mr. Hanson should tell what had become of certain funds. Mr. Hanson refused to make any explanation to the probate court, and the court ordered him to jail for contempt.”</p> <p>Held, that the statement can not be made to appear libelous by an innuendo alleging that it was thereby intended to charge that plaintiff was guilty of the crime of embezzlement and of unprofessional conduct.</p>

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

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

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Slander — Cross-examination —Impeaching Questions. A witness may on cross-examination be asked and required to answer questions touching his past conduct and character and as to specific acts for the purpose of sifting his conscience and testing his veracity and credibility.</p> <p>2. -Punitive Damages — Express Malice. In aii action for slander punitive damages may be recovered only upon proof of express as distinguished from implied malice.</p> <p>3. Special Findings — Failure to Answer. When the jury returns unresponsive answers to special questions submitted to them they should be required to retire and prepare answers which fairly respond to the interrogatories.</p>

<p>HEADNOTE BY THE ESPORTEE.</p> <p>■ Judicial Sale — Tax Lien — Motion to Set Aside. Neither the evidence received nor the evidence rejected nor all together was sufficient to warrant the setting aside of the sale under a foreclosure of the tax lien.</p>

<p>SYLLABUS BY THE COURT..</p> <p>Quieting Title — Tax Deed — Ejectment—Patent Title — Limitation of Actions. A tax-deed holder in possession brought suit to quiet his title. While the action was pending, and before the tax deed was five years of record, the holder of the patent title brought an independent action of ejectment. After the tax deed was five years of record the two actions were consolidated. The holder of the patent title took leave to file an answer in lieu of his ejectment petition, in which he abandoned his claim for affirmative relief, contented himself with defending against the proceeding to quiet title, and asked merely to be discharged with costs. The tax-deed holder then dismissed at his own cost. Immediately after the dismissal the patent title holder was permitted to amend his answer by reasserting his cause of action for ejectment,, upon which he recovered. Held, that the filing of the amendment should not relate back to the commencement of the action so as to deprive the tax deed of the protection of the five-year statute of limitations; and that with this restriction placed upon the amendment, the court did right in allowing it to be filed, notwithstanding the dismissal.</p>

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

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

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

<p>Appeal from Shawnee district court, division No. 1.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. “Factory Act” — Injuries—Damages—Owner—Independent Contractor. Under the findings the person in direct charge of the factory herein involved is held to have been the foreman and agent of the owner and not an independent contractor, and the owner, who retained control of the workmen and the work, is liable for an injury to an employee resulting from the failure to safeguard the machinery as the statute requires, and also for neglecting to warn or instruct the employee as to the dangers of a defective machine of which the injured employee was ignorant.</p> <p>2. - Definitions — Construction of Statute. The factory act (Gen. Stat. 1909, §4676 et seq.) contains its own definitions of the mills and manufacturing establishments which come within its provisions, and the meaning of these expressions is not affected by the restricted definitions of like terms in the act creating a state society of labor and industry, being sections 8015-8025 of the General Statutes of 1909.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Marriage — Antenuptial Contract• — Consideration. Marriage is a sufficient consideration for an antenuptial contract determining the descent of property, and when such contract is freely entered into, and is just and fair, it should be sustained.</p> <p>2. - Same. Under all the evidence in this case relating to the age, the prior financial condition of each of the parties, the duty of the prospective husband to his three young daughters and his prospects for further accumulations of property, and the circumstances attending the execution of the contract, the court was justified in holding that the contract was fair and equitable and was freely entered into.</p>

<p>SYLLABUS -BY THE COURT.</p> <p>1. Contract — To Care for Parents — Consideration—Specific Performance. Upon sufficient evidence the court found that the owner of a farm, with the consent of his wife, made a written contract with their daughter and her husband, the plaintiffs, by which plaintiffs were to live with them on the farm and care for them as long as they lived, in consideration of which all their property was at their death to become the property of plaintiffs; that for more than ten years plaintiffs fairly performed their part of the contract and made lasting and valuable improvements on the land; that afterwards, following the death of his wife, the owner of the land sold the farm, deprived plaintiffs of possession, refused longer to live with them, remarried, and executed a will leaving his property to other heirs. In an action for specific performance against his heirs and the executor of the will, held, that no circumstances or conditions being -shown by the findings and the evidence which would render the enforcement of the contract inequitable, a decree will be upheld which fastens a trust in favor of the plaintiffs upon the fund in the hands of the executor.</p> <p>2. Marriage — Wife’s Interest in Husband’s Real Estate. Marriage will not constitute the wife a purchaser of an interest in lands owned or held by the husband. Upon his death the wife acquires no interest by will or under the statute in any property to which he held the legal title but which in equity belonged to others. Under the facts stated in the preceding paragraph, therefore, the plaintiffs were not required to show that the second wife, before her marriage, had notice of their claim under the contract.</p> <p>S. RvTaENC®i-~Transaction with Deceased. Testimony as to the receipt of letters which, in the opinion of a witness, were in the handwriting of deceased, is not incompetent as relating to a transaction with a deceased person.</p> <p>4. - Same. Conceding that other statements of witnesses as to things done implied assent by the deceased to the doing thereof, the admission of the testimony is held not prejudicial error, the cause having been tried to the court and other witnesses having testified to substantially the same facts.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Replevin — Chattel Mortgage — Foreign Statutes — Evidence. A lawyer familiar with the statutes and decisions of another state is competent to testify as to whether a chattel mortgage witnessed in a certain way is void under the law of such state, and the fact that he was permitted over objection to state what the statute itself was, even if erroneous (which is not • decided), was not materially prejudicial.</p> <p>2. -Defenses under General Denial. A defendant in replevin may, under a general denial, show any reason why the plaintiff is not entitled to recover, and for such purpose may prove that a chattel mortgage relied on by the plaintiff is void under the law of the state where it was made, without pleading such law.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Condemnation Proceedings — Award—Res Judicata. In a suit on an award of damages for land taken by a railway company under condemnation proceedings brought against the assignee and successor in interest of the condemning company, the judgment of the district court, affirmed by this court, establishing the award against the condemning company is conclusive upon its successor as to the right of the parties recovering the judgment to do so.</p> <p>2. Limitation of Action — Final Judgment. The statute of limitations did not begin to run against the suit to recover the award from the successor of the condemning company until the judgment establishing the award became final.</p>

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

<p>HEADNOTE BY THE REPORTER.</p> <p>1. Review — Trial — Evidence — Instructions — Confusion. The civil code dispenses with the necessity of taking or saving exceptions to instructions.</p> <p>2. - After reviewing evidence and instructions relating to transactions not within the issue, it is believed that the jury was misled, and a new trial is awarded.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Wrongful Death in Missouri — Compensatory Damages Recoverable in Kansas. Our statute (Civ. Code, §419) permits the recovery of compensatory damages only for death by wrongful act. Certain sections of the Missouri statute permit such recovery — also punitive damages, but only when wanton negligence is alleged and shown. A Missouri plaintiff brought an action in Kansas, based on these sections of the Missouri statute, to recover compensatory damages only. Held, that ■ such action can be maintained.</p> <p>'2. Pleadings — Compensatory Damages — Punitive Damages. The plaintiff by his pleading having waived any claim for exemplary damages, his action is substantially the same as one under our statute, and its maintenance here is not opposed to-our laws or public policy or to good morals or the interests of our citizens, and upon the principles of comity should be permitted.</p> <p>3. - Same. Section 4Y of the civil code merely prescribes the persons who may sue, and does not enlarge the cause of action itself.</p> <p>4. - Same. While the prayer is no part of the petition and does not limit or measure the right of recovery, still it may be considered in determining the relief actually sought fey the pleader.</p> <p>5. - Same. When by his pleading a plaintiff indicates his intention to recover compensatory damages only, the court will not regard his action as one for punitive damages also.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Contract — By Agent of Undisclosed Principal — Valid. An agent may ordinarily, without disclosing the fact of' his agency, make a valid contract in his own name for the sale of personal property, which may be enforced by the undisclosed principal.</p> <p>2. - Same. The application of this rule is not defeated by the mere fact that in the negotiations for the sale the agent stated that he was the owner of the property, and that the purchaser understood that to be the case.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Negligence —• Personal Injuries — Contributory Negligence. A railway company is not liable for injuries suffered by a person in attempting to pass over its track at a street crossing merely because its employee managing the train ought, in the exercise of reasonable care, to have discovered his perilous situation and stopped the train, where his own negligence operating at the same time contributed to produce the injury.</p> <p>2. Concurrent Negligence — “Last Clear Chance.” The doctrine of the last clear chance does not apply so long as the parties are concurrently negligent.</p>

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

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

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

<p>Appeal from Wyandotte district court, division No. 1.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Mortgages — Agreement for Forfeiture — Not Enforceable. An agreement by a mortgagor that he will forfeit all interest in the mortgaged property if he fails to pay the debt secured by a fixed time will not be enforced, although made after the execution of the mortgage.</p> <p>2. -Deed Absolute in Form — No Devestment of Title. Where by the agreement of the mortgagor and mortgagee the note secured and a deed for the mortgaged property from the mortgagor to the mortgagee are deposited in escrow, both to be delivered to the mortgagor if he pays his debt by a certain date, otherwise the note to be delivered to him and the deed to the mortgagee, the delivery of the deed in accordance with the agreement does not devest the mortgagor’s title.</p> <p>3. - — • Same. If such a deed is regarded as taking effect at the time of its deposit in escrow, the continued existence of the indebtedness thereafter characterizes it as a mortgage. If it is regarded as taking effect at the end of the designated period it is invalid as an absolute conveyance of title, because it is an attempt'to procure in advance a release of the equity of redemption.</p> <p>4. -- Deed Absolute in Form — Right of Redemption — Interest. When a deed has been given under such circumstances that it amounts to a mortgage, the fact that the grantor accepts and signs a lease of the property from the grantee does not preclude him from asserting his right to redeem.</p> <p>5. - Same. Where a party asks a court to declare á deed to be in effect a mortgage, he may be required, as a condition to receiving such equitable relief, to forego the advantage of any statutory penalties for the exaction of usury, and submit to a charge of the principal of the debt and legal interest.</p>

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Mandamus — Drainage District — Clearing Channel of River— Elevation of Railroad Bridges. The Kaw Valley Drainage District, in its work of clearing the channel of the Kansas river at and near its mouth and in prescribing the height of bridges over such stream, is exercising the police power of the state, and has the right to require railroad companies to elevate their bridges to correspond with the height of levees constructed by the board, its determination that such elevation is necessary being prima facie bona fide and valid.</p> <p>2. - Same. It is no defense to an action to compel such elevation that such requirement would entail upon the railroad companies large expense or force them into controversies with the city and other railroad companies respecting the raising of grades made necessary by such elevation. Their rights and franchises must be deemed to be held subject to the necessity of complying with all reasonable requirements which the legislature may make or authorize in the exercise of the police power of the state.</p> <p>3. Constitutional Law. Such requirement does not by reason ■ of the consequent expense and difficulty amount to a violation of the contract, commerce, due process, or equal protection clause of the federal constitution.</p> <p>4. Former Agreement — Ultra Vires — No Defense.. The plaintiff board, having no power to abrogate its authority by contract, is not bound to refrain from requiring such elevation by reason of an agreement in 1907 to treat a certain bridge of lower elevation as lawful and sufficient; the party thus contracting with the board being required to know that such contract, if construed to prevent other and different requirements as conditions should demand them, was ultra vires.</p> <p>■5. Plans — Approved by Federal Authorities. The plaintiff board can not compel the elevation of the bridges in question until reasonable plans therefor are approved by the proper federal authorities.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Constitutional Law — Bonded Indebtedness — School Purposes— Cities of First Class. Chapter 259 of the Laws of 1911, which purports to limit the bonded indebtedness that may be voted and assumed by cities of the first class for school purposes, is repugnant to the provisions of the state constitution prohibiting special legislation.</p>

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

<p>OPINION DENYING A REHEARING.</p> <p>Appeal from Jewell district court.</p>

<p>OPINION DENYING A REHEARING.</p> <p>Appeal from Shawnee district court.</p>

<p>OPINION DENYING A REHEARING.</p> <p>Appeal from Trego district court.</p>

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

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

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

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

<p>HEADNOTE BY THE REPORTER.</p> <p>Report op Survey — Time of Filing — Appeal. The judgment of dismissal by the district court on the ground that the appeal was not taken within the time allowed by statute is reversed, and the cause is remanded for hearing on the merits.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Appeal — From, Probate Court — Jurisdiction of District Court. In this proceeding, on appeal from the probate court the district court had no jurisdiction to determine the disputed rights of property, but had jurisdiction simply to find the fact of whether the appellees had concealed, embezzled or conveyed away any of the property or money belonging to the estate, and to make and enforce proper orders for the preservation thereof.</p> <p>2. —1-Effect of Judgment. A judgment in sueh action, general in form, finding in favor of the defendants therein is not a determination of rights of property, but simply amounts to a finding that such defendants are not guilty of doing the things complained of.</p>

<p>OPINION ON REHEARING.</p> <p>Appeal from Jackson district court.</p>

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

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Appeal — Decision of Householders — Approval of Appeal Bond. Under section 1399 of the General Statutes of 1909, providing that appeals may be taken from the decision of householders appointed by a city to appraise damages occasioned by the opening of an alley, in the same manner and within the same time as from judgments of a justice of the peace, the householders may take, approve and certify an appeal bond tendered within due time after the filing of their report.</p> <p>2. -Same. The validity of such a bond is not affected because immediately upon the filing of their report, which was accepted by the city council, the householders were “discharged,” or because the bond was not approved by or filed with the city clerk, or because the- householders did not observe the formality of assembling together as an organized body to approve the bond.</p> <p>3. -Same. Query, whether such a bond would not also be good if taken by the city clerk.</p>

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

<p>Appeal from Wyandotte district court, division No. 2.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Grain Inspection — When Compulsory — When Voluntary— Statute. The statute expressly requires all grain going into or coming out of a public elevator to be inspected by officers of the state grain department; no such express requirement is made with regard to other grain, and upon a consideration of the entire act inspection thereof is held not to be compulsory, the provisions of the statute with regard thereto being construed as referring to inspection made upon request of the owner.</p> <p>2. - “Public Elevator” Distinguished. An elevator in which the grain of different owners is kept entirely separate, but in which the grain of the same owner delivered at different times is mixed together, except where he directs otherwise, is not a public elevator within the meaning of a statute providing “that all elevators or warehouses located in this state in which grain is stored in bulk, and in which the grain of different owners is mixed together, or in which the grain is stored in such a manner that the identity of different lots or parcels can not be accurately preserved, and doing business for a compensation, are hereby declared public warehouses."</p> <p>3. -Same. The fact that the operator of an elevator reserves the right to mix the grain of different owners has the same effect in determining its public character as though the grain were actually mixed.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Contract — Customhouse Brokers — Contingent Fee — Recovery. Under the facts stated in the opinion a contract by a firm of customhouse brokers with a smelting company to procure, at their own expense, for a compensation of fifty per cent of the amount collected, the refunding of excess duties exacted by revenue officers on importations of lead and zinc orej is held to be neither champertous nor unconscionable; and it is further held that the brokers are entitled in equity to be paid their portion of a sum refunded by the government through their efforts under the contract, out of a treasury warrant for such sum issued to the smelting company and delivered to its receiver, although, under the circumstances, the ores were in fact owned and the duties paid by another corporation.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Jurisdiction — Wills — Construction—Trusts—Publication Service — Pleadings. This action is for the judicial construction of trusts in a will relating to real and personal property in this and other states. The will contains many elaborate provisions, involves the sale and management of very valuable property, the annual distribution of large sums, and a final division after the death of the last survivor of three persons now living. The widow of the testator elected to take under the law of descents. The probate court has set off to her one-half of the real estate situated in this state embraced in the trusts, and which is of great value. The will directs the trustees to report to a circuit court of Illinois and purports to give that court control over the execution of the trusts except those providing for the division of lands in Kansas. None of the property is situated in Illinois. One of the trustees, a beneficiary in the trust, died before the death of the testator. The plaintiffs, the surviving trustees, are also beneficiaries. It is alleged that complications have -arisen and that grave doubts exist as to the duty of the trustees, and that they fear a multiplicity of suits. The trustees are also executors, and are proceeding in that capacity also. It is held: (1) that a nonresident defendant who is a son of the testator and a beneficiary in the trust was properly served by publication; (2) that the district court has jurisdiction of the subject of the action; and (3) that the petition states a cause of action, which should be made more definite and certain by amendment.</p>

<p>HEÁDNOTE BY THE REPORTER.</p> <p>Divorce — Intervention by Third Party — 'Refused — Appeal. Where in the cross-petition for a divorce a third party is named and witnesses testify as to his relations with plaintiff, such third party has no right to intervene and challenge the validity of the proceedings in the district court, nor is he entitled to a review of the ruling of that court on his petition.</p>

<p>HEADNOTE BY THE REPORTER.</p> <p>Tax Deed — Contiguous Lots — Presumptions. Where a number of city lots are included in a tax deed on record more than five years and there is nothing on the face of the deed to show that the lots are not contiguous, the presumption is in favor of the validity of the tax deed.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Negligence — Wrongful Death — Notice—Action by Widow. A person injured by the negligence of a city failed to give a notice as required by the act governing cities of the first class. (Gen. Stat. 1909, § 1218.) He died from such injuries after the time limited for such notice had expired. His widow gave a notice within four months after his death, and then commenced an action under the statute giving a right of action for damages for death caused by wrongful act. It is held that the action may be maintained, notwithstanding the failure of the injured person to give the preliminary notice within four months after the injury.</p>

<p>Appeal from Sedgwick district court, division No. 1.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Contract — Agency—Letters—Pleadings—No Departure. In a petition plaintiff set forth certain letters which, it was claimed, constituted a contract of agency. The answer was a denial and an averment that the defendant was not authorized to enter into the contract. The reply met the latter defense and pleaded other correspondence tending to support the contract pleaded in the petition. As the new facts in the reply did not contradict those set forth in the petition it can not be deemed a departure, and the admission in evidence of the additional letters was not error.</p> <p>2. Agency — Commission—Title to Real Estate. It is no defense to an action brought by an agent to recover a commission for negotiating a sale of real estate that the principal does not hold the title to the land.</p> <p>3. Estates — No Debts — No Necessity to Sell Real Estate. Where an estate of a deceased person is in process of settlement and there is no claim filed against the estate nor any debts left by the deceased there is no occasion for the heirs, to whom the real estate descended, to apply to the probate court for authority to sell it. Such authority is only required where the personal estate is insufficient to meet the indebtedness of the deceased.</p>

<p>' Appeal from Trego district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Evidence — Book Entries — Made by Third Party. Under the provisions of the statute that entries in books intended as records of payments and similar matters, made in the regular course of business, at or near the time of the transaction, shall be admissible in evidence on proof that they were so made, the fact that a corporation made certain payments may be shown by its books, although it is not a party to the action.</p> <p>2. Promissory Note — Contract — Defense — Burden of Proof. Where one who had been the general manager of 'a corporation sells his stock under ¿n agreement that a note given in part payment therefor shall be subject to a proportionate deduction on account of any just claims existing against the corporation and not shown by its books, in an action upon the note proof by the defendant that such claims were made against the corporation, and that a new manager paid them after a full investigation, makes out a prima facie case for a deduction, and casts upon the plaintiff the burden of showing that the claims so made and paid were not just.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Conflicting Evidence — Not Revie-wable. ' Conflicting and competent evidence affording sufficient basis-for a verdict will not be reviewed by this court, and.a verdict thus supported must stand.</p> <p>2. Errors — Must Be Specifically Pointed Out. Errors not manifest and apparent will not be considered unless specifically pointed out, the duty to indicate such errors, and the reasons therefor resting upon counsel and not upon the court.</p> <p>3. Firemen — Making a Run — Care Required — Contributory Negligence. Firemen in a city making a run with a heavy hose cart drawn by a large team are not required to use the same care to avoid collision with a street car that is required of the driver of an ordinary private vehicle.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Court — Powers:—Evidence—Secondary Evidence. The statute limits the court’s power of reversal to cases in which prejudice to substantial rights is made to appear. Prejudice is not presumed, and a judgment based upon uncontradieted evidence, competent when admitted but which afterwards turns out to be of secondary quality, will not be reversed unless it can be said from the record that the result would probably be different if the primary evidence were produced.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Appeal — Amount Involved — Jurisdiction. Where the district court sustains a demurrer to the petition, filed by a defendant against whom the only relief sought is a judgment for less than $100, no appeal lies from the ruling, although the plaintiff is seeking judgments against other defendants for more than that amount.</p>

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

STATEMENT. This action is to recover upon a promissory note made by the appellees, McLeod and wife, and for the foreclosure of a mortgage given to secure it. .The defense is that the note was fraudulently altered without consent of the makers by increasing the rate of interest as written therein whereby the obligation was avoided.

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

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

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

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Qualification of Jurors •— Opinion —■ Judicial Discretion. Some of the persons called as jurors stated that they held opinions as to the guilt or innocence of the defendant, but upon a further inquiry, in which the judge took a leading part, the jurors answered that the opinions which they held were upon questions not in issue in the case. As the answers first given were contradictory of those subsequently made it devolved on the trial court to settle the contradictions and to determine whether these persons held disqualifying opinions, and, there being evidence to support the findings of the court on the question, its decision must be affirmed.</p> <p>2. Declaration op Deceased — Testified to by Wife. The declarations of a person who started from home with a herd of horses as to the place to which he was going and the purpose of his journey are admissible in evidence, and in a prosecution for the murder of the one who made such declarations testimony regarding them may be given by the wife of the deceased.</p> <p>3. Incompetent Evidence — :Must be ' Prejudicial. The admission of some incompetent testimony, which had little, if any, bearing on the' issue being tried, and could not have influenced the verdict or prejudicially aífected. the interests of the . party complaining, will not warrant a reversal of the judgment.</p>

STATEMENT. This action is to restrain the. defendant company from increasing telephone rentals in the city of Emporia and for other relief. Judgment was rendered for the company on the pleadings.

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Statute — Authorizing Appointment of County Auditor — ■ Valid. Article 13 of chapter 25 of the General Statutes of 1909 (Gen. Stat. 1909, §§ 2282-2299), creating the office of county auditor in certain counties and conferring upon the district court the power of appointing a suitable person to such office is a valid exercise of legislative authority.</p> <p>2. The 'Terms — “Court,” “Judge” — “District Court,” “District Judge,” construed. The legislature often uses the words “court” and “judge,” “district court” and “district judge,” without discrimination. “Court” will be construed to mean “judge” and “judge” will be construed to mean “court” wherever either construction is necessary to carry into effect the obvious intent of the legislature. It is held, therefore, that by the words “district court,” as used in section 1 of the act in question (Gen. Stat. 1909, § 2282) the legislature meant to confer upon the judge of the district court in certain counties authority to appoint a county auditor.</p> <p>8. County Auditor — Confirmation by County Commissioners. Under the statute as amended by section 1 of chapter 67 of the Laws of 1876, and subsequent amendments thereto, confirmation by the board of county commissioners of the appointment of a county auditor is not necessary.</p> <p>4. - Appointment — Judges of District Court. Where the district court consists of two or more divisions the appointment of a county auditor, in order to be valid, must be made by the judges of the divisions, or a majority thereof, acting jointly.</p>

<p>SYLLABUS BY THE COURT.</p> <p>State Constitution — Submission of Amendments — Mandatory. The provision of the constitution that a proposed amendment, if approved by both branches of the legislature, shall be voted upon at the next general election, is mandatory, and if such a proposition is not submitted at that election the secretary of state has no authority to provide for its submission at any later time.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Habeas Corpus — Injunction—Contempt—No Action Begun— No Jurisdiction. A court or judge has no jurisdiction to grant a temporary injunction until the beginning of a proper action in which such order may be had.</p> <p>2. - Same. In this case the order that the petitioner “be and he hereby is restrained and enjoined from in any way in- • terfering with the said plaintiff . . . until the final determination of this action” should have been accompanied or preceded by the issuance of a summons.</p> <p>3. - Same. Such an order made on presentation of an application and affidavit therefor when no action has- been begun and several days before such application is filed — no summons being issued or prsecipe therefor filed and no voluntary appearance being made — is void.</p>

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

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

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

<p>'SYLLABUS BY THE COURT.</p> <p>Benefit Association Certificate Assessments — Forfeiture. A benefit association issued a certificate June 15, in consideration of the payment required of one to become a member, he agreeing to .pay all assessments and dues as they should be levied, the certificate to become null and void if assessments should not be paid on or before the first day of the month following the levy. The member paid the assessments levied on the first of each succeeding month, including J anuary. On February 3, through an agent, he tendered the dues and assessment for one month, which were refused because not accompanied with a health certificate. February'10 another tender was made, followed by a similar refusal. After February 2 the member was unable to furnish a health certificate. The by-law in force when the certificate was issued required monthly payments on or before the first of each month :</p> <p>“No. 1 of each year shall be due on or before the 1st of January. No. 2, on or before the 1st of February, and in like manner on or before the 1st of each month.”</p> <p>Later this was amended to read:</p> <p>“Monthly payments shall be payable on or before the 1st of each month. No. 60 for January, 1905, shall be due on or before the 1st of February of each year and in like manner on or before the 1st day of each month.”</p> <p>Held, that as the member had paid the January assessment, and had tendered the February assessment (payable on or before March 1) on February 3 and February 10, he was not in default.</p>

<p>SYLLABUS'BY THE COURT.</p> <p>1. Pleadings — Judgment—Estoppel—Evidence. A judgment pleaded as >n estoppel is admissible in evidence although an appeal therefrom is pending and execution of the judgment is stayed</p> <p>2. -¡¿ame. The reversal of the judgment afterward is not a ground for reversing a judgment rendered in the action in which the first judgment was admitted in evidence, where another =trial of the action in which it was rendered has resulted in the same judgment.</p> <p>3. Equitable Action — Findings of Jury — Advisory only. In an action where the findings of. a jury are only advisory, and the court' has made independent findings upon the same issues, upon the same evidence, and rendered judgment thereon, any error in refusing further instructions relating to, the burden . of: proof is immaterial.</p>

<p>SYLLABUS BY THE COURT.</p> <p>OPINION ON REHEARING.</p> <p>1. Appeal — Affirmed—On Rehearing Reversed. Upon a sug-‘ gestión, which appears to be well founded, that a judgment had. been affirmed upon a different theory of the facts from that entertained by the trial court, the affirmance is set aside and a new trial ordered.</p> <p>2. Real-estate Contract — “Memorandum in Writing.” The evidence is held not to warrant the enforcement of a contract for the salé of real estate in the absence of any memorandum signed by the owner.</p>

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

<p>OPINION DENYING A REHEARING.</p> <p>Appeal from Wyandotte court of common pleas.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Negligence — Fire — Defective Engine — Pleadings—Issues. A finding that fire escaped from an engine by reason of its being out of order or repair -is within the issues arising upon a petition charging that the fire was caused by operating the railroad by running an engine and train of cars over it.</p>

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>I. Contracts — In Restraint óf Trade — Public Policy. While contracts in general restraint of trade or business are void, contracts less restrictive are invalid only when inimical to the public welfare, and they are to be judged, not by the arbitrary measure of extent in time or extent .in space, but by their reasonableness under all the circumstances, having regard both for the liberty of a person to make beneficial use of his own and the public consequences of such use.</p> <p>2. - Sale of Physician’s Specialties, Formulas and Good Will. The contract involved in this case, limiting the right of a physician to practice a specialty and limiting his right to sell or disclose certain formulas used in such practice, is held to be valid.</p> <p>3. -Injunction — Good Will and Influence. A physician who is a member of a firm practicing a specialty and making use of certain remedies and formulas in such practice, may on retiring sell his influence and good will to the firm or its successors, and having done so he and anyone in collusion with him may be enjoined from doing any act 'which, prevents the vendees from enjoying the benefits of such influence and good, will to the same extent as they were enjoyed before the sale.</p>

<p>HEADNOTE BY THE REPORTER.</p> <p>Taxation — Support of the Poor — Current Expenses. Taxes levied for the support of the poor are to be regarded as current expenses of the county. The case of A. T. & S. F. Rid. Co. v. Wilhelm, Treas., 33 Kan. 206, followed.</p>

<p>SYLLABUS BY THE COURT.</p> <p>City Ordinance — Vacation of Street — Acquiescence—Estoppel. Where two parties have in succession secured from a city the benefits of ordinances vacating parts of the same street, upon the same terms, and each has erected a warehouse upon his own lot extending upon ground within the limits of the vacated street, and they have entered into a contract with each other respecting a right of way for one of the parties over the property of the other, in lieu of rights formerly enjoyed in the street, the remedy of one of the parties for an obstruction of the way so granted is an enforcement of the contract, and not an annulment of the ordinance vacating that part of the street.</p>

<p>HEADNOTE BY THE REPORTER.</p> <p>1. Grain Inspection — Fees Collected — Costs. This court has no authority to order the payment of costs in The State, ex rel., v. Railway Co., ante, p. 348, for which the state is liable out of the money collected and in the hands of the clerk.</p> <p>2. - Order of Distribution. The clerk will pay to the' state treasurer the fees collected from the five elevators indicated in the opinion for services rendered prior to December 6, 1911, and will return the other fees to the persons who paid them.</p>

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Partition — Land in Another County — Minors—Judgment— Jurisdiction. An action which had for its purpose the determination of the interests of the contending parties in several tracts of land and the partition of the same, among them is local in character and must be brought in the county in which the land is located, and where a plaintiff brought an action in a county where one of the tracts is located and in which some of the defendants had an interest, and where he undertook to bring into the action infants who owned land in a county remote from the one in which the action was brought but who had no interest in the land situated in the latter. county, there was no jurisdiction of the subject matter of the action so far as it affected the land of the infant defendants, and no consent of theirs could give jurisdiction to the court of these issues or validity to the judgment based thereon.</p> <p>2. - Guardian ad Litem — Service. In such a case the court has no authority to appoint a guardian ad litem for the infant defendants nor can a guardian ad litem be appointed until service has been obtained upon the infants and jurisdiction over them acquired as the code directs.</p> <p>3. Wills — Election in Illinois — Effectual in Kansas. A wife domiciled in Illinois died there owning lands in that state and in Kansas. She left a will giving her husband a life estate in all of her property, after which it is to go to the other heirs in designated proportions. The will was probated in Illinois and an authenticated copy of it was admitted to record and . probate in this state. In Illinois the surviving husband determined to take under the will and he entered into the possession of the property devised and accepted and enjoyed the provisions made for him in the will. Held, that he elected to take under the will, and having done so in that state it is effectual in Kansas, as he could not elect to take undér the will in Illinois and under the law in Kansas.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Wills — Construction—Reformation—Intention. The court has no power to reform a will so as to conform to the intentions of the testator shown by external evidence to be different from those expressed in the instrument.</p> <p>2. - Mistakes — Testamentary Capacity. The fact that a testator is grossly mistaken as to the extent of his estate does not establish a want of testamentary capacity, the true test in this regard being whether he is capable of comprehending the quantity of his property and its value.</p> <p>3. -- Setting Aside Portion of Will. If a portion of a will-may ever be set aside for want of testamentary capacity, while the rest is upheld, it can only be where the testator, being able to- transact business generally, and capable of disposing of his property in other respects, is unable by reason of some specific delusion or mental defect to comprehend the effect of the provision in question.</p> <p>4. -Evidence -— Want of Testamentary Capacity. Evidence that a testator who was otherwise competent made a college, in which he had previously shown no interest, his residuary legatee, under the belief that his estate was practically exhausted by specific bequests, when in fact the residue amounted to more than two-thirds of the whole, is not sufficient to warrant a finding of a want of capacity to make such provision.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Negligence — Wrongful Death — Joint Liability — “Prima Facie" Case. Under the circumstances proven in this case the building and maintaining by two corporations of a line of telephone wires and a line of light, heat and power wires, the latter charged with 2200 volts of electricity, parallel and within ten or twelve inches of each other, is sufficient, prima facie, to justify a jury in finding each of such corporations negligent in so maintaining such wires and responsible for such damages as they find resulted therefrom.</p> <p>2. Contributory Negligence — Assumption of Bisk. The mere fact that a workman, employed by a telephone company, in the discharge of his duty ascends one of the telephone poles in obedience to the orders of a superior officer to make a certain adjustment of the telephone wires, in the performance of which his hand came in contact with the highly charged wire and he was thereby instantly killed, does not, under all the evidence in this case, compel the inference that he was guilty of contributory negligence or that he assumed the risk of injury in performing such labor.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. PETITION — Inconsistent Counts — Motion—Judicial Discretion. If a defendant objects to the inclusion of inconsistent counts in a petition and intends to ask the court to require the plaintiff to elect on which count he will rely, the objection and motion should be made .before answer, and if he fails to make them until after the issues are joined it is no abuse of discretion if the court denies a motion to compel an election made at the beginning of the trial, and in no event could the rights of the defendant have been prejudiced as the court, after hearing the evidence, eliminated one of the counts from consideration.</p> <p>2. Gas Lease — Due Diligence — Failure to Develop — Cancellation. A gas lease for a term of ten years, for a stated consideration, provided that if gas was found the lessor was to have sufficient gas for domestic purposesthat the lessee was to drill four wells within six months and to continue drilling as long as paying wells were found or royalties paid; and for the gas sold or marketed from producing wells the lessee was to pay to the lessor $100 per year on each well, such payment to be made on each well within sixty days after commencing to sell gas and annually thereafter while gas was so sold. Held, that the lease contemplated that the land should be developed with due diligence, and upon a failure to do so the lessor was entitled to a cancellation of the lease as to the undeveloped land.</p> <p>3. - Same. What was due diligence in the case was a question of fact for the trier of the facts, and upon a consideration of the evidence it is held to be sufficient to sustain the finding of the trial court that due diligence in the development of the whole tract had not been exercised by the lessee.</p>

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

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

<p>HEADNOTE BY THE REPORTER.</p> <p>1. Contract — Erection of Building — Liability of Oivner to Subcontractor. To entitle one who performs labor under a subcontract with the contractor to a personal judgment against the owner of the land he must show an express or implied contract on the part of the owner to pay such labor bill.</p> <p>2. Mechanic’s Lien — Subcontractor—Notice to Owner. To entitle a subcontractor to a mechanic’s lien he must serve written notice upon the owner of the land', as required by section 651 of the civil code.</p>

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

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

<p>HEADNOTE BY THE REPORTER.</p> <p>Negligence — Personal Injuries — Instructions. In an action to recover for personal injuries sustained while alighting from a street car the instructions examined and held not to have been misleading to the jury nor prejudicial to the rights of appellant.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Highways — Township—Agency of State — Negligence—Personal Injuries. A township engaged in improving a public highway acts in the capacity of an agency of the state and is not liable to an employee for personal injuries occasioned by the negligence of its officers.</p>

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

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

STATEMENT. This suit was brought by the officers of the Most Worshipful Grand Lodge of Ancient, Free and Accepted Masons of Kansas, hereinafter referred to as the grand lodge, against The Linscott… Held: that the $4465.76 overdraft was a loan made by the bank to Sarbach personally, that it constituted an individual ■debt, payment of which could not lawfully be made out of funds which- the bank knew belonged to the grand lodge.

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Contract — Threshing—Breach—Damages. Where a thresherman agreed with an owner of wheat to cease threshing for a time within which necessary repairs should be made upon the machinery, and threshing was resumed contrary to the agreement, causing the destruction of wheat by fire in the absence of the owner, who had relied upon the agreement, the loss thereby caused should fall upon the party violating the agreement.</p> <p>2. - Instruction■ — Negligence. An instruction that notwithstanding the agreement the thresherman could not be held liable unless the fire was caused by negligent operation of the machine is erroneous.</p>

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

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Criminal Law — Conviction — Duty of Court — Sentence. Whenever a verdict or plea of guilty has become final, the court is under an absolute duty to pronounce sentence, and has no discretion, as a disciplinary measure, to suspend it.</p> <p>2. • — —— Guilty — Suspension of Sentence — Jurisdiction Lost. Where after a verdict or plea of guilty the defendant is permitted to go at large under an arrangement that he shall escape punishment unless the court shall in the future determine to impose a sentence, the jurisdiction of the case is lost with the expiration of the term, and no valid sentence can thereafter be pronounced.</p> <p>8.--Same. The rule stated applies notwithstanding the sentence purports to be suspended until a certain, date, for the purpose of retaining control of the defendant, who is ordered to appear at that time and show that he h-as not violated the law in the interval.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Criminal Law — Obtaining Money By False Representations. The fact that some of the false representations made by a defendant, who was convicted for obtaining money by false pretenses, may have been mere opinions and some that did not come within the condemnation of the statute is not fatal to the conviction where false representations were made by him which contributed to some material extent in inducing the owner to part with his money.</p> <p>2. - False Representation Defined. A false representation made with intent to cheat and defraud another by which money is obtained is a false pretense within the meaning of section 2584 of the General Statutes of 1909 whether it is oral or in writing.</p> <p>3. Pleading — Information—False Representations. The information examined and held to state an offense under the statute, and it is further held that there is sufficient testimony to sustain the conviction.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Crime — Employer and Employee — Coercing an Employee to Make Agreement. An employer has no inherent right to coerce an employee, as a condition of remaining in his- employment, to make a written or verbal contract not to become or remain a member of a labor organization.</p> <p>2. Constitutional Law — Employer and Employee — Coercion of Employee. The legislature deeming such coercion against public policy violated no constitutional rights of employers in' the enactment of sections 4674 and 4675 of the General Statutes of 1909, and such sections are valid.</p>

<p>HEADNOTE BY THE REPORTER.</p> <p>Prosecution — City Ordinance — Appeal. by City — Notice—Service. In a prosecution under a city ordinance where the city appeals, notice of such appeal must be served on the defendant as required by section 285 of the criminal code; service on defendant’s attorney is not sufficient.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Appeal — From Police Court — Complaint—Trial. On an appeal from a police court the transcript contained a copy of the complaint except the verification. After the jury had been sworn the defendant objected to any evidence because there was no complaint on file. The court then allowed the original complaint to be filed, overruled the objection, and proceeded to trial. No motion for delay or .other application was made by the defendant. It is held that the substantial rights of the defendant were not prejudiced. .</p> <p>2. Road Tax — City Ordinance — Valid. The statutes authorized . the collection of an annual road tax of three dollars from a class of persons in cities of the second class. An ordinance was enacted in harmony with these statutes. Afterwards and before the tax became delinquent, the statutes wer.e changed by a new enactment containing substantially the' same provisions but requiring thirty days’ notice to the taxpayer before a prosecution could be maintained. It is held that the ordinance remained in force notwithstanding the change in statutes, and the thirty days’ notice having been given, a conviction should' be sustained.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Agency — Embezzlement—Remedies Available to Principal. A creditor seeking to recover a fund alleged to have been misappropriated by its agent may simultaneously in separate actions proceed against the estate of the misappropriator and other parties alleged to have participated in the misuse of the fund, and after the full amount of the claim has been allowed against the estate and classified such creditor is entitled to the same dividend as other creditors of the same class without regard to the result of pending suits against such other parties.</p>

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

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

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

<p>Appeal from Sedgwick district court, division No. 1.</p>

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

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

<p>Order of reinstatement made</p>

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

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

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

<p>HEADNOTE BY THE REPORTER.</p> <p>Survey — Failure to Follow Statutory Rules — Set Aside. Where a county surveyor ignores the statutory rules prescribed for his guidance and the directions of this court and produces a survey which is incongruous with old improvements and long-recognized landmarks and boundaries, a new survey should be ordered, although some evidence was produced in the district court tending to sustain the result of the irregular survey.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Oral Contract — Lease — Breach by Lessor — Remedies—New Trial. The former decision (86 Kan. 854) as to the law applicable to the case is affirmed, but a' new trial upon the facts is ordered.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Ejectment — Sufficient Description of Property. A petition in ejectment contained the following description:</p> <p>“All that portion of said reservation (the Fort Hays Military Eeservation) lying and situate in .the southwest quarter of the northwest quarter of section 4, township 14, range 18, lying south of a line commencing at a certain sand stone in the hedge on the west line of section 4, township 14, range 18, four hundred forty feet north of the southwest corner of the northwest quarter of said section 4, running thence east to the west line of the public road which is an extension of Chestnut street south from the city of Hays City, in the county of Ellis, and state of Kansas.”</p> <p>It is held that the description is sufficient to support a judgment for the plaintiffs, on failure to answer.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Special Findings — Verdict—Judgment. Special findings do not form the basis for a judgment unless inconsistent with the general verdict and consistent with one another.</p> <p>2. Instructions — Reading Contract to Jury. Instructions which fairly recite the claims and contentions of the parties are not rendered erroneous by reading to the jury the contracts involved in the action.</p> <p>3. Special Questions Unanswered — Not Prejudicial. A refusal to require the jury to answer a certain question more specifically is not materially prejudicial when such question has already been given a fairly correct answer and when the matter covered by such question has by the parties been eliminated from the controversy.</p> <p>4. JURY' — Triers of Facts. The jury are the triers of facts, and their verdict reached after considering an abundance of conflicting evidence, and approved by the trial court, must stand.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Ouster — Suspension from Office Pendente Lite. The title “An act providing for the removal of unfaithful public officers and providing a procedure therefor,” is broad enough to cover a provision for the suspension of an officer prior to the final hearing in an action for his removal, and provisions imposing upon various officials new duties intended to aid in precuring the removal of officers guilty of misconduct.</p> <p>2. -Statute Valid! — Constitutional Law. Assuming that an act providing a method for the removal for misconduct of all state, district, county, township and city officers (excepting judges of the supreme and district courts and members of the legislature) is inoperative as to the incumbents of state offices created by the constitution, because they can be removed only by impeachment, this consideration does not affect the validity of the act as to other officers.</p> <p>3. - Sheriff — Duty Under Prohibitory Daw. Compliance by the sheriff with the statute requiring him to give information to the county attorney respecting violations of the prohibitory law is not excused by the fact that no action has been taken upon- similar information previously given.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Negligence — Shipment of Live Stock — Yards—Contract. On a shipment of live stock a railroad company can not contract to avoid liability for its negligent failure to provide suitable yards, feed and water at such times -and places as the law requires the unloading, feeding and watering of such stock.</p> <p>2. Pleadings — Amendment—Judicial Discretion. Where a bill of particulars is filed in justice’s court claiming damages against a railroad company for the alleged negligence of the company in failing to furnish suitable yards, feed and water at a station where the live stock is unloaded for the purpose of being fed and watered, and the company files only a general denial thereto, and where on appeal to the district court the company asks leave to amend its answer by attaching a written contract of shipment, made at the inception of the shipment, without any allegation of a breach of the contract on the part of the shipper; held, no error is committed in refusing such request to amend when, as in this case, the shipper assumes the burden of proving that he had given notice of his claim as required by the contract; this being the only condition precedent to his right of action.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Death op Husband — Wife Entitled to Homestead. Where a husband and wife occupy real estate owned by him as a homestead his death will not operate to deprive the wife' of the homestead exemption although she may be the sole surviving member of his family, nor do the statutory provisions regarding the descent of the property to the surviving widow operate to make her homestead subject to the payment of her husband’s debts.</p> <p>2. Partition — Owelty—Lien. In order to make an equitable partition of property it is competent for the court to require one party who has been allotted a share of greater value than was allotted to another to pay owelty to such other and thus equalize the shares of the respective parties, and if it is not practicable to pay such owelty at once the court may charge the amount of it as a lien on the excessive allotment.</p> <p>3. Homestead — Partition—Occupancy by Widow. It was not inequitable or illegal to allow the widow to occupy the residence on the share allotted to her cotenants for a reasonable ■ time and until' a building was removed and a home made on the portion allotted to her.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. City Plat — Record — Dedication — Recognition — Deed by Owner. Where a city plat is recorded in apparent conformity with the statute, but is inoperative as to a part of the property included because the owner thereof does not join in the acknowledgment, the execution of a deed by such owner,, in which the tract conveyed is described by reference to the plat, there being nothing to show a purpose to disavow it, is1, such a recognition cf its validity as will make it binding upon him.</p> <p>2. - Same. A complete dedication of the tracts designated on the plat as streets and alleys results from the execution and record of such a deed, irrespective of any acceptance on behalf of the public.</p> <p>3. - Vacation — Title — Limitation of Action. Notwithstanding an alley shown on such plat has never been used by the public, and has been occupied by an individual for more-than fifteen years, the title remains in the public, and vests in the owners of the abutting lots upen the" passage of an' ordinance vacating it.</p> <p>4.' - Title — Estoppel. The title to the property is not affected ty the fact that one of the abutting owners had signed a petition asking that the alley be opened, and that an ordinance had been passed providing for the condemna- "' ticn of land for that purpose.</p> <p>5.'.--■ Street — Unopened for Seven Years — Not Vacated. The statute declaring a county road vacated if it remains unopened for public use for seven years does not apply to a street or alley within„the limits of a city.</p>

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

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

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Information — Indorsing Names of Witnesses — Judicial Discretion. When an information charging a misdemeanor was filed the names .of the witnesses were not indorsed thereon. Eleven days before the trial and without leave of court the county attorney indorsed the names of the witnesses on the information. Before the trial began and over the objections of the defendant permission was given the county attorney to reindorse the names of the witnesses on the information. Held, that the rulings allowing the indorsement of the names of the witnesses and the reception of their testimony was within the discretion of the trial court and that its action was not an abuse of discretion.</p>

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

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