Volume 88 — Kansas Reports

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

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

<p>HEADNOTE BY THE REPORTER.</p> <p>Taxation—Compromise Tax Deed—Taxes Included. The record examined, and it is held that the consideration stated in the compromise tax deed in controversy included only such taxes as were a lien upon the land and that the tax deed is valid.</p>

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

<p>HEADNOTE BY THE REPORTER.</p> <p>Quo Warranto—Expiration of Term of Office. In quo warranto proceedings to determine the right to a public office where the term of such office expires before a decision in the ease is reached the proceedings will be dismissed.</p>

<p>opinion denying a rehearing.</p> <p>HEADNOTE BY THE REPORTER.</p> <p>Railroads—Damage by Fire—Negligence—Pleadings. In an action against a railroad company for damages caused by fire it is sufficient merely to allege that the fire was caused by the operation of the railroad, without pleading any specific kind of negligence.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Homestead Entry—Death of Entryman—Widow Entitled to Patent. About 1876 0. settled on an eighty-acre tract of land in Allen county. He died in 1879, having made one or more payments at the rate of $1.25 an acre, leaving a widow and two children, the plaintiff, of age and married and living on the adjoining eighty, and the defendant, a son then sixteen years old. The widow completed the payments and a patent was issued about 1882 in the name of the entryman. The widow and the son continued to live upon and improve the land, and in 1891 she conveyed it to him by deed, reserving to herself a life estate, and placed the deed of record. Thereafter the land was assessed to the son. The son resided on the land for some years, and at all times, whether living there or elsewhere, claimed to be owner subject to the mother’s life estate. The mother stated at different times that the land was to be his after her death and it was so understood and reputed in the neighborhood. She received rent from the son and others who worked the land. The mother died in 1909, and in 1910 the plaintiff sued to set aside the deed for fraud and to partition the land. The entry is termed by the-plaintiff a preemption and by the defendant a homestead, and both claim under the provisions of section 2291 of the Revised Statutes of the United States and both plead the statute-of limitations. Held, that under section 2291 the widow on completing the entry after the death of her husband became entitled to a patent and the absolute ownership of the land.</p> <p>2. Cotenants — Adverse Possession — Deed—Claim of Owner- ' ship. Assuming that the entry was in fact made under the act of Congress of August 11, 1876 (19 U. S. Stat. at Large, p. 127) providing for settlement upon and purchase of Osage ceded land at $1.26 per acre, and assuming, without deciding, that upon completion of the payments by the widow the patent should have issued to the heirs, then the deed in question amounted to a solemn declaration on the part of the widow that the son owned the land subject to her life estate therein, and with the payment of the consideration and acceptance of the deed by the son amounted to a denial on the part of both that the plaintiff had any interest whatever in the land.</p> <p>3. - Deed—Ouster — Limitation of Actions. Assuming, without deciding, that upon the completion of the title the land rightfully belonged to the widow and the two children in common, then upon the execution and recording of the deed, and actual knowledge soon thereafter acquired, a cause of action accrued to the daughter for possession and partition, but she having allowed more than fifteen years to elapse before asserting her claim, the effect of the deed and the conduct of the mother and son being a denial of the plaintiff’s cotenancy or rights as such, amounted to an ouster and the action is barred.</p> <p>4. Public Lands—Patent in Name of Deceased Entryman— Rights of Widow. Assuming, as the parties claim, that the rights involved are to be determined according to the provisions of section 2291 of the Revised Statutes of the United States, then as such provisions entitled the widow to a patent, the fact that it was issued in the name of the entryman does not, in view of the circumstances and acquiescence shown, preclude her from being .the full beneficiary owner.</p> <p>5. Evidence—Witness—Wife Competent in Behalf of Husband. Section 320 of the civil code refers to parties and not to others who are called upon to testify, and the testimony of the defendant’s wife concerning communications had by her with the mother was not incompetent .by reason of that section.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Ejectment—Answer—Different Sources of Title. Where in ejectment a defendant in an answer claims title under a deed from the plaintiff, and the evidence discloses that this deed was given to clear the title upon the payment of a debt to secure which the defendant had executed a deed to the plaintiff, such pleading should not preclude the defendant from</p> <p>. recovering upon a title held prior to the giving of such security-deed, where the plaintiff is given full opportunity to meet the claim of such prior title.</p> <p>2. --— Evidence — Declarations of Husband Inadmissible against Wife. In ejectment brought against husband and wife by one who has purchased the propery at sheriff’s sale on an execution against the husband alone, where both defendants maintain that the wife was the sole owner, declarations of the husband asserting title in himself are not ordinarily admissible against the wife.</p> <p>3. Evidence—Stenographer’s Transcript. The statute authorizing the stenographer’s transcript of the testimony of a witness to be introduced in evidence by any party “under like circumstances and with like effect as the deposition of such witness,” permits such use only in actions between persons who were parties to the litigation in which the testimony was given.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Partnership — Fraud by One Partner — Action — Defense — Bankruptcy. The plaintiff and the defendant were equal partners in a private bank, of which the former was president . and the latter cashier. The cashier was permitted to manage the bank and certain other business of the firm as he chose, the result being a considerable loss. The president sued the cashier for the loss, alleging fraud and mismanagement while acting as partner in a fiduciary capacity ,or relation. The defendant pleaded a discharge in bankruptcy, the plaintiff, who had notice of the proceedings, having filed no claim therein. Held, that such discharge was a good defense, the relation .between partners under the circumstances indicated not being the fiduciary relation referred to in section 17 of the bankruptcy act of 1898.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Nuisance—Railroad Embankment—Pile Bridge. A railway company was sued by adjoining landowners to abate and enjoin as a nuisance the maintenance of a railroad embankment with a pile bridge therein, with an opening thereunder through which surface water collected by such embankment was cast upon plaintiffs’ lands. It was not alleged in the petition nor was there any proof that the railroad was negligently or unskillfully constructed, but it appears from all the evidence that the embankment and the opening therein were built and maintained in the usual and ordinary manner in which railroads are constructed across lands of the character in question, and that the interruption and diversion of the surface water is merely one of the ordinary incidents of railroad construction. Held, following Mo. Pac. Rly. Co. v. Renfro, 52 Kan. 23V, 34 Pac. 802, that the action can not be maintained.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Libel—Privileged Communications. Where a letter is addressed to a bank or banker asking for. information concerning the credit and standing of a business corporation and its officers, and a communication is sent in answer to the letter containing matter libelous per se against the secretary of the corporation but within the reasonable purview of the inquiry, and there is nothing in the correspondence indicating other than an honest purpose, the communication prima facie is conditionally privileged.</p> <p>2. - Privileged Communications — Malice — Burden of Proof. In civil actions for libel where a communication of the nature referred to above is conditionally privileged, the burden of proof is upon the plaintiff to show malice or a wrongful purpose in publishing it.</p> <p>3. Libelous Communication.— Induced by Party Libeled. A person who instigates or procures a libelous communication to be published against himself, for the purpose of predicating a suit for damages upon it, can not recover in such an action. . But if he instigates or setsi on foot inquiries for the purpose of ascertaining the source of evil reports in order that they may be counteracted, or for any other proper purpose, and not for the purpose of predicating an action for damages in his own behalf, he is not estopped thereby from maintaining such an action.</p>

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

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

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Railroads—Right of Way—Demand for Fences—Agreement. Under a statute requiring a railroad company, upon demand of an adjoining landowner, to fence its right of way where this is necessary to complete an enclosure, if the company under an agreement with the landowner builds and maintains such fence there is no occasion for a demand.</p> <p>2. -— Fences — Maintenance by New Railroad Company. Where after the building of such fence under such circumstances the railroad and land change ownership and the new railroad company continues to maintain the fence, rebuilding and repairing it from time to time, the situation is the same as though the fence had been built by the new company in .compliance with a demand by the new owner of the land.</p> <p>|3. - Fences — Damage to Stock Not on Right of Way. Where a railroad company is under legal obligation to fence its track, it is liable for the losses of an adjoining landowner, occasioned by. the escape of his cattle from an enclosure due to its negligently allowing the fence to be in bad repair, although they are not injured upon the right of way.</p> <p>á. -Same. Assuming that the right of the legislature to require a railroad eompanyto fence its right of way is based solely upon the consideration that such fencing may be •deemed necessary to diminish the danger of injury to animals by the operation of trains, and of injury to persons and property resulting from trains colliding with animals, it is competent as a means of enforcing such requirement to .make the company liable for losses caused to the landowner by the escape of his cattle through a defective fence, although they receive no injury while upon the right of'way.</p> <p>5. - Fences—Negligence—Contributory Negligence. Where the employees of a railway company while engaged in rebuilding a right-of-way fence which the company is under an obligation to maintain, remove a portion of it and erect a temporary barrier, by reason of the insufficiency of which cattle escape and are injured, the owner is not guilty of contributory negligence as a matter of law in failing to remedy, the defect himself, although knowing of its existence, where he has reason to believe that the company’s employees, although absent from the place at the noon hour, will shortly resume work and complete the repairs.</p> <p>6. - Special Findings—Verdict. Where the jury are asked what there was under such circumstances to prevent the owner from making the enclosure safe in the exercise of ordinary care, and reply that he expected the railway employees to return shortly and fix the fence, and that for him to have done so himself would have been to exercise extraordinary care, these answers are responsive and are consistent with a general verdict holding the company liable for negligence.</p> <p>7. Verdict — Judgment on Special Findings—Motion for New Trial. Where a defendant against whom a general verdict has been rendered files a motion for a judgment upon the special findings, and also one for a new trial, and the court sustains the motion for judgment in favor of the defendant, and solely because of this ruling denies the motion for a new trial, while finding that the verdict was contrary to the evidence, and upon appeal the order giving judgment for the defendant is reversed, the trial court should then pass upon the motion for a new trial upon its merits.</p>

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

Douglas district court. STATEMENT. This is an action on a fire insurance policy. The owner of the property recovered and the company appeals. The cause was tried to the court.

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Water Rentals—Advance Payments—Defaulted Payments. Under the ordinance of the city, which owned its waterworks, water rentals were payable in advance on the first days of January and July of each year, and if not paid within ten days after due the water was to be turned off. In May a consumer paid in full for water for his greenhouse for the entire year in which the payment was made and his appropriation of the proper sum for that purpose was accepted and retained by the city with official knowledge of the facts. Held, the city was obliged to furnish the consumer with water for the entire year and was not privileged to turn off the water after July 10 for previous defaults.</p> <p>2. Water Rentals—Defaulted Payments—Right to Discontinue. The right of a city or water company to. discontinue water service if payment therefor be not regularly made fails unless promptly exercised in an effort to protect against imposition or loss in essentially current affairs.</p> <p>S. Water Service—Special Contract—Subsequent City Ordinance—Meters. The" consumer claimed a special contract for water service to his greenhouse at a flat rate. Afterwards he devoted a half acre of ground to the raising of celery, which he supplied with water from the greenhouse service. The city then passed an ordinance providing that gardens and gardeners should be supplied at specified meter rates, the water taker to install the meter. The consumer did not install a garden meter, and continued to use water for his garden as before. Held, the city had the right to discontinue service to him.</p> <p>4. City Water—Consumer in Arrears—Discontinuance—Damages. The city cut off the consumer’s supply of water be- ' cause, as it claimed, he was in arrears and would not install a meter. He was dependent upon the city for water and was at once confronted with the certainty of very, great loss, which he in fact suffered. Held, it was the consumer’s duty, under the circumstances, to submit to. the city’s exactions and procure a restoration of service in order to prevent loss.</p> <p>5. -Involuntary Payment of Illegal Enactions—No Estoppel. The power of the city to withhold water placed the parties on unequal terms and the law would have regarded as involuntary any payment made to secure a restoration of service.</p> <p>6. Water—Discontinuance—Measure of Damages. Assuming that the water was wrongfully turned off, the measure of the consumer’s damages was the amount he would have been obliged to pay to secure a restoration of service and the amount of damages, if any, provable to the time water could have been supplied.</p>

STATEMENT. The appellant was convicted of the murder of his. wife by means of poison. Errors are assigned upon orders overruling motions to quash the information,, for a new trial and in arrest of judgment. Also upon, various rulings relating to the evidence and instructions. The appellant is a physician and has practiced his. profession at Greensburg since October, 1908. He was married in December, 1909. His wife died at her home on October 17, 1910.

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Intoxicating Liquors—Sales—Partnership—Instruction. An instruction in substance that if the jury believed from the evidence beyond a reasonable doubt that defendant furnished the financial credit on which the business was founded, stored the liquors in a place kept by him which was charged with being a nuisance, assisted in earing for the liquors and received a share of the profits of the business he was a partner and might be convicted the same as though he had personally made the sales, is held to state sufficiently the law of partnership as applied to the evidence, in view of the failure of defendant to request a more definite instruction upon the question.</p> <p>2. Criminal Law — Jury Impaneled—Trial Postponed—Error. After the trial of a prosecution under the prohibitory liquor law had begun and several witnesses for the state had testified the trial was postponed and the jury were permitted to separate for thirty-three days, when the trial was resumed over the defendant’s objections, and other witnesses for the prosecution and for the defendant testified. Held, that the postponement of the trial for such a length of time was an abuse of discretion resulting in a mistrial.</p>

<p>.SYLLABUS BY THE COURT.</p> <p>1. False Pretenses—Information—Separate Counts—Vahie of Property. Upon. an information charging distinct offenses in separate counts in obtaining property by means of false pretenses, the value of property obtained as charged in one count can not oe added to the value of other property obtained as charged in another count in order to increase the latter to a sum sufficient to sustain a conviction for a higher degree of crime than would otherwise be shown.</p> <p>2. - Same. The evidence is examined and held insufficient to support the verdict.</p>

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Motion por New Trial—Sustained—Assumption. Where a motion for a new trial on all the statutory grounds has been sustained generally this court on appeal will assume, in support of the ruling, that the trial judge was not able to reconcile the verdict with what he regarded as the true weight of the reliable testimony.</p> <p>2. Duty of Court—Grounds for Sustaining Motion. A motion for a new trial on several grounds is, in effect, a separate motion on each ground, and the better practice would be for the trial court, when sustaining such a motion, to state frankly on the record the specification or specifications which are upheld and those which are overruled.</p> <p>3. Evidence—Records—Superintendent of Railroad Transportation. Under the rule dispensing with the production of voluminous or multifarious documents when impracticable, and the facts stated in the opinion-, it is held that a record in the office of the defendant’s superintendent of transportation, consisting of tables summarizing the use and movement of freight cars on defendant’s lines for each month of a series of years, compiled by his office force under his supervision from information derived from many reports, telegrams and other communications from various persons, was properly admitted in evidence as tending to show an abnormal rush of business and congestion of traffic in one of the months of the tabulation.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Poll Tax—In Cities of First Class—Not Collectable. The legislature having passed a separate act showing a plain intent to leave cities of the first class out of the operation of the law authorizing the collection of a poll tax for road purposes, and having made such act, without substantial change of language, a section of a general enactment passed later in the same session, must be deemed not to have intended to restore to such cities the authority to collect such tax, notwithstanding other expressions elsewhere in the same act, if' considered alone, might seem to indicate such a purpose.</p> <p>2. - Statutes — “Uniformity in Taxation.” A statute which exempts residents of cities of the first class from the operation of a statute imposing a poll tax for road purposes, does not violate the rule requiring uniformity in taxation, nor result in a denial of the equal protection of the laws.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Criminal Law—Homicide in Defense of Third Party. Whether one may defend another from death or great bodily harm does not depend upon the reality or imminence of the danger nor upon the belief, as to these facts, of the one supposed to be in peril, but depends upon the facts as they reasonably and actually appear to the defender.</p> <p>2. Justifiable Homicide — Common-law Rule. By the provisions of section 11 of the crimes act (Gen. Stat. 1909, § 2499) the common-law rule is ingrafted into the statute; and upon a charge of murder or manslaughter the accused must, on trial, be acquitted if the alleged homicide was committed under circumstances or in a case where, by the common law, such homicide was justifiable or excusable.</p> <p>3. - Same. Under the common law one may, without incurring criminal liability, take life if necessary to prevent the murder of, or other atrocious felony against, his brother. Justification for an assault with intent to kill can not require more than when death results.</p>

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

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

<p>OPINION ON REHEARING.</p> <p>SYLLABUS BY THE COURT.</p> <p>Purchaser-—Notice—Unrecorded Deed—Due Diligence. Before filing an action in ejectment plaintiff, without actual notice of an unrecorded deed, inquired of the tenant on the premises and learned the name of the person to whom the tenant paid rent. Relying upon his knowledge that the same person had acted as the attorney for the record title-holder and had been until a few days before renting the premises as agent for the record owner, he made no further inquiry. It did not appear that further inquiry of the tenant would have disclosed the existence of the unrecorded deed or the claim of the grantee therein. Upon these uncontroverted facts - it became a question of law whether he exercised due diligence; and upon the facts as stated it is held that he was not bound to make further inquiry.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Houndaries — Former Surveys — Lost Comers—Acquiescence— Parol Evidence. At the request of a landowner a survey was made of a certain section, starting from an established corner of the section, surveying to and adopting two other section comers established and marked by previous surveys made respectively thirty and twenty-three years before, when many government markings of corners, since obliterated, were in place. The former surveys were not made and recorded under the statute and are not conclusive. The landowners affected, including the appellant, who assisted in the last of these former surveys, had long acquiesced in the boundaries established thereby. It is held that the markings of missing corners made in such former surveys should be considered as evidence tending to show where the original monuments had been located in making the government survey, and that parol evidence of these former surveys, and of the location and markings of corners, is admissible.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Reference—Conclusiveness of Findings of Fact. Findings of fact made by.a referee, supported by evidence and approved by the trial court, must stand.</p> <p>2. Accounting—Partnership—Apportionment of Costs. In a suit for an accounting involving the dealings and claims of former partners the costs' may be apportioned between the parties.</p> <p>3. -Same. One of three parties engaged in the joint enterprise of procuring, improving and handling gas-and-oil leases and properties had two wells drilled on one of the tracts owned by him but turned into the common holdings. Held, that the cost should be borne by the parties as a common expense although one of the wells was dry.</p>

<p>HEADNOTE BY THE REPORTER.</p> <p>Survey—Duty of County Surveyor—Statutory Rules. The legal questions involved in this case are identical with those involved in Roadenbaugh v. Egy, post, and on the authority of that case the judgment in this case is affirmed. ,</p>

<p>opinion on rehearing.</p> <p>HEADNOTE BY THE REPORTER.</p> <p>Trial — Practice — Opening Statement—Motion for Judgment. Where, in an action for negligence, the plaintiff’s counsel in the opening statement to the jury undertakes to detail all the facts upon which negligence is predicated, a motion for judgment should be sustained if it affirmatively appears that the facts stated do not justify any inference of negligence against the defendant.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Watercourse—Obstruction by Railroad Bridge—Floods. A railroad company in carrying its railroad over a watercourse and the approaches thereto must provide sufficient outlets not only for the ordinary flow of water but also for the escape of water in times of floods which may reasonably be expected to occur.</p> <p>2. - Same. Provision need not be made for unprecedented floods which could not reasonably have been foreseen, but whatever the term by which a flood may be designated, if such floods have occurred frequently at irregular intervals it is reasonable to expect that they will occur again, and those who place obstructions in the watercourse should provide for the escape of such flood water.</p> <p>3. - Same. If from the history of the stream and the knowledge and experience of those who first constructed a railroad and the embankments on which it rested the outlets and openings first made for the escape of water then appeared to be sufficient, it would still not relieve the company from liability for injuries arising from a later flood when floods of a like character have occurred from time to time through a series of years since the construction of the road and it has been demonstrated that such floods may reasonably be expected.</p> <p>4. -Same. Water which overflows the banks of a river and then flows down a natural depression in the same general direction as the river runs and which returns to the river upon the subsidence of the flood is to be deemed a part of the running stream. ,</p> <p>5. Evidence—Sufficient to Show Obstruction. The testimony examined, and held to be sufficient to support the finding that the water which caused the injury and loss was thrown and held upon appellees’ lands through the failure of appellant to provide suitable and sufficient outlets through the embankments upon which its railroad rested for the escape of flood water arising from heavy rainfalls which should have been anticipated and provided for.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Check—Liability of Drawee—Acceptance in Writing. Under sections 134 and 139 oí the negotiable instruments act (Gen. Stat. 1909, §§ 5380, 5385) the drawee of a bill is not obligated to pay the holder unless and until he accepts the bill, and the acceptance must be in writing and be signed by the drawee.</p> <p>2. - Equity Must Follow Statutory Law. Equity must follow the law in all cases in which the legislature has intervened and prescribed rules of law which govern the rights of the parties.</p> <p>3. - Oral Acceptance by Bank—Equitable Liability. A bank is hot liable on equitable grounds to the holder for the amount of an unaccepted check which it has refused to pay because the holder acquired the cheek on the oral representation of the bank that the drawer had funds on' deposit to meet the check, that the check was good, and that the holder might safely take it in payment for goods sold the drawer.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Contract—Made by Agent—Scope of Agent’s Authority. An act of an agent which is within the apparent but not within the real scope of his authority is binding upon the principal where otherwise loss would result to one who has in good faith relied upon such appearance.</p> <p>2. - Same. An act is within the apparent scope of an agent’s authority when a reasonably prudent person, having knowledge of the nature and usages of the business, is justified in supposing that he is authorized to perform it, from the character of the duties which are known to be entrusted to him.</p> <p>.'3. - Same. It is a question of fact, to be determined under all the circumstances, whether an agreement to give employment for nine months is within the apparent scope of the authority of a division engineer of a railway company, who is known to have supervision over the maintenance of the tracks and bridges within a certain territory, and to make the contracts for the work connected therewith, and who in fact has •absolute control of it, except that he is limited to the expenditure of the amount appropriated by the company to that purpose each month.</p> <p>4. -Erroneous Instructions. In such a situation it is error to instruct that although the contract was within the apparent scope of the agent’s authority, the company would not be bound unless it had previously ratified similar acts in excess of his powers.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Party Wall—Boundaries—Mutual Agreement. In an action to recover for the use of a party wall the answer alleged (1) payment in full for the half of the wall on defendant’s side, (2) that in violation of the contract providing for the erection . of the wall plaintiffs’ grantors had placed the wall six inches over the line and upon the defendant’s lot. The réply consisted of a general denial and a plea that the former owners of the adjoining properties had fixed the wall as the true boundary by mutual agreement. The court found generally for the plaintiffs. Held, that upon the issues of fact there was. sufficient evidence to support the judgment. -</p> <p>2. Instrument—Affecting Beal Estate—Record. A writing in the following language is held to be an instrument affecting real estate:</p> <p>“$200.00. , December 31, 1887.</p> <p>“Received of John Norton Two Hundred Dollars for the party wall agreed upon by and between W. S. and Lydia B. Arter and L. and Hattie Blackman, as per contract dated May 27, 1887, and recorded in book 135, page 546, of the records of Shawnee County, Kansas. Said John Norton now being the owner of the property described in said contract, title then in W. S. Arter. This receipt being in full for said wall as described in the above mentioned contract.</p> <p>H. M. Blackman.</p> <p>L. Blackman.”</p> <p>3. - Defective Acknowledgment—Record — Valid. Where such an instrument had been filed in the office of the register of deeds in the proper county for a period of ten years it is as valid, notwithstanding a defective acknowledgment, as though duly acknowledged in the first instance. (Gen. Stat. 1909, § 1685.)</p>

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

<p>HEADNOTE BY THE REPORTER.</p> <p>1. Evidence—Written Statement by Railroad Accountant. A written statement purporting to show the cost of a railroad spur, prepared by an accountant from reports received in the regular course of business, and who was acquainted with the cost of materials used and labor employed was competent evidence as to the cost of such railroad spur.</p> <p>2. Pleadings—Contract—Performance—Delay—Damages. The averments of the answer are not sufficient to constitute a cause of action in favor of the defendant for damages for delay in building the spur.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Mortgage—By Corporation—Private Debt of President—Invalid. Upon issues between the plaintiff and an intervenor claiming a fund garnished in the action, the validity of a mortgage under which the intervenor claimed the fund was assailed. Upon a review of the evidence it is held sufficient to sustain findings that the mortgage was given by the defendant telephone company to secure a debt of its president, and not a debt of the company; that it was taken with knowledge of these facts, and is not a valid obligation of the company.</p> <p>2. Garnishment—Trial Before Judgment against Principal Defendant. Issues between the plaintiff, a garnishee,' and intervening claimants of a fund, were made up and tried and a judgment was rendered thereon, and at the same time judgment was rendered against the principal defendant which, was in default. It is held that any error in trying these issues before judgment was entered against the principal defendant was waived by proceeding to such trial without objection or request for delay.</p> <p>3. Summons—Absence from Files—Recitals of Judgment. The absence of a summons from the files after a judgment is rendered and the fact that the appearance docket does not contain an entry of the return thereon do not render a judgment void which recites that the defendant “had been duly and legally served with summons by personal service upon the president, 0. B. Walker,” and that the company is in default.</p> <p>4. Mortgage—Debt Secured, Partly Invalid—Not Void in toto. A chattel mortgage was given by the telephone company to secure a valid debt of the company, and also the individual debt of its president. It is held that the mortgage is not void in toto as matter of law, but is void if the mortgagee intended in so taking the mortgage with such excess of indebtedness included in its terms, to defraud, hinder or delay other creditors of the company. The evidence upon this question of fact is examined, and it is held that a finding that the mortgage was invalid is not sustained by the evidence.</p> <p>5. Garnishment—Intervenors—Distribution of Funds. After a garnishment summons has been served in an action by a creditor of the principal defendant, and an answer had been filed by the garnishee, he paid over the fund to another person who claimed it, and who had been impleaded in the action. Other garnishee summonses were then served upon the same garnishee in actions by other creditors of the principal defendant. The garnishee answered in these later actions, stating that he had paid the fund over to such claimant. Thereupon the claimant was also garnisheed. Issues were made and tried between the several plaintiffs, the garnishee, the claimant, and another intervenor who claimed the fund 'under the mortgage referred to in the fourth paragraph above, the principal defendant being in default. It is held that the claimant of the fund (who is the intervenor mentioned in the first paragraph) should be held as such garnishee, the fund brought into court, and applied according to the priorities stated in the opinion.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Pleadings—Petition—Demurrer. Mere generality in the allegation of essential facts, or mere conclusions of fact, do not: render a petition had as against a demurrer.</p> <p>2. Trespass — Irreparable Injury—Injunction. A continued trespass upon real estate which may ripen into an easement, or which threatens irreparable injury, may be enjoined.</p> <p>3. - Same. Against such a wrong an action for damages is not a remedy at law sufficiently adequate to preclude equitable' interference by injunction.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Shipping Stock—Intermingling of Cattle—Damages. Where the employees of a railroad company, in unloading cattle from a train, to be fed and watered, intermingle the animals of two shippers, in violation of directions to keep them separate, the carrier is liable on account of loss of weight and other injuries which naturally result from the handling of the cattle thereby made necessary in order to effect their separation.</p> <p>2. -Agency—Evidence of Authority. The evidence held to support a finding that a person to whom such directions were given was an agent of the railway company.</p> <p>3. - Cattle Exchanged—Damages. A shipper who under-such circumstances has received several inferior cattle of the other owner in place of his own, can not recover damages from the railroad company on account-of the exchange, where he has made no attempt to avail himself of a subsequent opportunity to correct it.</p>

<p>HEADNOTE BY THE REPORTER.</p> <p>Unlawful Detainer—Default in Payment of Rents—Demand. The owners of real estate leased it for an indefinite term and directed the tenant to pay the rent to a third person; thereafter they demanded of the tenant that he pay to them the rent thereafter accruing or .surrender the possession; both demands were refused. Held, that the owners may maintain an action for unlawful detainer.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Ejectment—Equitable Oral Mortgage—Creditor in Possession. One who had borrowed money from his sister-in-law caused tax titles upon a tract of land to be executed to her sister, who had no interest therein, and then turned over the possession, control and 'management of the tract to his sister-in-law, in pursuance of an agreement that the land should be used to pay the debt. The creditor took and held the actual possession of the land for eighteen years, and improved, cultivated, rented, managed and controlled it openly until her death, at which time it was occupied by her tenant under an unexpired lease. The. tax titles were conveyed to her some time after the agreement was. made, upon the direction o'f the debtor. The debtor, or his wife, to whom a conveyance was made subsequent to the agreement, took possession from the tenant at or before the expiration of the lease, without the consent of the lessor, her heirs or representatives, and without paying or offering to pay the debt-. It is held that the possession so taken was wrongful.</p> <p>2. - Same. The form of an agreement by which security for the payment of money is given is not important, if the purpose plainly appears. Equity regards the substance and gives effect to the intention.</p> <p>3. - Same. A parol agreement to secure the repayment of money already advanced, by a lien or charge upon land, may be enforced by retaining the possession taken in pursuance of the agreement and held for many years thereunder, no steps having been taken to collect the debt.</p> <p>4. - Same. Agreements of the nature above referred to are usually termed equitable mortgages, but the name is not important. If the effect is to create a lien to secure'a debt, possession given to the creditor in pursuance of the agreement may be held under the rules applicable to mortgagees in possession. Equity requires the payment of the debt before relinquishment of the security can be compelled.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Tax Lien—Conveyance of Land—Liability for Taxes. In September a son sold certain lots belonging to his mother, giving a deed duly executed by himself as her attorney in fact. The grantee, insisting on a deed direct from the mother, paid the consideration upon the understanding with the son that • the deed executed by him should be held until the grantor could return from abroad, when she would execute one herself. An instrument dated October 29 sent to her was executed November 3 and thereafter delivered. Aside from the execution and dates both deeds contained the same covenants, recited' the same consideration and were identical in terms. Held, that the lots were conveyed in September and the grantor is not liable for the taxes which became a lien November 1.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Divorce—Residence of Plaintiff—One Year in the State. The plaintiff may bring an action for divorce either in the county of his residence or in the county in which the defendant resides or may be summoned, but in any case the plaintiff must have been an actual resident in good faith of the state for one year before the filing of his petition.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Lien—Oil Well—Labor and Material—No Lien on Oil Produced. No lien upon the oil produced can be acquired under a statute providing that any person who, under contract with the owner of a leasehold for oil and gas purposes, shall perform labor or furnish material used in making or operating any oil or gas well “shall have a lien upon the whole of such leasehold ... or lease for oil and gas purposes, the buildings and appurtenances, and upon the materials and supplies so furnished, and upon said oil and gas well for which they were furnished, and upon all the other oil wells, fixtures and appliances .used in the operating for oil and gas purposes upon the leasehold for which said material and supplies were furnished and labor performed.”</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Intoxicating Liquors—Evidence—Receipts of Carloads of Beer. On a trial upon the charge of selling intoxicating liquor in violation of law it is competent to show that the accused ordered and received eight to twelve carloads of beer at the railroad station in the town, where, as was claimed, they did the unlawful business, for any period within two years before the commencement of the action.</p> <p>2. -Evidence—Government Internal Revenue Receipts. It is also competent in such action to show that the accused, during all or a portion of the two years preceding the commencement of the action, had procured internal revenue receipts as wholesale malt liquor dealers, setting forth the names to whom issued, the place the business is to be conducted, and the time of the issuance thereof.</p> <p>3. Evidence—Papers Found in Place ofBusiness. In such case, after a witness has testified to buying beer repeatedly in cases and half-barrels, it is competent to introduce papers which are shown to have been found in the place of business of such witness, and which purport to evidence the payment to accused for liquors received from time to time and during the time testified to by the witness and within two years prior to the commencement of the action.</p> <p>4. Judicial Notice—Location of Cities and Towns. In such case, where the question of sufficiency of proof of venue is ' first raised on appeal, this court may take judicial notice of the fact that certain incorporated cities and towns are located in certain counties, and also, from evidence of certain directions and distances in establishing the location of certain places with reference to said cities and towns, that said places are also within the boundaries of said counties.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Injunction—Sewer Tax—Assessment—City Ordinance. The amount due on each lot or piece of ground liable for an assessment under section 1 of chapter 124 of the Laws of 1911 is ascertained when the ordinance levying the assessment is published.</p> <p>2. City Ordinance—When Publication is Complete. Such ordinance was duly printed in a newspaper printed within the city. (Gen. Stat. 1909, § 1347.) The work, owing to a delay for certain copy, was begun about four o’clock P. M., April 4. The copies for out of town subscribers were mailed in time to reach their destinations that evening. Substantially all the remaining copies bearing date April 4—about three-fourths of the issue—intended for city patrons, were mailed the following forenoon. Had any subscriber called at the newspaper office the evening of the 4th he could have received his paper. A number of the publisher’s employees usually took their papers, home the day they were printed. No attempt or intent purposely to avoid full publication on the day it was begun was shown or claimed. Held, that the ordinance should be deemed published on that day.</p>

<p>? IXLABUS BY THE COURT.</p> <p>1. Residence—Foreign Railroad Corporation—Street Improvements. The rule that a railroad corporation is to be regarded as a resident of every county in which it operates its road or exercises its corporate franchises applies, in the interpretation of a statute, only in situations where such construction accomplishes the substantial .purpose sought by the act involved.'</p> <p>2. - Same. Within the meaning of a statute which makes the improvement of a street depend upon the action of such of the owners of the abutting property as are residents of the city, a railroad corporation is not to be deemed a resident of any other city than that in which its chief offices and principal place of business are located.</p> <p>3. - Same. A foreign railroad corporation whose principal offices are in another state can not be regarded, for the purpose of such statute, as a resident of a city in Kansas by ' virtue of the location there of offices from which are controlled the operations of the road throughout a district which includes this state, notwithstanding it has been granted all' the privileges conferred by the laws of Kansas upon domestic railroad corporations.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Mandamus — Canvassing Board — Election Returns — Mistake. Where in canvassing the returns of an election the county-board reaches a result which is clearly wrong, and where the court can determine with certainty from the face of the poll books and tally sheets what the result should have been, the board may be compelled by mandamus to make a canvass showing that result.</p>

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

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Res Judicata-—-Failure to Recover on Express Contract Not a Bar to an Action on an Implied Contract. Where one who has received money from another contends that it was given him under an express contract, in consideration of services which he afterwards performed, but is defeated in that contention in an action brought against him for the recovery of the money, he is not thereby precluded from maintaining an action upon an implied promise to pay the reasonable value of such services as he had rendered.</p>

<p>SYLLABUS BY THE.COURT.</p> <p>1. Evidence — Expert Witnesses — When Competent. In this state the opinions of experts are receivable in evidence only on the ground of necessity where no better evidence can be had, and are not receivable regarding an ultimate fact in issue where the subject can be presented to the jury so that the jury itself is capable of drawing the ultimate inference.</p> <p>2. Negligence — Packing Company Elevator — Best Evidence. In this case the opinions of experts were received in evidence to show that it is possible, under the principle upon which friction-hoist elevators are constructed, for the car to fall in the course of its ordinary use for packing-house purposes, although all the appliances are in good mechanical condition, and that such an elevator is unsafe for such use. It had been the business of the experts to construct, inspect and repair such elevators, with whose operation and use they were perfectly familiar, their experience having been gained in the principal packing houses of Kansas City, where such elevators have been in common use in large numbers for many' years. Held, the best evidence of the reliability or unreliability of such elevators consisted in the demonstrated results of their use; that with the facts relating to their performances before it the jury would have been competent to judge of their safety; and that the opinion evidence was improperly received.</p> <p>3. - Elevator Must be Reasonably Sáfe for Such Use. A packing company using an elevator for the purpose of conveying, truck loads of meat and the employees handling the trucks from one floor of its packing house to another owes such employees the duty of using ordinary care to furnish an elevator reasonably safe for such use.</p> <p>4. Pall op Elevator—No Presumption that Employer was Negligent. The sudden fall of such an elevator in the course of its ordinary use by a truckman, whereby he is injured, does not warrant a presumption of negligence contributing to the injury on the part of the employer.</p> <p>5. --- Evidence Insufficient—Demurrer Sustained. The evidence considered, and held that the defendant’s demurrer to that offered by the plaintiff should have been sustained.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Husband and Wife—Agreement to Separate—Resumption of Marital Relations. Reconciliation and the resumption of marital relations do not necessarily avoid a separation agreement previously made by the parties, such effect depending on the question whether the provisions of the contract and the conduct and-circumstances show an intention to treat the agreement as no longer in force.</p> <p>2. -- Agreement to Separate—Abrogation. Such reconciliation and resumption do not warrant the court in deeming such contract avoided any further, if at all, than its terms taken in connection with the situation and conduct of the parties indicate their intention to avoid it.</p> <p>3. -Right of Inheritance. The right of inheritance in the property of the wife is not to be denied the husband unless such purpose be express or clearly inferable.</p> <p>4. Quieting Title—Evidence—Transaction with Deceased. In a suit by the husband to quiet his title to property of his deceased wife against her children, both parties claiming) inherit from her, he is prohibited by section 320 of the civil code from testifying to transactions and communications had personally with her.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Surety Bond—Not Signed by Employee-—Delivered—Premium Collected—Waiver. A bond issued by an insurance company for the purpose of indemnifying an employer against loss by the fault of an employee will not be held invalid because not signed by the employee, although the bond expressly so provides, when the bond has been delivered by an agent of the company to the insured and the premium collected and . when the company has a separate writing, signed by the employee, which imports the same undertaking by the employee as would his signature to the bond; on "the contrary, the condition will be held to have been waived.</p> <p>2. - Same. When such a bond, containing a condition which renders it void at its inception, is delivered to the insuréd and the premium is collected by an authorized agent, it will be presumed that the company waived the condition rather than that it intended to perpetrate a fraud.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Mechanic’s Lien—Oral Contract to Purchase—Lien Attaches to Equitable Interest of Purchaser. A purchaser of vacant . lots under an oral contract by which he agreed to pay part of the purchase price in cash, the balance when deed was delivered, with the understanding that he was to erect houses on the lots, took possession before making the cash payment, and contracted for labor and material which were used in erecting the houses. Held, that he acquired the equitable title and that a lien for the labor and material attached thereto.</p> <p>2. -Estopped In Pais. In such case, under the facts shown in the evidence and stated in the opinion, it is held that the vendor is estopped by his conduct to claim, as against persons contracting with the purchaser for labor and material used in erecting the houses, that the cash payment was a condition precedent to the vesting of the equitable title.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Contract—Demand for Performance—Reasonable Time to Comply. Where time is not of the essence of a contract to convey land, but is made essential by performance or tender of performance of one party and a demand on the other, a reasonable time must be given for compliance with such demand.</p> <p>2. Judgments—Rendered, in Vacation—Void. A district court is without authority in vacation to render judgment in a case tried in term time and taken under advisement.</p> <p>3. - Same. A judgment rendered in vacation- upon a trial and submission at the preceding term should be set aside, and a judgment should be rendered at the next term.</p>

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Minors—Adopted Child—Bights of Inheritance. Under the adoption act a child legally adopted takes the name of the adopting parent and is given the same personal rights and is entitled to the same rights of inheritance as a natural child.</p> <p>2. - Same. The amendment of 1891 of the act concerning descents and distributions (Gen. Stat. 1909, § 2952) did not repeal or limit the rights conferred on an adopted child by the adoption act and to which he was entitled prior to the amendment mentioned.</p> <p>8. -Same. The words “living issue” as used in the amendment were employed by the legislature in the sense of. living children, and hence an adopted child of. a prior deceased daughter of an intestate does inherit a portion of the estate of such intestate through her adopting mother.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Evidence — Issue—Usable Value of Engine — Actual Value. Upon an issue as to what the use of an article is reasonably worth per day, where it does not appear that there is any absolute standard by which such value may be determined with definiteness and certainty, it is not error to admit evidence of the value of the article itself, to be considered with other circumstances in determining the0 value of its use.</p> <p>2. -Same. In that situation it is not error to admit evidence of the price at which the owner subsequently sold the article.'</p>

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

STATEMENT. Plaintiff and defendant entered into a contract through letters and telegrams, whereby defendant •agreed to purchase from plaintiff 10,000 pounds each of whites and yolks of eggs. Pursuant to this contract plaintiff put up 10,995 pounds of whites and 9576 pounds of yolks. All of the whites were shipped to defendant and paid for.

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Public Officer—Contract for Labor — Personal Liability. The language used by a public officer in making a contract in that capacity is not to be construed as imposing a personal liability upon him unless an intention to that effect is clearly shown.</p> <p>2. -Same. Where a public officer, in entering into a contract in that capacity, promises to make payment immediately upon the completion of the work, he incurs no personal liability (at least in the absence of fraud), although the statute provides that the contractor shall receive his pay from another source and after some delay.</p> <p>3. -- Same. A public officer who refuses to perform a duty, without the performance of which a just claim against the public can not be paid, is personally liable in damages to the claimant, but only to the extent of the actual loss occasioned by such refusal.</p> <p>4. - Measure of Damages. The measure of damages in such a case, where the ultimate collection of the claim has not been defeated, would ordinarily be the interest on the< amount for the time payment has been delayed.</p> <p>5. - Damages—Injunctioiv^No Defense. In an action to ‘ enforce such liability the fact that the performance of the duty in question has been enjoined by a court of competent jurisdiction is not a defense, where the claimant was not a party to the proceeding, or where the ground-of the injunction, was the failure of the officer to proceed in a proper manner.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Sale—By Agent—Payment of Debts—Coinmissions—Balance. Where one is employed to sell property for another and is' authorized to pay from the proceeds of the sale certain specified debts of his employer, he is liable in an action therefor by his employer for the balance of the purchase price of the property received by him, less his commission and such disbursements as. he has made by the direction of his employer.</p>

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

STATEMENT. This appeal is from a conviction for breaking into and stealing from the Beattie State Bank. The crime was committed a little before three o’clock on the morning of November 8, 1910, by five armed men, who broke into a rear door of the building, blew open the safe, and took away about $3500 in money. A part of the burglars stationed outside the building fired occasional shots while others worked inside. Several explosions occurred.

STATEMENT. This appeal is from a judgment for the defendant in an action prosecuted by the attorney general and county attorney to abate and enjoin a public nuisance. The petition charges a nuisance committed by the defendant in the open and persistent violation of the prohibitory liquor laws.

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Fugitive from Justice—Interstate Rendition—Prosecution for Other Crimes. 'A person charged in any state with treason, felony, or other crime, who shall flee from justice and be found in another state, and.who, on the demand of the executive authority of the state from which he fled, shall be delivered up and removed to the state having jurisdiction of the crime, may there be prosecuted for crimes other than the one specified in the demand for his delivery without first giving him a reasonable opportunity to return to the state which surrendered him.</p> <p>2. - Same. The case of The State v. Hall, 40 Kan. 338, 10 Pac. 918, is overruled.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Injunction — City — Assessment — Extension of Storm Sewer. The decision of a trial court refusing to enjoin a city from extending a storm sewer and from collecting special assessments therefor, after considering the evidence submitted by all the parties, will not be reversed in the absence of some specific showing of error in such ruling.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Damages'—Diverting Watercourse — Consistent Findings—Evidence. Special findings of fact considered and held to be consistent with each other, to be supported by the evidence and to be conclusive against the appellant.</p>

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Attachment — Trial of Title — Fraudulent'Conveyance — Evidence. Where real estate standing in the name of one person is attached as the property of another, upon a trial of the question of the true ownership the attaching creditor should be allowed considerable latitude in the examination' of his debtor; but where the case is tried without a jury a judgment will not be reversed because of limitations placed by the court upon the inquiry, where there is no probability that the admission of the rejected evidence would have resulted in a different decision.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Mechanic’s Lien—No Judgment against. Owner until Subcontractor’s Liens are Adjusted. The owner who has partially paid the contractor for the erection of a building should not be subjected to a judgment in favór of such contractor for the claimed balance until the subcontractors have had their claims and liens finally adjudicated.</p> <p>2. Building Contract—Measure of Recovery. When the contractor has in good faith constructed the building in substantial compliance with the terms of the contract he is entitled to recover the agreed price less such sum as will be required to effect strict and literal compliance.</p>

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

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

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

<p>OPINION DENYING A REHEARING.</p> <p>HEADNOTE BY THE REPORTER.</p> <p>1. Ejectment—Possession—Contract Proven Within the Issues. In ejectment where the plaintiff claims by virtue of an oral contract with the owner that she was to have the land in payment of an existing debt, and the trial court found that she was given possession under an oral contract that she was to have the land as security for the debt, either agreement would entitle her to possession, and the contract proven was within the issues.</p> <p>2. - The former decision (88 Kan. 318, 128 Pac. 396) as to the law applicable to the case is affirmed.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Automobiles—Defective Highway—Bridge Gone—Duty of Driver—Instructions. An automobile was driven over a highway at night into a river at a public crossing from which the bridge had been recently carried away by a flood. There was no barrier or sign of warning, but the driver knew that he was approaching a crossing at which he supposed a bridge was standing. It is held (1) that it was not error to refuse to give an instruction to the effect that the approach to a stream is itself a warning of danger to a person unacquainted with the road, driving an automobile in the night, which requires him to see and know that a bridge is reasonably safe; (2) that an instruction to the effect that the crossing of a stream is an indication that caution is required of the driver in the circumstances stated above is sufficient when given in connection with other instructions stated in the opinion.</p> <p>2. - Contributory Negligence — Speed. The question whether a driver was exercising proper care and prudence, taking into consideration all the circumstances and conditions, is one of fact for the jury. It can not be held as matter of law that a speed of twelve to fifteen miles an hour is negligent.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Landlord and Tenant—Denial of Title by Lessee—Tax Deed. The patentee of certain land about to leave for another state put a creditor in possession to hold until the owner’s return, in payment of the debt. Subsequently the land went to tax sale, and the grantee in the tax deed stated to the one in possession that he had the owner’s title, and entered into a lease for one year, which at the end of the term was renewed in writing for another year. The lessee, having afterwards procured a conveyance from the patentee, sought to deny title in his own lessor, the tax deed being good on its face and on record when the leases were executed. Held, that he is es-topped by such leases.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Benefit Association — Nonpayment of Dues — Forfeiture — No Waiver. Ordinarily if a benefit association receives and retains dues and assessments paid by a member after he is in default and subject to suspension and forfeiture, and leads him to believe that he is still a member in good standing, it is estopped to insist on a forfeiture of membership, but on the testimony in the present case it is held that there was a forfeiture of benefits by reason of the nonpayment of dues by the member and that there was no waiver of such forfeiture.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Estates Tail—Exist in Kansas. Estates tail resulting from the judicial interpretation of the statute de donis conditionalibus (13 Edw. I, c. 1, June 28, 1285), as modified by subsequent statutes and judicial decisions, were introduced into this country at the time of its colonization, with other parts of English jurisprudence, and still exist in this state.</p> <p>2. - Characteristics—Barred by Fine and by Recovery. One of the characteristics of these estates as we received them was that they were capable of being barred by fine and by common recovery, which were looked upon as legal modes of transfer having the effect of conveyances of record.</p> <p>3. -By Ordinary Deed. Fines and common recoveries are inconsistent with our modes of procedure. But the fiction and the form only are obsolete. The substantive result of the proceeding, a conveyance of record, may still be accomplished by an ordinary deed.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Foreign Judgment—Service—Fraud, Not Sustained. An allegation that a defendant was inveigled into another state for the purpose of obtaining service upon him is not sustained by proof that he would not have gone to that state except for the fact that the plaintiff had told him the action . was to be brought in Kansas.</p> <p>2. - Jurisdiction — Construction of Foreign Statute. A contention that a judgment rendered in another state is void for want of jurisdiction of the subject matter, which turns upon the construction of the statute of that state,, is not maintainable where upon appeal the judgment has been affirmed by the court of last resort.</p> <p>3. Action—On Foreign Decree in Equity—When Maintainable. An action may be brought upon the decree of a court of equity of another state adjudging the unconditional payment of money, notwithstanding that as a preliminary thereto the party in whose favor such judgment was rendered was required to deposit certain deeds with the clerk, to. be delivered to the debtor upon the payment of the judgment.</p> <p>4. Revivor—Properly Had in Name of Local Executor. Upon the death of the plaintiff in an action upon a judgment rendered in another state, both parties being residents of Kansas, a revivor is properly had in the name of the executor appointed in this state, notwithstanding an administrator has been appointed in the state where the judgment was rendered.</p> <p>5. --Consent to Order of Revivor. A defendant who, upon the death of the plaintiff, expressly consents to an order reviving the action, can not be heard to maintain that the revivor was void because not made in the name of the propel* representative.</p> <p>6. -No Revivor of Foreign Judgment Necessary. Where, upon the death of the plaintiff, an action upon a judgment rendered in another state is properly revived in the name of the personal representative, a recovery will not be prevented by a failure to revive the foreign judgment.</p> <p>7. Action—On Foreign Judgment—Necessary Proof. To recover upon a judgment rendered in another state by a court of.general jurisdiction, it is not ordinarily necessary to introduce copies of any part of the record except that showing the rendition of the judgment.</p>

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

<p>HEADNOTE BY THE REPORTER.</p> <p>Estates Tail—May be Barred by Conveyance in this State. The statute de donis and the rule of the common law expressed therein relating to estates tail are in full force and effect in Kansas, and an estate tail is capable of being barred by a conveyance of record made by the tenant in tail.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Personal Injuries—Slippery Floor—Fall of Ladder—Negligence. Where the floor of a department of a packing house is made of asphalt in order that it may be smooth and waterproof, so that it can be kept in a clean and sanitary condition, and this purpose would be defeated by the presence of spikes in ladders used therein, the furnishing for use in such department of ladders not so equipped can not be regarded as negligence.</p> <p>2. - Same. The fact that spikes are attached to ladders furnished for use in other departments having soft floors does not warrant an employee in assuming, without examination, that a ladder found in a department where the floor is of asphalt is similarly equipped.</p> <p>3. Contributory Negligence—Shilled Employee. A skilled mechanic who uses a ladder in a way which he knows to be ' dangerous unless it is equipped with spikes, without making any effort to ascertain whether the spikes are there, can not recover from his employer on account of injuries occasioned by their absence.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Sale-—-Merchandise—Contract—Proceeds—Trastee—Attachments—Liens—Interpleas. The owner of a stock of merchandise, store furniture and fixtures sold the same to two purchasers who jointly executed promissory notes for the purchase price; at the same time a combined bill of sale and contract was executed between the purchasers, which recited the amount owing by the purchasers to the seller, evidenced by notes of even date with the contract; also; that the purchasers “have agreed to apply the net proceeds from sales from said stock and all other goods put into said stock toward the payment of said notes. It is therefore agreed that Miss !-- be appointed trustee to receive all moneys coming in from sales of said stock.” Then follows an agreement as to how the money shall be applied, where deposited, etc. Nothing, however, is said in this contract in reference to the possession of the property sold. Whenever the third person is referred to therein it is as “trustee.” Held, that the instrument did .not vest the right of'possession of the property in the third person or give her a lien thereon, but simply made her a trustee to receive and apply the money taken in for retail sales or from sales in bulk as directed thereby.</p> <p>2. -Pleadings—No Issue of Fact Presented. No issue of fact is presented by the pleadings in this case.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Nonnegotiable Note — Illegal Consideration — Margins on Board of Trade. A nonnegotiable promissory note was given to cover margins in a board of trade transaction or speculation in the price of wheat, no actual sale or delivery being intended. The instrument was indorsed before maturity for full value to the appellant, who took it without notice of the consideration. At maturity the appellant was informed of the consideration, and accepted a new negotiable note for the principal, the interest being paid. In this action upon the new note, held: (1) The note was given in a gambling transaction prohibited by law (Gen. Stat. 1909, § 5169) and was void between the parties. (2) The assignee of a nonnegotiable instrument stands in the shoes of the payee. A defense available against the payee is also available against the assignee. (3) The new note taken in exchange for the old one is a renewal of the former obligation. (4) The payee of the new note is chargeable with notice of the infirmity in the original instrument because of his knowledge of the consideration, as well as from its nonnegotiable form. (5) The’ consideration of the new note is the obligation of the old one. This consideration being illegal, a recovery can not be allowed.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Statute op Limitations—Account between Resident and Nonresident. A resident of Oklahoma bought goods of a firm in ’Kansas the last item of which became due January 1, 1907. He continued to reside and remain in Oklahoma until the action was there barred. The account was assigned to the plaintiff, a Kansas bank, which sued in Kansas in June, 1911. Held, that as the cause of action did not arise between nonresidents of this state and the defendant was at no time a resident of this state, the action was not barred by section 20 or 21 of the civil code.</p>

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

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Evidence — Letter Press Copies of Waybills —Competent. The defendant, having shown the loss of certain waybills indicating the destination of two of the cars in question, offered in evidence letter press copies, which were refused. Held, error.</p> <p>2. Evidence—Chalk Marks on Car—Probative Effect Of. Evidence that upon one freight car of the train in question, at some time by someone unknown, there had been written with chalk the name of a certain station, and that destinations were sometimes thus indicated, is not sufficiently probative to warrant a finding that such car was then being moved to such station.</p> <p>S. Instructions—Assumption of Facts in Issue. Instructions should not by their language appear to assume as proven a matter sharply disputed by the parties.</p> <p>4. “Employees’ Liability Act”—To What Employees it Applies. Before an employee can recover for an injury under the federal employers’ liability act (35 U. S. Stat. at L. p. 65) it must appear that at the time of the injury the defendant railroad was engaged in the work of interstate commerce and that such employee was by the carrier employed in such commerce. To constitute him a person so employed his work at the time of the injury must have had a real and substantial connection with the interstate commerce in which such carrier was then engaged.</p> <p>5. Moving Caes—From One State to Another—Interstate Commerce. An interstate railroad when engaged in moving cars of water or coal over its line from one state into another for use in its own engines is engaged in interstate commerce.</p> <p>6. Master and Servant—Assumption of Risk—Valid Defense. Assumption of risk is a good defense to an action under this act, except when the violation by the carrier of some statute enacted for the safety of employees has contributed to the injury or death of the employee. And when such defense is pleaded and supported by the evidence it is the duty of the court to instruct thereon.</p> <p>7. Damages—Items Not Proven. An item of damage allowed for an injury neither proved nor found should be deducted from the amount of the verdict.</p> <p>8. Contributory Negligence—Instructions—Burden of Proof. When the court charges that the plaintiff was guilty of contributory negligence, no error prejudicial to the defendant is committed by another instruction that the burden is upon the defendant to show such negligence.</p> <p>9. Special Questions—For Jury—Purpose of the Statute. The purpose of the statute (Civ. Code, § 294) providing for the submission of special questions is to “direct the jury to find upon particular questions of fact,” not to invade the domain of medical or metaphysical science in an attempt to separate and distinguish between constituent elements of physical injuries.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. - Contract—Promise to Pay Firm Debts—Right of Individual Partner to Benefit. The purchaser of a stock of merchandise from a partnership agreed to pay certain notes and an account . owed by the firm, as part of the price. Afterwards he procured the notes to be indorsed and the account to-be assigned to him. In further payment of the price he gave to one of the partners, who owned all the property of the firm, his note. When sued by the payee upon this note the purchaser counterclaimed upon the firm notes and account which had been transferred to him. Held, the individual partner was entitled to the benefit of the purchaser’s promise -to the firm to pay the firm indebtedness upon which the counterclaim was based.</p> <p>2. Pleadings—Defects Not Prejudicial. Certain defects in the pleadings and proceedings considered and held to be without prejudice to the substantial rights of the complaining party.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Negligence—Personal Infu/ries—Findings—Verdiot—Judgment. In an action wherein the evidence fairly tends to support the finding's and verdict, which are approved by the court, and judgment is rendered in accordance therewith, the judgment will not be reversed in this court on the ground of the insufficiency of the evidence.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Negligence—Automobile — Husband Driving Buggy—Imputed Negligence. A woman who with a child in her lap goes riding about nine o’clock at night in a single seated buggy drawn by a gentle horse driven by her husband, and who does not exercise or attempt to exercise any control over the ve hide or the driver, is not chargeable with the negligence ,of the husband in failing to see and avoid an automobile approaching from the side on which the husband is sitting.</p> <p>2. Special Questions—Prolixity and Confusion to be Avoided. Special questions are not for the purpose of subjecting the jury to a process of technical and microscopic cross-examination, or of requiring them to distinguish between elements of injury beyond the ken of the anatomist and the metaphysician, but to show the chief ultimate facts.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Automobile—Statutory Regulation of Speed and Operation on Rural Highway. The driver of an automobile on a rural highway shall not operate his automobile at a greater speed than is reasonable or proper, having due regard for the traffic and use of the highway, or so as to endanger the life or limb of any person, or in excess of twenty miles per hour. (Gen. Stat. 1909, §§450, 451.)</p> <p>2. - Same. When approaching persons driving or riding domestic animals an automobile driver shall, if such animals appear restive and frightened, reduce speed, if practicable turn to the right and give the road, and upon signal from the rider or driver, proceed no further toward such animal or animals, but remain stationary long enough for them to pass. (Gen. S'tat. 1909, § 452.)</p> <p>3. - Same. In other respects the driver of an automobile shall, when meeting or passing persons driving or riding domestic animals, exercise the care and caution to prevent injury and insure safety which a reasonably prudent person would exercise, taking into consideration all the elements of the situation, including the appearance and attributes of his peculiar kind of vehicle. (Gen. Stat. 1909, §452.)</p> <p>4. -Duties of Persons Driving Domestic Animals. A corresponding duty rests upon a person riding or driving domestic animals when approached by an automobile tó take cognizance of the cpnditions and to exercise the care and caution which a reasonably prudent person would display in their presence.</p> <p>5. - Duties, of Drivers of Automobiles and Domestic Animals to Look Ahead.—Approach from Behind. It is the duty of a driver on the public highway, whether of an automobile or of domestic animals, to look ahead and see whatever there may be in the line of his vision which should affect his driving, and if the driver of a team knows that an automobile is approaching from the rear, to act with reasonable prudence in the light of such knowledge.</p>

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

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

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Inheritance Tax—Two Jurisdictions—Double Taxation— Construction of Statute. Where a statute is open to either construction, one preventing the exaction of an inheritance tax upon the same property in two jurisdictions should be favored over one having the contrary effect.</p> <p>2. --Same. A provision of a statute that an inheritance tax (otherwise collectible upon property situated in this state, owned by the resident of another state at the time of his death) shall not be exacted where a similar tax has been paid in the state of the decedent’s residence, provided the laws of that state contain a like exemption, applies in any case where no such tax would be imposed by such laws upon similar property there situated, owned by a resident of Kansas at the time of his death, however much the two exemptions may otherwise differ.</p> <p>3. —Tax Paid in New York—Exempts Same Property in Kansas. The Kansas statute provides in substance that ordinarily an inheritance tax shall be collected with respect to property in this state owned by the resident of another state at the time of his death; but that if a similar tax has been paid in such other state it will not be exacted here, provided a like exemption is made by the laws of such other state in favor of estates of citizens of this state. The laws of New York provide in substance that upon the death of a nonresident of that state owning property having a situs there, an inheritance tax shall be collected in all cases upon such of it as is tangible, and in no case’ upon any of it that is intangible, including in.that term stock of a corporation: Held, that where a resident of New York dies owning stock in a Kansas corporation, the fact that an inheritance tax has been-paid thereon in New York is a bar to the' collection of one here.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Habeas Corpus-—Robbery—Indeterminate Sentence—Statutes Construed. The enactment of chapter 375 of the Laws of 1903 (Crim. Code, § 272a), known as the indeterminate-sentence law, did not repeal by implication the penalty for the crime of robbery on a railway train provided by section 1 of chapter 174 of the Laws of 1901.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Taxation—Delinquent State Taxes—Compromised Tax Sales —Liability of County. Under chapter 122 of the Laws of 1901 and chapter 328 of the Laws of 1911, counties are not relieved, upon making the certificate provided for, from liability to the state for the unrealized portions of taxes due upon compromised tax sales and are not entitled to be given such a credit by the auditor of state as will relieve them from such liability.</p> <p>2. —- Case Approved and Followed. The decision in the case of Harper County v. Cole, 62 Kan. 121, 61 Pac. 403, approved and followed.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Mandamus—County Superintendent—Indorsement of Teacher’s Certificate—Imperative. Section 7495 of the General Statutes of 1909, which provides that the county superintendent of public instruction “may” indorse unexpired teachers’ .certificates regularly issued in other counties when presented to him, imposes a duty upon him and creates a corresponding right in the holder of such certificate to have the same indorsed. Unless valid reasons exist for withholding his indorsement his duty is imperative, and upon his arbitrary refusal to perform the duty mandamus will lie to compel performance.</p>

<p>SYLLABUS BY THE COURT. 1. “Pharmacy Act”—The Word “Store” as Used Therein Defined. The word “store” as used in the first sentence of section 8095 of the General Statutes of 1909 means a store of the same kind or class as a pharmacy. 2. Criminal Statutes—Construction—Evil Sought to be Remedied. In determining the meaning of a statute, consideration should first be j*iven to the language employed therein but, especially in applying a criminal statute, the courts should have regard to the evil sought to be remedied, for that which is not within the spirit of the statute, although within the letter thereof", is not in legal contemplation a part of it.</p> <p>3. Hydrogen Peroxide—Not a Medicine Within the Pharmacy Act. Hydrogen peroxide, like water and soap, is applied to ' the body only as a detergent, a cleanser; it has a curative or beneficial effect and is technically a medicine but is not generally and popularly known as a medicine, and hence the sale thereof is not regulated by section 8095 of the General Statutes of 1909.</p>

<p>opinion denying a rehearing.</p>