Volume 91 — Kansas Reports

<p>SYLLABUS BY THE COURT.</p> <p>Conveyance — A Freehold, Estate in Remainder to Commence in Future May be Created without a Particular Estate to Support it. . A grantor executed a voluntary conveyance of land to his son for life, remainder to the son’s wife for life should she survive her husband, or so long as she remains his widow, remainder in fee to the heirs of his son’s body, and in default of such heirs, reversion to the grantor. The grantor filed the deed for record and “afterwards offered it to his son who refused to accept it. At that time the wife and two children of the son were living. Held:</p> <p>1. Common Law Abrogated by Statute. The common-law restrictions on the creation of future estates were abolished by section 3 of chapter 22 of the General Statutes of 1868, providing that conveyances of land or of any other estate or interest therein may be made by deed, and the remainders to • the son’s wife and to the heirs of his body are valid although the particular estate for life to him did not come into existence.</p> <p>2. Remainders Not Accelerated. The remainders are not accelerated by the refusal of the son to accept the conveyance of the life estate to him.</p> <p>3. -- Independent Grants. The provision for the son is not so complicated with the other gifts specified in the deed that the failure of one destroys them all.</p> <p>4. Heirs of Body — When Ascertained. The son has no heirs at all while living. Who the heirs of his body may be can not be ascertained until his . death, and children now in being take nothing under the deed unless they outlive their father.</p> <p>5. Recording by Grantor —■ Delivery — Acceptance. The recording of the deed by the grantor made it effective as to all pei'sons benefited by it who did not dissent.</p> <p>6. Interpretation — Language of Instrument — Surrounding Circumstances. The intention of the grantor is to be ascertained from the language employed in the deed. In case of doubt, interpretation may be aided by evidence of the situation and circumstances of the grantor and his relation to the grantees at the time the deed would take effect if valid, but it can not be impeached by. testimony of the grantor that he did not intend anybody should have the land if his son refused to take.’</p>

<p>HEAJDNOTE BY THE REPORTER.</p> <p>1. Quo Warranto — Dissolution of Corporation — Statute — Pleadings. Under sections 680 and 681 of the civil code an action may be maintained by the state of' Kansas on the relation of the county attorney to dissolve a private corporation.</p> <p>2. - — ■——■ Same. The petition by the state for the dissolution of a corporation known as The Masons and Odd Fellows Joint Stock Association states a cause of action.</p>

<p>Appeal from Sedgwick district court, division No. 1; Thomas C. Wilson, judge.</p>

<p>Appeal from Logan district court; Jacob C. Ruppenthal, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Quieting Title — Vendee in Possession — Consideration Not Paid. The title of a vendee under a contract for the purchase of land will not be quieted against the vendor where the consideration has not been paid, although the vendor has failed to enforce payment ‘within the statutory period allowed for that purpose.</p>

<p>Appeal from Shawnee district court, division No. 1; Alston W. Dana, judge.</p>

<p>Appeal from Dickinson district court; ROSWELL L. King, judge.</p>

<p>Appeal from Wyandotte district court, division No. 1; Edward L. Fischer, judge.</p>

<p>Appeal from Crawford district court; John L. Kirkpatrick, judge pro tem.</p>

<p>Appeal from Leavenworth district court; James H. Wendorff, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Pollution op Stream — Concurrent Wrongdoers — Liability— Joint and Several. When two or more persons, by their concurrent action, pollute a stream to the injury of another through whose land the stream flows, they are jointly and severally liable for the wrongdoing, and the injured party may, at his eption, institute an action and recover against one or all of those contributing to his injury.</p> <p>2. Pollution of Stream — City Sewer — Refuse from Oil Refinery — Limitation of Actions. A city built a sewer system and discharged sewage into a creek, and about the same time another party built an oil refinery and drained waste water, acids, oils and other impurities into the same stream. The impurities deposited in the stream from these sources polluted the water to some extent at the beginning and injuriously affected an owner’s land through which the stream flowed. There was little injury to the land when the rains were abundant and the volume of water in the stream was large, but when the rains diminished and there was little water in the stream the injurious effect’ of the sewage and impurities cast into the stream was greatly increased. More than two years after the sewer system and refinery were built and in operation the landowner brought an action for permanent damages resulting from the pollution of the stream. Held, that as the sewer system and refinery were, in their, nature, design and use, permanent structures and their operation was necessarily a constant and continuous injury to the owner’s land his cause of action for permanent damages accrued when the sewage and impurities were first deposited in the stream, and not having been brought within two years from that time his action was barred.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Suretyship • — Indemnity Bond of Public Contractor ■ — Valid under the Statute — Available to Laborers and Materialmen of Subcontractor. After the work of improving streets of a city had been completed, but before formal acceptance by the city, the contractor gave a bond .with sureties to the state of Kansas conditioned that if he should pay all indebtedness incurred by him for labor and material furnished in making the improvements the bond should be void, otherwise to be in full force. The contractor’s contract with the city provided that he should give the bond required by chapter 179 of the Laws of 1887. The prescribed condition of such a bond is that the contractor shall pay all indebtedness incurred for labor or material furnished in making public improvements. The bond which was given was not filed for record with the clerk of the district court as the statute requires, and the improvements were actually made by a subcontractor who failed to pay his laborers and materialmen. Held:</p> <p>A. The bond was given pursuant to a statutory duty and not simply on a past consideration, and the delay in giving it did not affect its character. .</p> <p>B. The terms of the bond are to be interpreted as intended to accomplish the purpose of the statute, which is to protect laborers and material men who make contributions to public works.</p> <p>C. Labor and material furnished by the subcontractor were in contemplation of the statute and the bond furnished by the contractor.</p> <p>D. The provision for filing the bond was inserted in the statute for the benefit of laborers and materialmen. The obli.gation was complete when the bond was executed and delivered to the city.</p> <p>E. The subcontractor’s laborers and materialmen may resort to the bond as security for the indebtedness due them.</p> <p>2. - Subcontractor’s Bond to Contractor — Available to Laborers and Materialmen Not Apprised of it. The contractor took from the subcontractor a bond with surety, conditioned that the subcontractor would pay all bills for labor and material used in the performance of the subcontract. Held:</p> <p>A. The subcontractor’s laborers and materialmen may resort to this bond as security for the bills due them arising from the performance of the subcontract.</p> <p>B. It is not necessary that such laborers and materialmen should have known of the bond and should have acted on the faith of it in order to make it available to them as security for the payment of their bills.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Guardian — Authority to Borrow Money — May Give “Blanket” Mortgage. Where the same’guardian represents several minor • wards who are tenants in common of real estate, circumstances may exist which will justify the probate court in authorizing him to borrow money for their common benefit and secure it by a -PAortgage upon the entire tract.</p> <p>2. - Foreclosure, In an action to foreclose such a mortgage the question whether circumstances actually existed which justified its execution in that form is not open to inquiry.</p> <p>3. -Authority iq Borrow Money — To Purchase Personal Property. Circumstances may exist which justify the probate court in authorizing a guardian to borrow money by • mortgage on the ■ real estate of his ward, for use in the purchase of personal property to be used in connection therewith, in order to make it productive, and in an action to foreclose such a mortgage the question whether such circumstances ■ existed is not open to inquiry.</p> <p>4. - Payment on Note by Guardian — Tolls Statute of Limy itations. A payment properly made by' a guardian from the funds of his ward upon a mortgage executed by himself -on order of the probate court will suspend the running - of the statute of limitations. Such a payment will be deemed to have been properly made where the guardian’s report showing such expenditure has been approved fey the court. That such report has been made and approved will be presumed from the fact that the wards have been of age for some time and nothing appears to the contrary beyond a finding in general terms that the probate court did not authorize the payments.</p> <p>5. --Authority to Mortgage —• New Guardian — May Execute Order. Where an order of the probate court has been made authorizing a guardian to execute a mortgage on his ward’s real property, and a change of guardians is effected before such order is carried out, the new guardian may act upon the authority given his predecessor.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Written Contract — Unambiguous — Interpretation for the Court. Where a written contract is unambiguous in its terms its interpretation or construction is a matter of law for the court; only where an ambiguous expression is used in such a contract may the practical interpretation placed upon it by the parties become a question of fact.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Corporation — Capital Stock — Trust Fund — Must be Paid for in Money or in Money’s Worth. The capital stock of a corporation is a trust fund for the benefit of the general creditors of a corporation, and one who subscribes for shares of stock must pay for them either in money or in money’s worth.</p> <p>2. - Same. The testimony examined- and held to be sufficient to support the decision of the court refusing the allowance of a claim made against an insolvent corporation by one who had turned over property and credits in payment for shares of stock.</p>

<p>Appeals from Shawnee district court, division No. 1; Alston W. Dana, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Dormant Judgment — Death of Party after Judgment — Revivor Within Two Years. The statute extending to two years the time within which a dormant judgment may be revived applies to the situation arising where a party dies after judgment; it authorizes the administrator to be made a party at any time within that period.</p>

1; Alston W. Dana, judge. STATEMENT. The Massachusetts Bonding and Insurance Company, a corporation engaged in writing surety bonds for compensation, appeals from a judgment against it in favor of the state of Kansas upon a surety bond by the terms of which the insurance company guaranteed the performance of a certain contract entered into between the Board of Regents of the Kansas State Agricultural College and the Blanchard Construction Company.

<p>SYLLABUS BY THE COURT.</p> <p>Garnishment — Publication Service Prematurely Set Aside. An order made on motion of a defendant setting aside service by publication, on the ground that the garnishee is not indebted to him, is erroneous where the question of such indebtedness is pending for trial upon an issue made between the plaintiff and the garnishee in proceedings relating to garnishment as provided in sections 228 to 248 of the civil code.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Bank — Agreement with Customer to Honor Cheek — Agreement Performed by Customer — Bank Liable to Holder of Cheek. Where a national bank through its president agrees with a customer, who is indebted to it, that if he purchases live stock and in payment therefor gives checks on the bank, the checks will be paid provided that by the time they are presented the drawer shall have resold the stock and deposited the proceeds with the bank, and in pursuance of such agreement the customer issues checks in payment for stock which he at once resells, delivering the proceeds to the bank, the holder of such checks can maintain an action for their amount against the bank, notwithstanding he did not know of the agreement, and notwithstanding nothing was said at the time the deposit was made about the agreement or the application of the funds.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Deed — Signed—Acknowledged—Not Delivered — Invalid. The mere signing and acknowledgment of an instrument purporting to be a conveyance of land does not consummate a conveyance, but to effect such conveyance there must be an actual or constructive delivery of the instrument from the grantor named therein to the grantee.</p> <p>2. Final Order — Directing Clerk to Pay Out Certain Money — ■ Review able. An order of a district court directing the clerk thereof to pay a certain sum of money to a certain person is a final order and is erroneous where the records of the court show that the fund never came into the hands of the clerk to whom the order was directed, br(t came into the hands of her official predecessor and was paid out by such predecessor under the order of the court.</p>

<p>Appeal from Kearny district court; William H. Thompson, judge.</p>

<p>Appeal from Dickinson district court; Roswell L. King, judge.</p>

<p>Appeal from Cherokee district court; Edward E. Sapp, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Judgment — Rendered in Plaintiff’s Absence — New Trial — Judicial Discretion. A case was tried and judgment rendered in the absence of plaintiff and his counsel, and on an application promptly made a new trial was granted upon a showing that just before the trial one of the counsel for plaintiff Was called to another state by the sickness of his wife, and that his partner, who was engaged in jury trials-in another county, overt •looked the assignment of this case. There was also testimony to the effect that there had been communications from counsel for defendant suggesting that additional time might be needed by them to take depositions and to prepare for trial. In view of the discretion vested in trial courts in the matter of granting new trials, it can -not be held that the court abused its . discretion, nor that there was no basis for granting the motion.</p>

<p>Appeal from Crawford district court; Andrew J. Curran, judge.</p>

<p>Appeal from Kearny district court; William H. Thompson,, judge.</p>

<p>SYLLABUS'BY THE COURT.</p> <p>1. Ejectment — Tax Title — Possession of Owner of Fee — Sustained by the Evidence. A finding that the defendants, owners of the fee subject to the plaintiffs’ tax title, took actual possession of the land in controversy within four years after the tax deed was recorded, is sustained by the evidence referred to in the opinion.</p> <p>2. Ejectment — By Tax-title Holder — Barred by Two Years’ Statute of Limitations. The land was vacant and unoccupied when the tax deed was issued, and so remained until possession was taken by the defendant, as above stated, and this action of the plaintiff to recover possession under his tax deed, which was recorded October 8, 1902, was barred by the two years’ statute of limitations before April, 1911, when this action was commenced. (Civ. Code, § 15, subdiv. 3.)</p>

<p>SYLLABUS BY THE COURT.</p> <p>Personal Injuries — Conveyor Belt in Elevator- — -Findings Do Not Sustain Verdict. In an action to recover for injuries alleged to have been received because a certain conveyor belt, being out of gear, started in gear and in motion without human agency, the jury, in answer to a special question whether such belt got into gear automatically, answered: “No evidence to show how it got back.” Held, that a general verdict for the plaintiff should have been set aside.</p>

<p>Appeal from Wyandotte court of common pleas; Hugh J. Smith, judge.</p>

<p>SYLLABUS BY-THE COURT.</p> <p>1. Contract- — Land Exchanged for Merchandise — Failure to Rescind Promptly on Discovery of Fraud — Waiver of Right to Rescind. A man who trades his farm for a stock of merchandise and 'fixtures, gives a deed to the farm, a note for the difference in price between the farm and the goods, and agrees to pay a percentage of the proceeds of the sales of the goods on the note, has no standing in equity to ask for cancellation of the deed and note on the ground that the goods were fraudulently misrepresented unless he disaffirm promptly on discovery of the fraud and restore, or is able to restore, the other party to the trade substantially to his original status.</p> <p>2. - Same. If, after knowledge of the fraud, the purchaser of the goods continue to sell them in regular course of retail trade, conduct a ten-day special sale, otherwise dispose of considerable quantities of the goods, make payments on the note, and submit to a foreclosure of a chattel mortgage given to secure the note, all without any expression of dissatisfaction, the contract is affirmed in fact and in law, and his only remedy is by an action for damages.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. District Court — Sitting in Two Places in Same County — Form of Criminal Information. A statute provides that the district court of Cherokee county shall be held in two places, and prescribes that actions commenced in that court shall be entitled as sitting at one or the other of the places. An information filed at one of the places, and to which the defendants were recognized'to appear,'was entitled “State of Kansas, ■ County of Cherokee, ss: In the District Court of said County • and State,” followed by the names of the parties, but did not , name the place in which the information was filed and the case was tried. Held, that the omission of the name of the place in the county did not invalidate the information, nor operate to' the prejudice of the defendants.'</p> <p>2. Misdemeanor — Voluntary Absence of Defendant from. Trial— Conviction Valid. A defendant at liberty on a bond can not, by voluntarily leaving the court room during a part of the trial, nullify the proceedings had, nor impair the validity of a verdict rendered against him in his absence.</p> <p>3. Fees — Attorney-general—Liquor Cases — Denial—Appeal. An appeal may be taken by the state from a decision refusing to allow fees to the attorney-general for convictions obtained by him in prosecutions for violations of the prohibitory liquor law.</p> <p>4. Prosecutions — Under Prohibitory Law — Attorney-general Entitled to Fees.. The statute providing for the allowance of such fees is not repugnant to that part of section 15 of article 1 of the state constitution which provides that certain state officers shall receive compensation for their services at stated times.</p> <p>5. - Same — Joint Defendants — Fees Chargeable to Each ■ Defendant on Each Count. Where several defendants are jointly tried and convicted of offenses charged in a number of counts in a single information the prosecuting attorney is entitled to the allowance of the fee provided in section 4377 of the General Statutes of 1909 for each count upon which each defendant is convicted.</p> <p>6. Mandamus — Adequate Remedy at Law. The extraordinary remedy of mandamus can not be used where prompt and adequate relief may be had by an appeal.</p>

<p>• Appeal from Cloud district court; John C. Hogin, judge.</p>

<p>. Appeal from Shawnee district court, division No. 1; Alston W. Dana, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Evidence — Demurrer Sustained — Motion for New Trial — . Granted at Succeeding Term — No Error. The pleading, while open to criticism for confusion of theories, stated a cause of action. The evidence, if undisputed, showed a right to recover in some amount. The court sustained a demurrer to the evidence and rendered judgment for costs. Within three days a motion for a new trial was filed, which was taken under advisement until the next term and then granted. Held, that • the latter order was proper.</p> <p>2. Fraudulent Representation — Statement of Existing Fact. It was alleged that by falsely and fraudulently pretending that one oí the defendants was ready and anxious and financially able to take a certain tract of land at $1600 cash, although worth more, the plaintiff was defrauded into trading to the other for such land an automobile worth that sum. Held, that such pretence concerned an existing condition and was not a mere promise or opinion.</p> <p>3. - Measure of Damages. In such situation the measure of damages is the difference between the value of the automobile and the value of the land taken in exchange therefor.</p> <p>4. Motion — To Strike Out Allegation of Answer — Averments of Petition Construed. After extended pleadings had been filed and amended a motion to strike a certain allegation from the answer recited that the petition showed that the action was one to recover damages for misrepresentation of the character and value of the land, which motion was overruled. Held, that such expression thus used can not rightfully be regarded as an election to proceed upon the basis of the represented value of the land instead of the sum agreed to be paid therefor.</p> <p>5. Joint Liability — For Fraudulent Representations. The • plaintiff testified to the reiteration by both defendants of certain fraudulent representations, but on cross-examination stated that the last repetition by one of them was what induced him to make the trade. Held, that this might well be construed to mean that such last repetition was the climax of the fraudulent inducements rather than the sole operating influence.</p>

<p>Appeal from Jackson district court; Oscar Raines, judge.</p>

<p>Appeal from Crawford district court; Andrew J. Curran, judge.</p>

<p>Appeal from Ellis district court; Jacob C. Rufpenthal, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Courts — Inherent Powers — Abuse of Process. Courts possess inherent power to prevent any abuse of their process.</p> <p>2. Same — Will Not Entertain Action Based on Unlawful Con- , spiracy. Whenever at any stage of the proceedings it is ' established to the satisfaction of the court that the cause of action upon which the plaintiff seeks to recover arose out of an unlawful conspiracy, it becomes at once the duty of the court to refuse to aid either party to profit by the iniquitous agreement.</p> <p>8. Same — Form of Procedure — Immaterial. Ordinarily the procedure in such a case would be to dismiss the action at the cost of the party bringing it; but the name given to the procedure is of no consequence if the action of the court be rightly taken.</p> <p>4. Antitrust Laws — Unlawful Conspiracy in Restraint of Trade —• Relief Properly Denied. On the facts stated in the opinion it is held that the plaintiff’s cause of action arose out of and was based upon an unlawful conspiracy in restraint of trade and in violation of the antitrust laws of the United States and of the provisions of chapter 257, Laws 1889, and the acts amendatory thereto, and that the court properly denied the plaintiff any relief.</p>

<p>Appeal from Edwards district court; Albert S. Foulks, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Promissory Note — Sureties—Extension—Payment. The evidence examined and held not to support a finding that an extension of the time of payment of a note was made upon a new consideration, or a finding that the note sued upon had been paid.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Life Insurance — Payable to Wife• — Divorce—No Change in Beneficiary — Benefit Payable to Surviving Beneficiary. The benefit accruing from a policy of life insurance, upon the life of a married man, payable upon his death to his wife, naming her, is payable to the surviving beneficiary, named, although she may have years thereafter secured a divorce from her husband and he was thereafter again married to one who sustained the relation of wife to him at the time of his death.</p>

<p>SYLLABUS'BY THE COURT.</p> <p>1. Factory Act — Partly Penal — Partly ■ Remedial — Statute of Limitations. The factory act (Laws 1903, ch 356, Gen. Stat. 1909, §§ 4676-4683) is not a purely penal statute; on the contrary it is in part, penal and in part remedial. While the public derives a benefit from the enforcement of the law, the immediate purpose of the statute, so far as it allows the injured party to recover, is to accord- compensation, and this part of the statute -is purely compensatory. Therefore an action in favor of a. person- injured by a , violation of its provisions is not an action for a “penalty or forfeiture,” but is an action “for injury to the rights of another not arising on contract,” and is controlled'by the two-year statute of limitations. (A. T. & S. F. Rid. Co. v. 'King, 31 Kan. ’708, 3 Pac. 565.)’ - - - ’.....</p> <p>2. Same — Unguarded Revolving Knives — Negligence—Personal Injuries. Where the evidence tended to show that the plaintiff’s Injuries were directly .caused, by the. failure of the defendant to furnish a guard for the revolving knives of a planer, in compliance with the provisions of section 4 of the factory act (Gen. Stat. 1909, § 4679), and it was shown that the machine was designed and intended to be provided with a device known as a “shavings exhaust,” consisting in part of an iron hood placed directly over the knives, and that this device was not on the machine when the plaintiff was injured but was installed shortly afterwards. Held that the purpose for which the device was designed and used was immaterial, since it conclusively appeared that when in place it served as a guard, and that if it had been in place it would have covered the knives so that the accident could not have occurred.</p> <p>8. Same — Practicable to Guard the Knives. Upon the facts stated in the opinion, it is held that there was sufficient evidence to show that it was practicable to guard the knives in the manner suggested in the preceding paragraph as well as by other methods and appliances.</p> <p>4. Contributory Negligence — No Defense Under Factory Act. Since contributory negligence is not a defense under the factory act (Caspar v. Lewin, 82 Kan. 604, 109 Pac. 657), it is held that the trial court properly refused to submit to the jury the question whether the plaintiff was negligent.</p>

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

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

<p>Appeal from- Reno district court; Charles E-. Branine, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Death op Child — No Recovery by Parent. No recovery can be had by a parent for the death of a child except in virtue of the statute.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Two Actions Pending — Plea in Abatement — One Action Dismissed. The plaintiff sued the defendant in Ness county. Afterwards the plaintiff brought a second suit on the same cause of action in Reno county. After a plea in abatement had been filed in Reno county alleging the. pendency of the former suit, the Ness cs>unty action was dismissed. The plea in abatement was then overruled and the Reno county action proceeded to judgment. Held, the dismissal of the first action removed the bar to the maintenance of the second.-</p> <p>2. Pleadings — Alienation of Affections — Ultimate Facts to be Pleaded. In an action for damages by a husband for the alienation of his wife’s affections it is not necessary to plead specifically the artifices by which the wrong was accomplished. • It is sufficient to plead the ultimate facts.</p> <p>3. Same — Evidence—Not Limited to Specific Acts and Dates Pleaded. Where a petition pleads certain conduct occurring between certain dates as means whereby alienation was accomplished, but further pleads that various other means of alienation were- employed which the plaintiff can not, for want of knowledge, describe with particularity, the plaintiff is not limited in his proof to the conduct and the dates specially pleaded.</p> <p>4. Same — Evidence of Conduct of Defendant and Plaintiff’s Wife — Proper. The plaintiff’s wife left his home on July-5 in company with the defendant who furnished the conveyance and. supplied her with money. On the next day she and the - defendant passed- for husband and wife in a distant city and occupied the same apartment for two nights. Held, an instruction to the jury that they might consider the conduct of the defendant with reference to the plaintiff’s wife-after she left home was proper.</p> <p>5. Trial — Rulings of Court and Verdict Approved. The admission of an item of evidence offered to prove malice, and the verdict of the jury approved.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Contract op Purchase — Possesion Taken — Default in Payments —Unlawful Entry Not the Proper Remedy. Where in the trial of an action of .unlawful detainer it develops that the defendant took possession of the land in controversy under a contract for its purchase, having made a considerable part payment, and that there is -a substantial controversy, involving disputed questions of fact, as to whether the equitable interest acquired under such contract has been lost, the court is justified in sustaining a demurrer to the plaintiff’s evidence.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Drainage District — Levee Across Public Street — No Power to Build Approaches or Raise Grade of Street. In the construction of a levee for the purpose of preventing the overflow of the Kansas river, the board of county commissioners of Shawnee county erected in a street in the city of Topeka a concrete wall thirteen feet high. In an action by the city to compel the county board to abate the same as a nuisance and restore the highway to its original use by building suitable approaches so that the street could be used for public travel, it is held, that the county board has no authority to raise the grade of the street nor to determine the kind and character of approaches necessary, nor to construct the same.</p> <p>2. Same — Levee Lawfully Constructed — City Must Maintain the Street Grades. Chapter 104 of the Laws of 1893, and acts amendatory and supplemental thereto, creating drainage districts and providing for the building of levees, in' no wise limits or. modifies the duty of the city to keep its- streets in a safe.condition for travel. The care and control of the streets are in the city; its prior and continuing authority yields only so far as to permit the construction of the levee by the drain- ' age board in accordance with the act of the legislature.</p>

<p>Appeal from Linn district court; JOHN C. CANNON, judge.</p>

<p>Appeal from Crawford district court-; John C. CANNON, judge pro tem.</p>

<p>Appeal from Pratt district court; Preston B. GilLETT, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Service of Process — On Nonresident — Exemption. A nonresident of the state, while here only for the purpose of attending court as a witness, and while actually in such attendance, is exempt from the service of summons in a civil action.</p> <p>2. Damages — -For Inducing Morphine Habit — Not an Action for Fraud. An action for damages because of the defendant having induced the plaintiff to become a user of morphine, in ignorance of its nature, is not one for relief on the ground of fraud within the meaning of that phrase as used in the statute' of limitations.</p> <p>3. Same — For Inducing Morphine Habit — Limitation of Actions. The running of the statute of limitations, upon an action for damages because- of the defendant having induced the plaintiff to become a user of morphine, is not wholly suspended by the fact that the plaintiff, knowing the manner in which the habit was induced, and having acquired knowledge of the effects of the drug, has been so affected mentally as not to be capable of protecting his own interests; such an action can be brought only within one year from the time mental capacity is restored.</p>

<p>HEADNOTE BY THE REPORTER.</p> <p>Agency —: Purchaser Found — Contract Completed — Commission Earned. Following Green v. Fist, 89 Kan. 536, 132 Pac. 179, and Hutton v. Stewart, 90 Kan. 602, 135 Pac. 681, it is held that ordinarily a real-estate broker has earned his commission when he has produced a customer with whom his principal enters into an enforceable contract for the sale of the land, although the title does not actually pass.</p>

<p>Appeal from Labette district court; Elmer C. Clark, judge.</p>

<p>Appeal from Chase district court; Frederick A. Meckel, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Insurance — Special Questions — Refusal to Submit — Not Prejudicial Error. The refusal of a request for a special finding, which if made could have had no material effect upon the result unless considered in connection with another which was not requested, is not substantial or prejudicial error.</p> <p>2. Same — Rules Touching Incumbrances and Additional Insurance. The rules of law touching incumbrances and additional insurance on property covered by the policy sued on announced in Humble v. Insurance Co., 85 Kan. 140, 116 Pac. 472, followed.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Estate in Minerals — Severed from Estate in Surface — Subjacent Support. When the estate in minerals in situ is severed from the estate in the surface, the owner of the latter estate has the right of subjacent support for the surface.</p> <p>2. Same — Right to Subjacent Support — Reserved Unless Con- • veyed by Contract. Where the owner of land retains the surface estate and conveys the estate in minerals thereunder, he may convey or waive the right of subjacent support for the ' surface, but -such conveyance or waiver should not be implied . unless the language of the instrument of conveyance is appropriate therefor and clearly indicates such to be the intention of the parties to the conveyance.</p> <p>3. Trial — Demurrer to Evidence — When Error to Sustain. Upon the trial of an action, a demurrer to the evidence produced by the plaintiff should not be sustained unless such evidence clearly disproves the plaintiff’s right of recovery or, by fair interpretation and full credence being given thereto, it fails to ■ establish a cause bf action in favor of the plaintiff.</p>

<p>Appeal from Sedgwick district court, division No. 1; Thomas C. Wilson, judge.</p>

<p>HEADNOTE BY THE REPORTER.</p> <p>Pleadings — Demurrer to Petition — How Determined. In determining a demurrer to a petition courts will look no further than the allegations of the petition, and the facts fully and completely set forth in exhibits attached to such petition and made a part thereof.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Joint Tort Feasors — Two Judgments — Payment of One no Satisfaction of the Other. In order for a joint judgment debtor to be entitled to .a release or satisfaction on the ground that a subsequent judgment recovered in another action for the same tort has been paid by the defendant therein, it is incumbent upon him to show that the latter judgment was recovered against his joint tort feasor for the same wrong litigated in the former action.</p>

<p>Appeal from Barber district court; Preston B. Gillett, judge.</p>

<p>Appeal from Logan district court; Jacob C. Rijppenthal, judge.</p>

<p>Appeal from Phillips district court; William S. Langmade, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Wrongful Death — Foreign Special Administrator No Legal Capacity to Sue. A resident of Kansas was killed in this state. No administration was taken out here, but in another state where the deceased left certain property a special administrator was appointed, who sues in Kansas under section 419 of the civil code to recover for the next of kin damages for the death. Held, that he can not maintain the action.</p>

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

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

<p>Appeal from Neosho district court; James W. Finley, judge.</p>

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

<p>Appeal from Shawnee district court, division No. 2; George H. Whitcomb, judge.</p>

<p>Appeal from Wyandotte district court, division No. 1; Edward L. Fischer, judge.</p>

<p>Appeal from Chase district court; Frederick A. Meckel, judge.</p>

<p>Appeal from Pottawatomie district court; Robert C. Heizer, judge.</p>

<p>Appeal from Shawnee district court, division No. 1; Alston W. Dana, judge.</p>

<p>Appeal from Sedgwick district court, division No. 2; Thornton W. Sargent, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Agency — Action for Commission — Instructions — “Procuring” Cause of Sale. Where the jury are told that in order to be entitled to a commission a real-estate agent must have been the “procuring” cause of a sale, it is not material error to refuse to instruct that he must have been the “efficient” and “proximate” cause.</p>

<p>SYLLABUS BY THE COURT.</p> <p>I. Police Judge — Cities of First Class — Legislature Created the Office — Commission May Appoint without City Ordinance. The office of police judge in cities of the first class operating under the commission form of government was created by the legislature itself, and the passage of an ordinance' by the mayor and commissioners fixing'the term and salary of sueh officer is not essential to the authority of the commissioners to appoint a police judge. . . . • .</p> <p>:2. Same — Power to Parole Prisoner — No Power. to Recommit after Term of Sentence has Expired. Under the provisions of chapter 116 of the Laws of 1909 a-judge of the police court of cities of the first or second class may parole persons convicted of the' violation of city 'ordinances under such restrictions as he may.see fit to impose, but he has no power to' extend the conditions of the parole beyond the term of sentence nor has he authority after that time to declare that the conditions of the parole have been violated and to recommit the prisoner and require him to serve the unexpired part of his sentence. - ■ ■ .</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Divorce — Cxistody of Minor Child Awarded to Wife — Death of Wife — Father Entitled to Custody of Child. Where a husband and wife having children are divorced and the court in its decree awards the custody of a child to each of them, and the mother dies while the child awarded to her is in infancy, the father then becomes entitled to the custody of that child, and this right continues in him unless it appears that he is an-unfit person to have the control and care of his child.</p> <p>2. Same — Welfare of Child Considered — Unfitness of Father Must he Proven. In determining to whom the custody of a child should be awarded its welfare is to be regarded more than the technical legal right of the parent, but where an application made by a father for the custody of his child after the death of its mother is resisted by a third party on the ground that the father is immoral and unfit to have its custody he will not be deprived of such custody unless the objection is sustained by clear and satisfactory proof.</p> <p>3. Same. Courts will not disturb the family relation nor take a child from its parent merely because a third person seeking its custody may have larger means and is therefore able to give the child greater comforts, wider education and the promise of a larger inheritance.</p> <p>4. Same. In the present case it is held that the testimony does not establish that the father is unfit to be entrusted with the custody and guardianship of his child.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Will — Written Consent to by Husband-Irrevocable. A written consent that his wife might devise or bequeath away from him more than one-half of her property was freely and fairly executed by the husband in strict compliance with the statute authorizing such consent after reading the will and learning the disposition which his wife intended to make of her property. Later, and before ■ the ■ death of his wife, he gave her written notice that he had. revoked the consent previously given, and after her death he claimed that he was entitled to one-half of the property of which she died possessed. Held, that the husband did not have the right to revoke the consent so given and was not entitled to a share of his wife’s property.</p>

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

<p>Appeal from Smith district court; Richard M. Pickler, judge.</p>

<p>Appeal from Jackson district court; Oscar Raines, judge.</p>

<p>Appeal from Johnson district court; Jabez 0. Rankin, judge.</p>

<p>opinion on rehearing.</p> <p>Appeal from Allen district court; Oscar Foust, judge.</p>

<p>HEADNOTE BY THE REPORTER.</p> <p>Farming Contract — Wrongfully Procured. The evidence was sufficient to support the finding that the owner of land, by reason of physical pain and suffering, was not in mental condition to read and understand the force of a written contract relating to the farming of his land at the time he signed it.</p>

<p>Appeal from Ellis district court; Jacob C. Ruppen-Thal, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Vendor and Purchaser — False Representations — Sufficient Pleading. Fraud is a legal epithet, and the use of that word, or words of like import, in stating the conduct of a party sought to be charged for false representations in the sale of land is not necessary where the facts stated are sufficient to show fraudulent conduct and resulting injury.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Death — Occurring on Military Reservation — Electric Cur~ rent — Liability of Electric Power Company. The statute (Civ. Code, § 419) providing for the recovery of damages for death caused by wrongful act was in force before the pas^ge of the act ceding to the United States jurisdiction over the Fort Leavenworth Military Reservation (Laws 1875, ch. 66, Gen. Stat. 1909, § 4584), and it is no defense to an action to recover such damages against a power company supplying an electric current for arc lighting on such reservation that the death occurred thereon.</p> <p>2. Same — Power Company — No Control of Wires or Poles on Reservation — Not Liable for the Negligent Management Thereof. When such power is simply furnished to a responsible party for use in a system of poles, wires and appliances, owned and controlled by such party and in proper condition to receive the current safely, the furnishing party is not required to maintain inspection or to see at its peril that such equipment is kept safe, but so long as not chargeable with knowledge of some defeet therein it may assume that, such safety will be maintained, and the fact that in furnishing such power for arc lighting the seller undertakes to supply and maintain the necessary lamps and carbons does, not change the rule. In order to hold the seller liable it must appear that it continued to furnish and turn on the current after knowing that the purchaser had permitted the equipment to become defective.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Executors and Administrators — Title to Property in Dispute — Property Should he Included in Inventory. Where the administrator of the estate of his wife has received a sum of money which he claims to have received from the sale of his own property, and another claims to be a creditor of the deceased wife and that the money received by the administrator accrued from the sale of her property and that he is entitled to have the money applied to the payment of his debt, the administrator should be compelled to make an inventory of such money received in his final account and settlement and may set up any claim he or any other person may have thereto.</p> <p>2. Probate Court — No Jurisdiction to Try Title to Property. The probate court has no jurisdiction to try the title and determine the ownership of the money so claimed by the administrator and by another person not a party to the proceeding. The adverse claims can be tried only in a court of competent jurisdiction. (Hwrtwig v. Flynn, 79 Kan. 595, 100 Pac. 642.)</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Demurrer — Court Can Not Weigh Conflicting Evidence. The rule that if the evidence demurred to presents a question of fact for the jury the demurrer should be overruled — followed.</p> <p>2. Dying Declarations — Admissible in Civil Cases. The rule that dying declarations are admissible only in criminal cases (and those involving homicide) is without reasonable basis, and should not longer be followed.</p>

<p>Appeal from Smith district court; Richard M. Pickler, judge.</p>

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

<p>Appeal from Saline district court; Dallas Grover, judge.</p>

<p>HEADNOTE BY THE REPORTER.</p> <p>Cross-examination — Discrediting Questions — Judicial Discretion. The limit of cross-examination for the purpose of discrediting a witness by inquiry touching his past life and conduct is ordinarily within the discretion of the trial court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>.Accounting — Partnership—Adjustment of Item Not Pleaded — • Variance — No Prejudicial Error. In an action for an accounting between partners, the allowance of an item growing out of the partnership business which was not pleaded but of which there was undisputed evidence is not such a variance as will require the reversal of the judgment, especially when no motion to strike out or to deduct such item was presented to the trial court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Death — Moving Cars — Contributory Negligence — Conclusively Established. In this case the plaintiff’s evidence is held to have established such want of care on the part of the deceased, in stepping in front of a train of moving cars, as to preclude a recovery of damages, and therefore a demhrrer to the evidence was rightly sustained.</p>

<p>Appeal from Leavenworth district court.; James H. Wendorfp, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>New Trial — Newly Discovered Evidence — Merely Cumulative. The rules that diligence must be shown in order to entitle a party to a new trial on the ground of a lack of opportunity to present his evidence, and that in order to require a new trial for newly discovered evidence such evidence must be shown not to be merely cumulative — followed.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Exchange of Lands — Fraudulent Representations — Rescission of Contract — Damages. Where an action is brought to rescind a contract on the ground of fraud, or to recover damages if a rescission can not be had, and the court finds that a rescission is impracticable, and awards damages, rulings with respect to the omission of the plaintiff to restore the benefits he has received under the contract are immaterial upon review.</p> <p>2. Same — False Representations as to Foreign Statute — Basis for Damages. False representations with respect to the law of another state may be the basis of an action for damages on the ground of fraud.</p> <p>3. Same — False Representations as to Water Rights — Damages. False representations that the ownership of a tract of land carries with it as a practical matter the privilege of using water for its irrigation, although no claim is made that a formal water right has been granted, may be the basis for the recovery of damages by the purchaser.</p> <p>4. Same — Improper Measure of Damages. In an action to recover damages because of false representations regarding a tract of land included in an exchange of property, boot having been paid by the plaintiff, the price at which the tract was estimated in arranging the terms of the bargain is not satisfactory evidence of what it would have been worth if the statements regarding it had been true.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Reward — “Arrest and Conviction” — “Special” Deputy Sheriff —May Recover Reward. Evidence that a person was a “special and nonpay” deputy sheriff implies that his activities in that regard were limited to performing acts specifically directed, and that he was under no obligation to devote time to investigating criminal offenses.</p> <p>2. Same. Such a deputy sheriff is not precluded by his office from claiming a reward offered for the arrest and conviction of an offender, where by his own efforts he has discovered by whom a crime was committed, and by what evidence this can be proved.</p> <p>8. Same. A person who discovers the perpetrator of a crime, and the evidence by which he can be convicted, may be entitled to a reward offered for the “arrest and conviction” of the offender, even although, having the power to make the arrest himself, he omits to exercise it, and permits some one else to take the defendant into custody.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Gift — Promissory Note — Delivery Necessary. An actual or constructive delivery is essential to a valid gift of a promissory note.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. New Trial — Order Granting — Review—Judicial Discretion. To justify this court in reversing an order of the district court setting aside the verdict of a jury and granting a new trial on the ground that the verdict is not sustained by the evidence, if must appear that the evidence points to but one rational conclusion of fact, the one found by the verdict.</p> <p>2. Same. An examination of the evidence in this case fails to disclose that the trial court abused its discretion in granting a new trial.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Note — Payable to “Order of A or B” — Endorsed,' by A• — Bona fide Holder. Where a promissory note payable “to the order of A or B” is indorsed by A only, to one who takes'it in good faith, for value and without any notice of infirmity in the instrument or defect in the title, the indorsee is a holder in due course, under the provisions of the negotiable instruments law.</p>

<p>Appeal from Riley district court; Sam Kimble, judge.</p>

<p>HEADNOTE BY THE REPORTER.</p> <p>Partition — Rents Set Off Against Improvements and Taxes. As between appellant and his cotenants in a partition suit it was equitable that the rents received by him should he set off against permanent improvements made and taxes paid.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Execution — Levy—Terms of Forthcoming Bond — Liability of Sureties — Estoppel. The terms of a bond executed by third persons claiming cattle seized on execution and the conduct of such persons in procuring the sheriff to accept the bond and release the cattle considered, and held not to estop them from claiming title to the cattle in a suit by the- execution creditor on the bond.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Sale op Land — Misrepresentation by Vendor — Repeated by Agent to Vendee — Agent Not Liable to Vendee. Where the owner of land, by misrepresentation as to its character, effects a sale, agents who have acted for him in the matter are not rendered personally liable to the buyer for the fraud, merely by reason of their having innocently and in good faith repeated to him the false statements concerning the property made to them by the seller.</p> <p>2. Real-estate Agent — Not Liable for Misrepresentation by Subagent Made without Agent’s Knowledge. Where real-estate agents, desiring to have land which has been listed with them shown to a buyer, employ for the purpose a person who without their knowledge shows the wrong land, and the owner, knowing of the fact, effects a sale by the false representation that the tract conveyed was the one that had been shown, the subagent is thereby made the agent of the 'owner, and the original agents are not liable to the purchaser for his fraud.</p>

<p>Appeal from Cherokee district court; Edward E. Sapp, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Cattle — Delivered to Keep — Increase to be Divided — Transaction a Bailment — Not Creative of a Pwtnership. The owners of certain cattle delivered them to another to keep for a term oí years, the increase to be divided as specified, the original herd to be returned at the end of the term. A certain shrink was to be borne by such owners and any loss above that to be borne in fixed proportions by the parties, such owners to pay the taxes. Held, that such other party thereby became bailee of such cattle and not a partnership owner thereof.</p> <p>2. Same — Sale by Bailee Without Authority — Rights of Purchaser. One who bought such cattle of such bailee sought to defend title against the owners by showing permission and ratification of sales and exchanges made by the bailee. Held, that such permission and ratification, if shown, would not avail such purchaser unless he was himself deceived or misled thereby.</p> <p>3. New Trial — Newly Discovered Evidence. The rule that to require the granting of a new trial on the ground of newly discovered evidence such evidence must be other than cumulative — followed.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Employer’s Liability Act — Injuries—Loading Rails on Flat Car — Projecting Rail Not an Obstruction “Within the Mean-of the Act.” In loading rails on a flat car one of them was. so laid as to project over the side of the car and an employee in lifting another rail upon the car struck his hand, against the projecting rail and sustained an injury. In an action to recover for the injury it is held that the projecting-rail was not an obstruction within the meaning of the employer’s liability act (Laws 1911, ch. 239), which provides,, among other things, that a railroad company shall be liable to an employee who shall be injured by reason of “any insufficiency of clearance of obstructions.”</p> <p>2. Same — “Clearance of Obstructions” defined. “Clearance of obstructions” as used in the act means the removal of impediments that would interfere with the passage of engines, coaches, cars or trains or the safety of employees working-on or near vehicles moving over the rails of a railroad.</p>

<p>Appeal from McPherson district court; Charles E. Branine, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Negligence — Unsafe Team of Horses — Assumption of Bisk. In an action based on negligence in furnishing to an employee an unsafe team of horses, proof that the plaintiff, a boy of fifteen, was somewhat afraid of them, and after one runaway had complained to his employer that they were unsafe, and yet continued to drive them for five months, without any promise having been made to remedy the matter, does not conclusively establish the defense of assumed risk.</p>

<p>Appeal from Shawnee district court, division No. 2; George H. Whitcomb, judge.</p>

<p>Appeal from Shawnee district court, division No. 1; Alston W. Dana, judge.</p>

<p>Appeal from Crawford district court; Andrew J. Curran, judge.</p>

<p>Appeal from Chase district court; Frederick A. Meckel, judge.</p>

<p>Appeal from Greenwood district court; Allison T. Ayres, judge.</p>

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

<p>Appeal from Wyandotte district court, division No. 1; Edward L. Fischer, judge.</p>

<p>SYLLABUS BY THE COUBT.</p> <p>Sale — Gasoline Punvp — Representations — Implied Warranty— Rescission. Where, to induce a sale of an article not known or recognized as an article of commerce, the seller represents that the article in use will accomplish a certain purpose, and the purchaser has no opportunity to examine the article, but in reliance upon the representations made enters into an executory contract to purchase the article; Held, that such, representations constitute an implied warranty that the article will in use accomplish the purpose represented.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Municipal Corporations — Paving Contract — Waiver of Provision for Forfeiture for Delay. In a paving contract it was provided that time was material, that the work should be completed in a fixed time, and that the contractor would forfeit to the city $10 for each day of delay beyond the stipulated time. The city, by its own act and omission, prevented the contractor from proceeding with the work for a considerable part of the allotted time, and when an application for an extension of the time was presented to the city authorities by the contractor they agreed that the contractor should proceed with the work thereafter and complete it within a reasonable time. Held, as the city by its fault and neglect prevented the contractor from proceeding with the work, and as it subsequently agreed to an extension of the time of completion, it waived the time provision of the original contract and is not in a position to insist on a payment of liquidated damages for the delay in the completion of the work.</p> <p>2. Same — Action Involving Examination of Accounts — Reference Proper. In an action to recover on the paving contract the city pleaded, by way of set-off, overpayments made on a previous contract between the plaintiff and the city for the construction of a sewer, and as the settlement of the claims of the parties involved the examination of a long and intricate account between them the court was warranted in directing a reference of the case.</p> <p>3. Sewer Contract — City Engineer to Supervise Work — Bad Faith — To What Extent City Engineer’s Estimates are Conclusive. In the sewer contract it was provided that the work should be done under the supervision and to the satisfaction of the city engineer, that his interpretations of the plans and specifications were to be binding and final, that he was to decide all questions which might arise as to the amount and quality of the work done, and he or his assistant were present on the work almost every day during its progress. During the time the city engineer changed the grades of the sewers, thus relieving the contractor from much of the work provided for in the contract, and the contractor presented claims and secured the approval of the same by the city engineer for much material not furnished and for a great deal of work that was not done. The estimates of the city engineer, which were not made in good faith, embraced large overcharges, and on these payments were made by the city without knowledge of their fictitious character. Held, that the fact that the estimates and decisions were made by the city engineer did not preclude a recovery of the overcharges by the city.</p> <p>4. Same — Voluntary Payments — May be Recovered Back. The rule as to voluntary payments does not prevent a recovery by the city of its money from the contractor who received the illegal and unauthorized payment from city officers.</p> <p>5. Same — City Proper Party to Recover Overcharges. The contract being with the city, and it having issued improvement bonds to pay for the construction of 1¿he sewer binding upon the municipality as a whole, the city is the proper-party to sue for the overcharges, although the property in the benefit district will be assessed for the payment of the improvement 'bonds.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Common Nuisance — Liquors, Glasses, etc., Seized — Their Destruction Ordered. Upon a review of the findings of the district court it is held that intoxicating liquor, glasses, etc., seized by the sheriff upon a warrant charging the defendant with maintaining a common nuisance, should be destroyed, as provided in section 4392 of the General Statutes of 1909, requiring the destruction of such property used in maintaining1 a common nuisance.</p>

<p>Appeal from Crawford “district court; Andrew J. Curran, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Trespass — Throwing Down Fence — Driving Across Lands — Conviction. The record in a misdemeanor case examined and held not to require the granting of a new trial.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Adultery- — One Party Thereto Charged and Tried Separately. One party to an act of adultery may be charged and tried without joining the other.</p> <p>2. Same — Change in Information Not Prejudicial Error. A verbal change, unsubstantial in character, made in certain counts of an information more than two years after the commission of the offense, together with reverification without refiling, did not bring into operation the statute of limitations as to another count left unchanged on which alone conviction was had.</p> <p>3. Same — How Adultery Should be Charged — Competent Evidence to Prove. In this state voluntary illicit intercourse between two persons, one married and the other single, is adultery in the former and fornication in the latter, and hence to charge adultery it is not necessary to allege that the paramour was a married person. But when such charge is made the marriage may be proved by any competent evidence, direct or indirect, and in this case the testimony, including that of the husband to the marriage ceremony and a showing of a subsequent divorce, was sufficient to warrant a finding that the parties were married.</p> <p>4. Photograph — Competent Evidence. A photograph or a copy thereof is receivable in evidence when it is shown to look like the person or object sought to be identified.</p> <p>5. Adultery — Competent Evidence to Prove. In a prosecution for adultery it is competent to show to what extent the parties associated together for several months before and after the date of the alleged offense.</p> <p>6. Reasonable Doubt — Definition. It is not error to give substantially the definition of reasonable doubt approved in The State v. Patton, 66 Kan. 486, 71 Pac. 840.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Criminal Law — False Testimony — New Trial Should be Granted. In a criminal action where it is shown on a motion for a new trial that false and perjured testimony, which the defendant had no fair opportunity to rebut at the trial, probably influenced the jury to find him guilty, it is the duty of the court to set the conviction aside and grant a new trial.</p>

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

<p>HEADNOTE BY THE ESPORTEE.</p> <p>1. Tax Deed •— Ineffectual — No Possession Taken — Tender — Measure of Recovery. Where the holder of a tax deed fails to take possession under it within two years after recording the same, and the landowner makes a sufficient tender to the holder of such deed, and the tender is kept good, he can recover only the amount tendered, without interest, penalties or charges accruing on the amount tendered.</p> <p>2. Same — Burden of Proof. The burden of proving a good and sufficient tender rests upon the landowner.</p>

<p>Appeal from Mitchell district court; Richard M. Pickler, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Defective Highway — Statutory Notice of Defect to Trustee Not Alleged — Fatal to Recovery. In an action against a township to recover damages alleged to have resulted from a defective highway an allegation in the petition that the township trustee had five days’ actual notice of the defect prior to the time the damage was sustained is essential to a recovery.</p> <p>2. Same — Too Late to Amend Petition — Statute of Limitations. A petition which fails to include the essential averment of notice can not be cured by an amendment alleging notice after the bar of the statute of limitations has fallen.</p> <p>3. Same — Matters Reviewable by Appellate Court. An appellate court can not determine that error was committed in denying an application to amend a petition in order to make it conform to the proof unless the proof or a statement of what it established has been brought up for its consideration.</p>

<p>Appeal from Trego district court; Jacob C. Ruppenthal, judge.</p>

<p>Appeal from Sedgwick district court, division No. 1; Thomas C. Wilson, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Federal Employers’ Liability Act — Death of Brakeman — Was Engaged in Interstate Commerce — Negligence■ — Want of Safety Appliances. A brakeman in the service of an interstate common carrier running on a train consisting in part of cars containing interstate shipments of freight was required to assist in picking up a freight car loaded with chats standing on a siding, consigned from a point within the state to another point within the state. This car was coupled to another in front of it which was attached to the engine, and the two cars were pulled out upon the main track in order to place the ear of chats in the train. The brakeman was then required to uncouple it from the one in front which was not to be taken; to do this he necessarily went between the cars, and was killed because of a defective coupler upon the car to be taken out which was not equipped with an automatic coupler as required by the federal safety appliance acts.</p> <p>It is held: (1) The brakeman when injured was engaged in interstate commerce, and the action for resulting damages-for his death is within the purview of the federal employers’' liability acts; (2) that the car referred to should have been equipped with couplers as required by the federal safety appliance acts; (3) the question whether the defective coupler was the proximate cause of the injury was one of fact properly submitted to the jury; (4) the defenses of contributory negligence and assumed risk are eliminated in actions under the federal employers’ liability acts when the injury arises from a violation of the safety appliance acts; and (5) the statute under which the action is maintained does not limit the recovery, and the damages, $12,000, awarded in this case, considered in connection with the findings, do not show passion or prejudice on the part of the jury.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Injunction — Sidewalk Taxes — Levied in Conformity to Requirement of Statute. A city of the second class had in force a general ordinance relating to sidewalks, prescribing the width, material, width of space reserved, the manner of construction, and the procedure incident to the ordering of a sidewalk and its construction, a section of which ordinance gave directions touching the petition, notice and resolution required in order to construct a sidewalk. The required petition, notice and resolution were presented, given and adopted, and the tax to pay for the work was levied by the enactment of an ordinance. Held, that the city acted in substantial conformity with the requirement of section 1874 of the General Statutes'of 1909 that such work be authorized by ordinance, and that the collection of the tax should not he enjoined on the ground that the city had proceeded not by ordinance but by resolution.</p>

<p>Appeal from Labette district court; Elmer C. Clark, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Pleadings — Inducing Morphine Habit — Limitation of Actions. Where the question is so raised that a liberal construction is required, legal incapacity of the plaintiff, sufficient to suspend the operation of the statute of limitations, is sufficiently pleaded by allegations that at the time of the accrual of her cause of action she was a “morphine fiend”; that she was afflicted with “morphinomania,” although she did not know it, that she was unable to control her desire for morphine, and was wholly under the influence of the defendant, and that she did not realize her condition or the wrong done her.</p> <p>2. Same — Evidence Good as Against a Demurrer. As against a demurrer to the evidence, an allegation of legal incapacity is sufficiently sustained by testimony that the plaintiff was a morphinomaniac; that she was incompetent of exercising any judgment and discretion in the ordinary business affairs of life; that she was not responsible; that she was a maniac; that her will power was gone; that she could not fix her attention on anything.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Personal Injuries — Driving Across Railroad Track — Contributory Negligence — Wantonness of Defendant. The decision in the case of Railway Co. v. Baker, 79 Kan. 183, 98 Pac. 804, relating to the subject of wantonness in speeding a railway train along or across a city street, approved and followed.</p> <p>2. Same — Wantonness Not Proven. The evidence and special findings of fact returned by the jury considered and held not to meet the requirements of the law essential to constitute wantonness.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Master and Servant — Negligence—“Safe Place to Work”— Sufficient Averments in Petition — Legal Conclusions Unnecessary. In an action by a servant against the master where the petition sets forth the fact showing acts of negligence which imply that there has been a failure of the master to provide a reasonably safe place to work, an averment of the legal conclusion to that effect is not required and its absence will not render it error for the court to submit to the jury the question whether or not the negligent acts if proven amount to a failure to provide the plaintiff with a reasonably safe place.</p> <p>2. Same — Master Not Relieved by Delegating Duty to Another. The rule that the master can not avoid his liability by delegating to another employee the duty to provide his servants with a reasonably safe place to work is applied to the facts stated in the opinion.</p> <p>3. Same — Proximate Cause — Question for Jury. On the facts stated in the opinion it is held that it is a question for the jury whether the negligence complained of was the proximate cause of the injury.</p> <p>4. Same — Assumption of Risk. Upon the facts' stated in the opinion it is held that it can not be said as a matter of law that the plaintiff assumed the risk.</p> <p>5. Verdict — Not Procured by Passion or Prejudice. Plaintiff was allowed $1000 for permanent injuries to the little finger of the left hand. Held, that the record discloses nothing which would authorize the court to say that the amount of the verdict is so excessive as to indicate that it was the result of prejudice or passion.</p>

<p>OPINION DENYING A REHEARING.</p> <p>Appeal from Wyandotte district court, division No. 1; Edward L. Fischer, judge.</p>

<p>HEADNOTE BY THE REPORTER.</p> <p>Supreme Court — Not a Moot Court — Case Dismissed. The supreme court will not entertain an appeal solely for the purpose of deciding a mooted question of law or fact.</p>

<p>Appeal from Cherokee district court; Edward E. Sapp, judge.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Bank Deposits — Application Directed by Depositor — Finding —Evidence. The evidence examined and held that a special finding of fact determinative of the controversy is sustained by the evidence.</p> <p>2. Same. The fourth paragraph of the syllabus of the case of Washbon v. Bank, 86 Kan. 486, 121 Pac. 515, and corresponding portions of the opinion followed.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Will — Construction—Devises Estate to Testator’s Wife Absolutely. The will set forth in the cross-petition in this case, there being no evidence impeaching its validity or the devising capacity of the testator, devises all his property, real and personal, to Susanna, wife of the testator, without residue or remainder.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Real-estate Agent — In Employ of Both Vendor and Purchaser — Compensation■■—Burden on Agent to Prove Knowledge and Consent of Both Parties. A real-estate broker,- acting in -the same transaction for both vendor and purchaser, assumes a dual agency, which the law disapproves, and he can not recover compensation from either principal without showing the free consent of both; the burden rests upon him to show a full disclosure of his dual agency, and it should appear that knowledge of every circumstance connected with his employment by either was communicated to the other, in so far as the same would naturally affect his action as agent.</p> <p>2. Same — Dual Agency — Ignorance No Excuse for Fraudulent Conduct. A party will not be permitted to escape the consequences of his fraudulent conduct on the plea that he thought he was acting within his rights in a transaction contrary to sound morals and forbidden by public policy.</p> <p>3. Same — Evidence. Upon the facts stated in the opinion, held, that there was no evidence sufficient to warrant the court in submitting to the jury the question whether the dual agency was exercised by the plaintiffs with the full knowledge and free consent of the defendant.</p> <p>4. Agent’s Contract — To Sell Real Estate — When Entire— When Divisible. The general rule is that whether or not, a contract is entire or divisible is one of construction to be determined by the court according to the intention of the contracting parties as ascertained from the contract itself and upon a consideration of all the circumstances surrounding the making of it.</p> <p>5. Same — Action for Compensation Prematurely Brought. The defendant purchased a tract of land consisting of 1167 acres, and agreed with plaintiffs, in consideration of their services in procuring the purchase and upon other considerations, that plaintiffs should be entitled to one-fourth of the profits arising from a resale of the lands. 831 acres were sold when plaintiffs brought an action to recover their share of the profits. Held, that the contract is entire and indivisible and that plaintiffs can not maintain the action until all the land has been sold and until it can be ascertained what, if any, profits there are upon the transaction.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Abstract of Title — Does Not Show Marketable Title — Not Cured by Affidavits. An abstract of title discloses the following facts: The title was in W. on March 25, 1889, when he conveyed the land to H. On March 28, 1890, H. conveyed it to D., and D. conveyed it to P. on May 31, 1893. These three deeds were recorded on June 13, 1893. A judgment of foreclosure and sale upon a mortgage was rendered April 28, 1890, in an action commenced March 3, 1890, against W. and wife and a former owner of the land who had made the mortgage. A sheriff’s deed was made to R. on April 7, 1891. The plaintiff holds title through mesne conveyances from R. No conveyance is shown from P., and neither H. nor D. were parties to the foreclosure. It is held: (1) That the abstract does not show a good merchantable title in the plaintiff, although affidavits are attached to it in which it is stated that no one had been in possession for the twenty years next before October 14, 1912, except R. and a tax-title holder; and although it also shows the issuance of the tax deed in August, 1893, and a conveyance of that title to the plaintiff, but does not set out the deed or its substance or any abstract or statement of the tax proceedings. (2) While incidental matters of intestacy, heirship and the satisfaction of claims against an estate not probated, may, in a proper case, as in Van Gundy v. Shexoey, 90 Kan. 253, 133 Pac. 720, be shown by affidavits upon an abstract of title, yet where the abstract shows an outstanding title in fee, the validity of which depends upon matters of fact concerning- actual notice, possession and limitation, a purchaser ought not to be required to. accept affidavits relating to such matters.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Personal Injuries — Runaway Team — Telephone Guy Wire— Not the “Proximate Cause.” A mutual telephone company placed in the highway, practically upon the north line, a telephone pole to which was attached a guy wire which extended diagonally into the highway, and four feet and four inches from such pole was attached to a brace driven into the ground. The highway was forty-four feet wide and the traveled portion was thirty feet wide. The space north of the traveled portion, in which the wire was anchored, was some six inches higher and was not smoothed, but was covered with grass and weeds. The plaintiff was riding in a wagon with her husband, who was driving a span of mules which had tried to run away at previous times. Meeting an automobile some twenty rods east of the pole and wire, the mules took fright and ran, veering to the right of the traveled way, and ran the wagon against the pole or wire — probably the latter— throwing the plaintiff out and injuring her. It is held that the telephone company was not negligent in locating the pole where it was, and whether negligent or not in respect to the wire, it was not liable, for the reason that the wire was not the proximate cause of the injury or one which might reasonably be expected to cause such injury.</p>

<p>Appeal from Riley district court; Sam Kimble, •judge.</p>

<p>HEADNOTE BY THE REPORTER.</p> <p>Automobile — Future Reduction in Price — Agreement to Refund —Evidence. Where an automobile company agreed to refund to a purchaser the difference between the price of the car purchased and any reduced price the same car might sell for on the market before a specified date, newspaper advertisements and proofs of reductions in price at other places were competent evidence to establish such reduced selling price.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Oral Contract — Employment During Life — Statute of Frauds. An agreement to- provide a person -with employment during his life is not required by the statute of frauds to be in writing and signed by the party to be charged, since its performance will not necessarily extend over a year.</p> <p>2. Injured Employee — Contract for Settlement Misread — Important Omissions — Employee Not Chargeable with Notice of Omissions. If an injured employee, who is too weak to read, is induced to sign a contract releasing his employer from liability, by the false representation that it provides for his future employment, the contract being read aloud as though it contained such provision, constructive notice of its real contents is not imparted to him by the fact that his wife, being present as his agent, to aid him in the matter, omitted to read it.</p> <p>3. Same — Receipt—Not Signed by Employer — Contents Misrepresented by Employer — May be Reformed. A writing acknowledging the receipt of money by an injured employee, and in consideration thereof releasing the employer from liability, although signed only by the employee, is contractual in its nature, and upon sufficient proof may be reformed on his application by inserting a provision for his future employment.</p> <p>4. Contract — Employment for Life — Enforceable. A contract by which an employer agrees to furnish an injured employee employment for life is not too indefinite for enforcement, although it makes no provision for the kind of work to be done or the amount of compensation.</p> <p>5. Same — Employment During Life — Executed by Secretary— Subsequent Ratification by Corporation. Evidence to the following effect is sufficient to take to the jury the question whether a corporation was bound by a contract to give life employment to an injured employee: The contract was entered into on behalf of the company by the secretary, who acted as foreman, employing men, making agreements as to their wages, and discharging them. The five directors of the corporation owned all the stock. They were the president (the secretary’s father) and his wife, the secretary (who was also treasurer) and his wife, and the vice president. The vice president told the employee before he resumed work that the contract required the company to look after him. When the employee reported after his injury he told the president he was ready to go back to work according to the contract. He was given employment, which continued for four years.</p>

<p>Appeal from Geary district court; Roswell L. King, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Action. — To Set Aside Deed — No Jury as Matter of Right. A jury trial is not a matter of right in an action to set aside a conveyance for the alleged unsoundness of mind of the grantor and fraud of the grantees.</p> <p>2. Trial — Rejected Evidence Subsequently Admitted — No Error. An error in striking out or rejecting evidence is cured by receiving it afterwards, nothing having occurred to impair its effect.</p> <p>3. “Agreement for Maintenance” — Part Performance — Agreement Omitted from Deed — Included in a Subsequent Judgment. Where a grantee in a deed testifies to an oral agree- - ment to support the grantor for life and has performed that agreement for a considerable time, and is still keeping it, a guardian of the grantor, appointed in an adjudication after the deed was made, has no just ground to complain because the court incorporated in a judgment upholding the conveyance a provision requiring the grantee to keep and perform the agreement.</p>

<p>Appeal from Republic district court; John C. Hogin, judge.</p>

<p>Appeal from Wyandotte district court, division No. 1; Edward L. Fischer, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Injunction — Prosecution of Suit in Another State. The decision rendered on the former appeal (Mason v. Harlow, 84 Kan. 277, 114 Pac. 218), respecting equitable interference to prevent the prosecution of a suit in another state, approved and followed.</p> <p>2. Trial — Conflicting Evidence — Findings of Fact Conclusive. A finding by the district court of all the issues of fact in favor of the defendant based on conflicting evidence, essential portions of which consisted of oral testimony, ends the controversy over the facts.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Unrecorded Chattel Mortgage — When Valid as Against Subsequent Purchaser. One who, knowing of the existence of a chattel mortgage, obtains possession of the mortgaged property in exchange for a note executed by the mortgagor prior to the date of the mortgage, can not maintain such possession against the mortgagee, notwithstanding the mortgage has not been filed for record.</p>

<p>Appeal from Jewell district court; Richard M. Pickler, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Pleadings — Amendment to Conform to Proof Denied — Not Prejudicial Error. An answer contained an admission that the plaintiff was employed by “the defendants,” but the plaintiff testified that he was -employed by only one of them, and there was no evidence to the contrary. The defendants asked leave to amend their answer to conform to the proof. The amendment should have been allowed, but in the situation disclosed by the evidence, the ruling was not prejudicial.</p> <p>2. Negligence — Serving Tainted Meat to Boarder — Damages— Parties Liable. A son living with his father and mother on his father’s farm was carrying on the farming operations. He arranged with his parents to board his hands. The plaintiff was employed by him as a laborer for stipulated wages and board. The father purchased and the mother cooked and served meat, which when put upon the table was tainted and unwholesome. The evidence tended to show that the bad condition was apparent while the meat was cooking. The plaintiff became sick by partaking of it. Neither the father nor son knew that the meat' was tainted until it was on the table. It is held that the son is liable for negligence in providing unwholesone food, and that the father and mother, having jointly undertaken to provide the board, are equally liable for negligently cooking and serving it.</p>

<p>Appeal from Smith district court; Richard M. PickLER, judge.</p>

<p>Appeals from Wallace district court; JACOB C. RUPpenthal, judge.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Surveyor’s Report — Appeal Bond — Sufficiently Definite — Filed in Time. Under the facts of this case, the notice of appeal was as definite as the report of the county surveyor would permit, and was sufficient to notify all parties as to the particular survey appealed from.</p> <p>2. Same. The notice of appeal and bond for costs were filed in time.</p>

<p>Appeal from Chase district court; William C. Harris, judge.</p>

<p>Appeal from Barber district court; Preston B. Gillett, -judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Action for Commission — Allegation of Fraud — Failure-of Proof. If a party who alleges fraud and who has the burden of proof on the proposition does not establish it by a preponderance of the evidence the issue must be found, against him.</p> <p>2. Contract — Executed after Knowledge of Alleged Fraud — ■ Waiver. If a party who is induced to enter into- a contract by misrepresentations of fact gains knowledge of the fraud before the contract is executed, and thereafter deliberately proceeds to perform the contract on his part and to exact performance of the other party, he will waive the fraud and affirm the voidable contract, and especially is this true where the defrauded party, having full knowledge of the fraud, enters into a new contract recognizing the validity of the first one and in which he promises to do the things that he had promised to do in the original contract.</p> <p>S. Special Findings — Overcome Verdict — Verdict Set Aside — ■ Judgment. The special findings and - undisputed facts in the case examined and held to overcome the general verdict and to require the entry of judgment in favor of appellant.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Fire Insurance — “Vacancy” Clause in. Policy — Interpretation. The condition of a fire insurance policy that if the insured building become and remain vacant for a period of thirty days the policy shall be void unless notice be given and a vacancy permit be issued should be interpreted with reference to its manifest purpose. It contemplates the protection of a guardian of the premises, some individual in charge of them who exercises a preserving superintendency over them and gives them such care and attention as will naturally result in. protection against the hazard covered by the policy.</p> <p>2. Same. Within the rule stated a dwelling house may not be vacant although not actually occupied as a present place of abode, and such a dwelling house may be vacant although it may he far from being empty of everything but air.</p> <p>3. Same. The evidence considered, and held that a farm dwelling house and barn were not vacant although no one slept in the house at night and meals were eaten there only occasionally.</p>

<p>Appeal from Wyandotte court' of common pleas; Hugh J. Smith, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Pledge — Personal Property — Must be Actual Delivery and Continued Possession. To constitute a valid pledge of personal property as security for a debt it is essential that there be an actual delivery of the property by the pledgor to the pledgee, and the pledgee must thereafter hold possession of the pledge openly and adversely to the pledgor.</p>

<p>SYLLABUS BY THE COURT.</p> <p>'Trespass to Real Property — Obstructing River Channel — Statute of Limitations. In an action for trespass to real property the petition alleged that the defendant, who owned land bordering on the Arkansas river, wrongfully built and maintained a permanent obstruction in the channel of the stream, which for twenty-four months prior to the commencement of the action and continuously thereafter had diverted the natural flow of the water to the opposite bank, and maintained a permanent obstruction in the channel of plaintiff’s land. Held (following Parker v. City of Atchison, 58 Kan. 29, 48 Pac. 631, and McDaniel v. City of Cherryvale, ante, p. 40, 136 Pac. 899), that the cause of action was barred by the two-year statute of limitations.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Tax Deed — On Record Five Years — Interpretation—Presumptions. In a tax deed which has been of record more than five years there was a recital that the certificate of sale was assigned by the purchaser to “C. S. Hinchman, Trustee for the Western Loan Association,” and in the granting clause there ' was á recital that the certificate was presented by and the land conveyed to “said C. S. Hinchman, Trustee for The Western Land Association.” Held, under the rule of interpretation applicable where a deed has been of record more than five years, that presumptively the names mentioned in the deed represent the same party and that the property was conveyed to the assignee of the certificate of sale. Held, further, that the deed sufficiently shows that a separate certificate was issued for each tract sold and also the amount for which each tract was conveyed, and also that the total of the amounts shown to be due for taxes, interest and costs substantially conformed with the aggregate consideration named in the deed.</p>

<p>Appeal from Pratt district court; PRESTON B. Gillett, judge.</p>

<p>Appeal from Scott district court; Albert S. Foulks, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Practice, District Court — Written Communications between Judge and Jury. During their deliberations in a felony case the jury sent a message to the judge inquiring whether they could recommend clemency, and he replied in effect that it was not their province as a jury to do so, but that the court would consider any recommendation any or all of the jurors might make after their discharge. Held, that the interchange of these messages did not require the verdict to be set aside, notwithstanding the case was one in which the trial court had no voice in fixing the penalty and could grant no parole, it appearing upon the whole record that the jury were not in fact influenced thereby.</p>

<p>Appeal from Kearny district court; George J. Downer, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Maintaining Nuisance — Violation of Injunction — Contempt— Evidence. The evidence in each of these cases examined, and held sufficient to support a judgment of the trial court finding the defendant guilty of maintaining a nuisance in violation of a permanent injunction against certain premises where intoxicating liquors were found.</p>

<p>Appeal from Leavenworth district court; James H. Wendorff, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Public Improvements — Special Assessments — Chapter 130, Laws of 1913, Valid. The title of chapter 130 of the Laws of 1913, being “An act amending and repealing section 1009 of the General Statutes of 1909, and repealing said original section, insofar as it applies to cities of 25,000 or less,” sufficiently expresses the subject of the act although it only refers to the section of the statute amended as it appears in an authenticated compilation without stating anything of the matter to which it relates, and it is not invalid because it purports to amend a section of the general statutes previously amended- and repealed nor because the title contains no reference to the previous amended and repealing act.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Drainage District — Election of Directors — Polling Places. Under the provisions of the drainage act (Laws 1913, ch. 184, § 3) regulating the holding of elections to choose directors, the hoard of directors may designate as many polling places as are necessary to afford all of the qualified electors therein a reasonable opportunity to cast their votes.</p>

<p>OPINION DENYING A REHEARING.</p> <p>Appeal from Harvey district court; Charles E. Branine, judge.</p>

<p>OPINION DENYING A REHEARING.</p> <p>Appeal from Wyandotte district court, division No. 2; Frank D. Hutchings, judge.</p>

<p>OPINION MODIFYING DECISION AND DENYING A REHEARING.</p> <p>Appeal from Coifey district court; Frederick A. Meckel, judge.</p>

<p>OPINION DENYING REHEARING.</p> <p>Appeal from Pottawatomie district court; Robert C. Heizer, judge.</p>