Volume 92 — Kansas Reports

<p>SYLLABUS BY THE COURT.</p> <p>1. Witness — Refusal to Answer Proper Question — Contempt— Punishment. Whether a question put to a witness in a case' where the court has jurisdiction of the subject matter and of the person, and which he refuses to answer, is pertinent and proper is for the determination of the court and not the witness, and if he persists in his refusal he will be subject to punishment for contempt.</p> <p>2. Same — Purpose of Punishing Witness for Contempt. Imprisonment may be imposed not only as punishment for contumacy, but also to compel obedience to a lawful order and to enforce the production of testimony deemed to be necessary to the administration of justice.</p> <p>3. Administrator — Appointment Not Open to Collateral Attack. The appointment of an administrator is not open to collateral attack merely because the appointee is not next of kin to the deceased whose estate is being administered.</p> <p>4. False Imprisonment — Petition Fails to State Cause of Action. On an examination of the averments of appellant’s petition it is held that they fail to state a cause of action for false imprisonment against the appellees.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Written Evidence • — ■ Secondary Evidence Admitted without Proper Foundation Being Laid — Error. Where evidence in writing is shown to have existed which would establish a fact very material in the trial of an action and such writing is admitted to have been in the possession of a party to the action whose liability in a large sum may depend upon the words in the writing, it is error to admit other evidence of the contents of the writing until it fairly appears that the writing is lost beyond recovery or has been destroyed.</p>

<p>HEADNOTE BY THE REPORTER.</p> <p>Guardian — Ouster—Jurisdiction of Supreme Court. A person appointed by the probate court guardian of an insane person is not a public officer within the meaning of subdivision 1 of section 680 of the civil code, and the supreme court has no jurisdiction to oust such person from such guardianship.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Nuisance — Salt Dump — Pollution of Water — Injunction—Abatement. In an action for relief by injunction against the maintenance of a salt dump, resulting from the operation of a • salt mine, the petition alleged -that it was not protected by any cover, and that the action of the rain and snow caused the salt to dissolve and sink into the soil, resulting in the pollution of the water underlying the plaintiff’s land. The court held the salt dump to be a nuisance, but limited the relief to a requirement that it should be provided with a cover. Held, that if the character of the dump as a nuisance was due to the absence of a cover, the relief granted was adequate, and this question was one of fact upon which the decision of the trial court is controlling.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Sale — Watermelon Seeds — Contract—Quality of Seeds to Be Satisfactory to Purchaser — Refusal to Accept. The rule stated in the case of Hollingsworth v. CoWhurst, 78 Kan. 455, 96 Pac. 851, applied to a contract for the growing and delivery of a crop of watermelon seeds, and held that acceptance of and payment for the crop were left to the consideration, judgment and satisfaction of the purchaser, subject to the limitation that he should act in good faith.</p>

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

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

<p>HEADNOTE BY THE REPORTER.</p> <p>1. Divorce Refused — Division of Property. Where a divorce was refused the wife, the division of the property as shown by the record was not inequitable.</p> <p>2. Same — Custody of Minor Child. In an action for a divorce where the divorce was refused and the property divided, it ■ was within the discretion of the trial court as to' which party should be awarded the care and custody of the minor child.</p> <p>3. Practice — Two Motions for Same Purpose — Second Filed without Leave. If a party has filed a motion for any purpose and afterward he concludes his motion is insufficient in any respect, he should apply to the court and obtain leave to amend or withdraw his first motion before filing a second.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Will — Deed—Undue Influence — Set Aside — Sufficient Evidence. The evidence examined and held sufficient to support a finding of undue influence in the execution of a deed and a will.</p> <p>2. Trial — Rulings Assigned as Error — Not Prejudicial. Assignments of error with respect to trial rulings examined and held not to require a reversal.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Insane Patient — In Hospital — Application for New Hearing in Probate Court — Denied. Where, upon proceedings in a probate court appearing on the face of the record to be regular, a person has been found to be insane and has been placed in a state hospital as provided by statute, that court is not bound to set aside the adjudication and try the matter anew on the motion of the patient based upon his allegation that he was not insane when the adjudication was made.</p> <p>2. Same — General Allegations of Fraud Present■ no Issue. A general allegation that a patient was committed to the hospital through fraud and conspiracy is insufficient to present any issue, in the absence of any statement of facts showing fraudulent conduct.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Written Order — To Pay Money — Accepted—Delivery Denied —Burden of Proof. Action was brought on the following instrument :</p> <p>“Latham, Kansas, December 31,1910.</p> <p>Mr. W. W. Fell, please pay to C. H. Bartholomew ($250.00) Two Hundred and fifty Dollars and oblige. C. A. Bing,”</p> <p>“I except order. W. W. Fell.”</p> <p>The answer admitted the execution and acceptance of the order and that plaintiff had it in his possession, but denied that it was ever delivered, and alleged that it was executed and intended to be delivered upon certain conditions, which never happened, and that plaintiff wrongfully obtained possession of it. Held, that in the state of the pleadings the burden was upon the defendant to prove that plaintiff’s possession of the instrument was wrongfully acquired, and therefore the court properly ruled that defendant had the right to open and close.</p> <p>2. Same — Instructions—Assumption by Court of Prerogative of Jury. In the case stated it was error for the court to charge that the right to recover depended solely upon whether or not the instrument was executed and accepted upon certain conditions, as it was a question of fact for the jury and not for the court to determine whether the conditions were fulfilled upon which the defendant alleged the acceptance of the order was made.</p> <p>3. Same — Parol Evidence. Between the original parties to a written instrument the rule excluding parol evidence in contradiction of a written agreement is not infringed by proof that the instrument was never delivered, or was delivered to take effect only upon the happening of some future event.</p> <p>4. Same — Erroneous Instruction — Fail to Define Issues. Certain instructions considered and held erroneous for the failure properly to define the issues.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Wills — Buies of Construction Stated and Applied. The rules of construction applied to wills by this court in numerous cases recognize that each will must be construed by its own terms, and that where there is any ambiguity in the language the court must, as far as possible, put itself in the position of the testator, taking into consideration all the circumstances under which the will was executed, the condition of the testator’s family and his estate, and from all the facts and circumstances find what his intention was. (Safe Deposit Co. v. Stick, 61 Kan. 474, 59 Pac. 1082; Hurst v. Weaver, 75 Kan. 758, 762, 90 Pac. 297.)</p> <p>2. Same — Testator’s Intention — Bemainder Devised in Fee Conditionally. Applying the same rules of construction to the present case, it is held that the testator’s intention was to devise to Ms wife a life estate in certain lands, with remainder to Andrew Hansen, provided Andrew Hansen complied with certain provisions named in the will.».</p> <p>3. Same — Conditions Imposed by Testator Complied with. Upon the facts stated in the opinion it is held that there was a substantial compliance with the conditions named in the will, and that the title to the real estate is in the heirs at law of the remainderman.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Writ of Assistance — Will Not Issue in Cases of Questionable Right to Possession. The use of a writ of assistance in chancery practice is usually limited to cases in which the rights of the parties to the possession of the land in controversy have been settled by the decree of the court issuing the writ, and in such cases it is issued to carry the decree into effect and to save another action or proceeding to acquire possession.</p> <p>2. Same. The writ, as a rule, never goes except in cases substantially free from doubt as to the right of possession, and it should not be used to put in possession a purchaser at an ordinary execution sale of land levied upon to satisfy a general judgment, and certainly not when a fair question as to the validity of such judgment is involved.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Paving Street — Resolution by City Council — Protest Must be Filed within Twenty Days after Resolution is Passed. When the mayor and council of a city of the second class have duly passed and published a resolution that it is necessary to pave, macadamize and curb a certain street of the city, and the resident owners of property liable to taxation therefor do not, within twenty days after the last publication thereof, protest against such improvement, then the city has power to cause such improvement to be made.</p> <p>2. SameI — Jurisdiction to Make Improvement Not Lost by Nine Months’ Delay. A delay of nine months after such publication does not deprive the city of jurisdiction to proceed with the improvement, even if a majority of the owners of property liable to taxation therefor shall, before the passage of an ordinance to proceed therewith, protest against such improvement.</p>

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

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

<p>Appeal from Wyandotte district court, division No. 3; Hugh J. Smith, judge.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Promissory Note — Agreement for Deductions — Evidence of Value of Corporation Stock Inadmissible. In an action upon a promissory note, evidence of the value of shares of stock for which the note was given is inadmissible under an agreement that deductions should be made from the note for any just claims outstanding against the company whose stock was sold, not shown upon its books.</p> <p>2. Same — Evidence that Flour Was Misbranded Inadmissible. It was not error to exclude evidence offered tending to show that the milling company had put up flour in sacks branded to indicate a superior quality, in the absence of any offer to prove that the flour had been sold according to the brand, or that loss had resulted from the deception, or that claims had been made therefor.</p> <p>3. Same — Claim Reduced to Judgment — Judgment Is Final. When a claim, presented against the milling company after the sale, had been reduced to judgment, the claims previously made for a larger sum and correspondence relating thereto were not admissible, the judgment having determined the amount.</p> <p>4. Same — Number of Special Questions — Discretion of Court. Where the issues involved the allowance or rejection of a large number of items, the discretion of the district court in submitting a corresponding number of special questions will not be interfered with, no prejudice nor confusion being shown.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Arizona Corporation — Insolvency — Failure to Comply with Foreign Corporation Statute — Liability of Individual Incorporators. Certain residents of Kansas procured an Arizona charter for a mining company, providing that the principal place of business in Arizona should be at Phoenix, and the principal office outside of Arizona should be at Galena, Kan., and that the company could have such other offices as the board of directors should establish. The laws of Arizona were complied with and the incorporators proceeded to hold a meeting at Galena, all being present, and elected themselves directors, choosing one president and another secretary and treasurer, and adopting a full set of by-laws. The stock was all subscribed and paid for in full, and the company entered upon and conducted a mining business, and the plaintiff while in its employ was injured, for which injury he brought suit and recovered judgment. Finding that the company had become insolvent, and ascertaining that the requirements of the Kansas statutes touching foreign corporations had not been complied with in any respect, he brought this action to hold the incorporators individually liable. Held, that the failure to observe the Kansas requirements did not avoid the corporation or justify a holding that the incorporators were fraudulently using the charter as a shield from personal liability.</p>

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

<p>HEADNOTE BY THE REPORTER.</p> <p>Attorney’s Fees — Ver diet* — Evidence. The evidence was sufficient to support the verdict of the jury and judgment of the court awarding plaintiff $2480 as a reasonable attorney’s fee for services performed for the defendant.</p>

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

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Personal Injuries — Interstate Commerce — Within Purview of Federal Employer’s Liability Act. An act of congress regulating interstate commerce and fixing the liability of common carriers engaged in that commerce to their employees is supreme and exclusive and supersedes state legislation on ■ the same subject, and whether the federal or the state law is applicable in any case depends on whether the employer and employee were engaged in interstate commerce when the injury was sustained by the employee.</p> <p>'2. Trial — Material Question of Fact — Submission to Jury. Either party is entitled, upon request, to have the court sub- .. mit to the jury an important question of fact which is within . the issues in the case and is based upon competent evidence.</p> <p>■3. New Trial — Inconsistent Special Findings. A new trial should be granted where important special findings of fact made by the jury are inconsistent with each other and with the general verdict returned by it.</p>

<p>SYLLABUS BY THE. COURT.</p> <p>1. Unrecorded Chattel Mortgage — Absolutely Void as Against Subsequent Mortgagee in Good Faith. Under section ,5224 of the General Statutes of 1909 a chattel mortgage of an automobile, not recorded and not accompanied by immediate delivery and followed by actual change of possession of the property, is absolutely void as against a subsequent mortgagee in good faith, although the subsequent mortgage is not filed for record and possession is not taken under it.</p> <p>2. Same — Effect of Taking Subsequent Possession — Filing of First Mortgage. The fact that the holder of the mortgage first given obtains possession of the automobile from the owner of a barn where the mortgagor kept it, and records his mortgage before the other mortgage is recorded and without knowledge of its existence, does not validate his mortgage and give it priority.</p> <p>3. Same. To accomplish the result just stated the holder of the mortgage first given must take possession or file his mortgage for record by virtue of joint action with the mortgagor. In that event the mortgage has the effect of a mortgage given the day possession is taken or the instrument is filed for record, and is given priority by the statute over the unrecorded mortgage.</p> <p>4. Same —• Who are Subsequent Creditors of Mortgagor, The term “creditors” used in the statute referred to, which gives creditors the same status as subsequent purchasers or mortgagees in good faith,_ does not mean general creditors but only those who have perfected a right to appropriate the specific property, as, for example, by attachment or execution levy.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Forcible Entry and Detainer — Title in Dispute — Issue Not Triable before Justice of the Peace. “One claiming to be the equitable owner of property under a contract of purchase— his claim being substantial, and not a mere pretext — can not be ousted from possession by a summary proceeding before a justice of the peace.” (Linder v. Warnock, 91 Kan. 272, 274, 137 Pac. 962, and cases cited in the opinion.)</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Judicial Sale — Judgment Against Husband — Sale of Land in Name of Insane Wife — Inequitable—Sale Set Aside. To enable a husband to close an option deal for certain land at a profit of $2200 a bank advanced him $2500, 'to secure which he assigned' a lien on certain land in his wife’s name, which lien had been decreed to him in his suit in which he was granted a divorce. Afterwards the decree of divorce was set aside on account of the insanity of the wife, but the assigned lien was preserved and the land ordered sold in satisfaction thereof. In the meantime the loan procured from the bank had been substantially paid and the bank had failed to avail itself of the opportunity to secure itself by recourse to properties of the husband, to which it might have looked. Held, that thus to subject the land claimed by the wife was under, the circumstances inequitable and hence error.</p> <p>2. Judgment — Two Journal Entries — Construed Together. When a trial court has refused to expunge one of two journal entries of a judgment rendered, various motions, applications and hearings having been made and had in reference thereto, they will be treated as one record covering the points decided.</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>Negligence — Ice-covered, Sidewalk — Personal Injuries — Contributory Negligence — Evidence. Under the evidence in this case it can not he said, as-a matter of law, that a pedestrian was negligent in using a sidewalk known to- be covered with ice, although another route might have been selected.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Boundaries and Surveys — Statute Relating to Costs Repealed. Section 4 of chapter 177 of the Laws of 1879 was repealed by implication by chapter 89 of the Laws of 1891 (Gen. Stat. 1909, §§2275, 2276).</p> <p>2. Same — Taxation of Costs — Discretion of Court. There being no other express provision of statute for the taxation of costs in the district court upon an appeal from a survey, such costs are taxable, in the discretion of the trial court, as provided by section 615 of the civil code.</p>

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Intoxicating Liquors — The Webb-Kenyon Act, Prohibiting the Shipping of Intoxicating Liquors into States for Use in Violation of La/w, is Constitutional and Valid. Under the act of congress of March 1, 1913, entitled “An act divesting intoxicating liquors of their interstate character in certain cases” (Part 1, 37 U. S. Statutes at Large, ch. 90, p. 699), ' intoxicating liquors are recognized as legitimate subjects of interstate commerce only when not intended for sale or use in violation of the laws of the destination state, and the fact that a carload of intoxicating liquor, seized in bulk ‘at the place in this state to which it was consigned, was still in course of transportation originating in another state did not protect the liquor from condemnation consequent upon a judicial determination regularly made that it was intended for unlawful use in Kansas.</p> <p>2. Same. The act referred to is constitutional as against the objection that it delegates to the states the power of congress to regulate interstate commerce in intoxicating liquors and that the rule prescribed is not uniform in its operation.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Water Company — Supplying Water to City and Public and Private Institutions Outside the City is Subject to Control of Utilities Commission. Upon the facts stated in the opinion it is held that a waterworks company engaged in supplying water to the city of Leavenworth and its inhabitants, and also to the United States military prison, the federal prison, Fort Leavenworth, the National Soldiers’ Home and other public and private institutions outside the city (four-ninths of the total amount of water furnished being to outside consumers) is within the provisions of section 3 of chapter 238 of the Laws of 1911, and therefore subject to the control of the public utilities commission.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Mandamus — Cell-house Man in Penitentiary — Within the Protection of the Civil Service Act. An appointee to the position of cell-house man in the state penitentiary is not an officer within the meaning of section 2 of article 15 of the constitution, and is within the protection of the civil service act (Laws 1905, ch. 487) regulating -the appointment and removal of subordinate officers and employees in the charitable and penal institutions of the state.</p> <p>2. Same — Hospital for Criminal Insane — Attendants are Employees of the Penitentiary. The hospital for the criminal insane is maintained in connection with the state penitentiary, and the attendants and employees of the hospital are under the control of the board of directors and warden of the state penitentiary and are, in effect, employees of that institution.</p> <p>3. Same — Alternative Writ — States Cause of Action. The averments of the alternative writ examined and held to state a cause of action in mandamus to compel the warden of the state penitentiary to restore the plaintiff to the position formerly held by him as cell-house man in the state penitentiary.</p>

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

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

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

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Pleadings — Amendment—Correction of Mistake — Liberally Allowed. Amendments for the purpose of correcting mistakes or defects in pleadings that would promote justice and not substantially change the claims or defenses of parties should be liberally allowed.</p> <p>2. Petition States Cause op Action — Deceit and Fraud. The averments of the amended petition examined and held to state a cause of action for the deceit and fraud of the defendant.</p> <p>3. Sales — Mere Exjyression of Opinion Not Fraud. A mere puffing statement by the seller as to the quality of an article sold or exchanged is generally regarded as an expression of opinion and of itself does not constitute fraud as against the buyer.</p> <p>4. Sales — When Buie of Caveat Emptor Applies. It is a general rule that if an article is sold for any and all purposes for which it is adapted, and not by a manufacturer or producer for a particular purpose, and it is open to inspection by the buyer, the rule of caveat emptor applies.</p>

<p>HEADNOTE BY THE REPORTER.</p> <p>Mortgage — Foreclosure—Possession Proof of Ownership. The possession and production of a duly acknowledged mortgage and of the note which the mortgage purports to secure, and proof of title in the mortgagor, is prima, facie sufficient evidence to sustain a judgment for foreclosure of the mortgage.</p>

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

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

<p>OPINION ON REHEARING.</p> <p>Appeals from Cowley district court; Carroll L. Swarts, judge.</p>

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

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

<p>opinion denying a rehearing.</p> <p>Appeal from Nemaha district court; William I. Stuart, judge.,</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Partnership — Matter of. Contract — Neither Participation in Profits nor Parties Calling Themselves Partners is Conclusive of a Partnership. Partnership is a matter of contract and courts will not create such a contract against the will of a party. A definition of partnership which is at once accurate, comprehensive and exclusive is extremely difficult. Participation in the profits is only regarded as a circumstance to be considered in determining whether or not a partnership existed. The mere fact that the parties called themselves partners and referred to their business relation as a partnership will not necessarily make them partners nor their business a partnership.</p> <p>2. Same — Contract in this Case Did Not Create a Partnership. In this case it is held that an arrangement between three persons for a division of the net profits accruing on certain sales of shares of stock in lieu of office rent and services furnished by one, advertising and printing furnished by another, and the services of the other in the sale of the stock and in the advertising and correspondence, did not create a partnership in the sense that one could bind the others by a contract made in the name of all.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Taxation — City of Second Class — Statutory Limit of Levy to Pay Judgments. Under the statutes existing in 1908 cities of the second class were authorized to levy a tax for the payment of judgments not rendered for current expenses, although the limit for general revenue purposes had been levied, provided the 40-mill limit for all general city purposes exclusive of school taxes was not exceeded.</p> <p>2. Same — Presumption of Regularity of Acts of Taxing Officers. In addition to a levy up to the limit for general revenue purposes for the year 1908 a city of the second class made a levy of one mill to pay judgments. In an action to enjoin the collection of the tax as excessive and illegal it was not shown that the bases of the judgments in question were matters of current expense, and in the absence of such showing the presumption of regularity in the acts of the taxing officers must prevail and such levy will be deemed valid.</p> <p>3. Same — Limit Exceeded by Consent of State Tax Commission, or Vote of Electors. The ordinary statutory limit for general revenue purposes might have been lawfully exceeded by permission obtained from the state tax commission, or an increase could have been authorized by a vote of the electors. (Laws 1908, ch. 78, § 1.) The excess was alleged to be unáuthorized, excessive and void, but no proof was offered that such consent or authority had been received. Had such consent or authority been received the records of the state tax commission or the city clerk would so show, and the failure to prove a negative— that they did not so show — in the absence of any allegation or assertion by the defendant that either was had, is held too technical a basis for a judgment against the plaintiff, unless a claim of such consent or authority shall be reaily made by the defense, in which case a new trial is ordered.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>School Land — State May Waive Forfeiture of Certificate— Third Person Can Not Complain. The doctrine of the case of Baker v. Newland, 25 Kan." 25, that the state may waive forfeiture of a certificate of purchase of school land and third persons can not complain of the waiver, extended to cover a case in which default was occasioned by misinformation given the certificate holder by the county treasurer as to when payment could be made, and the third person settled on the land before the state accepted payment of the delinquent installment.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Contract — Relating to Personal Property — Part Performance —When Specific Performance Will be Decreed. Modern courts have shown a tendency to depart from the old rule that there can be no specific performance of a contract except for the conveyance of real estate, and where there has been part performance, and especially where the services rendered are of a peculiar character which the parties never intended to be measured by pecuniary standards, the courts recognize no distinction between personal property and real property and will grant relief in either case where there are no circumstances or conditions which render the claim inequitable.</p> <p>2. Same — Contract for Benefit of Minor Child — Contract Fully Performed by Minor — Specific Performance Decreed. In this case the testimony is held sufficient to sustain a finding that a written contract was made for the benefit of the plaintiff when she was two years old, between her father and childless neighbors, husband and wife, by which she was to be received into their family as their child, reared and cared for by them, and was to receive at their death all their property; that she had fully performed her part of the contract; that the husband died intestate; that the wife afterwards.died having willed her personal property to the defendants, and therefore a decree for specific performance of the contract against the devisees and heirs at law is affirmed.</p> <p>3. Written Contract — Lost—Admission of Secondary Evidence of Contents Not Error. Where one who was in possession of a written contract testified to its loss and there was no objection to testimony as to the contents of the writing on the ground that a sufficient foundation had not been laid, the only objection being that the same was incompetent, the objection was properly overruled.</p>

<p>Appeal from Wyandotte district court, division No. 3; Hugh J. Smith, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Live-stock Shipment — Delay in Transportation — Notice of Claim for Damages — Minimum Speed of Fifteen Miles per Hour. A shipment of live stock under the usual contract provided that as a condition precedent to the right to recover damages for loss or injury to his stock during transportation the shipper should give notice in writing of his claim before the stock was removed and intermingled with other stock. In an action to recover for damages on account of delay in transportation, brought under sections 7116 and 7117 of the General Statutes of 1909, requiring carriers to transport live stock at an average rate of speed of not less than fifteen miles per hour, held error for the court to charge that if the damages were the direct result of the failure to comply with the fifteen-mile statute, then the contract requiring notice was no defense.</p> <p>2. Same — Injury to Stock During Transportation — Written Notice of Claim for Damages. Upon the facts stated in the opinion it is held that the loss and injury on account of delay in transportation, by which the cattle became jaded, gaunt and emaciated, and after being unloaded became restless and in unfit condition and refused to take the usual and customary fill in order to put them in prime condition for sale, was a loss occasioned during transportation, and that notice of such a claim was required as a condition precedent to the right of recovery.</p>

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

<p>Appeal from Harvey district court; Frank F. Prigg, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Consolidation of Cases — By Stipulation — General Verdict— Acquiescence of Parties — No Error. By stipulation between the parties four separate actions on policies of insurance issued by different companies, covering the same property, were consolidated and tried as one case. The jury returned a verdict for the full amount of the loss, which the court apportioned among the several defendants. Held, that the stipulation, together with the acquiescence of the parties in the procedure and their failure to request the court to require separate verdicts, constituted a waiver of any error that might be urged against the rendition of a general verdict.</p> <p>2. Insurance — Loss—Attorney’s Fees — May be Allowed by the Court after Verdict. Attorney’s fees in actions against in- • surance companies are by statute (Gen. Stat. 1909, § 4263) allowed as part of the costs, and the court may hear evidence and allow the same after the return of the verdict.</p>

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

<p>SYLLABUS BY THE COURT."</p> <p>iNjüNCTXOÑ-i-PAreAftse of Light Plami '-by City — Cam, Not Pur- ■ chase Unexpir'ed Franchise — iTvidence'—Finding': ' On' this appeal ,it is held-that-there, is -sufficient. testimony-to¡ support -, -a findijng of.fhe trial .court .that a part, pf.thpapiopnt. named , ,as the,.consideration,of a contract for the purchase, by. a city of a.light plant, or a part of the same, which Had beep owned and operated by ,¿ private owner, 'wás paid by the city'td such ; ’ owner'fbf-the'áúrfendér of an uhexpired part 6f ¿*"63*168^ 'franchise-previously-granted to thé owner by the city-.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Coal Mine — Negligence—Bocks Falling from. Overhead — Personal Injuries. The facts brought out in the evidence are held -sufficient to uphold the findings of the jury that the owner and operator of a coal mine failed to exercise the care required by the statute providing for the safety of persons employed in coal mines to see that as the miners advanced the excavations all loose coal, slate and rock overhead were secured against falling on traveling ways, and that by reason of that negligence the plaintiff was injured.</p>

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

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

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

<p>Appeal from Stafford district court; Daniel A. Banta, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Vendor and Purchaser — Breach by Purchaser — Measure of Vendor’s Damages. Upon the refusal of a vendee to comply with a contract to purchase property one of the remedies available to the vendor is an action to recover the fruits of his bargain — the loss which he sustains by the nonperformance of the vendee.</p> <p>2. Same. Ordinarily in such a ease, where the title remains in the vendor and the money in the vendee, the measure of damages is the difference between the contract price and the market value when the breach occurs.</p> <p>3. Same — Manner of Determining Market Value of Property. When the property is resold within a reasonable time after due notice to the vendee and for the highest price which can reasonably be obtained by the vendor the price on resale is deemed to be prima facie evidence of its market value.</p> <p>4. Same — Instructions as to Measure of Damages Not Prejudicial. An instruction that the measure of damages is the difference between the contract price and the .price on the resale where the vendor used diligence to obtain the highest possible price for the property, but-if the vendor did not do so then the measure would be the difference between the contract price and the market value of the property, can not have prejudiced the vendee where it appears that the jury found that the highest price was not obtained by the vendor and that • the extent of the damages was fixed on the basis of market value and not on the price obtained at the resale.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Proceeds from Sale of Chattel-mortgaged Property — Ccm Not be Pursued into Hands of Innocent Third Party. A mortgagee can not pursue the proceeds of a sale of mortgaged personal property, made by the mortgagor, and received and applied by his creditor in good faith in payment of a valid debt, where the person so receiving the proceeds has no knowledge of the mortgage and is not chargeable with any notice of its existence.</p> <p>2. Same. In the situation stated above, the filing of the chattel mortgage in the proper office does not impart constructive notice to the creditor who receives and applies the proceeds of the sale, but has no lien upon or right to the mortgaged property.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Petition — Mistake—Amendment — Substitution of Different Plaintiff. An amendment of a petition to correct the mistake of a pleader which merely substitutes one party for another as plaintiff does not change the cause of action.</p> <p>2. Same — Amendment Relates to Commencement of Action. Such an amendment relates back to the institution of the action, and the statute of limitations stops running as to the substituted plaintiff when the action is begun rather than when the amendment is made.</p> <p>3. Implied Contract — Recovery of Rents — Three-year Statute of Limitations. An action to recover rents for land, the possession of which is wrongfully withheld, is founded on implied contract, and the three-year statute of limitations applies.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Agreement for Additional Insurance — Omitted from Policy —Policy May be Reformed. The doctrine of the case of Pfiester v. Insurance Company, 85 Kan. 97, 116 Pac. ,245, applied in an action to reform a fire insurance policy to include permission to take out additional insurance according to oral negotiations between the plaintiff and the defendant’s agent, and to recover on the reformed policy.</p> <p>2. Insurance — False Answers Inserted in Application by Agent ■ — Policy Not Avoided — Pleadings. In taking the application the agent appended the false answer, “No,” to the question, “Is the land described mortgaged?” without the knowledge or authority of the plaintiff and without propounding the question to him. The policy as written contained a condition against incumbrances. The petition pleaded broadly compliance with the terms of the policy. The answer pleaded the condition against incumbrances. The reply set up the facts stated. A motion to strike out the reply for departure was overruled. A trial on the merits followed and the plaintiff recovered. Held, the defendant was not prejudiced in its substantial rights because of the departure.</p> <p>3. Same — Compromise Agreement after Loss — Subsequently Waived. After the insured property burned, a special agent of the defendant procured the plaintiff to sign an agreement to .surrender the policy and to accept $100 in full settlement of his claim. The plaintiff did not surrender the policy, the defendant did not pay or offer to pay the $100, and further negotiations for settlement followed which induced the plaintiff to believe that the defendant had abandoned the compromise agreement and to act accordingly. Held, sufficient to constitute a waiver of the agreement.</p> <p>4. Pleadings — Proof — Variance Not Prejudicial. A variance between the pleadings and the proof respecting waiver of the compromise agreement held not to be prejudicial.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Taxation — City Taxes — Penalties and Rebates — Original Decision Reaffirmed. Improvements, the cost of which is charged by a city to the benefited property, are so far public in their nature that the legislature may require the county to bear a part of the expense of collecting the assessments by giving a rebate or premium for their prompt payment.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Pees and Salaries — District Clerk — Proper Distribution of Fees of His Office. Under the General Statutes relating to fees and salaries the clerk of the district court of Shawnee county was entitled to a salary of $3000 per year out of the fees of his office and one-half of the excess of such fees above the salary. (Gen. Stat. 1909, J 3663.) By chapter 213 of the Laws of 1901 the clerk was authorized to pay the salaries of necessary deputies and assistants out of the fees of his office not exceeding $2000 in any year, all the balance of the excess fees remaining thereafter to be paid over to the county treasurer. The general statute, except as modified by the act of 1901, was in force during the official- service of the defendant. Construing the provisions of these statutes together and in connection with the title of the act of 1901, it is held that the clerk’s salary of $3000', together with the salaries of deputies and assistants not exceeding $2000 in any year, should be deducted from the whole amount of the fees. One half of the remainder may be retained by the clerk and one-half should be paid by him to the county treasurer. By the general law the excess fees above the salary were divided between the clerk and the county. The special act does not prevent this division, but allows the deduction of the expense of office help in addition to the salary before the division is made.</p> <p>2. Same — Expense of Auditor — Improperly Charged. The expense of an audit of the books and accounts of the clerk for his benefit by accountants employed by him should not be included in the allowance provided by the act of 1901 for salaries of deputies and assistants.</p> <p>3. Same — Interest on Balances. The county is entitled to interest upon balances of fees due from the clerk.</p> <p>4. Same — Ambiguity in Statement of Fact. An ambiguity appearing in the agreed statement of facts concerning a specified item, it is directed that the item shall be determined by the district court upon evidence, or admissions of the parties.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Title to Islands in Navigable Streams. The title to islands formed in navigable streams since the admission of Kansas into the Union is held by the state for the benefit of all the people.</p> <p>2. Same — Legislature May Not Relinquish Such Title to Private Individuals. The legislature is without power to relinquish the title to such islands to the owners of shore lands without compensation where no public benefit will result from the gift.</p> <p>3. Same — Statute Authorizing Relinquishment of Title to Islands in Navigable Streams is Unconstitutional. Section 9 of chapter 295 of the Laws of 1913, concerning islands in navigable streams, which provides for such relinquishment or gift when certain conditions exist, violates section 2 of the bill of rights which declares that free governments are instituted for the equal protection and benefit of the people. 't</p>

<p>Appeal from Atchison district' court; William A. Jackson, judge.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Intoxicating Liquors^ — Conviction—No Error in the Record. The record in a conviction for the sale of liquor examined, and held to show no error.</p>

<p>syllabus by the court.</p> <p>1. Murder — Information Contains Essential Elements of Murder in First Degree. An information which, instead of following some approved form, charged that the defendant feloniously, willfully, deliberately, premeditatedly and with malice aforethought made an assault upon the deceased with intent feloniously, willfully, deliberately, premeditatedly and with malice aforethought to kill and murder him, and did then and there with a loaded gun feloniously, willfully, premeditatedly and with malice aforethought shoot and inflict on him a mortal wound of which he instantly died — is held to contain all the essential elements of murder in the first degree, including deliberation.</p> <p>2. Murder — Trial—Instructions Relating to Defense of Insanity Not Prejudicial. The sole defense was insanity, and the defendant introduced the evidence of a. large number of witnesses on that subject. After correctly charging as to the burden and degree of proof, the presumptions of innocence, sanity and the natural consequences of one’s acts, the court instructed:</p> <p>“It devolves upon the defendant, therefore, in the first instance, to raise the question. But a defendant in a criminal case is not required to prove his insanity by a preponderance of the evidence in order to avail himself of that defense, but merely to create a reasonable doubt on this point, whereupon the burden of proving his sanity falls upon the state. And if upon the whole of the evidence introduced on the trial, together with all the legal presumptions applicable to the case under the evidence, th,ere should be a reasonable doubt as to whether the defendant was at the time of the shooting sane, or insane; with respect to the particular act charged against him, he must be acquitted.”</p> <p>Held, that in view of the correctness of other instructions and the fact that the defendant had introduced much evidence touching his claimed insanity no substantial prejudice resulted from the use of the language quoted.</p> <p>3. Same. The following was also given:</p> <p>“The jury should then first consider this question of insanity — this defense of insanity — and if you should say that it should prevail under these instructions, that is to say, if you believe from the evidence that at the time of the shooting the defendant [was] laboring under such defect of reason from disease of the mind as not to know the nature and quality of the act he was doing, or if he did not know it, that he did not know that what he was doing was wrong, you should then acquit him; but if you should believe that, under the instructions I have given you, he should be held responsible, you should then turn and determine more exactly the nature of the act itself,” etc.</p> <p>Held, that in view of the entire charge this portion was not so misleading as to cause the jury to lose sight of the rule ' that it was only necessary in order for an acquittal that they should have a reasonable doubt as to the sanity of the defendant.</p>

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

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

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

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

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

<p>OPINION DENYING A REHEARING.</p> <p>Appeal from Kingman district court; Preston B. 'Gillett, judge.</p>

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Letters of Recommendation — Create no Liability unless Fraudulently Made. ' A petition charging liability upon the writer of a letter to the addressee, who extended credit in reliance upon it, which does not allege that the statements contained in the letter were false to the knowledge of the writer or were otherwise fraudulently made, does not state a cause of action. This is the letter:</p> <p>“The First National Bank,</p> <p>CHANUTE, KANSAS.</p> <p>1-19-09.</p> <p> “Mr. C. G. Ricker, V. P., </p> <p> Yates Center National Bank, </p> <p> Yates Center, Kan. </p> <p>“Dear Sir — This letter will introduce to you Mr. Cecil C. Kennedy, who has just moved to your. City, to engage in the Confectionery business. Mr. Kennedy is a son of Mr. D. M. Kennedy, our Vice-President, and a boy whom I have known from infancy, he is honest and upright in every particular, as well as energetic and attentive to business. If you can be of any assistance to him at any time in any way, his father as well as myself will very much appreciate the same.</p> <p>Yours truly,</p> <p>(Signed) A. N. Allen, Cashier.”</p>

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

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

<p>opinion denying a rehearing.</p> <p>Appeal from Jackson district court; Oscar Raines,. judge.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Injunction — Paving Assessments — Action Barred by Thirty- - day Statute of Limitations. An action was brought by a property owner to enjoin the making of a special assessment to pay for the paving of a street. More than thirty days after the assessment was ascertained other property owners intervened in the action and asked to enjoin the assessments made upon their property. Held, that the action begun by the original plaintiff before the thirty-day statute of limitations had run did not inure to the benefit of the intervening plaintiffs who came into the case after the expiration of the statutory period.</p> <p>2. Same — Petition for Paving — Construction of Statute. The word “shall” as used in section 1420 of the General Statutes of 1909, to the effect that when resident property owners petition for the improvement of a street the city council shall cause the work to be done, is not used in its imperative sense, but is construed to mean “may.”</p>

<p>' Appeal from Reno district court; Charles E. BraNine, judge.</p>

<p>Appeal from Harvey district court; CHARLES E.. Branine, j udge.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Appeal — Permissible Recitations in Abstract of Record. It is permissible to recite in an abstract that a motion for a new trial was filed on all the statutory grounds, and also that the special findings did not support the general verdict, instead of setting out the motion itself.</p> <p>2. Pleadings :— Rescission of Contract — Damages — Motion to Elect — Granted—No Error. A petition, if liberally construed, declared upon a rescission of a contract and also for damages for breach thereof. The defendant moved to require the plaintiff to elect whether he sought rescission or damages, which motion was granted, and the plaintiff filed an amended petition praying for rescission, no estoppel so to elect being pleaded or suggested except by an objection to testimony under the amended petition. Held, that the defendant can not be heard to claim that no right so to elect existed.</p> <p>3. Question op Law — Correctly Decided by Jury — No Error. The divisibility of a contract was submitted to the jury, who reached the right conclusion. Held, not materially prejudicial that the court did not declare instead of submitting such divisibility, even if it were a question of law instead of fact.</p> <p>4. Sale — Engine—Defective Parts — Question for Jury. It was proper to submit to the jury the question whether a certain defective part of an engine could practicably be treated as a “metallic piece” within the terms of a contract for the sale of thrashing machinery.</p> <p>5. SAME' — Right of'Rescission — Not Improperly Submitted to Jury. In an action for rescission of a contract and a return of the purchase price, whether or not a jury could have been demanded as a matter of right, it was not error to submit the issues to a jury and receive a verdict and answers to special questions.</p> <p>6. Same — Warranty—“Reasonable Time” to Rescind — Question for Jury. When the seller of thrashing machinery, under a contract providing that failure to pay the notes given therefor when due, or keeping the machinery a certain time, should constitute a full release and waiver of the warranty, has been notified of defects and has promised and repeatedly attempted to remedy them, the purchaser may retain and try the machinery a reasonable time without waiving the warranty, and ordinarily the reasonableness of such time is for the jury.</p> <p>■7. Same — Promises to Repair. Such promise and attempts, when made by the general manager of the selling company, are to be treated as made by the principal, and not as if made by an agent without authority to vary the terms of the written contract of sale.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Quieting Title' — Attaching Creditors — Fraudulent Conveyances — Husband and Wife — Evidence. The evidence is examined in an action brought by a wife against an attaching creditor of her husband to quiet her title to the property attached, and is found sufficient to support the findings in her favor as to part of the property, and for the creditor as to anothér part.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Attachment — Judgment for Defendant — Discharge of Attachment is Provisional — Hen Effectual upon Final Judgment for Plaintiff on New Trial. A judgment was rendered for the defendant' in an action for the recovery of money in which real estate had been attached. Upon appeal the judgment was reversed, and later a judgment was rendered for the plaintiff. . The attached property was then sold upon special execution to satisfy the judgment. It is held that the discharge of an attachment in case a judgment is rendered for the defendant, as provided in section 213 of the civil code, is provisional, and if upon appeal and reversal the plaintiff recovers a final judgment, the attachment remains effectual between the parties, and a sale of the real estate regularly made should be confirmed.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Bona Fide Purchaser — Recording of Deed from, Stranger to Record Title — No Notice to Purchaser. One who purchases land from the holder of the record title is not chargeable with notice of a recorded deed made by one who was the real owner but who was a stranger to the record title, notwithstanding the grantor in such deed acts as the agent of the record owner in negotiating the sale.</p> <p>2. Same. The fact that in such circumstances the buyer of the land authorizes such agent to receive the deed from the record owner, and cause it to be recorded and sent to him, is not sufficient to charge the buyer with notice of the true state of the title.</p>

<p>HEADNOTE BY THE REPORTER.</p> <p>1. Wipe — Communications .with Deceased Husband — Competent Evidence. In an action by a son to establish a claim against his father’s estate, the wife of the deceased husband is competent to testify as to statements made to her by the deceased about the claim.</p> <p>2. Opinion Evidence — Incompetent. In an action to establish a claim against an estate the witness was permitted to state “whether in her opinion the claim was just and should be allowed.” Held, reversible error.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Interstate Freight Rates — Binding on Shipper and Carrier When Filed and Published. The filing and publication of interstate rates based on a reasonable agreement as to the valuation of property shipped and which is proportioned to the extent of the risk assumed by the carrier is consonant with public policy and binding upon the parties.</p> <p>2. Same — Shipper Presumed to Have Notice of Published Rates. Two carriers filed and published tariffs under the interstate commerce law making two rates on household goods, one of which was based on a declared valuation and limitation of liability in case of loss, and the other showed a higher rate where no valuation was declared or limitation prescribed. A .shipper of household goods testified that upon inquiry the agent of one of the carriers quoted a rate to him without explaining that two rates were in existence; also, that when the contract of shipment was signed and the freight paid the agent indorsed on it the valuation of the property and the limited liability in case of loss, and that he objected to the limitation, but did not offer to pay the higher rate, nor ask to have the goods withheld from transportation. Held, that the filing and publication of the rates afforded the shipper notice of the existence of the two rates, and he is presumed to have known of the limitation in value and of liability in the rate under which the shipment was made and the freight paid, and this rate determines the liability of the carrier in an action brought for the loss of the goods.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Islands Lying in Navigable Streams — Disposition of — Construction of Statute. The provision of the act of 1907, authorizing the disposal of all “islands” lying in navigable streams, applies to all lands the title to which is in the state by reason of their having originated as islands in a navigable river, including any that may have ceased to be islands in fact before the enactment of the statute.</p> <p>2. Same — Deed by the State — Held Not to Pass Title to Unsurveyed Islands in Navigable Streams. A deed by the state to a railroad company of “all of” a certain section, through which a navigable river runs, will be construed, in the absence of anything to suggest a contrary intention, as passing title only to the lands shown by the government survey, and not as including an unsurveyed island.</p> <p>3. Same — Occupation Does Not Estop the State from Asserting Title. The fact that individuals are permitted to occupy and use public land as their own for a long term of years does not estop the state to assert title to it.</p> <p>4. Same — Title to Islands Remains in the State. The title to a small unsurveyed island, existing in a navigable river at the time of the admission of Kansas into the Union, is regarded as being in the state as against any one but the federal government.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Contract — Must be Accepted without Modification. To constitute- a contract the offer made by one party must be accepted by the other without any material modification, and an acceptance on terms varying from those offered is in effect a rejection of the offer and no more than a counter-proposition.</p> <p>2. Same — No Completed Contract. The correspondence by post and' telegraph between the parties herein examined, and it is held that it did not amount to a completed and binding contract.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Two Causes of Action — Separatedr—Trial of One — No Error in the Record. Where a verdict is based entirely upon items in one of two causes of action pleaded, this court on appeal will not consider any assignment of error which pertains only to the other cause of action and which in no way affects the appellants.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Dealing in “Margins” — Telegram, for Additional Margins — Delcuy in Delivery — Deal Closed Out — Price of Corn Decreased — No Damages — No Recovery. A broker was carrying 10,000 bushels of July corn for the plaintiff on margins. By the negligent failure of the defendant promptly to deliver a telegram notifying plaintiff of a demand for additional margins, the transaction was closed out. In an action against the telegraph company to recover damages, the rule that it is the duty of an injured party to make reasonable exertions to help himself, and thereby reduce his loss, is applied, and held, that the measure of plaintiff’s damages, if he sustained any, was necessarily the difference between the price at which the deal was closed out and the price' at which he could have reinstated it within a reasonable time after notice; and the fact being undisputed that the plaintiff, three days after notice that the deal was closed, neglected to avail himself of an opportunity to reinstate his deal, when he could have bought corn at a lower price than that at which it was sold out, he sustained no damages by the defendant’s negligence.</p>

<p>Appeal from Wyandotte district court, division No.. 3; Hugh J. Smith, judge.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Will — Construction—Will Does Not Violate Rule against Perpetuities. A will provided that a fund should be placed in the hands of a trustee, the income to be paid to a son of the testator during his life; that on the death of the son, if he left no issue and the testator’s widow was dead, the fund should go to. the testator’s “surviving heirs”; that if the widow were alive she should have the fund for her life, and it should then go to the testator’s “surviving heirs”; that if the son left issue they should have the income for life, and at their death the fund should go to the testator’s “surviving heirs.” Held, that the will should be construed as intended to vest the title to the fund in the testator’s heirs upon the death of his son, their enjoyment of it to be postponed during the life of the son’s -issue, and that the rule against perpetuities was not violated.</p>

<p>HEADNOTE BY THE REPORTER.</p> <p>1. Rule of Practice — Application for Specific Finding of Fact. A rule that applications for specific findings of fact shall be made before the introduction of evidence is reasonable and may be adhered to by the trial court.</p> <p>2. Injunction — Building Sidewalk — Disputed Boundary Line. The location of the boundary line of plaintiff’s lot was a question of fact, and the trial court, upon competent evidence, having found in favor of the claim of plaintiff, the judgment will not be disturbed.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Agency — Action for Commissions — Affirmative Defense Not Permissible under General Denial. In an action by real-estate agents to recover a commission for procuring an exchange of defendant’s property, an answer consisting of a general denial will not entitle the defendant to prove the affirmative defense that plaintiffs at the same time were representing the other party to the exchange.</p> <p>2. Same — Dual Agency — Instruction. On the facts stated in the opinion, it is held that the court rightly refused to instruct upon the question of dual agency.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Injunction — Use of Wall on Adjoining Lot — Action Dismissed by the Court — Not Error. One claiming ownership and possession of a wall sought by injunction to prevent an adjoining proprietor from using such wall, the latter claiming possession and right to' possession of a portion thereof. The trial court found that the defendant was solvent and had been led by the plaintiff to believe that the wall could be used, and dismissed the action without prejudice to an action at law to recover damages for the use of the wall. Held, not error.</p> <p>2. Journal Entries — Unnecessary Statements therein — Not Adjudications. Unnecessary statements or recitals in the journal entry of such an order of dismissal are not adjudications binding on the parties in such subsequent action at law.</p> <p>3. Same — Relates to Date of Judgment. A journal entry speaks as of the date the judgment was rendered, and its validity is not impaired by the expiration of the term in the meantime.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Intoxicating Liquors — Reasonable Doubt — Unnecessary to Repeat Instructions. Where the court in a prosecution for the unlawful sale of intoxicating liquor has given an instruction in its general charge to the effect that unless every fact and element of the offense is proven beyond a reasonable doubt the jury must acquit the defendant it is unnecessary to repeat the instruction and give another making a special application of the rule of reasonable doubt to the question whether the liquor alleged to have been sold was intoxicating.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. County Bridges — County Surveyor Must Make Estimates Before Contract is Let. A statute in relation to the construction of bridges by the county, which provides that the county surveyor, when so directed by the board of commissioners, shall’ prepare plans therefor and make an estimate of the cost, and that no contract shall be let for a greater amount, in effect forbids the letting of a contract without such estimate having been made.</p> <p>2. Same — Estimates Made by Other Engineers Not Sufficient. The requirement concerning such estimate is not met by the making of an estimate by an engineer selected by the commissioners, under a provision of the statute authorizing them to employ engineers to assist the county surveyor in preparing plans or superintending the construction of such bridge.</p> <p>3. Same — “Lowest Responsible Bidder” — Commissioners to Determine Who is “Responsible.” Where, through the use of defective material in its construction, a county bridge has to be rebuilt at the cost of the county,- the commissioners are justified by virtue of that fact in refusing to regard the contractor who built it as “responsible,” within the meaning of that word as used in the statute requiring a contract to be let to the lowest responsible bidder, notwithstanding any evidence that may be offered concerning his solvency and • efficiency.</p>

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

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

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

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

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

<p>opinion denying a second petition for a REHEARING.</p> <p>Appeal from Nemaha district court; William I. Stuart, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Negligence — Serving Tainted Meat — Damages—Former Opinion Adhered To. The views expressed in the former opinion in this case (Malone v. Jones, 91 Kan. 815, 139 Pac. 387) are ' adhered to, but the language of the second paragraph of the syllabus is modified by withdrawing the statement that the father did not know that the meat was tainted until it was on the table. There was competent evidence to support a finding that he had such knowledge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Sale — Stallion—Written Guaranty — Provisions for Return upon Breach of Guaranty — Purchaser in Default — Failure to Return Stallion. A stallion was sold under a written guaranty that under certain conditions he should be a satisfactory and sure breeder; if he failed, and if he was returned to the seller within a specified time in as sound and healthy condition as at the date of the contract, the seller agreed to take him back and the purchasers agreed to accept another stallion of equal value. Held, that it was competent for the parties to agree how the purchasers should take advantage of any breach of warranty and what the rights of the parties should! be in case the horse proved unsatisfactory; that the warranty was-exclusive, and the buyers having failed to return the horse in accordance with the provisions of the contract, they are precluded from relying upon the breach of warranty.</p> <p>2. Same — Promissory Note — Evidence of Contemporaneous Verbal Agreement Incompetent. In an action upon a promissory note given for the purchase price of a stallion sold under such an exclusive warranty, the answer alleged that at the time the written agreement was entered into the defendants were dissatisfied with its terms and objected to the time fixed within which the horse should be returned in case he should not prove satisfactory, and that it was then verbally agreed between the buyers and the seller that in case there were not colts enough foaled within the specified time so that defendants could determine whether the stallion was satisfactory, the seller would extend the time in which complaint should be made and the horse returned. Held, error to permit the defendants to offer evidence of such contemporaneous verbal agreement, because it contradicts the express terms of the written guaranty.</p> <p>S. Same — Damages Merely Nominal — No New Trial Ordered. . Where in such an action, in addition to the defense of a total failure of -consideration by the breach of warranty, the answer alleged and the proof showed a partial failure of consideration in the refusal of the seller to comply with his agreement to furnish the buyers a medal awarded the horse, and also to furnish a breeding harness, but there was no evidence to show their value, and the defendants upon the evidence were entitled to merely nominal damages for the breach of the contract in these respects; held, inasmuch as the judgment must be reversed because defendants are precluded from relying upon the breach of warranty, and the costs of another trial would be at their expense and would manifestly exceed the actual damages, a new trial will not be ordered merely to determine the value of the medal and harness.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1, Wills — Testamentary Capacity of Testator — Conflicting Evidence. On the trial of an issue of fact to determine the question of testamentary capacity, the rule that a finding of fact based upon conflicting evidence will not be set aside in this ■ court is followed.</p> <p>2. Trial — By the Court — Incompetent Evidence — Prejudice Must Affirmatively Appear. The admission of incompetent evidence in a trial by the court where there is competent evidence to support the findings does not afford ground for reversal unless prejudice is affirmatively shown.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Conflicting Evidence — Verdict Must Stand. The rule- that, a verdict based on conflicting evidence and approved by the-trial court must stand — followed.</p> <p>2. Lease — Assigned by Lessor to Purchaser of Land — Outstanding Note for Rent — Proper Subject for Separate Agreement and Disposition. In a trade for certain land on which there-was an existing written lease the latter was turned over as a part of the consideration pursuant to the written contract of' the parties. A note for $100 of the rental under the lease, which note was not mentioned therein or in the contract between the parties, was a proper subject for separate agreement and disposition, and such agreement, being- verbal, did', not vary or contradict the terms of either written instrument.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Wills — ■“Conditions Precedent” — “Conditions Subsequent”— Depend upon Intent of Testator. There are no technical words to distinguish between conditions precedent and conditions subsequent; whether they are one or the other depends upon the intent of the person creating the condition. If the thing to be done does not necessarily precede the vesting of the estate in the grantee, but may accompany or follow it, and may as well be done after as before the vesting of the estate, the condition is subsequent.</p> <p>2. Same — Following Clause Creates a Condition Subsequent. A will contained the following provision:</p> <p>“To Andrew Hansen, my son-in-law, who for some time past has been taking care of myself and wife, I give, will .and bequeath after the death of myself and . . . my wife, all our property herein described. . . . Provided he shall take as he has heretofore taken, good, kind and loving care of us, provided us with all necessaries of every kind and mature during the remainder of our lives.”</p> <p>Held, that the performance of the condition does not necessarily precede the vesting of the estate but may accompany or follow it, and it is therefore a condition subsequent.</p> <p>'3. Same — Substantial Performance of Conditions by Grantee. Upon the facts stated in the opinion, held, there was a substantial performance of the condition, an exact compliance having been prevented by the voluntary act of the person for whose benefit the condition was imposed.</p>

<p>SYLLABUS BY. THE COURT.</p> <p>1. Promissory Note — Accommodation Indorsement by Stranger —Note Paid by Indorser — Note Not Discharged — Indorser May, Enforce it Against the Maker. A strangér to a negotiable promissory note indorsed the instrument for the accommodation of the payee, who transferred it by indorsement in blank and delivery to a holder in due course. At maturity the maker refused to pay, because of a contract executed contemporaneously with the note which relieved him from liability to the payee. The accommodation indorser had no. notice of this contract at the time of his indorsement and was not a party to any fraud or illegality affecting the instrument. After default of the maker the accommodation indorser paid the note to the holder in due course, who delivered it to him. Held, the note was not discharged and the accommodation indorser became the holder, possessed of all the rights of the holder in due course from whom he acquired title, including the right to enforce it against the maker.</p> <p>2. Same — Construction of Section 128 of Negotiable-Instruments Law. The words “remitted to his former rights” contained in section 128 of the negotiable-instruments law, which provides that where the instrument is paid by a party secondarily .liable thereon it is not discharged but the party so paying is remitted to his former rights as respects all prior parties, do not apply to the accommodation indorser.</p> <p>8. Same — Payee Adjudged a Bankrupt - — • Title of Bona Fide Holder Not Affected. While the note was in the hands of the holder in due course the payee was adjudged to be bankrupt. The accommodation indorser was a creditor of the bankrupt and held collateral securities for his claim. After he acquired title to the note he made composition with the trustee in bankruptcy whereby he was allowed to retain the securities. The note in question was included in the list of securities. Held, the title acquired from the holder in due course was not affected.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Electric Light Plant — Operated by City — Highest Care Required. A city which operates an electric light plant and furnishes electricity to its patrons for lights acts in its proprietary capacity and is held to the highest care to avoid injury to such patrons.</p> <p>2. Same — Personal Injuries — Defect in Wires — Notice to the City. Notice to a commissioner of such city between two and three o’clock that there was something wrong with the electricity" in the vicinity of a building 100 feet from the plaintiff’s meat shop, the current in both buildings being controlled by the same transformer, required prompt attention and justified the jury in finding the city negligent in not preventing an injury to plaintiff in his shop two or three hours later, caused by a defect in such transformer.</p> <p>3. Same — Manner of Turning off Current — Not Contributory Negligence. The plaintiff had been in the habit of turning off the current by means of a thumb piece on the cord suspended from the ceiling and not by means of a switch located elsewhere in the room. On finding that the meat was heavily charged with electricity it was not negligence on his part at once to attempt to cut off the current by turning such thumb piece.</p> <p>4. Same — Special Findings — Answer “We Don’t Know” Construed. When in answer to a question how long a certain condition had existed the jury answer “We don’t know,” this means not that such condition did not exist at all or for any certain time, but that the evidence fails to show the duration of such existence,.</p>

<p>Appeal from Comanche district court; Gordon I/. Finley, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Judicial Sale — Certificate of Purchase — Redemption—Knowledge by Attorney Imputed to His Principal. Knowledge by an attorney for the holder of a certificate of purchase of land sold at a judicial sale of a contract which he had negotiated between the purchaser and the landowner relating to redemption, and of the payment of money, which came into his hands, by way of redemption according to the contract, will be imputed to an assignee of the certificate who soon afterward employed the same attorney to represent his interests, when the knowledge was present in the mind of the attorney throughout his second employment.</p> <p>2. Same — Knowledge of Agent Imputed to Principal. Knowledge that the attorney had obtained possession of the redemption money paid under the contract, imparted to an agent of the assignee who had active charge of his principal’s interests as a holder of the certificate, will be imputed to the principal.</p> <p>3. Same — Holder of Certificate of Purchase — Estoppel to Deny Redemption Has Been Effected. With knowledge of the contract and of the possession by his attorney of the money paid for redemption, the assignee of the certificate acquiesced and permitted the landowner to complete redemption by paying to the clerk of the district court the remainder of the sum necessary for that purpose. Held, after the period of redemption expired the holder of the certificate was estopped to deny that redemption had been effected.</p> <p>4. Same — Money Paid Attorney for Redemption Rightfully Ordered Returned to Court. The portion of the redemption money obtained by the attorney not having been paid to the holder of the certificate, it belonged in the custody of the clerk of the district court and the court had .summary jurisdiction to compel the attorney to restore to the treasury of the court the money which he had diverted.</p> <p>5. Same — Unprofessional Conduct of Attorney — Power of Court to Discipline. The facts were developed on the hearing of á motion filed by the attorney on behalf of the certificate holder to require the sheriff to execute a deed. The only substantial issues were those involving the professional conduct of the attorney, who was a witness and who conducted the proceedings as an attorney. Held, the court was authorized to exercise its disciplinary power over the attorney as one of the results of the investigation.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Sale — Warranty—Breach—Pleadings ■— Evidence — Variance Not Prejudicial. In an action brought in a city court on an account the defendant pleaded damages by breach of warranty of an article sold to him. In the district court a trial was had upon the same pleadings, and without an amendment the defendant was permitted to recover upon a showing that the article had been sold to himself and three others, who had turned it over to him, with an assignment of their claims upon the warranty. Held, that under the circumstances of the case the variance does not justify a reversal.</p> <p>2. Same — Full Price of Article Sold Recovered as Damages— Demand for Return of Property Too Late. A party having recovered as damages the full price he had paid for an article, on the theory that it had proved to be worthless, the adverse party nearly a year later asked an order that upon payment of the judgment the article should be returned to him. Held, that the request was made too late.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Mental Incompetency op Plaintiff — Wife as Guardian Substituted as Plaintiff after Action Begun — No Material Error. When the action was called for trial it appeared that the plaintiff was mentally incompetent to maintain the suit. Afterwards, by order of court, his guardian was substituted as plaintiff, and an amended petition was filed entitled in the name of the guardian. Held, that the order should be regarded as one permitting the guardian to prosecute for the ward and that the petition should be construed as if entitled in the name of the plaintiff by his guardian.</p> <p>2. Trial — Special Questions for Jury — When Duty of Court to Submit. Under the circumstances stated in the opinion, it is held that it was the duty of the trial court to supervise a list of seventy-one special questions, tendered in due time for submission to the jury and containing proper and improper questions which were intermingled, strike out those which were improper and inconsequential, require the attorneys presenting the list to properly arrange and typewrite the questions approved, and then submit those questions to the jury.</p>

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

<p>OPINION DENYING A REHEARING.</p> <p>Appeal from Franklin district court; CHARLES A. Smart, judge.</p>

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

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

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

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

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

<p>Appeal from Harper district court; Gordon L. Finley, judge pro tem.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Promissory Note — Judgment by Default — Alteration of Note — ■ New Trial — Accident and Surprise. Judgment was rendered on a promissory note in an action in which the plaintiff alleged that he was the owner and holder of the note, the copy thereof attached to the petition showing that he was the original payee. One of the makers entered his voluntary appearance as defendant, and judgment was rendered against him by default. The original note filed with the judgment showed that -it had been altered in a material matter after- its execution and delivery, and that the name of the plaintiff had been written in as payee. Upon these facts and other circumstances shown in the opinion it is held that the court erred in refusing to grant a new trial on the ground of accident and surprise, the motion being filed at the same term at which the judgment was rendered.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Action on Promissory Note — ■Unverified Answer — No Ground for Affimative Relief Stated — Plaintiff Entitled to Judgment. In an action on a negotiable promissory note indorsed before maturity, the answer contained a general denial, a specific denial of ownership in the plaintiff and an allegation of fraud and collusion between the payee and the plaintiff, but set up no counterclaim or ground of affirmative relief. Held, that such answer being unverified the plaintiff was entitled, under section 110 of the civil code, to judgment on the pleadings.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Wills — Construction—Testator’s Intention Must Control. It is the testator’s intention which must always control in the construction of a will, and this must be gathered from the language of the entire will interpreted by the application of legal principles.</p> <p>2.. Same — Sometimes technical rules must be applied because the intention is obscured by vague or doubtful expressions, but such rules of construction ought never to be resorted to where their application defeats the manifest intention of the testator.</p> <p>8. Same — Merger—Doctrine Not Employed to Defeat Intent of Testator. The doctrine of merger, which is largely a matter of theory, ought not to be employed to defeat the intent of the testator and to extinguish the rights of persons who are strangers and not parties to the transaction.</p> <p>4. Same — The Two Following Paragraphs of Will Construed. Two paragraphs of a will read in substance as follows:</p> <p>“Third: After the death of my said wife it is my will that all of my property both personal and real . . . shall be divided equally among my four children [naming them].</p> <p>“Fourth: If any of my said children shall die before my wife . . . then it is my will, that the share which would go to my deceased child or children if living, shall be divided among his or her children in equal parts; and if any of said children shall die without issue, prior to the death of my said wife, then it is my will that his or her share, shall be divided equally among my children then living, or if any of them be dead, then, his or her share, equally among their children.”</p> <p>After the testator’s death and the probate of the will the widow and the four children named in paragraph three joined in a conveyance to the grantor of the plaintiff. The widow is still living, but one of the four children of the testator has since died leaving minor children who are defendants in this action to quiet title. Held:</p> <p>(а) That the manifest intention of the testator was that his estate should be kept intact until the death of his wife and was then to be divided among his children and the heirs of such as may then be deceased.</p> <p>(б) That each of the four children of the testator took contingent remainders, the contingency being that they should survive the testator’s wife; and failing in this, as to any one or more of them, the remainder vested in his or their representatives by purchase.</p> <p>(e) There was no merger of the life estate and the fee by virtue of the conveyance to plaintiff’s grantor.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Agency — Commissions—■Whether an Agent Was the Procuring Cause of a Sale of Land Was for the Jury. Where upon a trial there was evidence tending to support two entirely different states of fact — one of which, being found by the jury, entitled the plaintiff to a verdict and the other would, if found, have entitled the defendant to a verdict — and where in such case the jury returned a verdict for the plaintiff which the court approved ■ by rendering judgment in accordance therewith; held, that the judgment will not be reversed by this court.</p>

<p>Appeal from Wyandotte district court, division No. 2; Frank-D. Hutchings, judge.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Practice, District Court — Confusion of Theories in Pleadings —Objections Should be Raised by Motion or Demurrer. Where a petition states a cause of action for damages on account of deceit and fraud and the defendant answers and the trial is had - upon that theory, it' is too late for the defendant by objecting to the introduction of any evidence to claim that the petition was not drawn upon a definite theory or that there is a confusion of theories alleged. The objection should be raised by motion or demurrer.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Quieting Title — Defect of Parties — Void Judgment — Judgment Set Aside — Rights of Innocent Purchaser. A judgment was rendered upon publication service, quieting- title against the two owners of a tract of land. One of these owners was dead when. the action was commenced. Applications were made by the living owner, and trustees under the will of the deceased owner, to open the judgment and be let in to defend, which applications were sustained. On the trial each of these owners recovered judgment quieting title to an undivided one-half of the tract and setting aside tax deeds thereon. This action was brought by the grantee of the owners whose title had been quieted. The defendant in this action is an innocent purchaser, holding under a conveyance from the plaintiff in the former action, relying upon the judgment. It is held:</p> <p>(а) The judgment first rendered in the former action against the deceased owner was void.</p> <p>(б) The form of the application to set aside a void judgment is not important. Although applying fo open the judgment and to be let in to defend, the application of the trustees did not make the void judgment effectual for any purpose.</p> <p>(c) The defendant in this action is protected in his title purchased in reliance upon the judgment that was after-wards set aside, only so far as the court had jurisdiction to proceed against the living party, but his title is not valid as against the grantees of the trustees under the will of the party who was dead when the action was commenced:</p> <p>2. Judgment — Set Aside — Inures to Benefit of Cotencmt. A judgment setting aside tax deeds at the suit of a tenant in common inures to the benefit of a cotenant.</p> <p>3. Foreign Will — Trustees’ Deed — Not Void. A deed made by trustees under a will made in another state and recorded in the probate court of the county in this state where the land is situated is not void merely because the trustees have failed to give the bond required by section 9483 of the General Statutes of 1909.</p> <p>4. Will — Trustees—Authority to Sell Property. A will directing trustees to place the property in a fund, the income of which they are required to apply to the support of a charity created by the will, necessarily vests the trustees with authority to sell the property.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Insurance — Arbitration and Award — Misconduct of Arbitrators — Award Set Aside. An arbitration and award of the loss suffered by the owner of insured property on account of a fire may be set aside or disregarded upon a showing of a refusal to consider a material portion of the property lost or damaged, an intent to make the award so low that the insurer would not object, a requirement of the appraisers, acceded to, that the umpire confine his estimates within the limits fixed by them, and an allowance of less than half the loss, which allowance the insured notified the arbitrators in advance he would repudiate.</p> <p>2. Same — Independent Judgment of Each Arbitrator Required. An agreement that the appraisers should submit their differences to the umpire means that upon their failure to agree upon certain items such items should be submitted to him for his independent judgment, the parties to an arbitration being entitled to the judgment of each arbitrator acting in the matter.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Note — Limitation of Actions — Acknowledgment of Debt. A general reference to an indebtedness of the author of certain letters or expressions in them of a desire and purpose to raise and pay money to one who was the holder of an obligation is not such an acknowledgment as will remove the bar of the statute of limitations. To be sufficient it must be a distinct and unequivocal admission of a present, existing debt upon which the party signing the admission is liable.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Agency — Contract with Agent by Husband Alone to “Buy or Sell” Homestead — Performance by Agent — Commissions. The owner of a tract of land occupied as a homestead signed a writing in which his wife did not join, by which he agreed to convey such land to a person named (who was a real-estate agent) for a stated sum, or upon receipt of such sum to convey it to any grantee, and for any recited consideration that such person should designate. It also certified that, for the consideration of $1, he had granted to such person the exclusive option to buy or sell the property for the price stated, during a specified time. Held, (a) that the contract included an employment of the real-estate agent to negotiate a sale of the property, his compensation to be the amount by which the selling price exceeded that named in the agreement; (b) that upon producing a, buyer willing and able to take the property at a price in excess of that fixed in the contract the agent was entitled to a comimission equal to such excess; and (c) that the transaction may be so regarded notwithstanding the agent entered into a written contract with the buyer which recited that he (the agent) was to purchase the property and sell it to the buyer.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Injunction — Liquor Nuisam.ce — Civil Action — Preponderance of Evidence Sufficient. An action to enjoin the maintenance of a liquor nuisance is not criminal but civil, and a preponderance of evidence is sufficient to warrant an injunction.</p>

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

<p>Appeal from Wyandotte district court, division No. 3; Hugh J. Smith, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>High School — Petition for Tax Levy Granted — Levy Made —• County Commissioners No Power to Rescind Levy. Under the provisions of chapter 263 of the Laws of 1911 a petition signed by 190 of the school electors of a county having a population of less than 1000 was presented to the county superintendent and board of county commissioners, asking that aid be voted to maintain a high school in the county. The county superintendent and the board decided to provide the aid petitioned for, and thereupon, at the same meeting, in August, 1912, the county board levied a tax sufficient to raise the amount necessary. At the October meeting of the county board a resolution was passed rescinding the levy. Held:</p> <p>(а) It was not necessary for the petition to state that the petitioners constituted a majority of the school electors of the county. The presumption obtains that the officers proceeded regularly and satisfied themselves that the petition was signed by a majority.</p> <p>(б) The power to.allow the petition does not rest alone with the commissioners. They act with the county superintendent in deciding whether to provide the aid petitioned for, and their action in this instance was a recognition of the school as one entitled to county aid.</p> <p>(c) When the superintendent and commissioners decide to provide the aid petitioned for, the county board has no discretion but must levy a tax sufficient to raise the amount required.</p> <p>(d) The subsequent action of the board of commissioners acting alone in rescinding the tax levy was without authority and void.</p> <p>(e) At the August meeting of the board, in 1913, the county superintendent having filed with the county treasurer and the board a certificate that a levy of one-half mill was necessary to aid the high school for the ensuing year, it became the duty of the board to make such levy.</p> <p>(/) The act of 1911 was intended to authorize the granting of aid to a school district or districts for the maintenance therein of a high school, and makes no requirement as to the character of the school previous to the granting of the aid.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. University Extension Work — Fish and Game Department —Statutes and Official Proceedings Relating Thereto. Proceedings of the governing boards of the University of Kansas and official acts of the governor relating to the fish and game department contemplating an extension of University work to that department are recognized and made effective by statutes and appropriations. The proceedings, acts, statutes, and appropriations referred to are stated in the opinion.</p> <p>2. Two Offices — May be Held by One Person. The common law does not prevent one person from holding two offices provided the duties of neither one are incompatible with the duties of the other.</p> <p>3. Same — Entitled to Compensation for Each. In the absence of constitutional or statutory restrictions the incumbent of two offices, which he may rightfully hold, is entitled to the compensation provided by law for each. The same rule is applicable when a person holding a state office is also a professor in the State University.</p> <p>4. Same — When Two Offices Are Incompatible. Offices are incompatible when the performance of the duties of one interferes in some way with the duties of the other and there is an inconsistency in the functions of the two offices. It is difficult to define with precision this incompatibility. The question must be determined upon the facts of each case.</p> <p>5. Same — Fish and Game Warden — Professor of Systematic Zoology, etc., in State University — Same Person May Draw Both Salaries. The duties of the fish and game warden are not incompatible or inconsistent with the duties required by the board of administration of the professor of systematic zoology and taxidermy and curator of birds, mammals and fishes in the State University, and the person holding both positions may lawfully draw the salary provided by law for each.</p>

<p>SYLLABUS BY THE COURT,</p> <p>1. Taxation — Township Authorized to Levy Taxes to Pay Judgment for Damages. Township taxes may be levied for township, l-oad and other purposes. (Gen. Stat. 1909, § 9584.) A tax to pay a judgment against a township for damages caused by a defective road is in the classification of “other purposes” provided for in the statute, and may be levied in addition to the levy for township purposes. The expression “township purposes,” as used in the statute, is the equivalent of general revenue purposes or current expenses.</p> <p>2. Same. The limitation upon the authority of township boards to levy taxes for township purposes not exceeding three-fourths of a mill on the dollar, contained in section 9423 of the General Statutes of 1909, does not include taxes levied for other purpose’s such as the payment of a judgment.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Liquor Laws — The Words “Violations” and “Provisions” in Section 1, Chapter 165, Laws of 1911, Construed. The words “violations” and “provisions” contained in the first section of the act providing for punishment for persistent violators of the prohibitory liquor law (Laws 1911, ch. 165) include the singular number of the words mentioned.</p> <p>2. Same — Trial—Bottles Sent to Jury Room — Not Error. A compliance with a request of the jury that bottles of liquor in evidence should be sent to thé jury room is held not to afford sufficient grounds for reversal in the situation stated in the opinion.</p>

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

<p>OPINION DENYING A REHEARING.</p> <p>Appeal from Saline district court; Dallas Grover, judge.</p>

<p>Appeals from Geary district court; Roswelu L. King, judge.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Insurance Rates — Authority to Change Vested in Superintendent. Sections 4266, 4267 and 4273 of the General Statutes of 1909 prescribe the method of changing rates of fire insurance and vest in the state superintendent of insurance the authority to change such rates.</p> <p>2. Same — Pleadings, The petition in this case states a cause of action.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Venue — Counties in Which Actions "May” Be Brought — Construction of "May" and "Must” as Used in Statute. Where in the article of the code relating- to venue it is provided that certain actions “must,” and that others “may,” be brought in certain counties, and that all others must be brought in the county in which the defendant resides or may be summoned, the actions with respect to which the permissive term “may” is used, are not thereby rendered local, and they may be brought in any county in which the defendant may be summoned.</p> <p>2. Same — Action Against Railroad Company — Injuries Received in Mine. An action against a railroad company for damages on account of personal injuries sustained by an employee while at work in a mine operated by it may be brought in any county where it has a station agent, inasmuch as the statute authorizes service of summons to be made upon such an agent where no other has been appointed for the purpose.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Taxation — Building Used by Students of State University as Literary Hall and Dormitory — Exempt from Taxation. A building was erected upon grounds less than one-half acre in extent by the Kappa Kappa Gamma society, which was composed of young women who were students of the state university, from funds obtained by a mortgage on the property and in part from subscriptions by the members of the society and the donations of their friends. To accomplish it a corporation was organized which acted as trustee for the society, in which the legal title of the property was placed and by which the mortgage securing the loan was executed. After the completion of the building it was exclusively used by the members of the society as a literary hall and dormitory and was never leased or otherwise used with a view of profit. Held, that as long as the property is so used it is exempt from taxation under the provisions of section 9218 of the General Statutes of 1909.</p> <p>2. Same — Use Not Ownership — Test of Exemption. As use, not ownership, is the test of the exemption it is not material that the legal title to the property was placed in the corporation and not in the society, nor can the society be deprived of the benefit of the exemption because some of the students may be unable to gain admission to the society.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Murder — Acquitted on Ground of Insanity — Commitment to Asylum for the Dangerous Insane. Under chapter 299 of the Laws of 1911, one who is acquitted of murder on the ground that he was insane when he killed the deceased is deemed unsafe to be at large until shown to have been restored to sanity or to be no longer dangerous, and upon such acquittal it becomes the duty of the court to commit the defendant to the asylum for the dangerous insane.</p> <p>2. Same. The refusal of the trial court to grant a hearing as to the present sanity of the defendant before such commitment is carried into effect by placing him in such asylum does not avoid the commitment or render restraint thereunder illegal.</p>

<p>opinion on rehearing.</p> <p>Appeal from Wyandotte district court, division No. 3; Hugh J. Smith, judge.</p>

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

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

<p>OPINION ON REHEARING.</p> <p>Appeal from McPherson district court; Frank F. Prigg, judge.</p>

<p>Original proceeding in quo warranto.</p> <p>Judgment for the plaintiff.</p>

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

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