Volume 93 — Kansas Reports

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

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

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

<p>Appeals from Meade district court; Gordon L. Finley, judge.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Negligence — Unsafe Place to Work — Personal Injuries. In . an action for damages for personal injuries it was shown that the employing company in the construction of a bridge was driving piling with the driver placed upon a temporary structure above the surface of the river. Each time the hammer fell it would cause the hammer rope to slacken and strike against the side of the boom near where the plaintiff’s duties required him to stand. While thus en- ' gaged in the nighttime, with no light except a signal lantern which he held, he was struck by the slack of the hammer rope . • and thrown from the platform into the river. Held, that the plaintiff having been sent to work on the platform and his duties requiring him to remain there, it was, as to him, a place to work, and the duty devolved upon the master to see that it was reasonably safe.</p> <p>2. Same — Assumption of Bisk — Contributory Negligence — Questions of Fact. Upon the facts stated in the opinion it can not be said as a matter of law either that plaintiff assumed the • risk or that he was guilty of contributory negligence.</p> <p>3. Instructions — Relating to Assumed Risk and Contributory Negligence — Not Prejudicial. The failure of the court in some of the instructions to distinguish between the defense of contributory negligence and assumed risk is not regarded, upon - the facts of the present case, as prejudicial error, the court having in other instructions correctly defined contributory negligence.</p> <p>4. Evidence — That Plaintiff Was Married — Not Materially Prejudicial. While in an action for personal injuries it is ordinarily error for the plaintiff to be permitted to testify to the fact that he is married, it is held in this case that the admission of such testimony over the objections of the defendant was not materially prejudicial.</p> <p>5. Damages — Verdict—Item Not Proven — Judgment Modified. The jury allowed the plaintiff the full sum claimed in his petition as damages, which included an item of $300 for medical care and attention. There was no evidence to show that plaintiff incurred more than $50 of expense under this item. Held, that the judgment should be modified by reducing it $250.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Real-estate Agent — Contract for Exchange of Lands — Sale Not Completed'■ — Commissions. H. and B. contracted to exchange certain lands and to put the papers in the hands of D., a real-estate agent. B. failed to perform and H. obtained judgment against him for damages in an action in which he garnished D., who had in his hands certain boot money received by him in a trade he had made of a portion of H.’s lands for land in Texas with the consent of B. on the supposition that the original contract would be carried out. D. claimed a commission from B., but the evidence showed that D. had no contract with B. for a commission, and further, that the boot money in his hands belonged to H. -Held, that D. was not entitled to the commission claimed.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Will — ■Contest—Undue Influence■ — Evidence—Attorney Who Drew Will Competent Witness. Section 321 of the civil code, providing- that an attorney shall be incompetent to testify concerning- communications made to him by his client in that relation, is declaratory of the common law and does not prohibit an attorney from testifying to the facts relating to the preparation and execution of a will drawn by him, including the information imparted by the testator, in a proceeding to contest the will on the ground of undue influence and fraud.</p>

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

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

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

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

<p>Appeal from Sumner district court; CARROL L. Swartz, judge.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Divorce — Constructive Service — Alimony — Misdescription of Land — Power of the Court. In an action for divorce and alimony commenced upon service by publication, the petition and notice described the property sought to be appropriated as alimony, by stating that the defendant’s father had died intestate, owning a tract of land, leaving a widow and five children, his sole heirs, stating, however, that the defendant (and the plaintiff) “now own an undivided one-tenth in an undivided one-half interest in the above described land.”</p> <p>The husband did not appear, and on the trial, and without notice, the petition and publication notice were amended by striking out the words italicized in the above quotation, and judgment was rendered for divorce, awarding to the wife the undivided one-tenth of the tract as alimony. Afterwards in this action for partition, the divorced wife claimed the one-tenth so awarded to her, but she was only given one-twentieth, upon the ground that the judgment for alimony was void as to the excess over the one-tenth of the one-half referred to in her original petition for divorce. It is held:</p> <p>a. The court in the action for divorce and alimony had jurisdiction to adjudicate upon the interest obtained by the husband by inheritance from his father.</p> <p>6. The court had. authority to allow the amendment.</p> <p>g. The judgment for alimony as rendered was not void, and should have been given full effect.</p> <p>2. Appeal — No Ground for Dismissal. The grounds of a motion to dismiss this appeal are examined and found insufficient.</p>

<p>Appeal from Linn district court; Charles E. Hulett, judge.</p>

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Sale — School Lands — Insufficient Notice of Forfeiture. An attempted forfeiture in 1895 of a school-land sale was evidenced prima fade by the entry “Forfeited See Files,” but the testimony showed that the notice was not. addressed to any one then shown by the records in the county clerk’s office to have any interest in the land. Held, that such notice was insufficient and such attempted forfeiture void.</p> <p>2. Same — Adverse Possession — When Hostile Adverse Possession Begins. One taking possession of school land, a sale of which is supposed by him to have been forfeited, erecting a house, making other improvements, and continuing to live therein for years, thereby begins a hostile adverse possession as against the former purchaser, although he does not for a year or more enter into a contract with the state for the purchase of the land.</p> <p>8. Adverse Possession — What Constitutes Adverse Possession. Possession to be adverse need not be under color of titles, but must be with claim of right. .Claim of right, claim of title, claim of ownership, and hostile possession, are different expressions used to indicate the intention of the possessor to appropriate the land to his own use regardless of his rival’s claims.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Corporation — Removal of Directors — Notice of Hearing Required. A director of a corporation can not be removed because of his failure to take the oath of office after a reelection, or because of his neglect to attend to his duties, without notice and opportunity to be heard.</p> <p>2. Corporate Meetings — Refusal of President to Put Motions —ATo Ground for His Removal. Where at a corporation meeting a motion is made to take action which as a matter of law is beyond the power of the body, and the president declines to put it on that account, his refusal to entertain an appeal from his ruling is not just ground for removing him and substituting another presiding officer.</p> <p>3. Same — Failure to Elect Directors for Ensuing Year. Upon the facts of the case, held that the separation of the members, at the annual meeting of a corporation resulted in a failure to elect directors for the ensuing year.</p>

<p>Appeal from Hamilton district court; Albert T. Watkins, judge pro tern.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Divorce — Custody of'Minor Child — Decree May be Modified— Proper Procedure. After the death of the plaintiff in a divorce action, to whom the custody of a minor child was awarded, the decree may be modified by giving the custody of the child to the defendant upon motion made in the divorce action, and without revivor.</p> <p>2. Same — Persons Interested Should Have Notice — May Defend and Appeal. In such cases persons having an interest in the custody of the child adverse to the motion should be notified, and they may appear and produce evidence, and may appeal, without the formality of being made parties to the litigation.</p> <p>3. Attorney for Plaintiff — May Subsequently Appear for Defendant When. The attorney for the plaintiff in the original action may appear for the defendant in the proceeding to modify the decree when the motion is based on conditions arising' subsequent to the original decree and the attorney is not required to violate any confidence reposed in him by his former client or to do anything injuriously affecting his former client’s interests.</p>

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Criminal Law — Conviction—Sentence — Appeal — Judgment Afflrm&d — Jurisdiction of Supreme Court Continues until Mandate is Executed. Where a person has been regularly charged, tried and convicted of a crime in a district court of this state, and has appealed from the judgment and sentence of such court to the supreme court, in which court the judgment has been affirmed and a mandate issued for the execution of the writ; held, that until such mandate is fully executed the supreme court has full and exclusive jurisdiction of the custody of the convict.</p> <p>2. Same — Habeas Corpus — Judgment of Probate Court Releasing Convict was Void. Where; prior to the full execution of such mandate, another court of the state issues a writ of habeas corpus requiring a sheriff, who has the custody of the convict for the purpose of executing such mandate, to produce the convict before such court, and upon a hearing under the writ enters a judgment purporting to discharge him from the custody of the sheriff; held, that the attempted judgment thereunder is void.</p> <p>3. SAME — Bond of Convict - — Pending Appeal — Not Forfeited. Where, in such case, a surety on a bond given to secure the liberty of the convict during the pendency of the appeal, after the mandate is issued, delivers the convict with a copy of the judgment and order of commitment to the sheriff whose duty it was to execute the sentence, the bond can not thereafter be forfeited, although the sentence is not executed for reasons beyond the control of the surety or the sheriff.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Judgment — Motion for New Trial Filed Too Late — Cause Dismissed.. It appearing from the record that the judgment was rendered on the 20th day of April, and that the motion for a new trial was filed on the 29th day of April, 1910, the cause will be dismissed for the reason that the motion was filed more than three days after the rendition of the judgment appealed from.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Sale — Cattle-—Contract Transferred by Purchaser — Original Contract Abandoned — Agency of Transferee Not Proven — • Erroneous Instructions. The defendants contracted with plaintiff for certain cattle by the pound, and shortly thereafter transferred their interest in the deal to another, who thereupon agreed with the plaintiff to take the cattle at so much a head, and upon the conclusion of such agreement, made the first payment towards their purchase price. The plaintiff claimed that such other party was acting as agent of the defendants, which was denied, the only evidence of agency, if any, being circumstantial or by way of inference, and not direct. The court charged, in substance, among other things, that if the contract between plaintiff and defendants was never abandoned or canceled and the defendants were to be responsible to the plaintiff thereunder, the plaintiff could recover. Held, to be misleading, and therefore error.</p> <p>2. Same — Answer of Jury to Special Question — Instruction. In answer to a question by the jury whether turning over the cattle at a fixed price a head annulled the contract to take them by the pound, the court instructed, in effect, that a substantial compliance with the terms of the contract would be sufficient. Held, error, as the latter contract, if made, would of necessity annul the former.</p>

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

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Cancellation op Conyeyance — Restoration of Property Ordered —Judgment Modified. In adjudging the cancellation of a .conveyance of land obtained by the fraud of the grantee, provision should be made for the restoration by the grantor of the money and things of value received by him as consideration for the conveyance.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Trade Name — Agreement Not to Use Partnership Name— Infringement — Family Name — Deception of Public — Simulation. An agreement was made upon the dissolution of a partnership that two members of the old firm who took over part of its business should reserve the right to trade under the firm name of George Harryman & Bro., and that the other two' would not use that name, directly or indirectly, nor adopt a trade name that would be deceptive or amount to a simulation of the one so reserved; and the two last named formed a new partnership to. carry on another part of the business and adopted the name of Harryman Bros. It is held that a finding of the district court that the trade name of the new firm was a simulation of the former firm name should be sustained.</p> <p>2. Pleadings — Infringement of Trade Name — Immaterial Allegations of Answer Stricken Out. In a clause of the dissolution agreement two of the former partners who reserved the firm name agreed that if they could do so on terms as satisfactory as they could obtain from others, they would purchase such Illinois broom corn as they might require from the other two, who agreed that if they should act as agents of the two first named in buying broom corn, they would do so for a stipulated commission. The answer pleaded this clause and alleged that it had been violated by the two first named, who. are plaintiffs in this action, in' that they had purchased broom corn in Illinois, but had not offered to purchase from the defendants (the other two) ; also that the plaintiffs had • purchased the commodity through other agents without giving the defendants an opportunity to act for them. The answer contained no allegation that the defendants had the commodity to sell, nor of any offer to sell, or to act as agents in making-purchases, nor of readiness to do either. No injury, loss or damage was asserted or claimed. It is held that an order striking out the part of the answer pleading this clause is not materially erroneous.</p>

<p>OPINION DENYING A 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. 2; Frank D. Hutchings, judge.</p>

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

<p>OPINION DENYING A REHEARING.</p> <p>Appeal from Woodson district court; Oscar Foust, judge.</p>

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

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

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

<p>Appeal from Cloud district court; JOHN C. HOGIN, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Personal Injuries — Explosion of Powder Mill — No Proof of Negligence — Demurrer to Evidence Rightly Sustained. In an action to recover for injuries caused by the explosion of defendant’s powder mill there was no substantial evidence, direct or circumstantial, fairly tending to prove what actually caused the explosion. Held, following Brown v. Railroad Co., 81 Kan. 701, 106 Pac. 1001: “It is not sufficient to show circumstances which would indicate that the other party might have been guilty of negligence, especially when the evidence furnished suggests with equal force that the injury might have resulted without fault on the part of the other party;” and that the court rightly sustained a demurrer to the evidence.</p> <p>2. Same — Negligence as Alleged Must he Proven. Where in an action founded upon negligence the plaintiff alleges specifically the negligent acts of the defendant upon which he relies to recover, he must prove the negligence alleged, and will not be allowed to make a prima facie case relying upon the doctrine of res ipsa loquitur.</p> <p>3. Personal Injuries — Under the Facts Proven the Provisions of the Factory Act Do Not Apply. Plaintiff was injured by the explosion of defendant’s powder mill, and alleged, among other acts of negligence, failure of the defendant to provide some appliance to prevent metallic thumb-nuts from falling through a defective screen, and alleged that by reason of the absence of such an appliance metallic thumb-nuts found their way into the inflammable mixture and caused the explosion. At the time the explosion occurred the plaintiff was not at work near the machine, but stood outside the building where it was located and fifty feet therefrom. He was not injured by -the thumb-nuts falling upon him nor by coming in contact with the machine. Held, that the provisions of the factory act (Gen. Stat. 1909, § 4679) requiring machinery to be properly and safely guarded for the' purpose of preventing or avoiding injury to employees in factories has no application, and that plaintiff could not maintain an action under the statute.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Assessment and Taxation — Rate of Levy — Construction of Statute. Under section 4 of chapter 245 of the Laws of 1909, relating to assessment and taxation, when the assessed value of the property of a given county was $39,990,591 the rate of levy was 1.22 mills.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Mandamus — No Peremptory Writ Issued — Damages Allowed. Under the provisions of section 723 of the civil code, providing for the allowance of damages in actions of mandamus, the court may allow the plaintiff damages sustained without the issuance of a peremptory writ.</p> <p>2. Same — Defaulted City Bonds — Alternative Writ Issued— Bonds Paid — Attorneys’ Fees and Expenses Allowed. The holder of defaulted bonds issued by a city brought mandamus to compel the officers of the city to levy a tax to pay the bonds. An alternative writ issued, and thereafter the city paid the plaintiff the full amount due on the bonds. Held, that the plaintiff is entitled to an allowance of attorneys’ fees and expenses as damages in the action, notwithstanding no peremptory writ issued.</p>

<p>HEADNOTE BY THE REPORTER.</p> <p>Promissory Note — Judgment by Default — Material Alteration Discovered after Judgment — New Trial Ordered. The former opinion (92 Kan. 870, 142 Pac. 958) holding- that the court erred in refusing- to grant a new trial is adhered to.</p>

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Fraternal Insurance — Nonpayment of Dues — Suspension , — No Waiver of Forfeiture. Under the by-laws of a fraternal benefit order the failure of a member to pay dues and assessments at fixed times operates ás a suspension of the member, and if he dies during such suspension his beneficiary is not entitled to share in the beneficiary fund. Another provision is that a member may be reinstated by paying the delinquent dues and assessments and upon an affirmative vote of the local lodge. A member of the order failed to pay an assessment when it was due, but thirteen days later sent a check, which was delayed in transmission and was received by the officer of the order nineteen days after suspension and on the same day that the member died. No action towards reinstatement was ever taken by the lodge. The officer at once returned the check. There had been a number of prior-defaults and suspensions of the member, and in each case he was reinstated upon the payment of the delinquent dues and assessments but never unless a majority of those present at a regular meeting of the lodge voted in favor of reinstatement. Held, that under the by-laws of the order and the terms of the contract with the member payment of dues and assessments and an affirmative vote of the lodge are both essential to a reinstatement and that the member was legally suspended at the time of his death. Held, further, that the fact that there had been reinstatements after former defaults of the member did not operate as a waiver of the contract relating to defaults and suspensions nor relieve the member from the last suspension resulting from his delinquency.</p> <p>2. Same. The evidence examined relating to the payments of dues and assessments by the member, including what is termed an advance payment, and it is held that he was in default and under suspension at the time of his death.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Poisoned Pood — Injury to Consumer — Liability of Manufacturer and Retail Dealer. A dealer who sells human food for immediate consumption does so under an implied representation and guaranty that it is wholesome for the purpose for which it is sold.</p> <p>2. Same — A manufacturer who prepares food for human consumption and' places it in the hands of a dealer fox sale is responsible in damages to the widow of a consumer who procures such food from the dealer and loses his life by partaking of such food.</p>

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Criminal Law — Burglary and Larceny May be Charged in One Count. Under section 72 of the crimes act (Gen. Stat. 1909, § 2560) burglary and larceny may be charged in one count, and an information thus drawn is not subject to motion to quash or to require separate counts.</p> <p>2. Same — Burglary and Larceny — Freight Car — Evidence—Seal Record. In the trial of the defendant, charged with burglary and larceny in a freight car, the state introduced in evidence a seal record made and kept in the usual way by the railroad company to show that the car was sealed, the employee who had made the entry in such record not being present at the trial. Held, that an objection on the ground that such record was hearsay and secondary, and therefore incompetent, was properly overruled.</p> <p>3. Same — Burglary and Larceny Separate Offenses — No Compound Offense of Burglary and Larceny. There is no offense known to our statutes consisting of both burglary and larceny, but each is a separate offense although both be committed at the same time and place. Hence an instruction that the charge of burglary and larceny in a freight car embraced three offenses — burglary, larceny, and the offense of burglary and larceny — was erroneous, and the verdict rendered pursuant thereto finding the defendant guilty of the offense of burglary and larceny as charged in the information, and not guilty of the offense of burglary, and not guilty of the offense of larceny from a freight car as charged in the information, was not one upon which the defendant could be rightfully sentenced.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Workmen’s Compensation Act — Statutory Presumption that Injured Employee is within its Purview — Affirmative Defense by Employer. The statutory presumption that all employers affected by the workmen’s compensation act are within its provisions obtains until the contrary appears, and nonliability to an action for compensation because of an election to stand outside the provisions of the act is an affirmative defense.</p> <p>2. Same. An employer who in good faith denies liability on the ground of such an election should ask the court to investigate that subject first and thereby save the time and expense of a further trial. In all but the most exceptional cases the certificate of the secretary of state will settle the dispute, and the court may require the production of such certificate at any time. Unless the record on appeal clearly discloses that the defense was specifically and unequivocally brought to the attention of the trial court while it had possession of the case this court will consider the defense as abandoned.</p> <p>3. Workmen’s Compensation Act — Awards Compensation for Incapacity to Work as a Result of Injury. The workmen’s compensation act awards compensation for incapacity to work as a result of injury. This means compensation for loss of earning power as a workman as a result of injury, whether the loss manifest itself in inability to perform obtainable work or inability to secure work to do.</p> <p>4. Same — Compensation During Incapacity — When Compensation Should Cease. The workmen’s compensation act provides for compensation during incapacity, and the implication is that compensation should cease when incapacity ends. In an action, for compensation the duration of incapacity is a question of fact to be determined as other questions of fact are determined, and a challenge of the correctness of the trial court’s conclusion respecting the duration of incapacity will be considered on appeal in the same way as other challenges of a similar nature.</p> <p>5. Same — Compensation May be Awarded in Lump Sum. The workmen’s compensation act confers express power upon the trial court to render judgment in a lump sum instead of making an award of periodical payments. In every case the trial court must exercise its judgment and discretion as to the best method of making compensation in the light of all the facts, and the result will not be disturbed on appeal except for an abuse of the power.</p> <p>6. Same — Award of Compensation by the Court — Sustained by the Evidence. In this case the injured workman, who was a mechanic, lost his right eye and his left eye became weakened as the result of an injury. The consequence was, his capacity to use tools was diminished and he w'as reduced to an economic status lower than he had previously occupied. There was no direct proof that he could ever retrieve his former capacity. The court examined him at some length and so had an opportunity to form an estimate of his personality as a matter affecting his probable future earning capacity. Held, that an award of compensation for partial incapacity for the maximum period allowed by the workmen’s compensation act, and in a lump sum, will not be disturbed.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Statutory Rape — Defense of Insanity — Instructions. Instructions in a criminal case, where the defense of insanity was interposed, held not to have been materially erroneous.</p> <p>2. Same — Reputation of Defendant After Crime was Committed. In the circumstances presented, the sole defense relied upon being insanity, an error in allowing inquiry to be made concerning the reputation of the defendant after the commission of the acts complained of does not require the setting aside of the verdict.</p> <p>3. Same — Improper Remarks of County Attorney — Remarks of Judge. An argument made by the prosecuting attorney, the conduct of persons present in the court room, and the comment of the trial judge therein, held not to require a new trial.</p> <p>4. Same — Motion for New Trial — Misconduct of Jury — Evidence on Motion Erroneously Rejected. Where a verdict of guilty is rendered without any materially erroneous ruling having been made by the court, but upon a motion for a new trial competent evidence upon a question of misconduct of the jury is erroneously rejected, it is not necessary that a new trial of the guilt or innocence of the defendant should be ordered by this court, but the cause may be remanded with directions that the proceedings shall be resumed at the point where the error was committed.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. City op Second Class — Petition for Recall of Officer — Right of Petitioner to Withdraw Name. After a petition has been filed by the electors of a city of the second class for the recall of an officer of the city, the signers to such petition may revoke their action in signing the petition at any time before the petition is finally acted upon.</p> <p>2. Same — Invalid Petition for Recall of Officer. Where such petition, after the demand for the recall of an officer, also prays for the election (or nomination) of another person named to succeed the officer to be recalled, the petition is invalid.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Appeal — Demurrer to Evidente — Motion for-New Trial Unnecessary. Where an action is determined by a trial court upon a demurrer to the evidence of the plaintiff, it is not requisite to entitle the plaintiff to an appeal that he should have presented a motion for a new trial in the district court.</p> <p>2. Life Insurance — Insured Entitled to Paid-wp Policy — Damages. Under the policy of insurance in this case the plaintiffs were entitled to a paid-up policy on demand therefor at anytime after three years from the first payment thereon and to the amount of as many twentieths of $1000 as were the years the policy had been in force. Such demand having been made at a proper time and not complied with, the plaintiffs were entitled to maintain an action for damages in the amount of the cash value of such paid-up policy.</p> <p>3. Same — Change of By-Laws — Effect of Payments. It is not. the policy of the law to compel a party to continue making-payments for a term of years under a contract where by reason of changed conditions either the amount for which such payments should be made or the effect of payments is in dispute, but the rights of the parties should be adjudicated as of the time an action is instituted for that purpose.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Cities of the First Class — Initiative and Referendum Law Constitutional and Valid. Section 1240 of the General Statutes of 1909, known as the initiative and referendum law, is not violative of section 21 of article 2 of the constitution of this state although it confers legislative powers upon hoards of city commissioners, and, in turn, upon the electors in cities of the first class; neither is it violative of section 2 of the bill of rights, as it grants no special privileges or immunities.</p> <p>2. Same. The initiative and referendum provisions of section 1240 of the General Statutes of 1909 are not repugnant to section 4 of article 4 of the constitution of the United States, which guarantees to every state a republican form of government.</p>

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

<p>SYLLABUS OF THE COURT.</p> <p>' Cities of First Class — Annexation of Adjacent Territory— Construction of Statute. Section 1220 of the General Statutes of -1909, which authorizes cities of the first fclass by ordinance to extend their corporate limits so as to include any tract of unplatted land not exceeding twenty acres whenever the same “is so situated that two-thirds of any line or boundary thereof lies upon or touches the boundary-line of such city,” means whenever two-thirds of any single boundary-line or side of such tract lies upon or touches the boundary-line of such city; the word “any” being construed as used in the sense of one indifferently, out of an indefinite number.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Partnership — Note Given by One Partner for Copartner’s Interest — Interest Returned to Vendor — Accepted—Note Satisfied. Where A, as owner of an interest in a certain partnership property, sells such interest to B and accepts the promissory, note of B, with a surety, for the purchase price, and where thereafter litigation is instituted which may affect A’s interest in the property and B, with knowledge thereof, attempts to surrender the property to A, which A at,the time neither accepts nor refuses, but thereafter, with his former partners, joins in a bill of sale of the property to other parties and accepts such proportionate share of such purchase price as his former interest would have entitled him to, and also procures a judgment that B has no interest in the property, held, that A will not be heard to say that he has not accepted a return of the property from B or that B or his surety is still indebted to him for the note given for the purchase price.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Automobile —• Collision with Buggy — Negligence — Personal Injuries. The principles of law applicable in an action for damages caused by a collision, between an automobile and a carriage and horse, stated in paragraphs 2, 3 and 4 of the syllabus in Giles v. Temes, ante, p. 140, 143 Pac. 491, are followed in an action by the wife of the driver of the carriage for her injuries suffered "in the same collision.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Defective Bridge — Injury to Horse — Bill of Particulars— Opening Statement — Cause of Action Stated. A bill of particulars alleged, among other things, that a certain bridge on the line between two townships (which was also the county-line) was of a span of over ten feet; that the highway had been kept open for public travel by the defendant townships, and that such bridge was with their knowledge and consent kept and allowed to remain without guardrails or protection of any kind on either side and in a dangerous and defective condition, without efficient timbers and stringers for support, and with loose and rotten planks in the floor, by reason whereof the plaintiff’s horse was bruised and injured, causing its death. On appeal, in the opening statement plaintiff’s counsel said, among other things, that the defects in the highway and bridge were sufficient neglect on the part of the township to cause them to respond in damages, and that plaintiff expected to show that the bridge was ten feet or more in length but with no guardrails as required by law and that the trustees of the townships were informed or had notice of such defect. Held, that an objection to testimony on the ground that the bill of particulars and opening statement failed to state a cause of action was erroneously sustained.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Real-estate Agent — Comnvissions Earned — Action Therefor Barred by Statute of ■ Limitations. Under the facts stated in the opinion it is held that a real-estate agent’s commission, consisting of the profits arising from an exchange of his principal’s land, was earned, and that the agent’s right to demand his earned commission accrued when his principal accepted a purchaser produced by the agent on terms satisfactory to the principal.</p>

<p>SYLLABUS BY THE COURT. '</p> <p>Homestead — Lease by Guardian — Rent Inures to Benefit of Widow and Minor Children. Upon the death of the owner of a homestead, whose wife, being insane, was cared for in a hospital, his five minor children continued in its occupancy. One of the children shortly arrived at majority, married and moved away. Another upon coming of age married and brought his wife to live upon the homestead. The guardian of the minor children, who was also the guardian of the widow, thought it desirable to find other temporary quarters for the minors, and executed a lease on the homestead to the son who remained in its occupancy, by which such son agreed to pay him a stated amount as rent. Held, that such amount inured to the sole benefit .of the widow and minor children.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Bill op Lading — Innocent Holder — Conclusion Against Carrier — Delay in Shipping Corn — Damages. The rule which invests the innocent holder of a bill of lading with rights not available, to the shipper, declared in Savings Bank v. A, T. & Santa Fe Rid. Co., 20 Kan. 519; Railway Co. v. Hutchings, 78 Kan. 758, 99 Pac. 230; and Hutchings v. Railway Co., 84 Kan. 479, 114 Pae. 1079, is followed in a case where the plaintiff purchased corn described in a bill of lading, and paid the shipper’s draft attached to the bill in the usual course of business.</p> <p>2. Same — Shortgage on Grain Shipment — Attorney’s Fee. The provisions of section 7107 of the General Statutes of 1909, allowing an attorney’s fee upon the prosecution of claims for damages against a railway company for shortage on shipments of grain, seed, or hay, are not obnoxious to the federal regulation of interstate commerce.-</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Title and- Ownership — Testimony of Owner as to Owner- ' ship-^-Cbnclusions. A party claiming title to a chose in action-or other personal property which is the subject of litigation may properly be permitted to answer a question as to who is its owner, and if his adversary desires the constituent facts on which such claim of ownership is based -he may elicit them on ■ cross-examination.</p> <p>2. Same. The modern notion of the admissibility of evidence is that it is more important to get the truth than to quibble over impractical distinctions between facts and conclusions.</p> <p>3. Promissory Note — Indorsement—Verified Denial — Burden of Proof. A petition in the usual form by the indorsee of a negotiable note bearing the purported indorsement of the payee “By J. D.. M., ag’t.” was answered by a verified denial that such note was not sold'and delivered by the payee company or any one for it with authority so to do. Held, that the burden of proof was upon the plaintiff to establish authority in the agent to make-the indorsement.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Insurance — Laundry—Steam Boiler Ruined by Heat — Company Not Liable. Evidence that when the person in charge of a steam boiler used in a laundry left it at night it was over half full of water, the gas by which it was heated being turned off, and was then in good condition, and that when the building was unlocked the next morning no fire was burning under the boiler, but it was empty of water and was ruined by the action of excessive heat, nothing being shown as to whether any one connected with the business returned during the night, does not justify an inference of an intentional injury to the property having been done by some one who gained wrongful entrance to the building.</p> <p>2. Same. A company issuing a policy of insurance against direct loss by fire is not liable thereon for an injury occasioned to a steam boiler through its negligent management by some one' connected with the business.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Banking — Draft Delivered, to Bank — Immediate Credit Given Depositor — Bank Becomes Owner of Draft and Its Proceeds. Where a draft with a bill of lading attached is delivered to the hank in whose favor it is drawn, which forwards it to a correspondent for collection and gives immediate credit to the depositor, the proceeds while in the hands of the correspondent bank are to be regarded as belonging to the payee named in the draft, as against a creditor of the depositor who attempts to reach them by garnishment, after the account, as increased by the deposit, has been overdrawn, and this notwithstanding the practice of the first-named bank to charge its depositor with the interest on such items from the time of giving credit until the proceeds were actually received, and to charge back their amount in the event of nonpayment, and notwithstanding that a serial number was placed on said draft by the original bank in sending it out for collection, and that a witness testified to a general practice of bankers to place such numbers upon items received for collection but not upon those accepted as cash.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Confirmation of Sale. On a motion to confirm a sale where the proceedings are in all respects regular and in conformity with law, and there is no showing of any equitable grounds for setting it aside, it is the duty of the court to order confirmation.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Federal Employers’ Liability Act — Personal Injuries — Contributory Negligence Not a Complete Defense — Mitigation of Damages — Instructions. In an action to recover damages for the death of a railroad employee by alleged negligence in switching cars in circumstances to which the federal employers’ liability act applied, an instruction was given defining contrbutory negligence, and in another instruction (No. 6) the court said that if the deceased was guilty of contributory negligence and “that said negligence directly contributed to his injury, you should take said negligence into consideration in arriving at the amount of your verdict as hereinafter explained, if you find from the evidence that the plaintiff is entitled to recover, but if you find from the evidence that the contributory negligence of the deceased, Otto N. Ross, was the sole and proximate cause of his death, then you should find a verdict for the defendant.”</p> <p>A verdict was returned for the defendant, but was set aside and a new. trial was ordered “solely on the ground that instruction No. 6 misstates the law in the last part thereof in regard to contributory negligence.”</p> <p>It is held, (1) that the plaintiff had a right to a plain and unambiguous instruction to the effect that contributory negligence was not a complete defense under the federal statute referred to but should be considered in mitigation of damages; (2) that as the language used was doubtful in meaning and confusing, and the presiding judge with full opportunity of observation believed that the instruction did not fairly and sufficiently inform the jury upon a material matter of law, the order granting a new trial will not be reversed.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Lumberman’s Lien — Contractor Had Such Ownership in Premises as to Create Valid Lien. Evidence that a person is in full possession of a tract of land and contracts for material to erect, and does erect, substantial improvements thereon, and who, a short time after making such contract, and while making such improvements, receives from the record owner of such tract a deed conveying such tract to such person in possession, is sufficient to sustain a finding that at the tme of making the contract such person had some ownership in the tract.</p> <p>2. Same — Four Buildings — Single Contract. The contract for materials to erect the four buildings on the single tract was an entire contract.</p> <p>3. Same — Proper Owner Designated in Lien Statement. Under the facts of this case, the person who contracted for the materials and erected the buildings on the tract was the proper person to be designated as the owner thereof in the statement filed for a mechanic’s lien.</p> <p>4. Same — Foreclosure—New Issues in This Court The question whether the action was timely commenced was not presented by the answer in this case and can not be first raised in this court.</p> <p>5. Same — Release of Portion of Land — Lien Not Invalidated. Where a lien for building material exists against an- entire tract of land, the release of a part of the tract in consideration of a fair proportion of the lien does not effect a release of the entire lien.</p> <p>6. Practice — As to Findings of Fact and Conclusions of Law. Upon the trial of a case in a district court without a jury, error can not be predicated upon the refusal of the court to answer questions of fact presented where the court states findings of fact and conclusions of law as the statute contemplates.</p>

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Will — Interpretation—Interest of Surviving Wife of Legatee Determined. In a will the testatrix provided that one of two sons should have a life estate in a certain tract of land, .and that if he “should marry again, it being his third marriage, then his third wife, and children by his third wife, shall have said fifty acres of land described in this will, but if said French J. Mallows should die leaving no wife and children by a third wife, then I devise and will that said land described above shall go to my son Ira Amos Mallows.” The son married not only a third but also a fourth and a fifth wife. The third wife died leaving no children, but the son died and left surviving him the fifth wife. The trial court decided that as the son of the testatrix left a wife surviving him, the third wife having died without children, the other son of the testatrix did not take the remainder, and that as there was no one to take it under the will so much of the property passed to the heirs of the testatrix under the law of descents and distributions. Held, that the surviving wife of the son has no reason to complain of the ruling, and that under the circumstances of the case the interpretation and decision of the trial court will not be disturbed.</p> <p>2. New Trial — Motion Filed Out of Time — Denial No Error. Neither will a ruling denying a motion for a new trial be disturbed which was filed out of time and in which the applicant relied on certain misapprehensions and mistakes alleged to have been made by herself and her attorney.</p> <p>3. Same — Practice—Shifting Ground of Defense — Not Permissible. Ordinarily a court will not grant a new trial merely to give a party an opportunity to shift his ground of action or defense, ii the case has been tried upon one theory it is too late to mend his hold and advance another theory which might have been but was not presented at the trial.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Insurance — Agency Contract — New Oral Contract Made — Commissions Under Old Contract Waived. An oral agreement upon the terms of a new agency contract between an insurance company and its solicitor of business under a former contract was made with the understanding that the contract should be written by the officers of the company and sent to the agent for his signature. The agent immediately commenced work under the new agreement, and continued for more than a month, when he wrote to the secretary to forward the contract. The request was complied with. It contained, among other provisions, the stipulation “that this agreement effects the termination of all previous contracts . . . except that said Babbit is to retain his renewal interest in business written prior to January 1, 1911, so long as he remains in the employ of said first party.” After receiving, reading and considering the instrument the plaintiff wrote to the secretary: “I will assure you that it is all right exactly as agreed on,” and continued to do business undey the new agreement, receiving its benefits, and making no objections for nearly two months longer, when he entered into the employment of another company, and thereafter demanded commissions due under the old contract, but which were terminated by the clause of the new contract above quoted, which, however, he had not signed.</p> <p>It is held that a conclusion of the referee that the plaintiff did not waive any of his rights to commissions under the old agreement can not be sustained.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Title and Ownership — Mistake as to Boundary Line — Intention— Adverse Possession. When adjoining landowners treat a hedge between their tracts and near the true boundary line as a practical partition fence, hut are mistaken in supposing it to be upon the true line, and there is no agreement or recognition that it is to mark the real boundary and no intention by either to claim beyond the true line, the possession by either of a strip between the hedge and the true line is not adverse as to the other and does not under such circumstances ripen into title.</p> <p>2. Practicó — Case Tried on One Theory — Theory Will Not be Changed on Appeal. When the parties to an action have mutually adopted a theory and fully tried their controversy in accordance therewith this court will not on appeal adopt another theory and decide the case in accordance therewith, but will affirm or reverse according as the lack or presence of error shown by the record may require, upon the theory adopted by the parties.</p> <p>3. Trial — No Affirmative Belief- — No Material Prejudice. The defendant’s claim was submitted to the jury, but as he recovered nothing affirmatively no material prejudice on account of such submission, even if erroneous, resulted to the plaintiffs.</p> <p>4. Trial — Boundary Fence — Incompetent Evidence — Not Prejudicial. In an action by an adjoining landowner to recover for the destruction of a boundary fence it is not ordinarily competent to show that he owns various other tracts of land in the vicinity.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Deeds — Effective and Valid Delivery to Grantees. A grantor executed two deeds conveying an undivided one-half of certain land to each of two persons, who were relatives and had formerly been members of his family, upon the consideration that each grantee should pay one-half of his debts and funeral expenses and that they should erect a monument of a certain value at his grave. After placing each deed in an envelope with the name of the grantee endorsed thereon he handed both to one of the grantees, who was present when they were executed, with the remark, “When you record yours, you may record Ida’s also,” and she and the grantor then rode together to a bank, when he carried them into the bank and handed the deeds to a custodian with the request that he keep them, and in response to an inquiry the grantor told the custodian that he would find the directions on the inside-. The conveyances were made on the further condition that the grantor should retain possession of the land during his lifetime, and also that if he should marry again his wife should retain undisturbed possession during her lifetime, and that during this period the grantees should not sell nor incumber the land. Held, that the facts in the ease are sufficient to support a finding that there was a valid and effective delivery of the deeds to the grantees.</p> <p>2. Same — Rights of a Subsequent Wife of Grantor Determined— Life Estate Terminated. Shortly after the execution of the deeds the grantor married again and his wife lived with him upon the land for about seven years and until his death. In a controversy as to the validity of the deeds it was held in the trial court that the conveyance of more than one-half of the land operated as a fraud on the marital rights of the wife and she was awarded one-half of the land. She complains of the ruling and insists that she was entitled to the whole of it. Under the facts in the case it is held that she has no reason to complain of the decision.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Burglary — Unexplained Possession of Stolen Goods. Proof that a burglary was committed and that the stolen goods were shortly thereafter found in the possession of the accused, when considered in connection with all the other facts and circumstances of the case, including his failure satisfactorily to explain such possession, will sustain a conviction of burglary.</p> <p>2. Same — Conviction of Burglary in the Nighttime — Insufficient Evidence. The defendant was convict.ed of burglary in the nighttime without evidence showing at what time the offense was committed. Burglary in the daytime being the lesser of the two offenses, the presumption in favor of the appellant is that it was committed in the daytime, and for this reason the judgment is reversed and a new trial ordered.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Statutory Rape — Incompetent Evidence — Improper Liberties with Other than Complaining Witness. In a prosecution for statutory rape upon his stepdaughter, the state was permitted to introduce evidence that upon one occasion the defendant had been accused by his own daughter of attempting improper liberties with her, and that upon this accusation being made (in the presence of the complaining witness) he had struck her. Held, that error was thereby committed requiring the granting of a new trial.</p> <p>2. Same — Contradictory Statements by Complainant — Competent Evidence to Explain. The complaining witness was permitted to testify that her mother had told her that the defendant had threatened them both with death if they appeared against him. It was shown that a prior prosecution had failed because at the preliminary hearing the complainant had testified to the innocence of the defendant. Held, that the evidence was competent as tending to explain the former testimony.</p> <p>3. Same — Defendant’s Wife Competent Witness Against Him. The defendant’s wife was permitted to testify to a conversation with him. Held, that the provision of the criminal code that no one shall be rendered incompetent to testify in a criminal case by reason of being the husband or wife of the accused removes the only objection to the admissibility of such evidence.</p> <p>4. Same — Rulings Not Prejudicial. . Other trial rulings examined and held not to be materially erroneous.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. “White Slavery” — Sufficient Information. An information under section 2 of chapter 179 of the Laws of 1913 should charge that the premises in question were owned or leased by the defendant or under his control, but in this instance the language used was such as necessarily to import -the meaning that the defendant was in control of the premises. Held, that the information is sufficient.</p> <p>2. Same. When the language of the information is such as to make it impossible that the parties in question could have been husband and wife it is not essential to allege that they were not married to each other.</p> <p>3. “White Slavery” — Competent Evidence — Conduct of Parties. In this class of cases evidence touching the conduct of the parties and their manifestations of mutual affection is competent.</p> <p>4. Same. The fact that seven or eight years prior to the trial the parties stayed at a certain house as man and wife, while remote is nevertheless competent to show the conduct, disposition and inclination of the parties, the weight being for the jury.</p> <p>5. Rebutation — Competent Witness. One who had known a witness twenty years and lived near her a large portion of the time, though some ten miles distant from where she lived at the time of the trial, was competent to testify as to her reputation for truth and veracity in the community where she formerly resided.</p> <p>6. Trial — Evidence—Threats by Defendant. Testimony of the defendant’s anger and threats touching the marriage of his paramour was competent for the purpose of showing his sentiments towards her.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Crimes — Sale of Diseased Animals — Statute Applies to Living Animals Only. The “act prohibiting the sale or purchase of diseased animals for food, and providing penalties' for the violation thereof” (L’aws 1909, ch. 185, Gen. Stat. 1909, §§ 3092-3094), applies to living brutes and not to carcasses or to the flesh of animals that have been slaughtered.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Parent and Child — Divorce—Custody of Minors — Circumstances to be Considered. While the welfare of a child is the paramount consideration in awarding his custody-, yet in determining that welfare regard must be had to a parent’s devotion and care, as well as. to the advantages that may reasonably be anticipated from a better-furnished home and greater pecuniary means offered by another.</p> <p>2. Same. While it is true that if the welfare of the child requires it, even a mother must sometimes yield his custody to a stranger, this will not be compelled merely upon proof that thereby better material advantages would probably be secured to the child.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Liquor Law — “Persistent Violator” — Several Violations — Single Offense cmd Penalty. When called upon to prosecute a persistent violator of the prohibitory law under the statute relating to that subject (Laws 1911, ch. 165, § 1), the county attorney is not obliged to rest his case upon the evidence he may procure relating to 'some single violation occurring subsequent to a conviction. He may allege in a single count, or in several counts, as many subsequent violations as he may be informed of, and he may go to the jury, without being required to elect, upon all the proof he has. He must establish one to warrant a verdict of guilty, but any one will be sufficient, and whether he establish one or more than one, he has simply proved the defendant to be a persistent violator guilty of a single offense, or an entire offense, to which a single penalty is affixed.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Habeas Corpus — Difference Between the Offenses of “Attempt to Commit Rape” and of “Assault with Intent to Commit Rape”- — Different Penalties. The offense of an attempt to commit rape differs from the offense of an assault to commit rape, punishment for which is provided by sections 38 and 41 of the crimes act. Punishment for the former offense is governed by "section 283 of the crimes act, which provides that an. attempt to commit an offense, where no provision is made by law for the punishment of such attempt, is punishable by imprisonment for a term not exceeding one-half of the longest time of imprisonment prescribed upon a conviction for the offense itself.</p> <p>2. Same — Petitioner Properly Sentenced for “Attempt to Commit Rape.” The petitioner was charged in the district court of the crime of rape and entered a plea of guilty of the attempt to commit rape. Held, that he was properly sentenced under section 283 of the crimes act.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Promissory Note — Evidence Insufficient to Show Fraud. There was no sufficient evidence of fraud in the procuring of the promissory note sued on to justify the submission to the jury of the question of fraud as determinative of the validity of the note.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Pleading — No Misjoinder — Petition States Cause of Action. The petition examined and held not to be demurrable for misjoinder or for the failure to state a cause of action.</p> <p>2. Trial — Joinder of Legal and, Equitable Actions — No Prejudicial Error. In an action' for a money judgment equitable relief was also sought. Both features of the case were heard together, and the jury were instructed that a part of the evidence was admitted because of its effect upon matters to be decided by the court, but that they might consider any of it that threw light upon the matters submitted to them. Held, that under all the circumstances- of the case it does not appear that material prejudice resulted.</p> <p>3. Trial — No Error. Other rulings examined and held not to constitute error.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Promissory Note — Innocent Holder ■ — Restricting Cross-examination. In an action upon a promissory note, one of the principal issues being whether the plaintiff was a holder in due course, it is held that no prejudicial error was committed in restricting his cross-examination concerning the circumstances under which he acquired it.</p> <p>2. Trial — No Prejudicial Error. Various trial rulings examined, and held not to require a reversal.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Personal Injuries — Explosion of Powder Mill — Former Decision Adhered to. In an action for damages caused by an explosion of defendant’s powder mill the former decision affirming the judgment which sustained a demurrer to the plaintiff’s evidence is adhered to.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Trust Deed — Action to Set Aside — Undue Influence — Fraud —Findings Sustained by Evidence. In this action, commenced by heirs at law to set aside a trust deed made by their ancestor for the benefit of other heirs and their children, on the ground of undue influence and fraudulent conduct of the grantee in obtaining the deed, and upon the ground also that it had never been delivered, it is held that the findings of the district court upon these issues are sustained by competent evidence.</p> <p>2. Same — Admission of Immaterial Evidence — Not Prejudicial. Objections to the admissibility of certain evidence are considered and found to be immaterial because the findings of fact are supported by competent evidence, aside from the testimony objected to which does not appear to have prejudicially affected the substantial rights of the parties objecting thereto.</p> <p>3. - Stipulation for Settlement. The ruling upon a stipulation for settlement, made upon certain conditions not fulfilled, is considered and approved.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Promissory Note — Action Barred by Statute of Limitations. In an action brought in this state, the statute of limitations of this state applies unless the statute of another state or country is pleaded as applicable.</p> <p>2. Same — In such case, no other statute being- pleaded, and it appearing- by the petition that the action is barred under the statute of Kansas, the petition is demurrable.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Descents and Distributions — Laws of Kansas Govern. The laws of Kansas determine the descent and distribution of real estate situated in this state.</p> <p>2. WILLS — No-Ambiguity—Construction Not Necessary. When there is no ambiguity or uncertainty in the language used in the making of a will, a construction of the will is unnecessary, and it will be enforced in accordance with the provisions thereof.</p>

<p>Appeal from Sherman district court; Charles W. Smith, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Landlord and Tenant — Dangerous Cistern — Injury to Servant of Tenant — Landlord Not Liable. A landlord leased vacant property upon which there was a cistern covered by a loose lid lying upon a slightly raised platform. The lease was without warranty or covenant to repair on the landlord’s part. The covering of the cistern was exposed to plain view and its character was observed by the tenant when he entered. The tenant used the cistern for nearly two years in this condition, when on a laundry day the lid was not carefully replaced after a drawing of water and a servant of the tenant stepped on a corner of the lid lying over the opening into the cistern, was precipitated into the cistern, and was drowned. The cistern was located in a shed in the rear of the kitchen of a building used by the tenant for a restaurant. When the deceased commenced working for the tenant he pointed out to her the location of the cistern, but in six weeks’ service which occasionally brought her in proximity to the cistern the fact that the lid was loose was not brought to her attention. It is held: (1) The landlord is not liable in damages for the death of the servant upon the theory that the cistern was • a nuisance, or upon the theory that he was guilty of actionable negligence, or upon any other theory sustained by existing law; (2) the decision of this court rendered upon the occasion of a former appeal (Bailey v. Kelly, 86 Kan. 911, 122 Pac. 1027), holding the landlord liable, is overruled.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Quieting Title — Minor Remaindermen of Life Estate — Limitation of Actions — Adverse Possession. Certain devisees held the life estate in a tract of land which was ordered sold for the payment of debts. One of the life tenants at the time the sale was ordered and notice thereof served had living an infant son a few months old on whom no service was made, and later certain other children were born, who with the son already referred to became remaindermen. The deed as well as the order of sale purported to cover the entire title to the land. The grantees of the purchaser remained in actual, visible, open and adverse possession, claiming title as against the world until all the minors had become of age, and until more than two years thereafter in case of the youngest, and had made lasting and valuable improvements, no proceeding having been begun to set aside the administrators’ deed or to assert title to the land. Held, that such grantees are en- . titled to have their title quieted as against the remainder-men, the defense of the latter being barred -by the statute of limitation.</p>

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Limitation of-Actions — Time May Be Shortened by Amendment of Statute. It is within the power of the legislature to amend a statute of limitation by shortening the time in which an existing cause of action may be barred, provided a reasonable time is given for the commencement of an action before the bar takes effect.</p> <p>2. Same — Claim Against Estate — Barred by Amended Statute. In an action to establish a claim against the estate of a deceased person it was shown that the letters of administration issued on December 10, 1910. At that time the statute (Gen. Stat. 1909, §3516) allowed three years for the presentation of claims. An act which took effect on the 22d day of May, 1911 (Laws 1911, ch. 188), reduced the time to two years, with a provision that all demands not exhibited within two years shall be forever barred. Although the plaintiff had eighteen months after the act took effect in which he might have commenced his action, his claim was not exhibited until more than two years thereafter. Held, that he was allowed a reasonable time to pursue his remedy, and that the action is barred by the new statute.</p> <p>3. Same. The fact that the claim was filed in the probate court, and that the administrator had knowledge of it and had made efforts to adjust and settle it, - will not suspend the statute nor estop the administrator from relying upon the bar of the statute.</p> <p>4. Same. Nor will the plaintiff be heard to say that by reason of such acts and conduct of the administrator the period of eighteen months was not in this case a reasonable time.</p> <p>5, Services Rendered Administrator — No Claim Against Estate. No cause of action against an administrator in his official capacity can be based upon services rendered him in the administration of the estate. (Brown v. Quinton, 80 Kan. 44, 47, 102 Pac. 242.)</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Fraudulent Conveyance — Hindering and Delaying Creditors. A debtor in failing circumstances and being pressed by numerous creditors conveyed all his real estate, including his homestead, to his wife’s father for a consideration considerably less than its value. A part of the consideration was $1000 in cash, which was at once applied to satisfy the debtor’s indebtedness to a bank of which he was president. Another part of the consideration was the assumption of a mortgage on the land. The remainder of the consideration was represented by two promissory notes of the grantee due in six and twelve months respectively. The debtor was without other resources. Held, the transaction disclosed an intent to hinder and delay creditors and had that effect within the purview of the statute of frauds and perjuries. (Gen. Stat. 1909, § 3834.)</p>

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

<p>SYLLABUS BY THE COURT..</p> <p>Statute — Authorizing Counties to Assist in Payment of Fair Premiums — Unconsitutional—Title of Act. Chapter 144 of the Laws of 1911 is in conflict with section 16 of article 2 of the constitution, and therefore void, for the reason that it' attempts to impose upon the county boards of certain counties the mandatory duty to issue warrants to agricultural fair associations to assist in the payment of premiums, a subject which is not clearly expressed in the title of the act.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Administration op Estate — Promissory Note Was the Absolute Property of the Widow of Deceased. In making a loan of money, a promissory note was taken, payable to the order of the lender at a certain date if living, or in case of his death, to his wife. The lender having died before the note was paid, the administrator of his estate sued the maker and joined the widow as a defendant, who answered, claiming' the amount due upon the note. In the issue joined between the administrator and the widow, it is held that the widow should recover.</p> <p>2. Same — Unpaid Debts of Estate Immaterial. The circumstance that the deceased left insufficient personal property to pay all his debts is immaterial to the issue tried.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Accident Insurance — Default in Payment of Premium— Mistake in Wording of Receipt — No Waiver. The annual premium on an accident policy was paid to the local treasurer of the company authorized to collect and give receipts for premiums, who gave the insured a receipt for the amount, reciting that it was the premium “for the month” ending August 30, 1911. The payment in fact was for the year ending July 30, 1911, a mistake being made in writing August, instead of July. The accidental death of the insured occurred on August 16, 1911, within the time covered by the language of the receipt but beyond the time for which the payment had been made, and the insured was in fact in default at the date of his death, for which default the policy by its terms had lapsed. It is held that the delivery of the receipt containing the mistaken recital without evidence that the insured was in any manner misled does not estop the insurer from asserting the forfeiture provided for in the policy and should not be construed as a waiver, new agreement, or extension of time of payment.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. New Trial. — Duty of Trial Court to Weigh Evidence. The principles applicable to the review of an order granting a new trial where the particular ground of the order does not appear in the record, as declared in Ireton v. Ireton, 62 Kan. 358, syl. ¶¶ 1, 2, 63 Pac. 429, followed in numerous other decisions, are followed in this case.</p> <p>2. Real-estate Broker — Purchaser- Produced — Contract Made —Commission Earned. ' The rule stating the right of a real-estate broker to commissions where an enforceable contract has been entered into between his principal and a purchaser produced by the broker, as declared in Hutton v. Stewart, 90 Kan. 602, 135 Pac. 681, is followed.</p> <p>3. Same — Whether Commissions Were Relinquished — Question for J%vry. The court can not declare as a matter of law that a broker is entitled to a commission when he has produced a purchaser with whom his principal has entered into an enforceable contract, if afterward, pending a dispute between the parties over the details, the broker by his language or conduct gives his principal good reason to believe that he intends to relinquish his claim, and the principal, relying upon such belief, foregoes his right to enforce the contract.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Crime — Larceny in the Nighttime — Insufficient Evidence. The evidence in this case is legally insufficient to justify a conviction of the felony charged, to wit: that the alleged larceny was committed in the nighttime.</p> <p>2. Same — Footprints—Insufficient Alone to Justify Conviction. Footprints of horses, if they correspond to those which would be made by the horses probably driven, and footprints of men, if they correspond to those which would be made by the shoes probably worn by the accused, are admissible as identifying evidence, yet alone are inadequate to justify a conviction of a crime. “</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Ejectment — Deed Procured by Fraud and Duress of Husband — Certain Evidence of Wife Showing Duress Was Competent.- On the trial of an action by a widow to recover possession of land which she had been induced to convey by the fraud and duress of her former husband she was asked whether or not she had heard that her husband had made threats in case she did not sign the deed, and answered in the affirmative. She was also permitted to testify in answer to a question why she feared there would be more trouble. “Well, I had it from the surrounding circumstances, what had happened.” Held, that such testimony was not incompetent by reason of section 320 of the civil code as amended by chapter 229 of the Laws of 1911, concerning transactions or communications had with deceased persons.</p> <p>2. Same — Statements of Deceased Husband Claiming Ownership of Land Competent Evidence. The testimony showed and the court found that the former husband in conspiracy with his brother had- by fraud and duress procured from the wife a deed conveying the land to the brother but that the husband continued to be the real owner of the land up to the time of his death, and that the defendants were voluntary grantees without consideration, the deed to them being made for the purpose of defrauding the plaintiff. Held, that it was proper to receive in evidence proof of statements made by the deceased husband after the execution of the deed by the wife that he still owned the land and had deeded it to his brother to defraud his wife.</p> <p>3. Same — Delay in Bringing Suit no Estoppel. Mere delay in bringing suit does not estop the plaintiff from its .maintenance when the property has remained substantially the same and the rights of no innocent third party have intervened.</p> <p>4. Same — Limitation of Action — Not Available to Nonresident. The defendants never having been within the state of Kansas could not avail themselves of the fifteen years’ statute of limitation as a basis for claiming adverse possession.</p>

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