Volume 94 — Kansas Reports

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Personal Injuries — Allegations of Negligence — Evidence of Concurring Conditions Not Error. In a personal-injury action it is not error to allow the plaintiff to introduce evidence that he was injured by reason of the defendant’s want of care, specifically set out in the petition, concurring with a condition not there referred to, where he does not rely on such condition as constituting negligence.</p> <p>2. Same — Admission of Incompetent Evidence — Subsequently Cured. Error in the admission of evidence in support of a particular allegation of negligence is ordinarily cured by the withdrawal of such allegation.</p> <p>3. Same — Defective Furnace — Promise to Repair — Admissible Evidence. Whether or not it would otherwise have been competent to show that the safety device, the want of which was relied on as constituting negligence, was used in another part of the defendant’s plant, evidence to that effect was rendered admissible by testimony that upon complaint having been made by the plaintiff a promise had been given to him that the same device in use elsewhere should be provided at the place where he was afterwards hurt.</p> <p>4. Same — Complaint of “Defects” — Promise to Repair. Where an employee complains of a condition affecting the safety of his place of work, and is promised a change in that regard, such complaint and promise have the same effect upon the employer’s liability for a subsequent injury, whether the condition complained of resulted from an appliance being out of order, or from its original unfitness to meet the needs of the situation, the important consideration being whether the condition was such that its continuance was -inconsistent with the exercise of ordinary care.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Bill of Particulars — Amendment—Additional Party Plaintiff. 'In an action .before a justice of the peace to recover damages ■ for a fire alleged to have been caused in the operation of defendant’s railway, an amendment allowing the addition of the name of a party plaintiff does not substantially change the claim or defense, where it appears that the amended claim is for the same damages caused by the same fire referred to in the original bill of particulars.</p>

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

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Contract — Sale of Land — Land Leased by Vendee — Sublet by Lessee Without Landlord’s Assent — Default of Vendee— Forfeiture — ■Vendor Entitled to Growing Crops. The defendant owned a farm and made a contract of sale to McKee • with’ a provision for forfeiture without noticé if McKee failed to make the payments in accordance with the contract. McKee took possession and farmed the place for one year, and then made a lease to Britton for one year beginning March 1, 1913, and Britton sowed a crop of wheat in the fall of 1912. The written lease contained a provision that' Britton should not sublease the land without the written consent of the landlord. In February, 1913, without the consent of the landlord he sold the growing crop' of wheat to the plaintiff and assigned to the latter his interest in the lease and abandoned the premises. McKee being in default in payment of principal and interest, the defendant took possession and appropriated the proceeds of the crop. The plaintiff sued to recover the tenant’s share of the wheat. Held, that by the provisions of section 4700 of the General Statutes of 1909, as well as by the terms of the lease under which the plaintiff claims, 'he coüíd’ acquire no interest by the transfer without the written consent of the landlord, and that the defendant had the right under his contract to take possession of the premises and declare a forfeiture for the nonpayment of the principal and interest.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Railroads — Injury to Fruit Trees by Fire — Measure of Damages. Where fruit trees which have a distinct value as a part of the land are injured and destroyed by fire through the negligence of another, and their value and the damages sustained can be definitely measured by showing the value of the trees before and after the fire, and this measure is applied by the court, there is no material error in the failure of the court to direct the application of the rule that the measure of damages is the difference in the value of the land before and after the burning of the trees.</p> <p>2. Same — Owner May TJse Land for Any Purpose Desired. The owner is entitled to plant an orchard on his land whether or not it is the most profitable use to which it can be applied, and if the fruit trees are destroyed he is entitled to claim damages from the wrongdoer for being deprived of such use and of the value of the trees.</p> <p>3. Same — Damages Not Excessive. Under the evidence herein it can not be held that the damages awarded are excessive.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Specific Performance — Real-estate Contract — Notice to Subsequent Purchaser. In an action for the specific performance of a contract to sell real estate, the evidence is examined and held sufficient to support a finding that a subsequent purchaser was chargeable with notice of the plaintiff’s rights.</p> <p>2. Descents and Distributions — Residence of Intestate. The , provisions of the act regarding descents and distributions relate to lands in Kansas owned by any intestate at the time of his death, irrespective of his residence.</p> <p>3. Specific Performance — Contract Not Signed by Wife — Subsequent Sale and Deed by Both Httsband and Wife — Rights of Purchasers. Where the owner of land in Kansas executes a valid contract for its sale, in which his wife, who was at one time a resident of the state, does not join, a later deed executed by the husband and wife transfers her interest in the land free of any claim of the original purchaser, notwithstanding the grantee has notice of the prior contract.</p> <p>4. Specific Performance — Refusal of Wife to Convey — Purchaser Entitled to Abatement in Agreed Purchase Price. Where the owner of land in Kansas, whose wife has at one time been a resident of the state, contracts for its sale, agreeing to convey a full title, and his wife refuses to join in the deed, the purchaser may enforce specific performance against the husband, or any one who claims under him with notice of the contract, so far as that is possible, receiving an abatement in the agreed purchase price to the extent to which the value of the title he obtains is diminished by the outstanding interest of the wife.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Promissory Note — Verified General Denial — Admissions in Answer — Burden of Proof. While a verified general denial standing- alone will raise the issue of the execution of a written instrument, it can not be given that construction where in the same answer there is an admission of the execution coupled with the denial that it was in existence at the date it purports to be executed.</p> <p>2. Same — Alteration of Note by Maker and Payee — Foreclosure of Mortgage Not Necessarily Defeated Thereby. As between the maker and the payee, the terms of a note and mortgage given to secure it may "be altered by erasures and inter-lineations in material matters, and where the real estate has been sold subject to the mortgage, the purchaser may not defeat foreclosure on the ground that material alterations were made in the written instruments, unless he has suffered prejudice thereby.</p> <p>3. Same — Trial—Burden of F’roof on Plaintiff. In the situation presented by the facts recited in the opinion, the burden of proof, in an action upon a note and mortgage, was upon the plaintiff, and it was error to place the burden upon the defendants.</p>

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

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Mandamus — Registration of Bridge Bonds — Bids Conditioned on Settlement with Former Contractor — Free Competition. The county commissioners let a contract for the building of a bridge which was decided to be invalid because of an irregularity in the estimate of the cost of the bridge. Before the decision was announced work had been begun on the bridge, under the invalid contract. The county commissioners began anew and advertised for bids for the entire bridge upon the condition that the successful bidder should settle with the former contractor for the work done and material furnished towards the building of the bridge, and also hold the county harmless for double liability for such work and material. A number of bids were submitted and the former contractor became the successful bidder at the second letting. Held, That the terms and conditions of the letting did not substantially defeat free competitive bidding nor invalidate the contract made with the successful bidder.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>L. Habeas Corpus — Delinquent and Incorrigible Girl — Committed to Industrial School for Girls — Proceeding of Juvenile Court — Regular and Valid. A girl fifteen years old found by the probate judge, sitting as the juvenile court, to be de-. linquent and incorrigible, to associate knowingly with immoral persons, to be growing up in idleness and crime and violating the city ordinances by remaining out until late hours at night, was ordered committed to the Industrial School for Girls at Beloit. Her parents appeared without service of process on them, but the child was taken into custody by the probation officer upon a warrant based upon a complaint verified on information and belief. A hearing followed, and the testimony abundantly supported the findings of the court. Held, that such child is not entitled to a writ of habeas corpus because of failure to verify the complaint positively.</p> <p>2. Same — Purpose of the Juvenile Court. The juvenile court act (Gen. Stat. 1909, §§ 5099-5113) has for its object not the punishment of juvenile offenders for misconduct, criminal or otherwise, but their removal from the path of temptation and their direction into the paths of rectitude by preventive and corrective means.</p> <p>3. Same. The act is an assertion of the state’s power as parens patriae and its right to exercise proper parental control over those of its minor citizens who are disposed to go wrong.</p> <p>4. Same — No Constitutional Rights Invaded. In the charge, apprehension, investigation and order involved herein, the child was not denied any of her constitutional rights.</p> <p>5. Same — No Stigma Attaches by Commitment to the Industrial School for Girls. By express declaration of the statute in question, and by the settled decisions applicable to similar enactments, all such proceedings, orders and judgments are deemed to have been taken and done in the exercise of the state’s parental power, and neither the stigma nor the penalty for crime can be held to accompany such proceedings or order.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Action — For Fraud in Obtaining a Deed — Fraud Not Proven. In an action to recover damages against a party for wrongfully depriving an owner of his land, by obtaining a deed thereto from a former owner and also a judgment quieting his title to the land as against the real owner, and by subsequently conveying the land to an innocent purchaser, judgment was rendered against such party for the value of the land, but an attorney who represented him in the litigation and was made a party defendant in the action was held not to be guilty of fraud which would render him liable for damages. Held, upon an appeal from a finding and judgment in favor of the attorney, that there is evidence to support the finding.</p>

<p>Appeal from Smith district court; Richard M. Pick-ler, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Trustee — Missionary Funds — Trustee Entitled to Reasonable Fee for Services. Certain property was by deed conveyed to an attorney in trust to devote the income and proceeds to two missionary organizations of the Methodist Episcopal Church to be used in the cause of missions. Much controversy and considerable litigation ensued touching a proper successor of the trustee to manage and disburse the fund. The trustee in good faith performed legal services in these matters and was allowed a certain fee found by the trial court to be reasonable. Held, that such allowance was valid and proper.</p> <p>2. Same — Correction of Journal Entry — Retaxation of Costs. After the term at which the decree was rendered a motion was filed to correct the journal entry so as to make it speak the truth. This the court did, and upon consideration of further evidence retaxed certain costs. Held, proper.</p>

<p>Appeal from Smith district court; Richard M. Pick-LER, judge.</p>

<p>syllabus BY THE COURT.</p> <p>1. Contract — Exchange of Property — Tender of Performance —Contract Binding. A contract to exchange property contained the following- provision: “Provided however, that the said party of the second part can make arrangements whereby he may be able to complete this deal according to the following terms:” Held, that tender of performance by the party of the second part before the other party withdrew rendered the contract mutually binding.</p> <p>2. Same — No Arbitrary Right to Refuse Performance. The contract contained the following provision: “This reserves the right for each man to be the judge as to representations made as to other’s property to either reject or accept.” Held, the party of the first part did not have an arbitrary right to reject the second party’s property. Judgment upon the second party’s representations was required as a basis for rejection, and this meant fair and candid judgment such as honest and reasonable men exercise.</p>

<p>SYLLABUS BY THE' COURT.</p> <p>1. Money Paid by Mistake — Action Barred by Statute of Limitations. Where money was paid in 1898 under a mistake and that mistake was discovered in December, 1903, an action for its recovery filed in August, 1907, was barred by the statute of limitations.</p> <p>2. Trust Funds — Action to Recover Barred by Statute of Limitations. Where the proceeds of an estate of an Ohio woman who died in 1860, have been permitted by the heirs to remain unadministered in their mother’s hands for thirty-eight years, and the only full' brother of the deceased woman persuaded the mother that he was entitled to the entire estate and received from his mother the sum of $1200 thereon in</p> <p>' 1898, and the mother and his half brother and sisters demanded a return thereof in 1903, on the theory that the money was trust funds in the mother’s hands, and that trust was denied by the brother who received the money, a suit to impress the money in his hands as a trust, filed as an amended petition in 1911 to an action originally begun in 1907 to recover the money as paid by mistake, when the trust had been disavowed in 1903 and all interested parties had notice thereof, such suit was barred by the statute of limitations.</p> <p>3. Trust Fund — Accounting—Action Bwrred by Statute of Limitations. Where a new petition filed on July 26, 1911, recites that money was paid by mistake or fraud in 1898, and that an action to recover it had been begun in August, 1907, and the original petition had been amended to plead a trust character of the money so paid, and that such action or suit was dismissed on July 26, 1911, and such new petition filed that day sets up the earlier steps in the litigation and seeks to have the money so paid impressed with a trust and to have an accounting thereof, held, that when it is shown by the pleadings and the evidence that the recipient never acknowledged the trust character of the money, denied its trust character, and refused its return in 1903 on the demand of the interested parties, a demurrer to the evidence should have been sustained.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Telephone Company — Illegal Assumption of Privilege — Can Only be Challenged by the State. The assumption of a privilege not granted by state authority ordinarily can only be challenged by the state itself in a suit brought by its proper representatives.</p> <p>2. Same — Injunction Not Maintainable by Rival Company. A telephone company has not that peculiar interest in the establishment of a second telephone company in a competitive field, as distinguished from the general public, so as to authorize it to maintain an injunction suit against its rival because that rival does not hold a license from the public utilities commission under section 31 of chapter 238 of the Laws of 1911.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Street Railway — Pedestrian Crossing Track — Unconsciousness —Want of Due Diligence by Motorman. A contention that, a pedestrian who was run into by a street car was at the-time unconscious, and that due diligence required the motorman to realize that fact and stop the car, is supported by evidence that he has no memory of what happened after he left a point a block and a half from where he was hurt until he found himself in a hospital, that when struck he was/ not going in the direction to which his errand would lead him, that he walked for some distance in the street close to the track, with his head bent down, giving no heed to the gong which was sounded loudly and continuously, and that shortly before the accident he crossed the track from one side to the other and back again, and was hit while apparently attempting to cross it for a third time.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Railroads — Employee Engaged in Intrastate Traffic When Injured — Action Not Within Purview of Federal Employer’s Liability Act. An interstate railroad when engaged in hauling cars of coal over its line from a point in one state to another point in the same state where their bulk is to be broken and some portions thereof afterwards used for fuel on engines running into other states, is not by virtue thereof engaged in interstate traffic.</p> <p>2. Same. Upon the facts stated in the opinion it is held that the plaintiff, who was a fireman on a switch engine, was at the time he sustained his injuries engaged in hauling coal which at a later date might become a part of an instrumentality used in the transportation of interstate commerce, but that his work had no real and substantial connection with interstate commerce.</p> <p>3. Special Findings- — Control General Verdict. In this case it is held that the general verdict in favor of the plaintiff is controlled by the special findings which establish that the plaintiff at the time he sustained his injuries was not engaged in interstate commerce.</p> <p>4. Same — Erroneous Instruction as to Assumption of Risk. In an action by the servant to recover for personal injuries where assumption of risk is one of the defenses, it is error to charge the jury that even if they found that plaintiff had assumed the risk, that would not constitute a defense unless they further found that the dangers were so glaring that an ordinarily prudent person would not have' encountered them.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Negligence — Train Collision — Escape of Vicious Animal — Personal Injuries to Pedestrian — Negligence of Railway Proximate Cause of Injuries. A collision between freight trains, caused by the negligence of the railway’s employees, resulted in the wreck of a number of cars loaded with cattle, from which a number of wild, dangerous, Texas cattle escaped into the city of Harper, Kan., where, while they were being gathered up and driven to the stockyards, by persons employed by the railway for that purpose, one of the cattle, a cow, attacked and injured the plaintiff, who was walking on the sidewalk, this cow, after the wreck, before attacking the plaintiff, having made three separate attacks on one of the employees driving her'. The railway is held liable for the damage done by this cow to the plaintiff.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Negligence — Failure to Deliver Telegram — No Actual Damages Shown — No Punitive Damages Recoverable. Where a telegram from a brother to his sister announcing the death of their father and inquiring “Wire me if you can come?” is prepaid by the brother, and there is negligence in the delivery of the message, held, that where there is no evidence that the sister reimbursed her brother for the cost of the message, she can not recover that cost as actual damages, and where no other actual measurable damages are shown, punitive damages can not be awarded for failure to deliver the telegram promptly.</p> <p>2. Same — Damage¿ for Mental Anguish Not Recoverable. The rule that anxiety, mental pain and anguish, unaccompanied by other actual damages, are not a basis for the recovery of punitive damages, followed.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Negligence — Insufficient Number of Men to Handle Hand Gar — Personal Injuries. The plaintiff, who was an employee of the defendant, suffered an injury while replacing’ a hand car upon the track which he and three others had previously removed. The negligence charged byjffie plaintiff and found by the jury was that defendant failed to furnish a sufficient number of men to handle the car with safety. Held, that the fact that four men had lifted the car from the track and that three men had lifted it at another time under different conditions, does not overthrow the finding in favor of plaintiff; and held further, that there is sufficient evidence to support the finding.</p> <p>2. Same — Assumption of Risk. To preclude a recovery on the ground of the assumption of risk, the plaintiff must not only have knowledge of the existing conditions, but he must have realized and appreciated the assumed danger resulting from the conditions; and it is further held that the finding of the jury that the plaintiff only partly realized the danger of the undertaking is supported by the evidence.</p>

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Jurisdiction op Probate Court — Trusts—Enforcement of Clmm Arising from a Trust Against Estate of Trustee. The plaintiff, the owner of a note secured by a real-estate mortgage, assigned the instrument to her brother, who agreed to foreclose the mortgage, purchase the land at the foreclosure sale, hold the land for the plaintiff until a favorable opportunity should present itself, and then sell the land and account to the plaintiff for the proceeds, less all expenditures. Pursuant to this arrangement the brother purchased a' first mortgage on the land, foreclosed both mortgages, purchased the land at the foreclosure sale, paid costs and attorney fees, made other advancements, and after keeping the land for a number of years sold it at a profit above all expenditures. He died without having rendered an account to his sister. The plaintiff presented a claim against her brother’s estate in the form of an account showing various debits and credits and stating a balance due her arising from the transactions stated. Held, the probate court has jurisdiction to adjudicate the claim and that the agreement between the plaintiff and her brother was provable by parol evidence.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. False Representations — By Agent — Inducing Purchase of Corporate Stock — Liability of Agent. Where an agent, by false representations affecting' its value, induces his principal to authorize him to purchase treasury stock in a corporation, and instead of doing so procures other stock, previously issued, and delivers it without revealing its source, the principal may, after learning the facts, offer to return the stock to the agent, and maintain an action against him for the amount paid him.</p> <p>2. Limitation op Actions — Discovery of Fraud — Allegations of Petition. In an action for relief on the ground of fraud, an allegation in the petition that the plaintiff did not discover the actual facts or the falsity of the representations made to him until a certain date will be regarded as negativing constructive notice, as well as actual, prior to that time, unless upon a motion directly challenging the language for uncertainty.</p>

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

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Insurance — Untrue Statements — Inserted in Application by Defendant’s Solicitor — Policy not Avoided. The plaintiff applied to a solicitor of the defendant, a mutual fire insurance company, for insurance, signed an application which the solicitor transmitted to the defendant, and in due time received a policy making the by-laws of the company a part of the contract. The answers to certain material questions, as they appeared in the application, were not true, and if they had been true the by-laws would have forbidden the risk. When the application was taken the questions referred to were propounded to the plaintiff by the solicitor and were truthfully answered, but the solicitor set down answers, not as given by the plaintiff, but in his own way. The plaintiff signed the application without knowledge of what the solicitor had written. The property was subsequently destroyed by fire originating from a source inquired about by one of the questions. Held, the plaintiff was entitled to recover.</p> <p>2. Trial — No Prejudicial Error. Various assignments of trial error examined and held not to warrant a reversal.</p>

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Setting Aside Deed — Mental Incapacity — Cause of Action Stated. In an action to set aside a deed, because of the unsoundness of mind of the grantor, a petition which alleges that the grantor was very old and decrepit, and for many years previous to his death was of a weak mind and habit, and mentally incapable of attending to or transacting business, and for a long time had been incapable by reason of mental incapacity of applying himself to and intelligently conducting his affairs; that the grantee knew of this condition previous to the date and execution of the deed, sufficiently states continued mental unsoundness from the date named until the grantor’s death, as against a demurrer.</p> <p>2. Same — Mental Unsoundness — Statute of Limitations. The statute of limitations does not run against one who is so unsound of mind as to be incapable of attending to his business.</p> <p>3. Same — Nonexpert Evidence — Competent to Show Mental Incapacity. Testimony of non-expert witnesses is properly admitted to show the unsoundness of mind' of a grantor in a deed, when the witnesses give their means of observing the person inquired about and detail the acts and conduct of that person.</p> <p>4. Same — Statute of Limitations — Suspended Until Grantor’s Death. As against the heirs of a grantor in a deed, who is of unsound mind at the time of making the deed, and so continues until his death, the statute of limitations does not be„gin to run until the death of the grantor.</p> <p>5. Same — Unnecessary Allegations of Petition — Fraud. In a petition to set aside a deed, filed by the heirs of a grantor who was of unsound mind at the time of the execution thereof, it is not necessary to allege fraud other than that of procuring the deed, knowing the grantor to be of unsound mind at the time of the execution of the same.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Exemptions — Household Goods Owned by Wife — Exempt from Attachment for Debt of Husband and Wife. A husband and wife reside in a hotel conducted and managed by the wife in her own name. They have one child and the wife has a child by a former husband, who resides with her. The household furniture used in the hotel belongs to the wife, and does not exceed in value the sum of five hundred dollars. In an action of debt against both husband and wife the household furniture was attached. Both defendants moved to discharge the attachment on the ground the property is exempt. Held, the property is exempt , under section 3649 of the General Statutes of 1909, providing that every person residing in this state and being the head of a family shall have exempt from seizure and sale on any attachment specified household articles and all other household furniture not exceeding in value five hundred dollars.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Contract — Selling Broom Corn on Commission — Contract Construed. One of several provisions in a written contract was: “American Warehouse Company to have privilege of selling on Commission of $5.00 per ton. Prices to be made by Louisville Broom Works.” Held, that this bound the broom-corn company to fix prices at which the warehouse company could sell and earn the commission, and was not to be a mere option or agency revokable at will.</p> <p>2. Same — Rejected Evidence — Exclusion No Material Error. Officers and other witnesses for the two companies testified quite fully as to the course of dealing, so that the claims and contentions of the parties plainly appeared. Certain correspondence between them touching the matters thus testified about was rejected. Held, that while properly admissible it does not appear that its admission would or should have led to a different result, hence there was no material error in such exclusion.</p> <p>3. Same — New Trial — Evidence Not Produced on Motion — Stipulation. Instead of producing this evidence at the hearing of the motion for a new trial it was stipulated that it should be considered as then offered and should be considered by the court. Held, that such stipulation was not a compliance with section 307 of the civil code, but whether or not it amounted to a waiver so as to supersede such compliance, in view of the preceding paragraph, becomes immaterial. ,</p> <p>4. Same — Expenses Properly Charged, and Divided. Expenses, erroneously called commissions, in purchasing broom corn on the joint account of the parties were properly charged and divided between them.</p> <p>5. Same — Contracts Binding — Not Optional — Instruction. The instructions were drawn upon the theory that the contracts between the parties were binding and not merely optional. Held, proper.</p>

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

<p>syllabus BY THE COURT.</p> <p>Taxation — Indefinite Description of Real Estate — Tax Deed Void. A tax deed which was less than five years old when attacked, and in which the land was described as “The east half of the southwest quarter of section twenty-three (23) township twelve (12) range thirteen (13) less six (6) acres situated in the county of Shawnee and state of Kansas,” is void, and extraneous evidence is not admissible for the purpose of locating- the land intended to be conveyed.</p>

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

<p>syllabus by the court.</p> <p>Removal op Causes — Bight of Foreign Corporation to Removal of Cause to Federal Court Can Not be Abridged by State Laws. An action brought in the state court against a foreign surety company which is admitted to do business in the state upon the same terms and by the same procedure as foreign life insurance companies are permitted to transact business here may be removed to the federal court if the case is a removable one within the provisions of the acts of congress, notwithstanding the company may have filed its written consent in the insurance department in pursuance of the provisions of section 4122 of the General Statutes of 1909 that actions against the company may be commenced in the county where the cause of action arose or in which the plaintiff resides.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Change of Venue — Insufficient Application. An application for a change of venue, supported by the affidavit of the party making such application, setting forth that a fair and impartial trial can not be had because of prejudice in the county against the applicant, and that the judge is biased and prejudiced in favor of the opposite party, and that the applicant has a suit pending against the judge for alleged misrulings and proceedings without jurisdiction, is not of itself sufficient to compel such a change.</p> <p>2. Empaneling Jury — Irregularities of Clerk — No Prejudice Shown. A judgment will riot be disturbed for irregularities of the clerk of the district court in calling jurors for the trial of a cause, unless it appears that the party complaining was prejudiced thereby.</p> <p>3. TRIAL — Instructions—Presumption in Absence of Evidence. Instructions, stating correct principles of law, applicable to the pleadings, will be presumed to have conformed to the facts proved, in the absence of any abstract of, or statement con- . cerning, the evidence.</p> <p>4. Motion for New.Trial — Absence of Witness — Motion Properly Denied. A motion for a new trial, which alleges inability to procure the attendance of a witness, when no application for a continuance, or other request, is made on that account when the case is called for trial, is properly denied.</p> <p>5. Same — Surprise at Witness’ Evidence — Motyon Properly Denied. A motion for a new trial which alleges surprise because a witness did not give more definite testimony, is properly denied, when no application or request of any kind is presented to the court at the time the testimony is given.</p> <p>6. Same — Remarks Made in Presence of Jtiror — Not Shown to Have Been Prejudicial. It must be shown that remarks made in the presence of a juror trying a cause were such as would necessarily prejudice the party complaining, or it must be shown that prejudice did result therefrom, in’order to warrant this court in reversing a judgment and ordering a new trial on that account.</p> <p>7. Same — Judge—Talking with Counsel about Instructions— Proper Conduct. It is not improper conduct for a judge to talk with counsel concerning instructions to be given in a cause on trial. •</p> <p>8. Verdict — Not Vitiated by the Words “Not Guilty.” The addition of the words “Not Guilty” to a verdict finding for the defendants, in an action for damages for an assault, does not vitiate the verdict.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Vacation of Street — City Ordinance — Ineffectual to Vacate Street. No part of the street is vacated by an ordinance of-a city of the second class, which is entitled as one in relation to vacating a part of a street for “railroad building purposes,” but which in its body only purports to authorize the railway company to use for “railroad purposes” the portion of the street described.</p> <p>2. Same — Adverse Possession by Railroad — City Not Estopped to Deny Vacation of Street. . Where under color of the authority of such ordinance the railway company has constructed a depot standing in part upon the designated portion of the street, and located its station and yard tracks upon the assumption that the street was vacated, ahd the depot and tracks have been so maintained for many years, the city is not estopped to deny the vacation of the street, unless with respect to the portion occupied by the depot.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Railroads — Dangerous Crossing — Duty of Traveler — “Stop, Look” — Contributory Negligence. A traveler whose deafness prevented him from hearing the warning signals of an approaching train at a dangerous crossing with which he was familiar, drove upon the track and was struck by the train and injured. His failure to stop and look from a position where he could have seen the train in time to avoid the injury is contributory negligence which will prevent his recovery in an action against the railway company.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. City Policeman- — An Officer of the City. A policeman holds an office within the meaning of section 2 of article 15 of the state constitution.</p> <p>2. Same — Not Within Provision of Civil-serviee Laws. The civil-service provisions of section 1238 of the General Statutes of 1909, relating to commission government in cities of the first class, must be restricted to the employment of subordinates and employees, and can not apply to officers within the contemplation of section 2 of article 15 ¡of the state constitution.</p> <p>3. Same — Tenure of Office. Under the constitution (Art. 15, § 2) a policeman holds his office during the pleasure of the authority making the appointment.</p> <p>4. Same — Appointment During Good Behavior — Unconstitutional. An appointment of a policeman during good behavior under civil-service regulations violates the constitutional provision that the legislature shall not create any office the tenure of which shall be longer than four years.</p>

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

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

<p>OPINION ON REHEARING.</p> <p>SYLLABUS BY THE COURT.</p> <p>Appeal — ■From Judgment of Justice of the Peace — Bond Required. Under the present code the only method oí appealing from the judgment of a justice of the peace is by the giving of a bond as provided in the j'ustice’s act.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Mandamus — County Superintendent — Refusal to Indorse Teacher’s Certificate — Writ Allowed. The rule that a teacher holding a certificate duly issued by a board of examiners has a right, on presentation thereof with the proper fee to the superintendent of another county, to have such certificate indorsed by him unless some valid reason exists for withholding such indorsement — followed.</p> <p>2. Same — The test of the teacher’s right to such indorsement is the existence or nonexistence of such valid reason, not the opinion or belief of the superintendent that such reason exists, and a court of competent jurisdiction may properly inquire into the matter and direct the superintendent in accordance with the result.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Conveyance — Will—Validity of — Mental Capacity of Grantor and Testator — Request for Findings of Fact — Duty of Court —Validity of Marriage Contract. In a suit tried by the court involving' the validity of certain conveyances and a will executed thereafter and the mental capacity of the grantor and testator, it was error for the court to refuse, upon timely request to make findings of fact covering the material issuable matters put in issue by the pleadings and on which evidence was introduced.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Appeal — From Justice of Peace — Petitions in Error Abolished. Under the provisions of the present code (§ 567) petitions in error are abolished, and there can be no review of a judgment or a final order of a justice of the peace except by an appeal. Kroenert v. Sawyer, 87 Kan. 374, 124 Pac. 418, followed.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Habeas Corpus — Paroled Prisoner — Violation of Parole — Re-commitment to Prison — Statute Constitutional — Writ Denied. A parole granted by the district court or a judge thereof under section 2 of chapter 178 of the Laws of 1907 (Gen. Stat. 1909, § 2460), containing a provision that upon satisfactory information that the conditions of the parole have been violated the court or judge is authorized to revoke the parole and cause the convict to be reimprisoned under the sentence pronounced by the court without notice or hearing, may be revoked by the court or judge and the convict may be recommitted to serve out his sentence without either notice or hearing, and such action is not a violation of the constitu-’ tional guaranty that no person shall be deprived of his liberty!1 without due process of law, nor of the other guaranty that no warrant shall issue except on probable cause supported by oath or affirmation.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Sale of Wheat — False Bill of Lading — Innocent Holder■ — •Conclusive Against Railroad Company — Liability of Those Responsible for the Fraud. In the purchase of a car of wheat by a grain dealer a bill of lading with a draft attached was forwarded to a bank and was paid and taken up by the dealer. The grain dealer then sold the car of wheat and procured the railway company to issue an exchange bill of lading showing a much larger quantity of wheat than was in the car or shown by the original bill of lading, and to the exchange bill of lading a draft was attached which covered the excess. The agent of the railway company had the original bill of lading before him when the exchange bill of lading was issued, and the grain dealer also knew of the excess and collected for it from the purchaser. When the false bill of lading with the draft attached was presented to the plaintiff to which the wheat was sold it paid the draft and took up the bill of lading. Later the car arrived, and although the plaintiff had then learned of the shortage of grain in the car it paid the freight on the car and accepted and used so much of the' wheat as was in the car and then sued the railway company which issued the false bill of lading, and the grain dealer which procured it to be issued, to recover for the shortage of wheat and also for the freight which plaintiff had been required to pay to obtain the wheat actually shipped. Held, that the plaintiff is entitled to recover from the railway company and also from the grain dealer for the loss resulting from the issuance of the false bill of lading which includes not only the shortage of wheat but also the freight charge paid by plaintiff, and it is further held, that the railway company is entitled to a judgment against the grain dealer for the amount which it is required to pay on the judgment rendered against it.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Practice — Filing Reply After Case Called for Trial — No Showing for Continuance. A court may allow the plaintiff to file a reply, consisting of a general denial, after the case is called for trial, and then compel the defendant to go on with the trial, in the absence of a showing that he is not ready, or that he has been misled, or that he will be prejudiced thereby.</p> <p>2. Personal Injuries — Permanent Injuries to Plaintiff’s Ear— Covered by Allegations of Negligence in Petition. In an action for damages for personal injury, an allegation in a petition that the plaintiff was thrown out of a buggy, to the ground, on her head and arms, breaking her right forearm, throwing the wrist of her right arm out of place, filling her head and scalp with gravel, and “severely injuring and bruising her in a'11 parts of her body and putting her in danger of her life,” is sufficient to permit proof of permanent injury to her ear.</p> <p>3. TRIAL — Instructions—Refusal Not Error. It is not error to refuse to give proper instructions, requested, when the court gives the same, or substantially the same, instructions in the general charge to the jury.</p> <p>4. Same — •Instructions — Assumptions. An instruction which assumes that the result or consequence of negligence is itself the act'of negligence is properly refused.</p>

<p>SYLLABUS BY THE COURT.</p> <p>High Schools — May Be Established in Certain Townships— Statutes. Under chapter 262 of the Laws of 1911 and chapter '278 of the Laws of 1913, a township having no cities of over three hundred population may establish, locate and maintain a township high school.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Wills — Disposition by Husband of One-half of His Real and Personal Property■ — Valid. In the section of the wills act providing that “Any married person having no children may devise one-half of his or her property to other persons than the husband or wife” (Gen. Stat. 1909, § 9812-), the word “devise” is used in its popular sense, and relates to the disposal of personalty as well as real estate.</p> <p>2. Same — Election by Widow Not to Take Under Will. A husband having no children may by will dispose of one-half of his estate, including exempt personal property, to persons other than his wife, notwithstanding her election not to take under the will.</p>

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

<p>syllabus BY THE COURT.</p> <p>1. Railroads — Negligence—For Determination of Jury. The rule followed that disputed facts tending to show negligence are properly for the consideration of the jury.</p> <p>2. Same — Interstate Shipment — Change of Destination — Interstate Commerce. A carload of goods and live stock consigned from a point in Oklahoma to a point in Kansas, but final destination altered en route, is a shipment in interstate commerce.</p> <p>3. Same — Contract Limiting Liability for Damages Valid. - Where a carload of emigrant goods and live stock is shipped by rail from Crescent, Olda., to Hill City, Kan., but the point of destination is altered by order of the shipper at Salina, Kan., to Buffalo Park, Kan., the entire transportation is governed by the regulations of interstate commerce, under which a carrier may limit his liability for damages to the reasonable value of the property deglar.ed in the shipper’s contract. Following Metz v. Railway Co., 90 Kan. 460, 135 Pac. 667; Adams Express Co. v. Croninger, 226 U. S. 491.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Replevin — Chattel-mortgaged Property — Defense—Payment by Check — Plaintiff Not Real Party in Interest — Connivance to Defraud. In an action of replevin for the recovery of a team of mules the contention on one side was that a bank check given in payment was not good and was not accepted as payment, and on the other side that the check was received as payment in satisfaction of the debt, and, further, that the plaintiff who accepted the check had brought the action of replevin not on his own account but for the benefit of another party, and was conniving with that party to defraud the defendant. Upon the pleadings and evidence it is held that the issue of fraud was fairly in the case and that the trial court was warranted in giving an instruction to the jury on the subject.</p> <p>2. Same — Action by Wrong Party — Fraud on Defendant. The bringing of an action to recover personal property by one who has no interest in it at the instance of an outsider to aid him in effecting a wrong constitutes a fraud on the defendant.</p>

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Limitation op Actions — Construction of Setvers — Special Assessments — Injunction. The thirty-day statute of limitations applicable to suits to enjoin the levy of special assessments for sewers (Gen. Stat. 1909, § 994) governs although a city by ordinance directs the clerk to give the property-owners thirty days’ notice that improvement bonds will be issued, unless the property is redeemed from liability on account of such special assessments.</p> <p>2. Same — When Statute Begins to Rtm. The rule that the statute begins to run when the ordinance levying the assessment is published, followed.</p> <p>3. Same — Under section 1040 of the General Statutes of 1909 it is not essential to wait until the tax is actually levied, provided the acts and proceedings of the city are such as to show that such burden will be imposed unless enjoined.</p> <p>4! Pleadings — Amended and Supplemental Petitions. While an amended petition usually relates back to the time of filing the original petition, a pleading named amended petition, which is in fact a supplemental petition in part setting up things which have occurred subsequent to the filing of . the original petition, must be judged by what it is and not by what it is named.</p> <p>5. Injunction — Joinder of Causes of Action. Neither section 1040 of the General Statutes of 1909 nor section 88 of the civil code permits in cases of this kind the joinder of causes ’ of action which do not affect all the parties to the action.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Contract — Jointly to Erect a Building — Payments—Aotion on Contract — Not Barred by Statute of Limitations. There was a written contract between plaintiff and defendant by which they agreed to erect a building, each to pay one-half of the cost. There was no provision that either should advance money for the other. After the building was completed the plaintiff, claiming that he had paid more than one-half of the cost of construction, brought this action to recover from the defendant the amount in excess thereof. Held, that the action can be maintained upon the written contract, and that it was error to overrule a demurrer to an answer setting up the defense of the three-year statute of limitations.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Sale — Patent-right Territory — Fraud and Misrepresentations — Right of Recovery. The petition set forth a scheme entered into ky the three defendants to induce the plaintiff to pay one-half of $2275 for certain patent-right tenitory by falsely pretending to him that one of them was to pay the other half of such sum and engage with him in the joint adventure, and that the patented article and the right to sell in the territory covered by the transaction were very valuable; that the latter were of no value and the money procured of the plaintiff was in fact divided between the three defendants, neither paying a like sum nor any part thereof. The court eliminated the question of value on account of the statute of limitations, but permitted the plaintiff to proceed on the remainder of the charge of fraud. Held, proper.</p> <p>2. Same — Trial—Refusal of Requested Instructions- — -Not Error. , When the issues are fairly and correctly covered by the instructions given the refusal of requested instructions is not error.</p> <p>3. Same — No Estoppel to a Recovery. Under the circumstances described in the first paragraph it is not essential to a recovery that the plaintiff should have made a reasonable effort to realize on his investment.</p> <p>4. Special Questions — Refusal to Stibmit Not Error. It is not error to refuse special questions which call for answers touching only immaterial matters.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Note — Endorsements—Evidence—Transactions Had Personally with Deceased — Incompetent. An offer by the plaintiff, who brought an action against the administratrix of -the estate of a deceased person, to testify that the deceased, in his lifetime, had made payments to plaintiff upon the promissory note in suit and that plaintiff had endorsed the payments on the note was properly excluded under section 320 of the civil code.</p> <p>2. Note — Limitation of Action — Payments—Identification of Debt. To effectually interrupt the running of the statute of limitations by a payment it must appear that there was no uncertainty about the indentification of the debt on which it was made.</p> <p>3. New Trial — Newly Discovered Evidence — When Sufficient. Before a new trial is granted upon the ground of newly discovered evidence it must appear not only that the proposed evidence is material, is not cumulative, and that due diligence had been used to procure it, but also that it would be sufficient to produce a different result.</p> <p>4. Appeal — Matters for Review. Only such matters as were considered by the trial court are open to review in the supreme court.</p> <p>5. Evidence — Not Objected to in Probate Court — No Estoppel on Appeal. The fact that a party made no objection to testimony offered in a trial in the probate court did not preclude such party from making an objection to the same testimony when it was offered on an appeal in the district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Contract — Attorney’s Fee — Joint Employment by Two Persons. The evidence examined and held to support a finding of a joint employment of an attorney by two persons having a common interest in the litigation.</p> <p>2. Same — Attorney—Employed by Two Persons — Separate Liability for Attorney’s Fees. Where two persons employ an attorney to perform services in their common interest, without agreement as to the amount to be paid, and one of them makes a settlement for himself, the attorney in an action against the other may recover one-half of the amount therein determined to be the reasonable value of his services, notwithstanding he may have received more than half that amount in the settlement referred to.</p> <p>3. Trial — No Reversible Error. Various trial rulings examined and held not to constitute reversible error.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Deed — “President”—Deseriptio Persones — Mortgage for Purchase Money — Equitable Lien. Where a deed conveys property to “J. E. Liggett, president of the National Home Building Company,” and the grantee gives back a mortgage as part payment for the property signed “The National Home Building Company, J. E. Liggett, President,” the deed and mortgage are eomplemental parts of the same bargain; and upon an adjudication that such deed conveyed the property " to J. E. Liggett personally, equity requires the recognition of the mortgage against one who claims under a quitclaim deed from J. E. Liggett.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Mechanic’s Lien — Machinery Partially Attached to Realty— Lien Attaches to the Whole. Where the base of a heavy piece ' of machinery has been bolted to a concrete foundation, and its principal parts have been placed in position, the whole may be regarded as attached to the realty so as to be covered by a mechanic’s lien, notwithstanding some portions of it have not been fitted into place.</p> <p>2. Same — Two Stone Crushers — Only One Attached to Realty— No Mechanic's Lien on One Not Attached. Where two stone crushers are purchased for use together as parts of the same plant, the physical attachment to the realty of one does not result in the constructive attachment of the other, notwithstanding both are necessary to the operation of the plant.</p>

<p>syllabus by the court.</p> <p>1. Fraudulent Conveyance — Defrauding Creditors — Evidence. The evidence examined and held sufficient to support a finding that a deed was executed for the purpose of defrauding creditors of the grantor, and that the grantee participated in the design.</p> <p>2. Trial — No Error. Various rulings held not to constitute error.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Contracts — Agency for Sale of Traction Engine — Breach of Contract by Engine Company — Measure of Damages Recoverable by Agents. A written contract between the defendant and a corporation engaged in manufacturing a gas traction engine is construed to provide that the defendants should be the exclusive agents for the sale of the engine in Kansas during the life of the contract and should canvass the state and advertise the engine; it is therefore held upon a breach of the contract by the plaintiff that the defendants are entitled under the allegations of their cross-petition to recover whatever the proof may show they reasonably expended in efforts to canvass the state and advertise the merits of the engine, including reasonable expenses incurred in attending agricultural fairs and distributing literature and in demonstrating the uses of the engine in field plowing and road grading, but that they are not entitled to recover for the value of their services in advertising and demonstrating the advantages of such traction engine, or in the conduct of the business of selling and preparing to sell engines.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Personal Injuries — Defective Floor — Falling Scaffold — Evidence Sufficient Against Demurrer Thereto. An examination of the abstracts discloses that there was some evidence tending to prove each fact necessary to be established to prove the plaintiff’s case, and for that reason a demurrer to the evidence was properly overruled.</p> <p>2. Same — Verdict Approved by Trial Court — Not Disturbed. A general verdict, approved by a trial court, when based on sufficient, although conflicting evidence, will not be disturbed by the supreme court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Highway — Road Regularly Laid Out — Defective Record of Proceedings. Where a proper road petition is filed with the county clerk, a bond given and approved, viewers appointed, public notice given, personal notice given, the road viewed, recommended by the viewers, and ordered established by the board of county commissioners, the road is regularly laid out, although the record of the proceedings may be defective.</p> <p>2. Same — Owners of Land Absent from, County — Service of Notice on Agent. Personal service of notice is not required upon owners through whose land a road is to be established, when those owners can not be served in the county because of continued absence therefrom, although their permanent place of residence may be within the county.</p> <p>3. Same — Service of Notice on Tenant in Common in Charge of Land, Sufficient. A tenant in common of real property, who looks after the lands belonging to himself and his co-tenants, who are his brothers and sister, rents the lands, collects the rent, pays current expenses and the taxes thereon, is such an agent as is contemplated in section 7277 of the General Statutes of 1909, when service of the notice required by that statute can not be personally made on the other owners of the land, because of their absence from the county.</p>

<p>syllabus by the court.</p> <p>Lease — Part of Bight of Way for Grain Elevator — Provision Exempting Railroad Company from. Liability for Negligence —Provision Valid. A railway company leased to the plaintiff, at a rental of $6 per annum, a strip of ground on its right of way to be used in the erection of a grain elevator. The lease contained the provision that the lessee should assume all risk of loss, damage or destruction to the elevator buildings or contents from causes incident to or arising from the movement of locomotives, trains of cars, misplaced switches, or in - any other respect from the operation of the railroad, whether the result of negligence of the railway company or its employees; Held, that the clause exempting the railway company from liability is not in contravention of public policy, and is valid.</p>

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

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

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

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

<p>syllabus BY-THE COÜRT.</p> <p>Personal Injuries — Unloading Marble Slabs from Wagon — ■ No Negligence of Defendants Shown. Plaintiff was assisting in unloading heavy marble slabs from a wagon. His duties required him to stand in the wagon and assist another workman there in holding and guiding the slabs while other workmen, who stood upon the ground, pulled the slabs out and carried them away. When four or five of the slabs were still in the wagon standing on edge and- leaning against one side of the wagon box, the foreman said to the plaintiff: “When you pull the next one out, raise it up and put this piece under it so it won’t scratch on that iron.” The plaintiff undertook to obey the order without the assistance of the other workman in the wagon, and without informing the latter that he was going to lift the slabs, and while thus engaged the slabs fell upon and injured him. It is held that a special finding that one man was not able to hold the slabs in position while the plaintiff obeyed the order is in conflict with the undisputed facts, and that it was not negligence for defendants to give the plaintiff the order.</p>

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Liquor Laws — -“Persistent Violators” — Form of Information. An information, under chapter 165 of the Laws of 1911, the prohibitory liquor law felony act, may properly charge numerous violations of the law, each in a separate count.</p> <p>2. Same — Submission of Evidence to Jury. The court may submit to the jury as many counts of such an information as there is evidence to support.</p> <p>3. Same — “Shifts and Devices” in Sale of Liquors — Applies to Prosecution of “Persistent Violators.” Section 4372 of the General Statutes of 1909, concerning shifts and devices in the sale of intoxicating liquor, is a part of the prohibitory liquor law of this state, and applies to those who persist in violating that law, after having been convicted thereunder.</p> <p>4. PRACTICE — Qualification of Juror — No Abuse of Judicial Discretion. A challenge to a juror, for cause, is properly overruled, when the court is satisfied that the juror is competent, although the juror may state on his examination that he has some impression not amounting to a fixed opinion, but states that he will try the case on the evidence.</p>

<p>SYLLABUS BY THE COURT.</p> <p>•“Pure Food Law” — Sale of Impure Milk — Information States a Public Offense Under the Statute. The state board of health having made a rule and regulation fixing the standard for milk kept and offered for sale and sold to others to the effect that milk shall contain not less than 3.25 per cent of milk fat nor less than 8.50 per cent of solids not fat, an information which charged that at a certain- time the, defendant kept and offered for sale and sold milk .which contained less than the standard prescribed by the state board in violation of the rules and regulations of the state board of health and of the statutes states an offense under section 3 of the drugs and foods act, being section 3077 of the General Statutes of 1909.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Will — “Spendthrift Trust” — May be Created and Enforced in Kansas. The doctrine of “spendthrift trusts” approved by the majority of the American courts, by which it is settled that it is lawful for a testator or grantor to create a trust estate for the life of the cestui que trust, with the provision that the latter shall receive and enjoy the income at times and in amounts either fixed by the instrument or left to the discretion of the trustee, and that such income shall not be subject to alienation by the beneficiary, nor liable for his debts, accords with the general policy which this state has always followed respecting the right of creditors and debtors. It deprives the creditor of no security to which he has the right to look, and it recognizes the right which the owner of property has to dispose of it, either by an absolute gift or by a conditional one, and to make provision for the object of his bounty, provided he gives the use only without the absolute title, and therefore the testator’s intention in this respect, when clearly expressed, will be carried out.</p> <p>2. Same — Terms Do Not Create a “Spendthrift Trust” — Intention of Testator. A will contained the following clause:</p> <p>“To my brother, Arthur B. Havens, should he survive me, an annuity of one thousand dollars, and I direct my said executor-trustees to pay him Two Hundred and Fifty Dollars quarterly in advance from my death until his; but should he pre-decease me, and in any event after his death, such annuity fund to be added to the trust estate hereinafter created for my said daughter Elizabeth and her issue.”</p> <p>Held, that proper construction of the will does not disclose an intention on the part of the testator to secure to his brother the life enjoyment of the income of the trust estate exempt from his brother’s creditors.</p> <p>3. Same — Without deciding that a letter written by the testator three years after the execution of the will was admissible in evidence for the purpose of showing the circumstances under which the will was executed, it is held that nothing contained in either the will or the letter shows that it was the testator’s intention to protect the income from waste or dissipation, or to prevent the legacy from being subject to payment of the brother’s debts.</p> <p>4. Trust Fund — In Hands of Executor — Subject to Garnishment by Creditors of Beneficiary after Order of Final Distribution. Section 228 of the code authorizing creditors to proceed by garnishment against “any person” who shall be indebted to, or have any property, real or personal, in his possession or under his control belonging to the debtor, is sufficiently broad in its terms to authorize an action in garnishment against an executor or administrator after an order of final distribution.</p> <p>5. Same — Trust Fund — In Hcrnds of Executor — Estate Solvent— Fund May be Garnished Before Fmal Settlement. It being one of the agreed facts in the present case that the estate of the testator is solvent and able to respond to the quarterly payments due to the beneficiary, and that they have made such payments to him in advance and recognized the provision, no order of distribution was necessary in order to authorize them to make the .payments, and such quarterly payments are subject to attachment before final settlement.</p> <p>6. Garnishment Proceedings — Attorney’s Fee Proper. Under section 247 of the code, the allowance by the court of $25 attorney’s fee for the plaintiff was proper.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Dangerous Insane — Trial for Murder — Acquitted on Ground of Insanity — Committed to Hospital for Dangerous Insane — Proceedings Not Reviewable by Motion for New Trial, nor by Appeal. Proceedings in a trial upon an indictment or information charging a crime, resulting in a verdict of acquittal which finds that the defendant was insane when the offense was committed, in accordance with section 5 of chapter 299 of the Laws of 1911, are not subject to review by motion for a new trial or by appeal.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Workmen’s Compensation Act — Judgment for Damages — Appeal — Motion to Dismiss Appeal — Judgment Affirmed upon the Record without Further Hearing. Where a defendant appeals from a judgment rendered against him under the workmen’s compensation act, the plaintiff may by a motion to dismiss raise the issue whether the questions of law involved are so doubtful as to require the filing of briefs; and if upon the resulting hearing the court is fully satisfied that no grounds for a reversal exist, an affirmance will be ordered.</p>

<p>syllabus by the court.</p> <p>'Mandamus — Refusal to Transfer Cars — Damages—Attorney’s Fees and Expenses in U. S. Courts Not Recoverable — Application to File Plea'in Abatement and Answer Denying Jurisdiction Comes Too Late — Judgment as per Mandate of U. S. Court Ordered. An action to compel the railway company to perform a duty in moving cars resulted in the allowance of a peremptory writ of mandamus. The defendant in a plea in abatement and in an answer to the alternative writ had denied the jurisdiction of this court, alleging that the service demanded was a part of interstate commerce. The same contention was made in the supreme court of the United States which reviewed the judgment of this court, but the judgment was affirmed. Meanwhile in proceedings ■ in the same action a judgment was rendered for damages against the railway company. On a review of that judgment in the supreme court of the United States, it was held that error was committed in allowing as damages items of attorneys’ fees and expenses in the supreme court of the United States, but that from a federal point of view there was no error in the judgment to the extent that it awarded damages complained of and allowed a claim for atorneys’ fees in the state court. To give effect to these conclusions the judgment was reversed and the cause remanded for further proceedings not inconsistent with the opinion. Pending the entry of judgment on the mandate containing these directions the defendant presented a plea in abatement and a proposed answer setting up with greater’ amplitude provisions of the interstate- commerce acts, alleging that they deprived this court of jurisdiction, and pleading especially that it had filed a schedule of rates for •the services in question which had been approved by the Interstate Commerce Commission and praying that the court •should proceed no further except to dismiss the action.</p> <p>It is held (1) that the original pleadings were sufficient to admit the proof respecting the schedule referred to; (2) that the jurisdictional question was determined by the judgment of ■this court and that of the supreme court of the United States, -at least so far as it was presented, and every fact available •for that purpose now was equally available at the trial; ■ (3) that if the reference to the schedule should be considered as a new feature of the pleading it should not now he allowed in order to present a federal question not before raised; and (4) that judgment should be entered upon the mandate for the damages which the reviewing court held were not .erroneously allowed.</p>

<p>SYLLABUS BY THE COURT.</p> <p>School-district Bonds — Innocent Holder — District Liable. A school district is liable to an innocent holder on its refunding bonds issued under chapter 50 of the Laws of 1879, where the bonds recite that all acts, conditions, and things required to be done precedent to and in the issuing of the bonds have been properly done, happened and performed in regular and due form as required by law, although there - is a certificate of the district board accompanying the bonds, purporting to recite some, but not .all, of the steps taken preceding the issuance of the bonds, the certificate not contradicting the récitals in the bonds. , ■</p>

<p>OPINION ON REHEARING.</p> <p>SYLLABUS BY THE COURT.</p> <p>1. Sale of Real Estate — Commissions—Fact for Jury.' The question whether a real-estate agent is the procuring cause of the sale of a farm is one of fact to be determined by the jury in the light of all the circumstances leading up to the final negotiations between the vendor and purchaser.</p> <p>2. Same — Demurrer to Plaintiff’s Evidence — Properly Overruled. Emery listed his farm for sale with Grimes on November 1, 1911; Grimes called several times on Kline, seeking to sell him the farm; on February 13, 1912, Emery had a conversation with Grimes in which he said he might cut the price for an immediate sale; Grimes told Emery that he had a man north of Ada (meaning Kline), who might buy, but did not tell who the prospective purchaser was; on February 15, 1912, Grimes saw Kline, and again solicited him to buy, and to go and look at the farm; Kline said he wanted to look at some other lands first, but tacitly agreed to go; on April 12, 1912, Kline called on Emery, seeking to buy the farm, and, after being assured by Kline that no real-estate agent had sent him, Emery, without further inquiry, sold the farm to Kline. Held, that it was not error to overrule a demurrer to the evidence on the point that Grimes was the procuring cause of the sale in an action by Grimes to recover a commission for his services.</p> <p>3. Same — Trial — Instructions — Not Prejudicially Erroneous. Where the instructions taken together define the law with substantial accuracy, and no special instruction is asked covering some controverted point in the evidence, reversible error can not be predicated upon one instruction, not inherently misleading, when it is supported, amplified and explained to the jury by the other instructions.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Action — Setting Aside Deed — Canceling Mortgages Fraudulently Obtained — Jurisdiction in County Where Land is Situate. The petition alleged that the defendants (who resided in Neosho county) had fraudulently taken advantage of plaintiff’s mental incapacity and induced him to exchange a half section of land in Clark county for certain lots in the city of Ashland and to execute certain notes secured by mortgage on the lots, and also covering a certain promissory note for $1310, the difference in value of the properties thus purporting to be exchanged being $4700; that the defendants would, unless restrained, assign and transfer the notes and mortgage and convey the land to innocent purchasers. The plaintiff offered to reconvey and prayed that the defendants be restrained and enjoined from transferring the notes and mortgage and from conveying the real estate, “and that all of said deeds, notes and mortgages be cancelled and set aside and each of the parties restored to the property that they had before said purported exchange of properties,” and for costs. Held, that the action was not to compel the defendants to do or undo anything, but to obtain from the court a decree destroying the effect of the pretended exchange and restoring the plaintiff and his land to that freedom from cloud and apparent liability existing before the transaction with the defendants was had, and was properly brought in Clark county, where the land is situated.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Proceedings in Aid op Execution — Indirect Contempt — Ac-. ■ cusation Need Not be Verified. In a prosecution for an indirect contempt it is not necessary that the accusation be verified where a preliminary affidavit has been filed setting forth defendant’s failure to comply with the court’s order.</p> <p>2. Same — Court Takes Judicial Notice of Previous Steps Taken. In such proceeding the court takes judicial notice of previous steps taken in the cause, and it is not necessary to introduce • in evidence the order which defendant is charged with having disobeyed.</p> <p>8. Same — Statute—Concealment of Property — Failure to Apply Property to Satisfaction of Judgment. Section 524 of the civil code authorizes the court in proceedings in aid of execution to make an order requiring the defendant to turn over his property toward satisfaction of the judgment, without a finding that defendant is concealing his property; it is sufficient if there is a finding that he has property which he unjustly refuses to apply in satisfaction of the judgment.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Judgment — Obtained by Fraud — How Vacated — City Court Has no Jurisdiction to Enjoin Enforcement of Judgment of an. Oklahoma Court. A judgment was obtained in a county court of Oklahoma against the defendant, who was served with summons but made default. A suit on this judgment was brought in the city court of Wichita, and a judgment taken thereon, from which the defendant appealed to the district court and answered setting up a claim of fraud in procuring the Oklahoma judgment, alleging that he owed the plaintiff nothing- and praying that the plaintiff be enjoined from bringing any proceedings for the collection of such judgment, to which answer a demurrer was sustained. JieM>.that the Oklahoma judgment is not void, but, aside from this, the city court had no power to grant the relief prayed for, and the district court, on appeal is equally powerless.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Promissory Note — Form of Indorsement — Indorsee Became Holder in Due Course. Under the negotiable instruments law (Gen. Stat. 1909, §§ 5247-5446), a writing in these words, “I Hear By assine this note over to E. H. Farnsworth this the ISTov. 1st, 1910,” signed by the payee, on the back of a negotiable promissory note, complete and regular on its face, accompanied by delivery to the person named in the writing, is an indorsement of the note; and one who takes the note in good faith, for value, before it is due, without notice that it had been previously dishonored, and who, at the time he takes it, has no notice of any infirmity in the note or defect in the title of the person negotiating it, becomes the holder thereof in due course, and holds it free from any defect of title of the payee, and free from defenses available to the maker against the payee, and may enforce payment of the note for the full amount thereof, against the maker.</p>

<p>. SYLLABUS BY THE COURT.</p> <p>Sale — Stock in Corporation — Written Contract to Repurchase —Valid—Measure of Dam,ages. Where stock in a corporation was sold upon a written contract whereby the vendors agreed, at the option of the vendee, to repurchase the stock four years later at the same price with interest, the vendee, in electing to resell to the vendors, may recover the price fixed in the contract; and the vendee is not limited to damages measured by' the difference between the market value of the stock at the time of the breach and the sum named in the contract, although he delayed action for over a year, such delay being- occasioned ' solely by the solicitations and representations that, if given time, the vendors could and would comply with their obligation.</p>

<p>SYLLABUS BY THE COURT.' '</p> <p>1. .Judgment — When. Not cm Adjudication of Matters Occurring after Action Begun. In an action to foreclose a first . mortgage one who was made a party after summons had been served on the mortgagor filed an answer setting out a,second mortgage. The mortgagor made no appearance. .The decree provided that after the satisfaction of the first lien the residue of the proceeds of sale should be applied to the second mortgage; it recited that the mortgagor was indebted to the second mortgagee in a stated amount, but included no personal. judgment against him. Held, that the judgment was not an adjudication against the mortgagor with respect to a. defense to the balance of the debt, which originated after the second mortgagee was made a party, but before the judgment.</p> <p>2. Adjudication — Findings Constitute because Affecting Judgment. A corporation to whom as trustee a mortgage was executed, securing railroad bonds, brought an action to foreclose it. The corporation held a number of the bonds in its . individual capacity as security for the note of their owner, who set up a claim that by a pretended sale the pledgee had converted them, thus reducing or satisfying the debt to secure which they were pledged. The court made a finding that there had been no sale and no conversion; that the corporation still . held the bonds as security, having a lien on them for the amdunt due on the notes, which was stated. A judgment was rendered that the property should be sold, that the debt due the corporation should be paid, out of the proceeds, and that the residue should go to the owner of the bonds. Held, that the findings were confirmed and given effect by the judgment, and the question of conversion was adjudicated.</p> <p>3. Same — Appointment of Receiver for Corporation— No Service on Corporation — Appointment a Nullity. Under a statute authorizing the state to bring an action for the dissolution of an insolvent corporation, ánd to have a receiver appointed at the time the petition is filed, a petition was filed and an order was made appointing a receiver, who qualified as such. A summons was issued and served on the defendant corporation, but was quashed on its motion. No other service was ever-attempted and nothing further was done in the proceeding. Held, that the appointment of the receiver is to be regarded as a nullity.</p> <p>4. Same — Such Receiver Can Not Bind Corporation by Appearance in Action. Where a person acting under color of an appointment as receiver, under the circumstances above stated, appears in an action to which the corporation is a party and participates with it in a defense to a claim made against it, a judgment against the corporation and the person so acting as receiver does not constitute an adjudication with respect to a receiver of the corporation duly appointed before it was made a party to such action.</p> <p>5. BORROWING Money — Real Lender — Usury. Proof that one to whom an application for a loan was made considered lending the money, but finally refused to do so on the ground that the highest lawful rate of interest was not sufficient compensation in view of the risk, and then received a commission from the borrower for procuring a bank to make the loan at that rate, agreeing to take-it up himself on demand, and shortly after-wards doing so, is not conclusive evidence that he was the real lender, and that the transaction was usurious.</p> <p>6. Pledge of Collaterals — Sale—No Notice to Pledgor — Bid in by Pledgee — Bad Faith — Conversion. Where the pledgee of col-laterals under a contract authorizing him to bid at his own sale advertises to sell them, without notice to the pledgor, intending not to have them bring the largest price available, but to retain a secret lien on them, and causes them to be bid in by a third person acting solely in his interest, and afterwards professes not to know whom the bidder represented, such want of good faith is shown as to characterize the transaction as a conversion.</p> <p>7. Same — Pledgee Estopped to Deny Conversion. Under the circumstances stated, the pledgee having professed that the col-laterals had been sold to a stranger, can not defeat a charge of conversion by showing that at all times he had actual control of the property.</p> <p>8. Same — No Tender of Payment by Pledgor Required. Where the pledgee of collaterals makes a sale of them which is invalid because not made fairly and in good faith, the pledgor need not tender the payment of his debt in order to maintain a charge of conversion.</p>

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