Volume 96 — Kansas Reports

<p>SYLLABUS BY THE COURT.</p> <p>1. Common Carrier — Destruction of Wheat in Transit — Damages—Interest Not Recoverable. In an action against a carrier for damages on-account of the injury to or destruction of property in transit, interest is not recoverable.</p> <p>2. Same — Damaged Wheat — Acceptance Refused — Sale for Freight — Interest on Proceeds. A carrier which sells property because of the refusal of the consignee to receive it, is chargeable with interest on the-proceeds in excess of the freight, during’ the time they are withheld from the shipper.</p>

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

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

<p>Appeal from Reno district court; F. P. Hettinger, judge pro tem.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Lease — Breach by Lessee — Damages Not Allowed. The evidence in an action by a landlord against his tenant, for noncompliance with a lease, examined and found not to require the verdict to be set aside.</p>

<p>Appeal from Leavenworth district court; Jambs H.. WenDORFF, judge.</p>

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Watercourse — Mill Dam — Rights Acquired by Prescription. One who builds and maintains a dam may acquire flowage rights by prescription, and if the dam has been maintained for more than fifteen years a presumption of a grant or of consent by the upper riparian owners arises and gives the owner of the dam a right to its continued maintenance to the extent to which the right has been enjoyed for the period of prescription.</p> <p>2. Same — Rights of City to Water as against a Lower Proprietor. The fact that a city which has purchased a small tract of land on a stream and become a riparian owner is undertaking to supply the inhabitants of the city with water and has expended large sums of money in the erection of a water plant gives such owner no special or additional rights to the water of a stream as against a lower proprietor or one who has acquired prescriptive rights to the unobstructed flowage of the stream.</p> <p>3. Same — City Has no Right to Take Water from Stream to Sell without Making Compensation. A city which, purchases land abutting on a stream acquires the right of a riparian owner, which is the reasonable use of water for domestic and other ordinary purposes incident to the land, but it does not thereby acquire the right to divert or take water from the stream for the purpose of selling it to the inhabitants of the city without making compensation to those who are thereby deprived of water rights.</p> <p>4. Same — City May Not Obstruct the Flow and Diminish the Power of a Stream Belonging to a Mill Owner without Compensation to Him. The fact that a city has obtained the right to take water from a stream to supply its inhabitants at a point above the city does not give it the right to build a dam at a point considerably below the authorized intake in order to obtain water for the supply of its inhabitants, the place being within the mill pond of a lower proprietor of a mill and where the proposed dam would materially obstruct the flow and diminish the power which belongs to the mill and which would operate as a substantial interference with the water rights acquired by the mill owner without making compensation to him.</p> <p>5. Same — Findings Entitle Mill Owner to an Injunction to Prevent the ' Erection of a Proposed Dam. The findings of the court that the proposed obstruction of a stream by the defendant would be a substantial infringement of the plaintiff’s water rights are found to be warranted by the facts, and under the circumstances of the case the plaintiff is held to' be entitled to the remedy of injunction to prevent the. erection of the proposed dam.</p>

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

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

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

<p>Appeal from Harvey 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. Gifts — Personal Property of Husband — Right of Disposition. The general rule is that the law has placed no restriction or limitation on the husband’s right to make such disposition of his personal property during his lifetime as he may elect.</p> <p>2. Gifts — Colorable Gifts by Husband — Interest in Property Reserved— Invalid as against Widow. Where the transfer or gift is colorable and there is a voluntary transfer or conveyance by which the husband reserves to himself an interest in or a power to dispose of the property, it may be declared void as against the widow and she may participate in its distribution upon the theory that the title still remained in the husband at his death. •</p> <p>3. Gifts — Binding upon Grantor — Binding upon His Heirs. A widow sued as an heir of her deceased husband to set aside gifts and transfers of personal property made by him to the defendants, who are his sons by a former marriage. The transfers were made without the wife’s knowledge, when the husband was 83 years of age and possessed of no other property, and immediately following the dismissal of an .action brought by her for separate maintenance, that action having been settled upon his conveying to her certain real estate and agreeing to pay her a monthly allowance. The court found that he made the gifts and transfers to his sons in anticipation that he would not live long and to prevent the plaintiff from inheriting a share in the property as his widow, and in the further anticipation of the probability that the resumption of the marriage relation with plaintiff would not last long or be .permanent and that she might separate from him and bring another action for alimony or divorce, and to defeat her right to a division of his property, held, following Small v. Small, 56 Kan. i, 42 Pac. 323, 30 L. R. A. 243, 54 Am. St. Rep. 581, that the gifts to the sons not being colorable but absolute transfers of the'title to the property, binding upon the grantor, are binding upon the heirs, and can not be attacked by the widow as made in bad faith because of the intent thereby to deprive her of an interest in the property either as wife or widow.</p> <p>4. Note Taken Payable to Estate — May be Disposed of. Where a person takes a note payable to his estate he does not thereby deprive himself of the right to dispose of it during his lifetime.</p> <p>5. Evidence — Transactions with Persons Since Deceased. The incompetency of a witness to testify concerning communications or trans- ■ actions had with a person since deceased is waived by the objecting party showing on cross-examination the fact that such a communication or transaction occurred.</p>

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

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

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Agency — Sale of Public Lands — Contract—Commissions. In the employment of a broker to procure a purchaser for certain lands it is held that the agreement did not contemplate a sale of public lands in contravention of the federal laws.</p> <p>2. Same — Purchaser Procured — Owner’s Ground for Refusal to Complete Sale — Waiver of Other Grounds. A' competent purchaser was procured by the broker, and when the landowner was notified that one had been found that was ready, able and willing to buy the land on the agreed terms he refused to complete the sale, basing his refusal upon certain objections, and upon the trial of an action brought by the broker to recover the commission the landowner asserted other grounds. Held, that having put his refusal to complete the sale -on particular grounds he, in effect, waived any defenses based upon other grounds. Held, also, that the reasons asserted when the refusal was made or those subsequently set up in the trial were not good grounds for his refusal.</p> <p>3. Same — Agreement to Convey Land — Warranty Deed Implied. If an agreement for the sale of land does not specify nor indicate the character of the conveyance to be made the law will imply that a deed with the usual covenants of warranty is to be executed.</p>

<p>OPINION DENYING A REHEARING AND DISPOSING OF OTHER MOTIONS.</p> <p>HEADNOTE BY THE REPORTER.</p> <p>1. Appearance — Request of Third, Party to Plead — Request Granted. Where a stranger files an application to be made a party, asking that he be given leave to plead, and his request is granted, he thereby becomes a party to the action and is bound by the judgment, notwithstanding he files no pleading.</p> <p>2. Pledges — Conversion of Collateral — Proper Set-off against Damages. In an action by a pledgor for wrongful conversion of property pledged, the pledgee is entitled to have the debt due him set off against the • amount of damages recovered for a conversion of the property deposited as security.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Pleadings — Motion for Judgment on Pleadings — Properly Overruled. A motion of the defendant for judgment on the pleadings should be overruled where the petition' states a cause of action and the answer thereto states one or more defenses and the reply denies each and every material allegation in the answer inconsistent with the allegations of. the petition.</p> <p>2. Damages — To Stock of Goods — Competent Evidence to Prove Value. - The aggregate value of a number of articles of personal property may be given in evidence when it is not within the power of the party producing the evidence to give detailed values because of the destruction of the property.</p> <p>3. Same — Negligence—Incompetent Evidence. When it is material to describe a past condition or occurrence it is not error to exclude evidence of what witnesses then thought of such condition or occurrence.</p> <p>4. Trial — Immaterial instruction. It is not error for a trial court to refuse to give an immaterial instruction.</p> <p>5. Contract — Party Wall — Interpretation of Contract by the Court. It is proper for the court to give the jury an instruction based on the correct interpretation of a contract set out in the pleadings, where the contract affects the rights and liabilities of the parties to the action.</p> <p>6. Trial — Proper Instruction. It is proper to give an instruction based on evidence, although that evidence is slight.</p> <p>7. Party Wall — Negligence of Part Owner — Liability for Damages. A part owner of a party wall who negligently permits it to stand unsupported and exposed to the weather after fire had destroyed the building, of which the wall formed a part, is liable to another part owner, who is using a part of the wall, for damages resulting to him from a falling of a portion of the wall which he is not using and over which he has no control.</p>

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

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Replevin — Defective Affidavit — Subject to Ameyidment. An affidavit in replevin examined and held to he such that its defects could be remedied by amendment after the order of delivery was issued and executed.</p> <p>2. Joint Chattel Mortgagees — Release by One Binding on the Other. A chattel mortgage in form a joint mortgage to. secure the joint debt of two mortgagees may be released by one of them without the knowledge of the other for the purpose of permitting a new mortgage, given by the mortgagor to secure a consolidation of mortgages prior to the joint mortgage, to retain priority; and this may be done although the sum secured by the released mortgage was in fact made up of separate debts due the mortgagees severally, the holder of the new mortgage being ignorant of the several nature of the instrument.</p>

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

<p>OPINION ON MOTION TO MODIFY JUDGMENT.</p> <p>Appeal from Greeley district court; Albert S. Foulks, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Action — Against Husband and Wife — Goods Sold and Delivered to Both — Petition States Cause of Action against Both. In an action against husband and wife to recover for goods sold and delivered, the petition alleged that defendants purchased and plaintiff sold and delivered to them the goods mentioned, and that the same had not been paid for. A copy of the account attached to the petition showed that the goods were charged to the husband. Held, that the petition states a ■ cause of action against both defendants.</p> <p>2. Same — Separate Answer of Wife. The separate answer of the wife admitted purchasing the goods, but alleged the husband was the head of the family; that the goods were suitable, reasonable and within the means of the husband and were used in the family, and denied her own liability. On appeal by the husband from a judgment against himself alone it is held that the court rightly denied his motion to strike from the wife’s answer all but the general denial, and that his objections to her testimony in support of her separate defense were properly overruled.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Contract — Sale of Land, — Refusal of Vendor to Convey — Action to Recover Cash Payment — No Error in the Record. In an action to recover the first payment on the purchase price of land on the ground that the seller refused to comply with the terms of the agreement and execute a conveyance it is held that the petition states a cause of action, that there was no error in the instructions, and that the judgment in plaintiff’s favor must be affirmed.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Explosion op Locomotive Boiler — Personal Injuries — Verdict and Findings. The general verdict and findings being supported by competent evidence and approved by the trial court will, under the settled rule, be upheld.</p> <p>2. Same — Expert Witnesses — Weight of Testimony for the Jury. There are degrees of expertness and witnesses who by experience, study and observation know more about the subject in question than persons who have had no experience or especial knowledge touching such subject, are competent to testify as experts, the weight of their testimony being for the jury.</p> <p>3. Same — Statement of Deceased — Pctrt of Res Gestee. After the explosion of the locomotive boiler in question the conductor came forward and found the engineer dead and pulled the fireman, then unconscious, from the place where he lay, and about five minutes thereafter came back to him, whereupon the fireman regained consciousness and quickly stated to the conductor that the water-glass showed about half full when the explosion occurred, gave his home address, and asked to have his overclothes taken off as they were burning him. He appeared to be suffering. Held, that under the circumstances his statement as to the water-glass was competent as part of the res gestee in an action by the administrator of the engineer against the railroad company.</p> <p>4. Same — Excessive Verdict — Remittitur. When from the evidence the probabilities of financial support from the son, had he lived, could not exceed $4000, a verdict for $6000 should be reduced to the former sum.</p> <p>5. Same — Deposition of Witness — Evidence Offered to Contradict Not Admissible. A witness who had examined the boiler which had exploded, testified by deposition, giving- his opinion as to the cause of the explosion, after which the defendant sought to introduce the deposition of another witness taken by the plaintiff, but not used, for the purpose of showing by the copy of a coroner’s verdict thereto attached that the witness who had served on the coi-oner’s jury had signed a verdict that the cause of the explosion was unknown to the jurors, thereby tending to contradict his testimony given by deposition. His attention was not called to this copy, but it was offered without his having had an opportunity to examine or explain it, and its exclusion was not error.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Negligence — Death of Switchman under Cars — Certain Rules of Company Abrogated and Not in Force. In an action to recover for wrongful death the findings and evidence show that deceased was a switch-man and was killed by the movement of a string of cars under which he was working in the nighttime, assisting in chaining up a defective drawbar. The track upon which the cars stood was a half mile long and connected at either end with a lead track. It was used for storing bad-order cars, and it was customary for either the north or south crews to put cars on the track whenever occasion required. While the plaintiff, a member of the south crew, was at work under the car the north crew shoved a car in at the north end against the string, causing the cars to move a distance of eighteen feet. The jury found that it was usual and customary for the north crew to switch cars upon the track if occasion arose, unless warned not to do so by a flagman or signal, but that the written rules of the company requiring a blue flag by day and a blue light by night to be displayed at one or both ends of such train had been abrogated and were not in force at the time of the accident. Held, that there was evidence sufficient to support the finding, and that therefore the defendant could not rely as a defense upon the existence of the rules and the violation of them by the deceased.</p> <p>2. Same — Negligence Found by Jury Not Supported by Any Evidence— Specific Finding Inconsistent with General Verdict. The jury further found that the deceased placed no signals and took no precaution to protect the string of cars under which he was working from being struck or moved by cars from the north, and that the defendant’s negligence which caused the death of deceased consisted in the foreman of the north crew giving a hard back-up signal, causing the car to be pushed against the string with force and violence. Held, that the specific finding of the negligence of the defendant is an express finding that the verdict is not based upon any other character of negligence, and the finding being unsupported by any evidence, and this ground of negligence not having been submitted to the jury, it is inconsistent with the general verdict and must control, and therefore defendant is entitled upon the findings to a judgment for costs.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Partnership — Action for Accounting — Report of Referee — Final Judgment — Approval of Journal Entry Taken under Advisement — • Motion for New Trial Filed Too Late. In a suit for a partnership accounting the referee found the facts and conclusions of law, which included the terms of an accounting and recommended the kind of a final decree to be rendered. On June 16, 1913, the court overruled the exceptions of both parties to the report and confirmed the report in every particular, but retained jurisdiction of tlje cause until a sale of certain property provided for in the decree could be had-and the proceeds thereof credited to the accounts of the partners according to their proportionate shares as stated in the decree. After the sale had been confirmed, and on the 19th day of September, 1913, the court rendered final judgment as recommended by the referee and ordered “that a decree be prepared to take effect as of this 19th day of September, 1913, in accordance with the terms of the report of the referee heretofore made and approved.” Nothing remained to be done except to approve a journal entry, which was' not done until March 6, 1914, at which time the order approving the journal entry recited that the judgment “be and it is hereby made and entered as of September 19, 1913.” No motion for a new trial was filed until the 7th day of March, 1914. Held, that the motion was filed too late.</p> <p>2. Same — Exceptions to Report of Referee• — Not a Motion for New Trial. The filing of exceptions to the report of the referee and the renewal of them before the court can not be regarded as a motion for a new trial and will not entitle the defeated party to a review of a judgment based upon the report of the referee.</p> <p>3. Same — Supplemental Pleadings — Within Discretion of Court. The rule that an order allowing or refusing to permit the filing of supplemental pleadings rests in the ‘ discretion of the court and will not be disturbed where it does not appear that the judge abused his discretion, followed, and held that on the facts stated in the opinion it was not an abuse of discretion for the trial court to refuse to consider a supplemental petition filed by plaintiff seven months after the rendition of the judgment.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Life Insurance — Delay in Payment of Dues — Custom, of Insurer-Waiver of Prompt Payment — Member Not Suspended. An insurance company which for a number of years permits a certificate holder to be in default from two to thirty-four days in the payment of his assessments without complaint and continues to forward- receipts for such assessments with no claim of forfeiture or demand for physical examination, thereby adopts a practical rule that until otherwise notified such holder’s payments will be received if paid within a reasonable time.</p> <p>2. Same — When after such a course of dealing the holder died six days after an assessment became due, and payment was tendered immediately and blanks for proof of death demanded, which tender and demand were refused and liability was denied, the certificate was still in force and the company was liable.</p> <p>3. Same — Transfer of Assets of Issuing Company — Assumption of Payment by Defendant Herein. Such company having sold and delivered all its assets to the defendant company, which agreed to assume the liabilities of the- issuing company, the defendant company is liable on such certificate.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Promissory Note — Indorser—Waiver of Presentment and Notice of Nonpayment. Where the indorser of a promissory note, at the time of its negotiation, promises the indorsee to look after the note and states that the money will be in his hands, and on the day that the note is due again promises to look after the note, presentment and notice of nonpayment of the note are waived.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Real-estate Mortgage — Construction—Providés for Annual Payments of Interest. Where foreclosure proceedings are brought on a note and mortgage because of default in the payment of interest and taxes, and the note and mortgage fail to state in specific terms the time when the interest is payable, it is proper for the court to look to all the terms of the instruments to determine the time when the interest should be paid, and where these terms construed together reasonably warrant the interpretation that the interest is payable annually, such determination by the trial court will not be disturbed on appeal.</p> <p>2. Same — No Error Shown in Computation of. Interest. Where an alleged error in the computation of interest is neither apparent nor sufficiently pointed out the general finding of the district court will not be disturbed.</p> <p>3. Same — Interest of Wife in Husband’s Land. Where the wife of a mortgagor of unoccupied Kansas lands comes into court on a publication service and admits that she joined with her husband in the execution of a note and mortgage, and no personal judgment is sought against her, she has no appealable interest in the lands of her husband subjected to foreclosure under a judgment based on such note and mortgage.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Automobile — Negligence of Driver — Negligence Not Imputable to an Invited Guest. A mother accepted the invitation of her son to ride in his automobile merely as his guest, and as she had no control and took no part in the management of the automobile she is not responsible for injuries inflicted upon another by the negligence of her son in driving the automobile.</p> <p>2. Same — Mother a Guest of Son — Negligent Driving of Son — Personal Injuries — Mother Not Responsible. If the journey had been undertaken as a joint enterprise to accomplish a common purpose for the benefit of both one of them might have been regarded as the agent of the other and she might have been responsible for injuries inflicted by the negligent operation of the automobile, but it is held that her mere request of her son that sometime during the ride he should call at a certain house and obtain a cake that a friend had promised to make for her did not make the trip a joint enterprise nor make her responsible for the negligence of her son nor for injuries to which she did not personally contribute.</p> <p>3. Same. The mere fact that the mother, who was sitting by the side of her son and as his guest, did not protest against his action when he drove his automobile at an excessive rate of speed for the distance of a little more than a city block, at the end of which an injury was inflicted, can not be held as culpable negligence on her part which would make her liable for his negligence and the resulting injury.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Taxation — Levy for General Improvements — Construction of Statutes. Section 5 of chapter 95 of the Laws of 1911 merely limits the power of cities of the first class having a certain population to make levies for opening, widening and bring to grade streets, for building bridges, culverts and sewers, and for foot walks, to one mill on the dollar, and does not repeal section 125 of chapter 122 of the Laws of 1903 (Gen.. . Stat. 1909, § 989), authorizing cities of the first class to levy taxes for general improvements, except improvements for which special assessments are made.</p> <p>2. Same — Levy to Pay Judgments — Statute Construed. The act of 1903 referred to authorizes cities of the first class to levy a tax of one mill on the dollar for the purpose of paying judgments. The act of 1911 limits the levy for such purposes to one-fifth of a mill. Such a levy may be made-by a city of the first class having the prescribed population, although the judgments against the city existing at the date of the levy belong to a class payable primarily out of the general fund.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Sale op Land — Lien for Purchase Money — Purchaser Adjudged a Bankrupt — Lien Not Affected. A father contracted to convey to his son a tract of land for five thousand dollars, crediting one thousand dollars thereof as a gift, the remainder to be paid in five equal annual payments with six per cent per annum. Afterwards, before paying any part of the four thousand dollars, the son, on his own petition, was adjudged a bankrupt. In an action by his trustee to quiet his title to the land as against the father the latter was entitled to a lien for the four thousand dollars and interest, and was not precluded therefrom by reason of having filed no claim with the trustee.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1'. Fraternal Insurance — A. O. U. W. — Two Certificates to Same Member — Separate Beneficiaries■ — Each Can Not Recover Full Amount of Certificate. A fraternal society issued to one of its members an insurance certificate for $2000, naming the plaintiff as beneficiary. Later, at the request of the member, it issued another certificate naming another beneficiary. On the death of the member the plaintiff sued to recover on the first certificate and impleaded the beneficiary under the second certificate. The second beneficiary answered and filed a cross-petition setting up the beneficiary certificate in her favor. The defendant society paid the sum of $2000 into court, admitting ' that it owed somebody that amount. The court gave judgment in favor of plaintiff for $2000, and judgment in favor of the cross-petitioner for $2000. An examination of the pleadings shows that both beneficiaries were claimants for the same fund and their issues were framed on that hypothesis, and it was error to award judgment on both certificates.</p> <p>2. Same — Rival Claimants to Same Fund — Equitable Division. When the conflicting rights and equities of two claimants to a fund render it impossible to give all the fund to one claimant without doing gross injustice to the other, the district court has power in the exercise of its sound discretion to make an equitable division between them.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Life Insurance — Construction of Policy■ — Reserve Value of Policy Payable to Assured after Twenty Years. Where a life insurance policy, dated April 27, .1893, is taken out and paid for by the insured and is made payable to the insured’s wife in the event of his death, and provides that upon legal surrender of the policy the company will on the thirtieth day of April, 1913, pay the entire reserve value of the policy, amounting to $932, if the policy shall not have been previously terminated by lapse, death or limitation, and in the application, which is made a part of the policy, the insured stipulates that the reserve shall he paid to himself, he can enforce payment of the- reserve to himself upon the surrender of the policy after April. 30, 1913, even if the beneficiary in the policy refuses to consent to such surrender or payment.</p>

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

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

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Contract — Procured by Fraud — Sufficient Bill of Particulars. A plain statement of facts in the simple language of a layman, showing that a written contract was procured by fraud, is a sufficient pleading in an action before a justice of the peace.</p> <p>2. Parol Evidence — Admissible to Prove Fraud in Procuring Contract. The rule that parol testimony can not be admitted to vary the terms of a written contract has no application to an issue of fraud in the making or procuring of the contract.</p> <p>3. Trial — Controverted Facts• — Judgment Not Disturbed. Rule followed that the determination of the trial court on controverted facts, when based upon sufficient and competent evidence, will not be disturbed on appeal.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Negligence — Crossing Railroad Track — Contributory Negligence. Where a traveler in attempting to drive across a railroad track becomes involved in such a situation that he can neither get over it nor turn back, the railroad company is liable, notwithstanding any prior negligence on his part, for the consequences of a collision which its employees could have averted by any reasonable effort after the time when they ought to have discovered his predicament.</p> <p>2. Same — Judgment on Special Findings — Disapproved. Where a judgment for the defendant on the special findings (the general verdict being for the plaintiff) is required by the law as declared in the instructions, but not by the law as it is determined to be by this court, such judgment will not necessarily be approved on appeal, notwithstanding the plaintiff, not having filed a motion for a new trial, can not assign error with respect to the instructions.</p> <p>3. Same — When New Trial Should be Allowed. A new trial should be allowed to a defendant against whom a verdict has been rendered, when the special findings would require a judgment in his favor, except for the possible existence of facts, of which there is evidence, which are not thereby negatived, and which are not covered by the general verdict because no issue regarding them was submitted to the jury.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Personal Injuries — Misconduct of Counsel in Stating Case — Refusal to Discharge Jury — No Error. In an action for damages the plaintiff’s counsel started to assert in his opening statement that the defendants had suffered no pecuniary loss because indemnified, when he was stopped by the court and the jury were carefully instructed to disregard such suggestion, whereupon the defendant requested that the jury be discharged, which request was overruled. Held, that such ruling was not error.</p> <p>2. Trial — Opening Case for Further Evidence — No Error. Permitting further testimony by the plaintiff after he had rested and a demurrer had been interposed was within the sound discretion of the trial court and not error.</p> <p>3. Personal Injuries — No Material Variance between Allegations and Proof. Certain variations between the allegations and the proof were not fatal, for the reason that the evidence nevertheless furnished clear and sufficient support for the conclusion that the plaintiff, without his fault and by the negligence of the defendant, was injured substantially in the manner alleged.</p> <p>4. Same — Instructions—Substantially Correct. Instructions which clearly and substantially state the law applicable to the facts in controversy will not be held bad for mentioning one or two unnecessary matters as incumbent upon the defendants in the operation of their work.</p> <p>5. Same — Recovery—Not Based on Workmen’s Compensation Act. An action for damages at common law is not governed as to the sum to be recovered by the basis fixed for recovery under the workmen’s compensation act.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Replevin — Chattel-mortgaged. Property — Unliquidated Damages — Fraud —Proper Counterclaim. In an action of replevin to recover a stock of goods under a chattel mortgage made to secure the payment of a note given in part payment for the purchase of the goods, the defendant mortgagor may set out as a defense and counterclaim a cause of action which has accrued to him on account of fraud practiced on him by the mortgagee when the goods were purchased.</p>

<p>Appeal from Cherokee district court; James N. Dunbar, judge pro tem.</p>

<p>Appeal from Leavenworth district court; William I. Stuart, judge pro tem.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Utilities Commission — Power to Regulate and Control Location of Telegraph Stations. The public utilities act (Laws 1911, ch¡ 238) and related statutes have conferred upon the public utilities commission the power to determine whether a-telegraph station long established and maintained should be abandoned.</p> <p>2. Same. The power thus granted is a valid exercise of governmental supervision and does not contravene any provision of either the national or state constitution.</p> <p>3. Telegraph Station — Can Not be Discontinued without Permission of Utilities Commission. Where a telegraph company maintained a telegraph station for a number of years at an average deficit of $134.33 per annum it should have applied to the public utilities commission to discontinue it, and it was unlawful to close the station and quit business thereat until such permission was granted.</p> <p>4. Same — Construction of Statutes. Section 1796 of the General Statutes of 1909 (Laws 1893, ch. 152) is largely superseded by the public utilities act and other related statutes enacted since 1893.</p> <p>5. Telegraph Station at County Seat — Not Self-supporting — Utilities Commission May Permit Its Discontinuance. Section 1796 of the General Statutes of 1909 (Laws 1893, ch. 152), requiring each telegraph company to maintain an office in the county seat of each county when its lines run through such county seat, does not limit the power of the public utilities commission to determine whether such office is self-supporting and compensatory, nor prevent the commission from relieving the telegraph company of that duty if its enforced maintenance would violate any provision of the national or state constitution, or be otherwise unduly burdensome, unreasonable or oppressive.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Minor Children— Domicile with Parents — Jurisdiction of Probate Court. Ordinarily the domicile of a child is the domicile of a parent, and where a father, the surviving parent who had the custody and control of his children, dies, the probate court of his domicile at the time of his death has jurisdiction to appoint a guardian for his minor children.</p> <p>2. Will — Parent May Designate in Will Guardian for Minor Children. Under the statute a surviving parent may, in his last will, designate and appoint a guardian for his minor children, and herein it is held that the guardian designated in the last will of the father of the minor children is vested with the same powers and required to perform the same duties as natural guardians exercise and perform.</p> <p>3. Same — Guardian Designated Should be Appointed if Fit and Proper Person. However appointed, it is competent for the court to inquire whether the guardian is a fit and proper person to execute the trust, and in such an inquiry the paramount consideration is the welfare of the children. Upon this inquiry it is held that the testamentary guardian, whose appointment was confirmed by the probate court of the domicile of the father of the minor children, is not shown by the testimony to be an unfit or improper person to have the care and custody of the minor children.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Trial — Instructions—To be Construed Together. The whole of the instructions to a jury must be taken into consideration to determine whether or not a part of a sentence taken out of the instructions was erroneous.</p> <p>2. Gas Explosion — Personal Injuries — Pain and Anguish-^-Permanent Injuries — Instructions. In an action for personal injury, the failure of the court, in the instructions to the jury, to limit the plaintiff’s recovery for pain and anguish and for permanent injury to the amounts alleged for each, will not compel the reversal of a judgment where no instruction fixing such limits was requested.</p> <p>3. Minor — May Recover for Pain and Suffering and Permanent Injury. An infant can recover damages for pain and suffering and permanent injury caused by the negligent act of another. The failure of the court to limit the recovery, on account of inability to work and earn money, to the time after reaching his majority, will not compel a -reversal of a judgment for the infant, where no instruction was requested limiting such recovery.</p> <p>4. Negligence — Gas Explosion — Injuries—Instructions—Degree of Care Required of an Infant. Instructions that tell the jury it was the duty of the plaintiff, án infant, to exercise that degree of care which an ordinarily prudent person would exercise under the same or similar circumstances, that give the rules in regard to the negligence of an adult and the negligence of an infant of tender years, and that tell the jury to determine from all the facts the plaintiff’s capacity and the degree of prudence that should be exacted of him, are sufficiently favorable to the- defendant.</p> <p>5. Same — Contributory Negligence. The instructions concerning the contributory negligence of the plaintiff have been examined, and no substantial error is found therein.</p> <p>6. Trial — Request for Immaterial Findings. It is not error to refuse' to submit questions to the jury which, if answered, can not assist in determining what judgment shall.be rendered.</p> <p>7. Gas Explosion — Injury to Minor — Verdict Not Excessive. In an action for personal injury, where the plaintiff was severely burned, suffered intense pain, is permanently disfigured in face and body, and is otherwise permanently injured, a verdict for $12,000 is not so excessive as to compel a reversal or modification of the judgment.</p> <p>8. Same — Care Required in Laying Pipe Line Along Public Highway— Evidence. One who conveys natural gas in pipe lines laid on the ground in a public highway must exercise the highest degree of care to avoid injury to those using the highway, and in an action for damages caused by the ignition and explosion of natural gas in a public highway, where the explosion was caused by a traction engine being driven over the pipe line and breaking it, and where the pipe line, covered with ■ growing grass and weeds, was laid on the ground, in the highway, about seven feet from a hedge fence along the side of the highway, it was not error to refuse to admit evidence tending to show that others engaged in the transportation of natural gas did so by means of pipe lines laid on the ground in public highways.</p> <p>9. Same — Contributory Negligence. It is not contributory negligence on the part of one who is ignorant of the existence of a gas pipe line in a public highway to enter upon that highway with a traction engine and fail to look for hidden pipe lines, although in a community where natural gas pipe lines are known to be laid in public roads.</p>

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

<p>Appeal from Cherokee district court; James N. Dunbar, judge.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Cities — Resolution Bringing Public Library under Provisions of Statute — Resolution Can Not be Rescinded. After a city commission by proper resolution under chapter 122 of the Laws of 1915 decides to bring its public library under the provisions of chapter 121 of the Laws of 1903 and acts supplementary thereto and amendatory thereof, such acts then govern and their operation can not be taken away by rescinding the former resolution.</p> <p>2. Same — Duty of City Commission to Approve Treasurers Bond. After such resolution has been properly adopted and the board of directors for the library duly appointed, and a member thereof chosen and qualified as treasurer whose bond has been properly prepared and approved by the library board, such bond should be approved by the city commission and the city treasurer should turn the library fund over to such treasurer.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Criminal Law — Impersonating a Sheriff — Not Punishable under Chapter 121 of the Laws of 1897. A person charged with having attempted to exercise the functions of a sheriff without authority can not be prosecuted under section 3 of chapter 124 of the Laws of 1897, which declares it to be unlawful for a person without authority to attempt to exercise the functions of a deputy sheriff.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Exemptions — To Widovo and “Children” — “Children” Includes Adults. The word “children” as used in section 3484 of the General Statutes of 1909 includes adults as well as minors.</p> <p>2. Same — Exempt Personal Property — Vests Absolutely in Widow and ■ Children — Not Subject to Division. The title to the exempt personal property which by such section the widow is allowed to keep absolutely for the use of herself and the children of the deceased vests in such widow and children, but is not subject to division or partition by such children although they are all of age and living- away from the residence of the widow, so long as the widow is so situated as to need the beneficial use of such property.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Gas Franchise — City Ordinance — Advance Cash Deposit by Consumer— Penalty Added for Nonpayment — Both Unlawful. A gas company which accepts the terms of a franchise ordinance expressly providing that a certain specified rate shall not be exceeded, and authorizing the shutting off of gas from any consumer in arrears for a longer period than fifteen days, has no right to require a five-dollar deposit or to add a penalty of five cents a thousand cubic feet for nonpayment by a certain time in the month.</p>

<p>Case No. 20,324. Original proceeding in mandamus.</p> <p>Case No. 20,360. Appeal from Montgomery district court; Thomas J. Flannelly, judge.</p>

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

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

<p>OPINION ON REHEARING.</p> <p>SYLLABUS BY THE COUET.</p> <p>Proceedings in Error — From Justice of Peace — Properly Taken before Amended Code Took Effect. Proceedings in error to review the ruling of a justice of the peace on a question of law are held to have been pending within the provisions of the saving clause of the amended code (§ 754) from the time the exceptions were taken and noted on the docket, which was three days before the amended code abolishing petitions in error took effect.</p>

<p>OPINION ON MOTION FOR WRITTEN OPINION.</p> <p>Appeal from Cowley district court; Carroll L. Swarts, judge.</p>

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

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

<p>SYLLABUS BY THE COÚRT.</p> <p>1. Note — Action by Indorsee — Defense Fraud — Tender Back of Valueless Consideration Unnecessary. In an action by the indorsee of a negotiable promissory note it is not necessary for the defendant, the maker of the note, who defends on the .ground of fraud of the payee in procuring the note, to offer to return the consideration promised for the note where such consideration was either of no value or has not been received.</p> <p>2. Same — No Material Error in Evidence. The matters complained of concerning the introduction of evidence have been examined, and nothing is found warranting a reversal of the judgment.</p> <p>3. Same — Presumptions that Transcript is Correct. Recitals in a journal entry of judgment concerning the burden of proof will be controlled by what actually transpired on the trial, as disclosed in the transcript of the evidence and in the instructions to the 'jury.</p> <p>4. Same — Verified Denial Put in Issue the Indorsement of the Note. In an action by the indorsee of a negotiable promissory note, an answer that denies all the material allegations of the petition, denies that the plaintiff is the owner of the note in good faith for a valuable consideration before maturity, and denies that the note was indorsed to the plaintiff before maturity for value, meeting the allegations of the petition, verified by the affidavit of the defendant, in which he states that the facts and denials set forth in the answer are true, puts in issue the indorsement of the note to the plaintiff.</p> <p>5. Same — Immaterial Instructions. A judgment will not be reversed because of error in instructions which could not have misled the jury under the issues and evidence.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Action for Rents — Contract between Father and Children for Possession — Equitable Title — Counterclaim, Improperly Rejected. In an action to recover rent for the use of land the petition alleged that the plaintiff was the owner of the land and that the defendant was a tenant holding over under an oral lease. The defendant answered the claim for rent, asserted that upon a proper accounting nothing would be found to be due, but expressed a willingness and desire to pay any balance which might be found against him. The defendant further answered to this effect: The plaintiff, who was the defendant’s father-in-law, offered the land to the defendant and his wife to take, improve, and make their home, the plaintiff intending the land for his daughter. Rent was to be paid to the plaintiff during his natural life. A certain rent was reserved for the first two years, which was then to be reduced for the future. The defendant and his wife accepted the plaintiff’s offer, moved on the land, have ever since occupied it as their home, and have placed improvements upon it to the value of from $3500 to $5000. The prayer was that the defendant’s wife be made a party, that the court determine the true character of the contract with the plaintiff and his wife, .that his wife be adjudged to have the equitable title to the land, and that the plaintiff be required to carry out the contract in which such title originated. The reply denied the claims of the answer and insisted upon a naked lease to the defendant. Held, the answer presented a proper counterclaim within1 the meaning of sections 97 and 98 of the civil code, which should have been adjudicated.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Damages — Railroad Accident — Contract for Indemnity — Evidence Sufficient as against Demurrer. The evidence examined and held sufficient to take to the jury the question whether a railway company had contracted with an employee to pay him half wages during any disability resulting from an injury received in the course of his service.</p> <p>2. Same — Action on Contract Not Barred by Judgment for Negligence. An action by an employee to recover upon a contract that he should receive half wages during disability resulting from an injury occurring in the course of his service is not barred by a judgment in his favor for damages on account of the same injury based on the theory that it was the result of his employer’s negligence.</p> <p>3. Same — Railroad Has Power to Make Indemnity. Contract. ' A railroad corporation has incidental power to contract with its own employees to pay them half wages during disability resulting from service accidents.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Alighting prom Street Car — Personal Injuries — Contributory Negligence Question for Jury. Upon the facts stated in the opinion it is held that the plaintiff was not as a matter of law guilty of contributory negligence in failing to look for a car passing on an adjoining track at the time he alighted from the car upon which he was a passenger.</p> <p>2. Same — Exemplary Damages — Justified by the Evidence. The act of a motorman in running a street car at a speed of ten to fifteen miles an hour past a car on a parallel.track that had stopped to discharge passengers, and thereby causing injuries to plaintiff, who was a passenger alighting from the other car, is held to justify a finding of wanton conduct such as to authorize exemplary damages.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Contract — Purchase of Property — Separate Owners ■ — Action by One Owner — No Estoppel to Action by the Other. A city, in a single written instrument, proposed to purchase from separate owners certain properties belonging to each of them, offering to pay a certain sum for the entire property and dividing that sum between the owners so as to specify the amount that would be paid to each for his property. Each owner, .for himself, accepted the city’s proposition. It refused to pay. One of the owners recovered judgment against the city for the amount it promised to pay him. That judgment is not res judicata as to any matter in an action brought by the other owner to recover from the city the amount it agreed to pay him, and the city is not estopped from, pleading in the last action the same defenses that were set up in the first one.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1, Promissory Note — Ownership—Cashier’s Statement as to Ownership Competent against the Bank. Testimony that a cashier of a bank told the maker of a note,- nine months after its maturity, that the bank held the note for collection, is competent evidence on the question whether the bank was the owner of the note when it sought to recover on it several years afterwards, and when the bank asserted that its ownership of the note was based upon its acquisition a few days after its execution and long before it was due.</p> <p>2. Same — Subsequent Death of Cashier — His Statements Still Competent. The fact that the cashier was dead when the bank afterwards asserted its ownership and sought to collect on the note as its own property did nqt render incompetent the testimony showing the conversation between the cashier and the maker at the time the bank sought to collect for the benefit of the original payee, nor does such testimony violate any rule of evidence touching transactions with deceased persons.</p> <p>Í. Same — Evidence of Ownership. On March 8, 1907, defendant gave his note in favor of T., due September 8, 1907. On June 30, 1908, the cashier of a bank told defendant that the bank had received the note from T., for collection: Held, that when the bank in January, 1912, sued as owner of the note, asserting that it acquired it before maturity, the fact that the bank, through its cashier, sought to collect on the note in 1908 on behalf of T., is competent evidence on the question of ownership of the note.</p> <p>4. Same — Verdict Conclusive as to Facts. A general verdict forecloses all disputed questions of fact, and in the case at bar it determines adversely to the plaintiff, (1) its ownership of the note; (2) the time of the alteration of the instrument; (3) its claim to be a holder in due course; and the result is to defeat a recovery altogether.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Oath — Properly Administered. The evidence held sufficient to support a finding of the administration of an oath.</p> <p>2. False Affidavit — To Procure Marriage Certificate. Under the statute making it a misdemeanor to swear falsely in an affidavit that the persons for whom a marriage certificate is asked are of lawful age, a conviction may be had, notwithstanding the affiant did not know his statement to be untrue. In order that the maker of a false affidavit in that connection may be protected from prosecution by reason of a mistake on his part, he must, while acting in good faith and upon reasonable grounds, have believed the facts to be as he stated them.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Assault with Intent to Kill — Instructions under Sections 38 and hZ of the Crimes Act — Intoxication. Instructions distinguishing between sections 38 and 42 of the crimes act, and relating to a defense of gross intoxication to prove the absence of premeditation, deliberation, intent and malice, examined and found correct.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Written Contract — Parol Evidence Inadmissible to Vary. The rule that parol evidence is not admissible to show an intention different from that expressed by the terms of a written contract, on its face complete and unambiguous, applied to a subscription to the capital stock of a corporation.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Collision — Automobile and Bicycle — Question of Negligence was for the Jury. The evidence on behalf of plaintiff, tending to show negligence and failing to establish contributory negligence, should have been submitted to the jury, and it was error to sustain a demurrer to such evidence.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Damages — Fire Negligently Started by Railroad Employees While Em gaged in Private Business — Company Not Liable. The rule that an employer in not liable for the consequences of negligent acts of his employee committed outside the scope of the employment applied in an action for damages resulting from a fire maintained by laborers for their own domestic purposes on the right of way of a railway company which employed them to lay steel and ballast track.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Illegitimate Child — Amount Allowed for Its Maintenance within Judicial Discretion. The amount of payment to be required in a bastardy proceeding is such as to the trial court may seem just, after considering all the facts and circumstances, for securing the maintenance and education of the child. Held, that the order in this ease does not appear to have been an abuse of discretion.</p> <p>2. Same — Defendant Not Entitled to Jury Trial. In a proceeding of this kind, the defendant is not entitled to a jury trial as a matter of right, and its denial was not error.</p>

<p>'syllabus by the court.</p> <p>1. Corporation — Failure to Complete Orga/nizajtion — Liability of Promoters for Debts Incurred. The partnership liability for debts incurred in the name of a corporation which has not been and never is completely organized extends to all who participate in the corporate enterprise, and is of the same nature as would be imposed if the original plan had been to form a partnership. (Bank v. Sheldon, 86' Kan. 460, 121 Pac. 340.)</p> <p>2. Same — Evidence. The evidence has been examined and is held to justify the findings of the trial court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Interstate Shipment — Action for Balance Due on Rates — Cross-demand Pleaded by Defendant Not Available as a Set-off. Section 102 of the civil code allowing cross-demands notwithstanding the statute of limitations is not applicable to a set-off for damages where a special contract between the parties prescribed conditions precedent to a claim for damages and provided that a failure to comply with those conditions would bar a recovery.</p> <p>2. Same— Schedules of Interstate Rates as Filed, Valid. Interstate Commerce Commission Joint Stock Cattle Tariff, No. 3269, effective May 2, 1905, participated in by twenty-five railroads, including the plaintiff, and filed and approved by the Interstate Commerce Commission, examined and held to conform to section 6 of the interstate commerce act as amended by the act of June 29, 1906 (Part 1, 34 TJ. S. Stat. at Large, ch. 3591, § 2, p. 586) requiring plainness of statement and printing so far as it related to carload rates of cattle from Groom, Tex., to Meade, Kan.</p> <p>3. Same — Damages on Previous Shipment Not a Proper Set-off. Defendant shipped twenty-seven carloads of cattle from Groom, Tex., to Meade, Kan., over the lines of plaintiff and connecting carriers. The rate charged was $35 per carload. The lawful rate was $47.50 per carload. In an action to recover the undercharge of $12.50 per car, a set-off can not be allowed for damages on another shipment of cattle where such other shipment was made under a contract prescribing conditions precedent to the allowance of damages when those conditions were disregarded.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Building Contract — Indemnity Bond — Withholding Final Payment— Terms of Bond. A guaranty company insuring the performance of 'a building contract for profit is not entitled to insist upon the withholding of the final payment, or that a percentage of the contract price shall be retained until(the completion of the building, unless it is specifically provided for in the contract with the guaranty company.</p> <p>2. Same — Material Damage Must be Shown. In any event, such company has no right to complain of the time and manner in which payments are made by the owner unless it has been damaged in a material way by a departure from the provisions of the contract and of the obligation which it assumed.</p> <p>3. Same — Alterations in Plans — Guarantor Not Released. The guaranty company is not entitled to a release from its obligation because of alterations in the plans and specifications which are not unreasonable, where the contract specifically provides that alterations may be made.</p> <p>4. Same — Default of Contractor — Liability of Guaranty Company. The guaranty company is liable for the principal debt which arises from the nonperformance of the contract to the amount of the penalty named in its obligation, and in addition to that it may be held for interest on such debt from the time it should have been paid, although the amount of the principal and interest should exceed the penalty of the bond.</p> <p>5. Same — Liquidated Damages. Where the contractor agrees to become liable for liquidated damages at a certain rate per day for failure to complete the building at a fixed time, and he fails to finish it at the time agreed upon, and also abandons the work before completion, and the guaranty company does not, upon notice, complete the building itself, it devolves upon the owner to do so, and to commence the work within a reasonable time after the default and abandonment, and if he does so and prosecutes it with reasonable diligence to completion, he is entitled to liquidated damages from the time stipulated for completion until the building is finished, but he can not enhance his damages by unreasonable delay in taking up the work of completion or in carrying it on.</p> <p>6. Same — Architect’s Estimate — Not Binding on School District. An indefinite and rough estimate by the architect of the cost of completing the abandoned work, made in a letter addressed to the guaranty company, which was not accepted or acted upon by it, is not conclusive on the owner as to the extent of recovery.</p> <p>7. Same — Passion or Prejudice of Court Not Shown. The evidence does not disclose that the court was actuated by passion or prejudice in making the findings herein on which its judgment was based.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Warranty Deed — Vendee Need No't Record Promptly. The vendee oí real estate who receives a general warranty deed rests under no duty to the vendor to record the deed promptly.</p> <p>2. Trial — No Error in Record. Various assignments of trial errors examined and held to be without merit under well-understood rules of practice.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>School Lands — Sale—Default in Payments — Payments Received by the State after Default — Forfeiture Waived. The purchaser of school land under a certificate issued in 1907 made the required payments until he defaulted in the interest installment due December 21, 1911, and by the strict terms of section 12 of chapter 218 of the Laws of 1909 (Gen. Stat. 1909, § 7657), his rights would become forfeited by failure to pay on or before October 21, 1912. In September he wrote the county treasurer for a statement of taxes due on the land and received one containing an incorrect description, and returned it for a correct one which he received October 27. The day before, October 26, he mailed to the treasurer his check for a sum sufficient to cover the taxes and interest due on the land and this interest was credited and turned over to the state treasurer. Held, that the forfeiture was thereby waived, and that the defendant who on October 22, 1912, settled on the land must yield possession to the plaintiff, the original purchaser.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Pleadings — Belated Amendments to Petition — Within Judicial Discretion — No Error. Where the district court refuses to allow a belated amendment to a petition, but admits evidence on the subject matter of the proposed amendment, no reversible error can be predicated on such refusal.</p> <p>2. Same. Ordinarily it is not reversible error to sustain an objection to a motion to amend a petition although the grounds of the objection may be defective or lack precision of language.</p> <p>3. Same. Buie followed that the allowance or refusal of belated amendments to pleadings is within the sound discretion of the trial court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Personal Injuries — Coal Mine — Demurrer to Evidence Wrongfully Sustained. The plaintiff, who was injured while working in a coal mine, sought a recovery upon the theory that the defendant had negligently failed to furnish him a safe place to work, and it is held that the testimony offered in support of his claim was sufficient to take the case to the jury.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Illegitimate Child — Proof of Paternity — Child May be Exhibited to Jury. In a bastardy proceeding exhibition of the child to the jury as evidence of paternity is a matter resting within the sound discretion of the trial court. If the exhibition would appreciably tend to promote the purpose of the proceeding it should be permitted, otherwise it should be forbidden. An exercise of the trial court’s discretion can seldom be reviewed on appeal, and should the evidence afforded by an exhibition be weak or inconclusive or worthless the presumption on appeal would be that the jury gave it no more weight that it was entitled to receive.</p>

<p>Appeal from Butler 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>Personal Injuries — Petition Fails to State Cause of Action. An allegation -that the defendant sent a load of iron by one of its employees to be delivered, knowing- that it would require more help to unload it, that the driver called upon the plaintiff to assist, and in so doing the plaintiff was injured by a piece of iron falling upon his hand, fails to state any actionable negligence on the part of the defendant.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Fraudulent Conveyance — Recorded Deed — Notice to Creditors — Limitation of Actions. The record of a deed fair and regular on its face, executed for the purpose of hindering, delaying and defrauding creditors in the collection of their debts, does not impart notice of the fraud of the parties to the deed in executing it for the purpose named.</p> <p>2. Creditor’s Bill — No Laches in Commencing Action. The plaintiff, in an action in the nature of a creditor’s bill, is not guilty of laches in reducing his claim to judgment, where he has been diligent in prosecuting his claim, although more than ten years have elapsed before judgment is obtained.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Accident Insurance — Death — Accident or Suicide? — Findings of Trial Court Conclusive. In an action by the beneficiary to recover the amount of an insurance policy where the only issue was whether the insured committed suicide, and on conflicting evidence the trial court sitting without a jury found for the defendant, the judgment can not be disturbed-^-following Martin v. Hoffman, 77 Kan. 185, 93 Pac. 625 and Heath v. Life Association, 89 Kan. 634, 132 Pae. 147.</p> <p>2. New Trial — Motion Filed Too Late — Scope of Review. Failure to file a motion for a new trial within three days does not necessarily require an appeal to be dismissed. It may merely limit the scope of the review.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Mechanic’s Lien — Proof that Material Was Used in Construction of Building. To entitle a person to a lien for material furnished in the erection of a building- it devolves on the claimant to show that the material was purchased for and applied to that use, but if it be shown that the material was purchased to be used in the building and delivered to the builder, or taken by him to his premises to be so used, and some evidence is offered that material of that character was actually used in the building, in the absence of any discrediting circumstances it will ordinarily be sufficient to show that the material was used in the building.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Banking — Trial—No Error Appears in Record. Assignment of error relating to the admission and exclusion of' evidence, instructions to the jury, and special findings of fact, examined and held not to he well founded.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Practice — Amendment to Pleadings — Judicial Discretion. Rule followed that the allowance or refusal of belated amendments to pleadings is within the sound discretion of the trial court.</p> <p>2. Same — Findings on Conflicting Evidence Conclusive. Rule followed that the trial court’s findings of fact will not be disturbed on appeal when based upon substantial though conflicting testimony.</p> <p>3. Trial — No Error in Record. Suggestion of trial court’s abuse of discretion examined and found groundless.</p> <p>4. New Trial — Failure to Present Excluded Evidence in Motion. Rule followed that where excluded evidence is not brought forward and presented on motion for a new trial as prescribed by section 307 of the civil code, the denial of a new trial on account of such excluded evidencé is not error.</p>

<p>Appeal from Cherokee district court; Don H. Elleman, judge pro tern.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Contract — Purchase of Grain — When Usage or Custom Governs Formation of Contract. When parties have undertaken to conclude a contract, the formation of which is governed by general usage, the implication is they intended to proceed according to the usage, if nothing be said to the contrary.</p> <p>2. Same. The foregoing rule applied to a general custom in the grain business to verify the result of oral negotiations conducted by means of the telephone by written confirmation.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Shipping Contract — Household Goods — Declared Values — Goods Damaged — Amount of Recovery. The plaintiff shipped certain household goods, total weight 2200 pounds, from North Platte, Neb., to Kansas City, Kan., over defendant’s railroad, signing a bill of lading which contained the provision “Owner’s risk, value $10.00 a hundred-weight.” A piano included in the shipment was damaged, and in the admission of evidence and in the instructions the theory of market instead of actual value was followed. Held, error, but as the competent evidence warranted the amount allowed by the jury the error is nbt such as to justify a reversal.</p> <p>2. Same. The shipment included a rug worth $21 but weighing less than 100 pounds. No separate release or contract of valuation aside from the bill of lading was signed by the shipper. Two rates were in force, the one charged on the basis of a valuation named in the bill of lading and a higher one in case the valuation was not limited. Held, that the plaintiff can recover only for the weight of the rug at $10 a hundred pounds, and that having signed the bill of lading containing the valuation he is presumed to have known the rates in force and is bound by the one named in the bill of lading.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Vendor and Purchaser — Action for Specific Performance — Subject of Fraud in Procuring Contract Res Judicata. The subject of fraudulent representations by the vendee of land, whereby the vendor was induced to contract, adjudicated against the vendor in an action to cancel the contract because induced by fraudulent representations, is res , judicata in a subsequent action brought by the vendee to compel specific performance of the contract.</p> <p>2. Same — Divorced Wife Could Lawfully Contract to Convey Land Awarded as Alimony. In an action for divorce the plaintiff was awarded the custody and maintenance of two minor children and was given a tract of land as alimony, the income from which so far as might be necessary was to be devoted to the maintenance of the children until the younger child became of age. Held, the plaintiff could lawfully contract to convey the land when the younger child • became of age and could lawfully bind herself personally by a contract to deliver possession before that time.</p> <p>3. Action — Specific Performance — “Adequate Consideration” Defined, In an action for specific performance the term “adequate consideration” does not mean the full equivalent of value. It means a consideration which is not so greatly disproportionate to value as to offend against the fair dealing which should characterize business transactions.</p> <p>4. Same — Decree of Specific Performance Approved. Findings of fact examined and a judgment based thereon for specific performance of a contract of the kind indicated and for rents and profits approved.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Fire Insurance — Unsigned Application — Unauthorized Concurrent Insurance — When Contract Not Enforceable. Assuming that circumstances existed making a provision of a fire insurance policy concerning concurrent insurance ineffective unless the application was signed by the insured, and that the policy was issued without his knowledge, upon an application to which his name was affixed without authority, after a loss had occurred he could not enforce the contract of insurance without at the same time adopting the signature made in his behalf, and thereby giving effect to .the provision referred to.</p>

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

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Insane. Person — Guardian May be Appointed Without Notice. A probate court may without notice appoint a successor to a guardian for a lunatic who has been duly adjudged to be a person of unsound mind, confined in the state hospital for the .insane, and discharged therefrom as improved.</p> <p>2. Insanity — Once Adjudged — Presumed to Continue. In insanity proceedings in the probate court, a person adjudged insane and placed in the state hospital for the insane, and then discharged as improved, is presumed to be insane until it is found that he has been restored to his right mind, under sections 4844 and 4845 of the General Statutes of 1909.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Libel — Charging Failure to List Property for Taxation — Publication Not Libelous on Its Face. An assessor claimed that a candidate for office had not listed his property for taxation, and an investigation of the matter was had before the board of county commissioners, which decided that he had listed all personal property of his own and that certain money in his possession belonged to his brother, who was a nonresident, and that it was not subject to taxation. Concerning the inquiry and decision the defendant wrote the following:</p> <p>“THE STUART INVESTIGATION. -</p> <p>“The investigation of Wm. I.-Stuart before the County Commissioners, Tuesday, showed that on March 1st, 1913, he had on deposit in The Citizens State Bank, of Hiawatha, $19,180.00. He produced checks enough to offset this amount all but $1,239.00, which he had on deposit and failed to show checks for, and in addition to this he had drawn a check on March 1, 1913, for $4,000.00 made payable to himself and which he presented for payment on March 6, 1913. This left a balance on hand or on deposit of $5,239.00 on March 1, 1913, which he claimed belonged to his brother, J. W. Stuart, a nonresident of Brown county. But this money was in Brown county on March 1, 1913, and should have been taxed, but the Commissioners failed to find against him. It is said the matter will be reviewed by the State Tax Commission and left for them to decide.”</p> <p>Held, that the article is' not libelous on its face.</p> <p>2. Same — Natural Meaning of Words — Not Changed or Enlarged by Innuendo. An innuendo is used to explain the meaning of words employed by the defendant, but not to change or enlarge their natural meaning, and whether a publication is libelous per se or the language thereof will bear the interpretation ór convey the meaning ascribed to it in the innuendo are questions of law "for the court.</p> <p>3. Same — Innuendo—Not Wan'r'anted. The innuendo herein used has . been examined, and it is held that it places an interpretation upon the language of the publication which it will not bear.</p>

<p>Appeals from Barton district court; Daniel A. Banta, judge.</p>

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Rural High School Districts — Bonds for Building Schoolhouse— Statute Constitutional. The title to chapter 311 of the Laws of 1915, “An Act relating to the establishment of rural high school districts,” etc., is broad enough to include a provision for the issue of bonds to build a schoolhouse, and does not contravene section 16 of article 2 of the state constitution.</p> <p>2. Rural High School District — A Body Corporate. A rural high school district organized under chapter 311 of the Laws of 1915 is a body corporate and may maintain an action to compel the state auditor to register its bonds, legally issued.</p> <p>3. Same — District May Issue Bonds under the Statute. A rural high school district may issue bonds under chapter 311 of the Laws of 1915 and the laws governing school districts.</p>

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

<p>opinion on rehearing.</p> <p>Appeal from Phillips district court; William S. Langmadf, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Evidence — Conflict of Testimony — Question for the Jury. The rule in Acker v. Norman, 72 Kan. 586, 84 Pac. 531, is again followed, and there being some evidence to support defendants’ case, held, it was error to sustain the demurrer.</p> <p>2. Action — Agent’s Commission — Trial—Ignoring Second Defense — • Error. In an action to recover a real-estate agent’s commission, the answer set up, first, plaintiffs’ fraud, whereby defendants were induced to make an agreement with a third party fór an exchange of properties; second, that such third party was not ready, able and willing to carry out the agreement; held, error to ignore the second defense and to submit only the defense of fraud.</p>

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

<p>ON ORDER GRANTING A REHEARING.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Joinder of Plaintiffs — Tender—Evidence—Fraud. The evidence examined and held sufficient to sustain findings of fact establishing the right of the plaintiffs to sue jointly, excusing tender, and showing active fraud.</p> <p>2. Action — Recovery of Money Obtained by Fraud — ■Interest Allowable. The law implies a promise immediately to repay money wrongfully obtained, and in an action to recover the price of shares of corporate stock which the plaintiff was induced to buy through the defendant’s fraud interest is properly allowed by way of damages for retention of the money during the time the defendant had the use of it.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Subordinate Church Societies — Withdrawal of Members — Ownership of Funds. Members of a church who voluntarily withdraw from the organization forfeit all claim to or interest in a fund raised by a subordinate society of the church for church purposes.</p> <p>2. Same — Evidence—Intent May be Shown. The rule that where the intent or purpose with which an act was done becomes a material issue, the person who did the thing may testify what his intention was, is. applied to the members of an unincorporated society organized by tlm women of a church to raise funds for the benefit of the church.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Trespassing Live Stock — Partition Fence — Outside Issue — No Prejudicial Error in Record. The plaintiff sued for damages alleged to have been done by trespassing live stock. The jury found for the defendants. The pleadings contained nothing to indicate any other subject or object of the controversy. A volume of evidence was introduced and the case was tried as one involving a partition fence. Held, that as no error respecting the pleaded contention is shown, the record will not be exhaustively scrutinized to ascertain whether or not some outside issue was tried according to legal rules, such examination as the situation justifies failing to disclose prejudicial error.</p> <p>2. Appeal — Failure to Award Nominal Damages. Rule followed that a reversal will not be ordered for failure to award nominal damages. .</p>

<p>SYLLABUS BY THE COURT.</p> <p>Attachment- — Bolling Stock of Foreign Railroad, — Right of Possession in Domestic Railroad. Where a domestic railroad receives a cattle car from a foreign railroad in another state under custom, rules and contract by which the domestic road carries the ear loaded to its destination in this state and unloads it, and must return the car promptly to the foreign road hut may load it on its return trip, paying a per diem for the use of the car, the right of the domestic road to the use of the car is superior to the right of an attaching creditor of the foreign road; and such' right of the domestic road is not waived by its local agent requesting the sheriff to remove the car from the tracks of the domestic road when he levies the attachment, and by setting the car on stub tracks so as to be under the control and dominion of the sheriff under the orders of the court.</p>

<p>syllabus by the court.</p> <p>Accident Insurance — Injuries — Death ■— Sufficient Notice to Insurer. An accident insurance policy contained two provisions:</p> <p>“ (m) Written notice of 'any injury, fatal or non-fatal, or of any illness for which claim can be made, must be given to the Company -at Philadelphia, Pa., within ten days of date of accident or beginning of illness. Failure on the part of the assured or beneficiary to comply strictly with said notice requirement shall limit the liability of the Company to one-fifth the amount which would be otherwise payable under this policy. Notice to an Agent does not constitute notice to the Company.</p> <p>“(n) Proof,- satisfactory to the Company, affirmatively establishing the fact that the injury, loss or disability, is such as comes within the provisions and conditions of the policy, must be furnished to the Company at Philadelphia, Pa., (on blanks provided on request, by the Company), within thirty days from date of death, loss of limb, or of sight, or of the termination of disability. No action at law or in equity shall be maintainable before three months or after six months from the date on which this paragraph provides that said proof must be furnished to the Company. Any claim not brought in conformity with the provisions of this paragraph shall be forfeited to the Company.”</p> <p>Held, that the first paragraph did not require notice to the company to be given by the beneficiary within ten days of the death of the assured; and held, that a compliance with the second paragraph by the beneficiary within the time therein specified was sufficient on which to base a recovery.</p>

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Negligence — Definition. Negligence usually consists in the involuntary and casual, that is, “accidental,” doing or omission to do something which results in an injury.</p> <p>2. Same — Special Findings — Not Inconsistent. There is no inconsistency in a special finding that the plaintiff was injured while doing an act in a “casual and involuntary way,” and the further finding that in so doing he was negligent.</p> <p>3. Same — Findings—Contributory Negligence Bars Recovery. In an action to recover damages for personal injuries sustained while a passenger on a street car by reason of plaintiff’s arm coming in contact with a trolley pole in clos§ proximity to the track, the special findings to the effect that plaintiff’s contributory negligence was the proximate cause of his injuries prevent his recovery against the defendant, irrespective of the negligence of the defendant in maintaining its poles too close to the side of the ear.</p> <p>4. Appeal — Matters Not in Record■ — Not Reviewable. The supi'eme court on appeal has no power to amend or correct the record upon affidavits purporting to recite proceedings in the court below to which the record itself contains no reference, and where the affidavits were not presented to the trial court nor filed there.</p> <p>5. Same. Suggestions are offered as to the proper way to bring upon the record the recital of proceedings which take place at the trial during the absence from the court room of the official stenographer, and which a party objecting desires to have reviewed.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Family Settlement — Partition—Accounting. The main facts of a family settlement and of a partition and accounting, so far as shown by an incomplete transcript of the record, examined and the judgment thereon approved.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Injury to Horses — Demand for Compensation Refused — Action—Recovery — Attorney Fee — Statute Constitutional. The statute providing for recovering an attorney fee in case of suit after demand and refusal to pay for stock killed or injured in the-operation of a railroad (Gen. Stat. 1909, § 7002) was not designed to attach onerous penalties to the nonpayment of extravagant demands but requires' payment of an attorney fee in case suit should be necessary to recover a legitimate demand and consequently does not deny due process of law within the purview of the federal constitution.</p> <p>2. Same. If in an action brought under the statute the plaintiff recover a sum considerably smaller than that stated in his demand an attorney fee should be allowed when refusal to comply with the demand was not based on the ground that it was excessive and the action was resisted on the ground that the defendant was not liable in any sum,</p> <p>S. Trial — No Error in Record. Assignments of error relating to the admission of evidence and to findings of fact held to be without substantial merit.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Master and Servant — Unsafe Place to Work — Negligence—Personal Injuries — Employer’s Duty and Liability. The plaintiff sought to recover damages from his employer and another employee for injuries suffered while he was repairing the machinery of his employer, based on the negligence of the employee, who was an engineer, in starting the machinery while plaintiff was engaged in repairing it, and also on the negligence of his employer in failing to furnish him a safe place to work or to give him such warning as would enable him to reach a place of safety before the machinery was put in operation. The jury found that the engineer, who started the machinery on signals given by others and did not see or know that plaintiff was at work upon the machinery, was not liable for the injury suffered by the plaintiff, but also found that the employer whose duty it was to furnish plaintiff a safe place to work and to keep it safe was culpably negligent and responsible for the damages sustained. Held, that the finding of the jury that the engineer was not negligent does not necessarily exonerate the employer from liability for nonperformance of the positive duties of a master towards the plaintiff, and that the evidence in the case justified the jury in returning a verdict against the employer.</p>

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

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

<p>Appeal from Wyandotte district court, division No. 2; E. Ray ADams, judge pro tem.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Cities op First Class. A city of the first class has capacity to sue and be sued.</p> <p>2. Intoxicating Liquors — Common Nuisance — Petition States Cause of Action. A cross-petition filed by a defendant city, which cross-petition states that the plaintiff is doing certain specific acts, which acts are in violation of the intoxicating-liquor laws of this state and the ordinances of the defendant city, and which constitute a common nuisance as defined by the law of the state and the ordinances of the city, and asks for an injunction against the doing of these acts, states a cause of action.</p> <p>3., Same — When Prosecution Must be in Name of State. An action prosecuted by the mayor and the chief of police of a city to enjoin and abate a liquor nuisance must be prosecuted by them as citizens of the county and in the name of the state.</p> <p>4. Same — City May Prosecute Suit to Abate Liquor Nuisance. Any city of this state may prosecute an action to enjoin and abate an intoxicating-liquor nuisance operating within its limits.</p> <p>5. Same — Moving Vehicle May Become a Common Nuisance. A vehicle moving about from one place in the city to another while engaged in selling intoxicating liquors, in violation of law and of the ordinances of the city, is a “place” within the meaning of section 4387 of the General Statutes of 1909 and of city ordinances which prohibit nuisances as defined in that statute.</p> <p>6. Same — Imported Liquors — When Not Interstate Commerce. Intoxicating liquors brought into this state from another state and intended by those who send it or those who receive it to be used in violation of the law of this state are not articles of interstate commerce.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Illegal Contract — No Recovery on Quantum Meruit. No recovery can be had on quantum meruit for services rendered under a contract prohibited by statute.</p> <p>2. Illegal Contract — Sale of Patent Right — Service—Contract Indivisible. A contract for the sale of an interest in a patent right was executed in violation of the provisions of sections 5515-5517 of the General Statutes of 1909, and as part of the consideration the purchaser agreed to employ the owner of the patent and pay him for services in the construction of machinery for manufacturing under the patent; held, that the contract is not divisible, but entire, and being tainted with illegality, no action can be maintained to enforce any p'art thereof.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Land Belonging to Estate — Payment of Debts — Partition—Sale—No Innocent Purchaser. A purchaser at a partition sale of lands belonging to the heirs of the deceased owner takes title subject to general claims against the estate which can not be realized out of the personal property.</p>

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

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

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

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

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

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Real-estate Agent — Commission. If a contract for a real-estate agent’s commission reserve to the principal a choice between two methods of satisfaction, and he disable himself from adopting one, he must adopt the other.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Mechanic’s Lien — Statute Must be Followed. Doane v. Bever, 63 Kan. 458, 65 Pac; 693, followed, and held, liens for material used in the construction of improvements on real estate are created by statute, and the law recognizes no equitable lien arising from the mere fact that material is furnished for and used to improve the real estate of another.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Migratory Birds — Protection — Within Exclusive Control of State. Congress has no power to prescribe regulations for the protection of migratory game birds while within the boundaries of a state.</p> <p>2. Same. A state law forbidding the shooting of ducks from a motorboat is a valid exercise of the police power, notwithstanding the same act limits the number to be killed by one person in a day.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Information — Driving Automobile at Excessive Speed — Information Fails to Charge a Public Offense. An information which merely charges that a defendant drove his automobile past two persons traveling in a buggy in the same direction on the public ’highway in the open country at a greater speed than eight miles an hour, but which does not charge defendant with driving at an unreasonable or dangerous speed, nor with failure to have due regard for the traffic or use of the'road or its condition, nor at a speed which endangered the life or limb of any person, nor otherwise with failing in his duty to observe the rules of the road, does not state a penal offense under chapter 65 of the Laws of 1913.</p>

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

<p>Appeal from Barton district court; DANIEL A. BANTA, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Personal Injuries — Special Findings — Irreconcilable with General Verdict. When special findings of fact in a personal-injury case acquit the defendant of liability on the sole ground on which the plaintiff might have recovered under his petition, the special findings can not be reconciled with a general verdict for the plaintiff and the defendant is entitled to judgment on the special findings.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. License Tax — “Jitneys”—Municipal Control of Public Streets. The provision of the ordinance in question requiring those operating any self-propelled vehicles carrying passengers for hire to pay additional licenses of three hundred to four hundred dollars before being permitted to solicit or receive passengers on the paved portions of certain designated streets, although practically prohibitive as to such designated places, is a valid exercise of municipal control.</p> <p>2. Same — Benefit to Street Railway Company. That the effect of such ordinance if enforced would involve a benefit to the street railway-company is no reason why the city may not prescribe such regulation.</p> <p>3. Same — When Courts Should Interfere. Before the courts can interfere with the exercise of legislative power granted to the city to license and regulate such conveyances it must appear that the attempted exercise of such power is flagrantly unjust, unreasonable or oppressive.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Original Proceeding in Mandamus' — Not Removable to Federal Court. An original proceeding in mandamus is not removable from a state to a federal court for the reason that it is not a civil action within the meaning of the removal acts of congress. (Part 1, 36 U. S. Stat. at Large, ch. 231, § 28, 1 U. S. Compiled Stat. 1913, § 1010.)</p> <p>2. Same — Ancillary and Supplemental Suit — Not Removable to Federal Court. A suit which is ancillary and supplemental to one previously brought in a state court, and which is so connected with the original suit as to form an incident thereto, and to be substantially a continuation thereof, can not be removed into a district court of the United States unless the original suit has been previously or may be simultaneously removed.</p> <p>3. Efficient Service by Public Utility — Duty of Public Utilities Commission — When Mandamus Will Not Lie. The public utilities act makes it the duty of the public utilities commission to require a public utility to render efficient service and provides the machinery for an investigation by the commission into all questions affecting the character and sufficiency of such service. This court will not entertain a proceeding in mandamus to compel a public utility to furnish efficient and sufficient service until the public utilities commission has made an order requiring the defendant to furnish more efficient service which the defendant has refused to obey.</p> <p>4. Mandamus — When Useless Will Not Issue. Mandamus being a discretionary writ, the court will refuse to issue the writ where it would be useless or futile and of no public benefit.</p> <p>5. Same — Material Issues Fully Determined — Proceeding Dismissed — ■ Injunction Denied. In an original proceeding in mandamus a supplemental petition was filed asking the court to enjoin the defendants from prosecuting an action begun in a federal court, the plaintiff claiming that the jurisdiction of this court in the original proceeding was thereby interfered with. Upon a consideration of the issues raised by the pleadings, the court finds that nothing substantial remains to be determined in the original or supplemental proceeding, and the injunction is therefore denied and the proceeding in mandamus dismissed.</p>