Volume 98 — Kansas Reports

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Promissory Note — Defense—Fraud—Contravention of Public Policy ■ — Facts for the Jury. The invalidity of a note and mortgage, attacked as fraudulent and void because given in pursuance of a contract contravening public policy, held not to be established as a matter of law by the undisputed facts or the findings of the jury.</p> <p>2. Privileged Communications — Who May Claim Privilege. No one but the client, or one in privity with him, can found an appeal upon the admission of evidence in violation of the privilege with respect to confidential communications to an attorney.</p> <p>3. Trial — Evidence—Instructions. An instruction limiting the effect of evidence held not to have been prejudicial to a party who objected to its admission for any purpose.</p> <p>4. Compromise and Settlement — Action to Set Aside — Evidence. In an action to set aside a compromise of a disputed claim as fraudulent and unconscionable, the defendant may show statements made to him by other persons, if they tend to show his own good faith.</p> <p>5. Same. Various items of evidence held to have been properly admitted.</p> <p>6. Action — Relief on Ground of Fraud — Evidence—Instructions. In an action for relief on the ground of fraud, an instruction that the plaintiff must satisfy the minds of' the jury by the fair weight or preponderance of the evidence does not impose too severe a requirement upon him.</p> <p>7. Trial — Instructions. Various instructions held not to be erroneous as introducing extraneous issues.</p> <p>8. Trial — Special Questions. Various special questions submitted by the court to the jury held not to show a trial on a wrong theory.</p> <p>9. Promissory Note — Verdict—Judgment. A judgment on a note and mortgage may be rendered on a verdict in favor of the holder which does not state the amount due, where the only question in dispute was their validity.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Riparian Rights — Accretions to Land — Question of Fact. Whether accretions have been formed from the main bank of a stream to an island in the channel or from the island to the bank is a question of material fact to be determined from the evidence, construed, of course, by reference to well-established principles governing the law of accretions. It is none the less a question of fact.</p> <p>2. Same — Rule for Apportioning Accretions to Land. The proper method or rule for apportioning accretions on rivers or other bodies of water between adjoining proprietors depends upon varying circumstances and conditions, so that it is impracticable to state a general rule that will apply in all cases.</p> <p>3. Same — Rule Adopted by Trial Court — Approval. On the facts stated in the opinion, held, that the adoption of a rule of apportionment between two adjoining proprietors by which each acquires a frontage on the new shore proportional to his frontage on the old one, by an extension of the original side lines, will not be disturbed.</p>

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

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Verdict and Judgment — Controversy Settled. A controversy as to the application of a payment made by a debtor held to be settled by the verdict and judgment.</p> <p>2. Agency — For Collecting Liquor Bills — Violation of Law — No Recovery of Amount Collected. A principal who employs an agent to make collections under circumstances which make the act a violation of the criminal law can not maintain an action for the recovery of the amount collected.</p> <p>3. Liquor Laws — Presumption as to Laws of Missouri. Under the circumstances of this case it will not be presumed that the sale of intoxicating liquors is forbidden by the laws of Missouri.</p> <p>4. Liquor Shipped to Order op Shipper — Bill of Lading and Liquor Delivered to Another for His Own Use — Unlawful. One who ships liquor to his own order, and delivers the bill of lading to another to enable him. to receive it for his own use, thereby violates the provision of the Kansas statute forbidding a person to whom intoxicating liquor has been consigned to give to any other person an order upon the' carrier for it, with the purpose of enabling him to receive it for him■self.</p> <p>5. Same — No Interference with Interstate Commerce. The statute re- . ferred to in the foregoing paragraph, as applied to a shipment from another state into this, under the circumstances there stated, is not invalid as involving an undue interference with interstate commerce, irrespective of the provisions of the Webb-Kenyon act.</p> <p>6. Same — Construction of Federal Statutes Relating to Importation of Liquors from one State to Another. Where liquor is shipped into this state to the order of the shipper, his representative who collects the purchase price and delivers to the purchaser the bill of lading, thereby violates the- act of congress which provides a punishment for any person who, in connection with the interstate transportation of intoxicating liquor, shall collect the purchase price from the consignee, or act as the agent of the buyer for the purpose of completing the sale thereof, saving only in the actual transportation and delivery of the same.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Sheriff’s Sale — Sufficient Publication Notice. A printer’s affidavit stating that a sale notice was published in the regular and entire issue of each number of a daily newspaper for four weeks, the first publication being January 22, and the last February 23, 1915, the sale being on February 24, sufficiently shows publication for thirty days before the day of sale.</p> <p>2. Same — “Daily Paper” — Number of Publications Each Week. A newspaper published each day of the week except Sunday is a daily newspaper.</p>

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Promissory Note — Name Indorsed on Back Without Authority. The evidence examined and held to sustain findings that the defendant’s name was written on the hack of the notes sued on without his authority and without consideration.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Slander — Variance Between Pleading amd Proof. In an action for slander, the proof of the words spoken need not correspond in every particular with the words as charged. It is sufficient that the words charged are substantially proved by the evidence.</p> <p>2. Trial — Requested Instructions — Covered by Those Given. It is not error to refuse instructions which are fairly covered by those given. {Baugh v. Fist, 84 Kan. 740, syl. ¶ 3, 115 Pac. 551.)</p> <p>3. Slander — Proof of Words of “Substantially the Same Meaning”— Proof Sufficient. In a slander case it is not error for the court to instruct the jury that they may find for the plaintiff if they find from the evidence that the defendant spoke the slanderous words or words of substantially the same meaning.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Purchase op Corporate Stock. — Fraud—Evidence. The evidence to support allegations of fraud in the purchase of corporate stock by plaintiff’s agent examined and found sufficient to justify the court’s refusal to order an instructed verdict.</p> <p>2. Same — Trial—Instructions as a Whole. It is not necessary to state all the law of a case in .one instruction to the jury, and a single instruction which is correct so far as it goes can not be excised from its context and interpreted to govern the entire controversy without regard to other appropriate instructions which were also given.</p> <p>3. Same — Answers to Special Questions — Defendant Not Entitled to Judgment on the Findings. Where the main issue in an action to recover the purchase price of corporate stock from the plaintiff’s agent was on the question of the agent’s fraudulent conduct in procuring outstanding stock instead of treasury stock, the jury were asked this question:</p> <p>“Q. 9. Did the defendant tell the plaintiff at the time of each of said purchases that he could purchase preferred stock in the Mahogany Lumber and Transportation Company at a hundred dollars per share?”</p> <p>The jury’s first answer was:</p> <p>“A. The evidence shows (see checks made to M.'L. & T. Co.) that defendant led plaintiff to believe stock was from said company, and worth $100.00 per share.”</p> <p>On motion of defendant, the jury were required to retire and make a more definite and specific answer to .this question, and their corrected answer was “Yes.”</p> <p>Held, that by the aid of the first answer and the other special findings, it is clear that the jury did not intend to adopt defendant’s contention that he was authorized to purchase outstanding stock; and held, also, that the defendant was not entitled to judgment on this finding.</p> <p>4. Same — Trial—Evidence Supports Judgment for Plaintiff. The plaintiff requested the defendant, his banker in whom he had implicit confidence, to find a safe investment for some money. The defendant recommended the preferred stock of a navigation company, saying that he and his father and brothers were interested in the company to the extent of $30,000, and undertook to procure treasury stock from the company for plaintiff. Plaintiff gave a check for $800, payable to the company, for eight shares of stock procured for him by defendant. Later the defendant .procured twenty additional shares for plaintiff under the same circumstances, and which were also paid for by plaintiff’s check for $2000 in favor of the company. The company never received the checks or their proceeds, nor did plaintiff’s money go to enhance the corporate capital or assets. The checks were cashed by defendant without indorsement, and the proceeds disposed of by defendant, and the corporate stock which defendant procured and delivered to plaintiff was outstanding stock acquired from defendant’s brother and mother, and not treasury stock. The true extent of the interest of defendant and his father and brothers in the navigation company was only $11,000, invested in preferred stock, and a holding of $17,500 of common stock of no value. The foregoing and incidental facts held sufficient to support a judgment for plaintiff for the return of the purchase price and interest, less dividends received.</p> <p>5. Same — Fraud—Rescission of Contract — Limitation of Actions. Rule followed that in actions for relief on the ground of fraud, whether that relief be for rescission or damages, the statute of limitations does not commence to operate until the discovery of the fraud.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Fire Insurance — Loss — Tender — Action — Attorney’s Fees. Where a lawsuit arises over an insurance policy and the plaintiff claims a total loss and demands the full amount of the policy, $1000, and the insurance company tenders $650 in settlement, and the jury find the loss under the policy to be $600, the plaintiff is not entitled to have an attorney’s fee taxed against the defendant as part of the costs.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Divorce — Stipulation for Attorney’s Fee — Action Dismissed — Judgment for Attorney’s Fee at Subsequent Term — Judgment Void. Where the parties to a divorce suit file a stipulation that the defendant shall pay a stated amount as the fee. of the plaintiff’s attorney, and the cause is dismissed ■without any order having been made in reference thereto, the court has no jurisdiction at a subsequent term to render judgment for such payment.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Banking — Insolvent Bank May Not Give Preference to Creditors or Depositors. Section 499 of the General Statutes of 1909, as amended by section 1 of chapter 65 of the Laws of 1911, which prohibits a bank from giving a preference to any depositor or creditor by pledging the assets of the bank, applies only to a bank which is insolvent. '</p> <p>2. Same. An agreement in a promissory note executed by a solvent bank, by which it agrees to give additional securities in the future upon demand of the lender, is a valid agreement only so long as the borrowing bank remains in a solvent condition. The collateral agreement is limited by the statute (Gen. Stat. 1909, § 499, amended by Laws 1911, ch. 65, § 1) which forbids a bank to give a preference to any depositor or creditor.</p> <p>3. Same — Agreement to Give Additional Securities to Bank’s Creditor— Agreement Valid only so Long as Bank Remains Solvent. A solvent bank borrowed $10,000 from another bank and gave its promissory note, pledging at the same time certain of its assets as collateral security. The note contained an agreement to give additional security upon notification by the holder. Subsequently, when the borrowing bank was insolvent, its officers at the demand of the holder turned over additional assets of the bank to secure the indebtedness. Upon these facts it is held that the previous agreement did not create an equitable lien on the assets subsequently turned over, and that replevin will lie at the suit of the borrower to recover the assets turned over in violation of the statute.</p> <p>4. Same — A Preferred Creditor Ca/n Not Retain Assets of Bank Transferred During Bank’s Insolvency. Notwithstanding the statute which prohibits banks from preferring creditors contains no declaration that any act in violation thereof shall be void, it is held that a creditor who accepts a preference from an insolvent bank will not be permitted to retain the benefits of the transaction.</p> <p>5. Same — Replevin of Insolvent Bank’s Assets. On the facts stated in the opinion it is held that it was not a condition precedent to the plaintiff’s right to maintain the action of replevin that it tender back certain securities surrendered by the defendant at the time the additional securities were turned over.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Negligence — Personal Injuries — Verdict — Special Findings. The evidence examined and found to support the general verdict. The special findings examined and held not essentially inconsistent with one another or with the general verdict.</p> <p>2. Same. The rule that the general findings must, if possible, be harmonized with the general verdict, followed.</p> <p>3. Railroad Accident — Personal Injuries — Procuring Releases Therefor. The practice of procuring or attempting to procure for a nominal sum a release from' one still suffering from the excitement and pain of a recent injury is not to be encouraged or judicially approved.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Sale — Sewer Pipe — Sold “Subject to Inspection” — No Warranty. Where the facts and correspondence show that a sale of sewer pipe was made “subject to inspection of engineer,” and clearly show that there was no warranty, a finding that the sewer pipe was sold with an oral and written warranty that the articles would pass inspection can not be sustained.</p> <p>2. Same — Damages. Where g'oods are sold subject to inspection, the vendor is not liable for damages occasioned to the vendee because such goods do not meet with approval on inspection.</p> <p>3. Sam:e — Sewer Pipe — Sold “Subject to Inspection” — Elements of Damages. Where sewer pipe is sold subject to inspection, and part of it is approved on inspection, and part of it which was disapproved on inspection is used by the vendee elsewhere, and part of it is sold and the remainder is retained by the vendee, the approved pipe must be paid for at the agreed purchase price, the pipe used elsewhere must likewise be paid for after deducting a reasonable charge for its transportation to the place where it was used, the pipe sold by vendee must be accounted for, and the remaining pipe retained by the vendee must be paid for at what it is reasonably worth.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Railroads — Freight Trains — Limitation of Liability to Passengers— Carrier Liable for Gross Negligence Only. It is within the power of the legislature to require carriers to carry passengers upon freight trains and to fix the measure of their responsibility for injuries suffered by passengers choosing that mode of travel, and under the provisions ' of chapter 190 of the Laws of 1909 (Gen. Stat. 1909, §§ 7123, 7124), one who takes passage on a freight train has no right to expect greater precautions for his safety than slight care nor to hold the carrier responsible for any lack of care less than gross negligence.</p>

<p>SYLLABUS BY THE COUKT.</p> <p>Sale — Breach of Contract — Damages—Bill of Particulars. The proceedings examined and held a motion to make the bill of particulars more •definite and certain was properly overruled, the action was not prematurely commenced, and an instruction relating to the defendant’s contention, which was not sustained, was properly given.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>,1. Trial — Evidence—Findings—Verdict. The evidence and findings examined and held to be such as to uphold the general verdict.</p> <p>2. Negligence — Circus Seats — Personal Injuries. Those attending circus performances need not assume that the seats provided by the management are unsafe or make a critical examination of their fitness for the use which patrons are invited to make of them.</p> <p>3. Same — New Trial — Newly Discovered Evidence. A new trial is not to be granted for newly discovered evidence until there is a fair showing of diligence, and unless such evidence would probably require a different decision.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Common Carrier — Caretaker of Live Stock — Injuries—Contributory Negligence. The plaintiff shipped a car of cattle from Beloit to Garden City and went with the car under a live-stock shipper’s contract. While the car was standing alone on a sidetrack at Strong City he undertook to ascertain the condition of the cattle. He climbed to the top of a ladder on the side of the car, and thinking that he could see better from the end of the car, placed his right foot on a step of the ladder on the end, with his left hand took hold of the brake wheel at the end of the car to the right of the end ladder, and started to bend over' so that he could take hold of a wooden slat in the end of the car with his right hand, intending to climb' down toward the lower opposite corner of the car at the end until he could get a good view of the cattle. He was thrown to the ground and injured by the brake wheel turning. He was guilty of such negligence as prevents his recovery for the injuries sustained by him.</p> <p>2. Same — Railway Company Not Negligent. Under such circumstances the defendant was not guilty of negligence toward the plaintiff.</p> <p>3. Same — Caretaker of Live Stock — Injuries—Evidence—Custom. In an action to recover damages for injuries sustained by a caretaker of live stock while climbing about the car containing the live stock, it is not reversible error to exclude evidence showing a custom among livestock shippers to climb about and over stock cars in caring for the live stock therein, where the conduct of the party shows that his negligence caused his injury.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Negligence — Electric Company — -Uninsulated Wires — Children Playing — Contact—Injuries. An electric company built and maintained a system of high-voltage wires about thirty feet above the ground along the street in a thickly populated portion of a city. When built, the wires were properly* insulated as the law requires, but the insulation had rotted so that the wires had been nearly bare for a number of years. A small wire with a stone attached had been thrown over the uninsulated wires of the company, and supposed to have been done by boys at play, but the evidence did not show by whom, how, or when the wire was thrown over those of the company. A boy sitting upon a coping upon the side of the street who had the small wire in his hand fell over, and a neighbor noticing that he did not move and that his clothes were on fire called for help. The plaintiff hearing the call hurried to the aid of the boy who was already dead, and upon touching him, she received an electric shock causing severe burns and other injuries. In an action brought by her, it was found that the destructive current escaped from the wires of the electric company through its negligence, that the plaintiff was injured when she went to the aid of the boy, as she had a right to .do, and it is held that the jury was warranted in finding that the throwing of the wire over the uninsulated wire was an act to be anticipated by the company, and against which it should have provided, that the negligence of the company was the proximate cause of the injury, and that under the evidence the plaintiff was entitled to recover for the injuries sustained by .her.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Master and Servant — Action for Wages: — Limitation of Actions. The rule announced in the case of Grisham v. Lee, 61 Kán. 533, 60 Pac.. 312, that where there is a single hiring and the term of service and time when compensation is due are not fixed, the hiring is continuous and the statute of limitations does not begin to run against a claim for compensation until the service terminates, approved and applied.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Information- — Obtaining Property by False Pretenses- — Information Sufficient. An information which charged in effect that the defendant through another fraudulently effected a sale of his team of horses; that he afterwards approached the purchaser and falsely represented that the horses so sold had been stolen from him; that he then demanded a return of the team or the payment of their value; that the purchaser gave him a check for their value, which was the equivalent of money; and that he and his accomplice thus conspired together to cheat and defraud the purchaser, and had obtained a check, a thing of value, by false pretenses, stated an offense under section 94 of the crimes act (Gen. Stat. 1909, §2584).</p> <p>2. Same — Averment of Conspiracy — Information Not Vitiated. The averment that another conspired and cooperated with the defendant in obtaining the check by false pretenses did not vitiate the charge against the defendant nor leave room for doubt as to the offense alleged.</p> <p>S. False Pretenses — Obtaining Valuable Check — Offense Complete. In such a prosecution an essential element to be proven is that the fraud was accomplished by the false pretenses alleged, and although the money had not been paid on the cheek when the defendant was arrested and was subsequently restored to the drawer, it was a thing of value when given, as there was money in the bank for its payment, and therefore the fraud was accomplished and the offense charged was complete when the check was obtained by the defendant.</p> <p>4. Same — Restoration of Property — Did Not Expiate the Crime. A restoration of check, money or property fraudulently obtained by an accused does not wash away the criminality of his acts.</p> <p>5. Same — Former Decision Overruled. The State v. Lewis, 26 Kan. 123, overruled.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>City Ordinance — Forbidding Garbage on City Lots — Ordinance Invalid. A section of an ordinance of a city of the second class made it unlawful for an owner or occupant to deposit tin cans, manure, ashes, garbage, and other refuse matter on his lots or to allow such matter to remain on his lots. The condition that the refuse matter should be offensive to others or detrimental to the public health or welfare was not recognized, no distinction was made between nocuous and innocuous deposits or accumulations, and the offense was complete if any of the things mentioned were deposited or allowed to remain, whatever the quantity, circumstances, or length of time. Held, the section of the ordinance was beyond the authority conferred on cities of the second class to secure the general health and to prevent and remove nuisances.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Homicide — Evidence — Reputation of Defendant — Instructions. The defendant, in a criminal case, having offered no evidence regarding his reputation, no error is committed in refusing instructions to the effect that his character is presumed to be good and that this presumption is the equivalent of evidence, particularly where the court had instructed that he was to be regarded as of good character except so far as his own testimony might show the contrary.</p> <p>2. Same — Trial—Instructions. The refusal of various instructions in a homicide case held not to have been erroneous.</p> <p>3. Same — Witness—Child Five Years Old — Weight of Evidence. Whether a child of five years is competent to testify is ordinarily a question for the final determination of the trial court. The testimony of such a witness having been admitted it is proper to submit to the jury the question of the weight to be given it.</p> <p>4. Same. Where proper instructions are given regarding the consideration of the testimony of a five-year-old witness, it is not error to omit to refer .specifically to that of another witness seven years of age, that matter being covered by the general charge.</p> <p>5. Homicide — Dying Statements of Deceased. In a prosecution for homicide it is not error to refuse a request for an instruction that the jury should consider the omission of the state to produce a dying statement of the deceased where the only evidence on this subject indicates that none was made.</p> <p>6. Same — Cross-examination. The discretion of the court in relation to the cross-examination by the defendant of his own'witness held not to have been abused.</p> <p>7. Same — Evidence—Bad Reputation of Deceased. In a prosecution for homicide, the state having admitted the bad reputation of the person killed, with respect to being peaceable and law-abiding, no error was committed in sustaining its objection to evidence that he had been divorced for adultery and cruelty, and had been prosecuted for various public offenses.</p> <p>8. Same — Trial—Evidence. The evidence held to warrant a conviction.</p> <p>9. Same — Judgment—Indeterminate Sentence. A judgment under the indeterminate sentence act held not to be invalid by reason of omitting to state the minimum length of the term — the law placing it at one year.</p>

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

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Evidence — Conclusion of Witness — Inadmissible. An objection is properly sustained to a question which calls for a mere conclusion of the witness upon one of the ultimate facts which it is the duty of the jury to determine.</p> <p>2. Injuries — Collision—Motorcycle and Street Car- — -Negligence — Doctrine of “Last Clear Chance” — No Application. In an action to recover damages for injuries resulting from a collision between a motorcycle upon which plaintiff was riding and a street car of the defendant the doctrine of “the last clear chance” does not apply where the negligence of the defendant is predicated upon the theory that defendant should have discovered the plaintiff’s danger in time to have avoided the injury, but did not in fact discover it.</p> <p>3. Negligence — Special Findings — Contradict Finding of Negligence— Verdict Set Aside. Where the special findings showing in detail just what occurred contradict and overturn the finding of negligence, they control, and it is proper in such case to set aside the verdict in plaintiff’s favor and render judgment for defendant upon the findings.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Assault — In Passenger Depot — By Town Marshal — Damages — Liability of Railroad Company. A colored man sixty-six years old and his wife went as passengers from Newton to Walton, arriving late in the afternoon. The testimony tended to show that they failed to find the man they went to see, and desired to remain in the depot until the train back to Newton, due in about an hour and a half, should come. The town marshal came in, looked at the plaintiffs, asked the ticket agent where they were going, and ordered them out, telling them they could not get a train till late the next morning and “they could make it back to Newton before that time.” When they expressed a desire to get a ticket and remain in the depot he told them they could not stay there and he would lock them up if they went up town, and with some force ejected them from the depot, the agent being within sight and hearing and making no remonstrance but taking no part in the expulsion. Being thus compelled to walk back to Newton on a dark and inclement evening, they received injuries for which they sought to recover damages from the company, on the theory that it was the agent’s duty to protect them from the actions of the officer. Assuming, without deciding, that the plaintiffs were entitled to the rights of passengers waiting in a depot to take a train, it is held that the defendant was not rendered liable for the mere noninterference with the officer by the ticket agent.</p>

<p>OPINIÓN ON REHEARING.</p> <p>Appeal from Harper district court; Preston B. Gillett, judge.</p> <p>(Not reported.)</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Bill of Lading — Issuance without Receipt of Goods — Former Appeals— Changing Grounds of Defense — Estoppel. The proceedings considered, and held that the defendant is estopped by its answer to the petition and by adjudications of this court in its favor in former appeals from asking that the rights of the parties be now determined by federal statutes claimed to be applicable.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Sale OR Real Estate — Default of Purchaser — Waiver—Pleadings. . . The rule that a waiver of a right of forfeiture must be pleaded before . it can be considered does not apply when evidence tending to show the waiver is introduced without objection, and when the testimony of the defendant who is insisting on the forfeiture tends to show a waiver, and when his request for the submission of special questions on the subject of waiver is allowed.</p> <p>2. Same — Repudiation of Contract — Instructions. When a vendor of real estate, under a contract of sale and to convey title when payments ‘are completed, by his course of conduct has waived the default of the vendee and the vendee’s assignee, and wrongfully recovers possession of the property, and the vendee’s assignee commences an action for damages thereon, it is not error for the court to instruct the jury that “both parties are seeking to treat the contract in question as repudiated.”</p> <p>3. Same — Repudiation of Real-estate Contract — Measure of Damages, Where a vendor of real estate receives a payment on the purchase pries and afterwards repudiates the contract and wrongfully recovers possession of the property, and the vendee elects to treat the contract as repudiated, the measure of damages, where no other elements of damage are established, is correctly defined to be the amount paid on the purchase price less the rental value of the property while in possession of the vendee.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Exchange op Lands — False Representations — Evidence Properly Received. The proceedings examined and held that certain evidence admitted over objection was properly received under an order of this court remanding .the cause for the trial of a single specific issue.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>New Trial — Granted at Chambers — Order Granting New Trial Set Aside at Subsequent Term — Jurisdiction. A motion for a new trial was by consent heard after the close of the term, at chambers in another county than the one where the judgment was rendered, and granted. Several months thereafter a motion to vacate the order granting a new trial, setting up false and fraudulent testimony, lack of diligence, deception practiced upon the judge and assault by one of plaintiff’s witnesses upon one of the defendant’s attorneys, was filed and sustained. Held, that the granting of the new trial was proper under section 306 of the civil code, and that thenceforth, the case being properly on the docket, the court had jurisdiction to make orders therein, including the one complained of.</p>

<p>HEADNOTE BY THE REPORTER.</p> <p>Jurisdiction — Granting New Trial at Subsequent Term. A district court, after a term of court has passed, at which it rendered judgment and overruled a motion for a new trial, has no power to set aside the order and grant a rehearing of the motion for a new trial.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Action- — Services and Materials — Statute of Limitations. It is too late under the statute of limitations to begin an action for services and materials when three years and two months have elapsed since the services were performed and the materials furnished before the action is begun.</p> <p>2. Cities — Power of City Commissioners to Incur Obligations Binding City. A city commissioner has no power to bind a city to pay for services and materials, nor does the written acknowledgment of the mayor as to the justice of the claim amount to a legal ratification of the promise of the comissioner.</p> <p>3. Same. A city can only make a binding contract by formal action on the part of the city government, where all its members have had a reasonable opportunity to consider and vote thereon, and the obligation is only binding when it receives a majority vote at a lawful session.</p> <p>4. City — Power to Direct Relocation of Water Mains — Expenses Thereof. A city of the first class has power to make reasonable orders directing a water company to relocate its water mains and hydrants to conform to the establishment of another and later public utility; and the exercise of such power is governmental and the city is not liable for the expenses incurred by the water company in making such changes in obedience to the city’s commands.</p> <p>5. Same — Purposes for which City May Use Water under City Ordinance. The right of a city to use water for flushing wagons is not included in an ordinance providing that the city may use the hydrants to flush its sewers and gutters with the restriction that not more than two hydrants shall be “opened at any one time, nor oftener than twice in any one week, nor longer than two hours at any one time, nor discharge through any orifice greater than one and one-half inches.”</p> <p>6. Same. Where an old ordinance prescribes the method whereby the city may flush its sewers and gutters, the question whether the city must pay for any water used in flushing sewers and gutters in a more' modern and efficient manner depends upon whether more water is used by the later method.</p> <p>I. Action Against City — Taxpayer Not Disqualified as Juror. In an action where a money judgment is demanded against a city, no ground of peremptory challenge is established by showing merely that a challenged juror is a taxpayer of the city. Older decisions to the contrary no longer control since the enactment of chapter 236 of the Laws of 1913.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Fixtures — Machinery—When Part of Realty — Intention of Parties. The intention of the parties is one of the strongest elements in determining whether machinery in a building has become part of the realty.</p> <p>2. Same — Machinery—Conditional Sale — Notice to Prior Mortgagee of the Real Estate. Notice to a prior mortgagee of real estate of a conditional sale agreement by which the vendor reserves title of chattels annexed to the real estate is not essential to preserve the rights of the vendor of the chattels.</p> <p>3. Same — Machinery—Conditional Sale — When Part of Realty — Replevin. In an action in replevin to recover possession of a tubular boiler which had been sold by plaintiff and installed in a mill upon which the defendant held a prior real-estate mortgage, the contract between the plaintiff and the owner of the realty reserving title in plaintiff until full payment of the purchase price, it is held, following Eaves v. Estes, 10 Kan. 314, 15 Am. Rep. 345, that the boiler, regardless of the nature of its attachment to the mill, never became a part of the realty, and, it appearing from the evidence that it might be removed from the property without defeating or impairing the security of the defendant, the plaintiff is entitled to recover its possession.</p> <p>4. Same — Machinery — Conditional Sale — Bights of Prior Mortgagee. Machinery sold under a conditional agreement by which the title is reserved in the vendor until full payment of the purchase price retains its character of personalty against the holder of a prior real-estate mortgage notwithstanding it replaces machinery which was there when the real-estate mortgage was executed and which was removed to make room for the machinery in question.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Judgment against Joint Tort-feasors — Reversed as to Part — Affirmed as to others. A judgment against joint tort-feasors, which is reversed as to a part of them who have been prejudiced by an erroneous trial ruling, may be affirmed as to others with respect to whom the error was nonprejudicial.</p>

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Pleadings — Amendment—Judicial Discretion. The allowance of an amendment to a pleading at the opening of a trial, under which a party was permitted to set forth the amount of one element of damages which he had sustained because of facts already pleaded, is not an abuse of discretion nor a ground of reversal, especially where the court offered to give the objecting party a continuance of the case in order to make preparation to meet the new matter, which offer was refused.</p> <p>2. CONTRACT' — Sale of Silo — Breach of Contract — Defective Silo — Delay in Delivery — Elements of Damages. Where a person agrees to make and sell a silo to another to be used and filled 'with ensilage from a growing crop and to deliver the silo to the buyer on August 1 of that year or at the earliest convenience of the seller, but which was not delivered until September 20 following, although the seller could have conveniently shipped it to the buyer on August 5, and where the silo delivered was defective in several respects and the result of the delay in delivering it was the ripening and deterioration of the crop planted by the buyer to be placed in the silo, the seller is liable not only for the difference in value between the kind of silo purchased and the defective one delivered, but also for such damages as are the reasonable and natural consequences of the breach of the contract; and the deterioration of the crop grown to be placed in the silo because of the delay may reasonably be supposed to have been in the contemplation of the parties when the contract was made, and for this loss the seller is liable.</p> <p>3. Same — Sale of Silo — Defective Parts — Waiver of Notice of Defects. In the contract the buyer agreed that if upon receipt of the silo any parts were found to be defective or missing he would at once notify the seller in writing and give him reasonable time to replace the parts and that when such replacements were made the seller’s responsibility would cease. The buyer did not give the seller written notice of the defects until January 18 following the delivery, nor was any notice given except to the local agent who made the sale. After the notice was given the seller entered into negotiations with the buyer in regard to remedying the defects and expressed a willingness to supply what was lacking and defective. Held, that the delay of the buyer in giving the written notice was waived by the seller.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Defective Bridge — Injuries—-When Damages May be Recovered from County. The liability of a county for damages occasioned by the fall of a bridge on a county road is statutory and unless the damages alleged fall strictly within the terms of the statute imposing such liability there can be no recovery.</p> <p>2. Same — Traction Engine — Failure to Plank Bridge — No Damages Recoverable. One who attempts to ride across a bridge on the tender of a fifteen-horsepower traction engine (weighing more than three tons), when he sees and knows that the operators of the traction engine, in disobedience of the statute, are driving the engine across without the statutory planking, can not recover damages for injuries occasioned by the fall of the bridge under the weight of the engine.</p> <p>3. Same — Contributory Negligence Bars Recovery. Plaintiff, who owned a threshing machine, hired the owners of a fifteen-horsepower traction engine, presumably weighing more than three tons, to haul his thresher over a county road and bridge. The crossing was attempted without planking the bridge as required by section 45 of chapter 248 of the Laws of 1911. The bridge fell under the weight of the engine, and the plaintiff, who was riding on the tender, was precipitated into a creek thirty-four feet below and severely injured. Held, that he was charged with notice of the statute, and with notice that an attempt to drive the engine across the bridge without planking was dangerous, and that he voluntarily rode into a place of danger, and that such contributory negligence on his part bars him from any claim against the county for damages.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Bridge Contracts — Complete Plans and Specifications to be on File— Purpose of Requirement of Statute. The purpose of the statutory provision that all contracts for the erection of certain public buildings or the construction of bridges shall be awarded on a public letting to the lowest responsible bidder (Gen. Stat. 1909, §2081), and the provisions of chapter 14 of the General Statutes of 1909 (§§ 643-678), requiring that when a county deems it necessary to build a bridge it shall determine upon a plan, the material to be used, and estimate the cost thereof, and that “the plans and specifications for the bridge shall be left in the office of the county clerk for inspection” (§ 664) of prospective bidders, is to secure economy and to protect the public from collusive contracts which would result in favoritism and fraud.</p> <p>2. Same — Erection of Reinforced Concrete Bridges — Character of Plans and Specifications Required. Although when these statutes were first adopted the construction of reinforced concrete bridges was an art unknown in this country, nevertheless the statute meant then just what it means now: that the plans and specifications on file for the inspection of bidders must, so far as the nature and character of the proposed work will admit, be sufficiently definite and explicit to enable bidders to prepare their bids intelligently on a common basis.</p> <p>3. Same — Contract Can Not be Changed after being Awarded. After a contract for the erection of a bridge has been awarded it can not lawfully be changed by additional specifications in a detailed working plan furnished by the contractor and approved by the county and by which substantial changes are made in the requirements submitted to the other bidders.</p> <p>4. Same — Incomplete Plans and Specifications on File — No Additions can be Made Thereto. If the relative amounts of concrete and steel to be used in the construction 'of a reinforced concrete bridge could not from the plans and specifications on file be definitely known and understood by all the bidders, but were to depend upon the design of the successful bidder and upon the additional plans subsequently approved by the county board, all bidders would not be placed upon an equal basis, and, besides, it would be impossible for the board to have before it when the bids were offered a correct estimate of the cost of the bridge.</p> <p>5. Same — Incomplete Plans and Specifications^-No Chance for Competition. Wherever the plans and specifications on file for the inspection of bidders are so general as to admit of any substantial variation of . detail, then active, intelligent competition among bidders is prevented, favoritism and corruption are made possible, and the purpose of the statute has not been complied with.</p> <p>6. Same — Certain Statutes Relating thereto — Repealed by Implication. The enactment of chapter 68 of the Laws of 1911, repealed by implication section 14 of chapter 77 of the Laws of 1879 (Gen. Stat. 1909, § 673), which required that in all cases where the cost of the bridge exceeds two thousand dollars the question must be submitted at an election before appropriation is made.</p>

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

<p>SYLLABUS BY .THE COURT.</p> <p>1. New Trial — Motion Filed Out of Time — Matters for Review. Failure to file a motion for a new trial, or filing such motion out of time, does not justify the dismissal of an appeal, but merely restricts the scope of the review of the cause which is appealed.</p> <p>2. Appellate Jurisdiction — Hearing Further Testimony on Appeali The interpretation of section 580 of the civil code announced in Hess v. Conway, 93 Kan. 246, 144 Pac. 205, is followed.</p> <p>3. Deed — Given as Security — Debt Paid — Reconveyance. When posses*sion of property is held by a creditor under an agreement that he will reconvey when he has been fully reimbursed by rents and profits for funds advanced and for taxes and incidental expenses paid by him, the debtor is entitled to recover possession when the creditors’ claims are satisfied.</p> <p>4. Same — Quieting Title in Debtor. When title to property is held by a person named by the creditor under the circumstances suggested in paragraph 3 of the syllabus, an action to quiet the debtor’s title will lie when the creditor has been fully reimbursed.</p> <p>5. Title — Held for Another — Quantity of Estate Held. One who holds title to property for another, without personal interest therein, holds title only to such legal and equitable interests in the property as were vested in his cestui que trust.</p> <p>6. Same. One who acquires title to property by quitclaim deed and without personal consideration holds only the estate of the party through whom his title was acquired, and if that estate was defeasible or terminable, and the conditions under which it might be defeated or terminated have transpired, the title of the grantee under the quitclaim deed can not prevail against one having a valid claim to the property.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Action — Bank against Customer for Overdraft — Entries in Bank Books — Competent Evidence. In an action by a bank against a customer to recover an alleged overdraft, entries in the books of the bank made in the regular course of business are competent (Civ. Code, § 384) in favor of the bank as prima fade evidence of the condition of defendant’s account, and also to show to whose account checks drawn by him had been paid.</p> <p>2. Same — Evidence of Bank Commissioner — Directions to Bank’s Bookkeeper Competent Evidence. In this action it is held that the defendant suffered no prejudice by the testimony of a deputy bank commissioner to the effect that when he took charge of the bank he found a draft drawn against the defendant which the bank had paid about ninety days previous and had been carrying as a cash item, and that he directed the bookkeeper to charge the draft to defendant’s account, which was done.</p> <p>3. Same — Trial—No Prejudicial Error. Other evidence examined and instructions considered, and held, there was no error authorizing a reversal.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Defective Highway — Damages — Pleadings. The petition and the evidence examined and held fairly to allege and show a cause of action.</p> <p>2. Same — Liability of Township. The fact that the township was repairing a bridge did not relieve it from liability for leaving the highway approaching the same in a defective and dangerous condition.</p> <p>3. Trial — Evidence. Complaints regarding admission of evidence examined and found to be without substantial basis.</p> <p>4. Same — Improper Arguments of Counsel. Certain statements made in argument by counsel assigned as error are disposed of by the prompt and sufficient action of the trial court which protected the rights of the complaining party.</p> <p>5. Defective Highway — Notice to Township Officers. Notice by actual knowledge of the defective condition of the streets on Monday amounted to the statutory requirement of notice “for at least five days prior to the time when such damage was sustained,” (Gen. Stat. 1909, § 658) the injury occurring the following Saturday about dark.</p> <p>6. SAME. Rules followed that absence of safeguard constitutes a defect and actual knowledge of conditions naturally productive of injury obtained while repairing the highway constitutes notice of defect.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Appeal Bond — Principal Adjudged a Bankrupt — Surety on Appeal Bond Not Released. A surety on an appeal bond is liable thereon, although his principal, the judgment debtor, was relieved from the payment of the judgment by his discharge in bankruptcy.</p> <p>2. Same. The ordinary rule that the release of a principal debtor likewise releases the surety relates to a release by the voluntary action of the creditor and does not apply to a release or discharge by operation of law as in bankruptcy.</p> <p>3. Same — Surety’s Obligation Governed by State Laws. The effect on a surety’s obligation where his principal is discharged through bankruptcy is governed by local law and not by the federal statute.</p> <p>4. Same — Appeal Dismissed — Bankruptcy of Principal — Obligation of Surety. Where a statutory bond is given in an appeal to the district court from a judgment of a city court (Jus. Civ. Code, §§ 121, 129) and the appeal is dismissed for want of prosecution, the subsequent discharge of the appellants by virtue of the bankruptcy act does not bar an action against the surety on the appeal bond.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Will — Nonresident—Lands in Several States Given to Widow — Construction of Will — Rights of Widow — Election. In a will a testator domiciled in New Jersey disposed of real estate in Kansas as well as that situated in four other states. Under the statutes of three of the states the wife of a deceased husband is entitled to dower or a life interest in a third of his real estate. In another state she is entitled to a fee of a third of the land, while under the statutes of Kansas she takes an undivided half interest in the land, unless she consents in writing to take a smaller or different share. The testator disposed of a large estate, devising and bequeathing to his wife a tract of land in New Jersey, five thousand dollars in cash and one hundred volumes of books, and he then added the provision: “I confirm to her, her right to dower in all the real estate of which I shall die seized.” He also confirmed her right to the income from a trust fund previously created, and after making a number of small bequests, he gave the residue of his estate to his children. A law of New Jersey in effect provides that if land be devised to a wife without expressing whether or not it is intended to be in lieu or bar of dower, she shall not be entitled to dower in the devised lands unless she shall, within six months after the probate of the will, express her dissent to receiving the lands devised. Held, that this statutory provision did not apply to the will in question since it provided that the wife should have dower or a widow’s share in addition to the real estate devised to her.</p> <p>2. Same — “Confirm” as Used in Will Construed. The term “confirm” employed by the testator implies that his wife had a right in the real estate independent of his action and that his purpose was to recognize and ratify that right by confirmation.</p> <p>3. Same — Land in Several States — Widow’s Bequest — Intention of Testator. The provision of the will confirming her right to dower in his real estate in the several states is fairly open to the interpretation that he intended to give her the share of the land situate in each state which the law of that state gives to the wife of a deceased husband.</p> <p>4. Same — Bequest of Kansas Land — Controlled by Kansas Laws. While we may look to the law of the domicile of the testator to ascertain his intention and the sense in which the words of a will are used, it can not be so applied as to contravene the law of this state, where the land is situate and which controls the devolution of title to land on the death of the owner.</p> <p>5. Same — Election by Widow. The acts relied on as constituting an election of a widow to take under a will must be clear, positive and unequivocal, evincing an intention to elect, and it must be done with full knowledge of all the essential facts and circumstances as well as of her legal rights.</p> <p>6. Same — Bequest of Kansas Land to Widow — Takes Undivided One-half Interest Therein. Under the circumstances of the case it can not be held that the widow consented or elected to take less than an undivided half interest in the land in Kansas, because she accepted the income from the land situate in other states, nor because of the institution of this action for partition, nor yet by reason of a letter to her own attorney to the effect that her husband might have given her a smaller share if he had understood the Kansas law, and that she would be satisfied to receive the share he intended for her to have.</p>

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

<p>SYLLABUS BY THE .COURT.</p> <p>1. Sale — Bank Stock — Representations as to Value — No Evidence of Bad Faith. The evidence examined and held to have no tendency to show that one who sold bank stock under a representation that it was worth double its face value had any knowledge that the bank was insolvent.</p> <p>2. Same. An owner’s representation of the value of property he offers for sale is not actionable if made in good faith, even where by reason of facts unknown to him its ownership is a liability instead of an asset.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Waters Overflowing Land — Ditches and Dikes — Injunction. Under the findings which are supported by the evidence, it is held thast whether or not the ditches and dikes in controversy constitute an easement or servitude, .neither party is entitled to an injunction or' to substantial damages.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Promissory Note — Parol Contemporaneous Contract Invalid. A parol contract made at the time of or previous to the execution of a negotiable promissory note can not be pleaded nor proved to show that the note was not to be paid at maturity but was to be extended for a definite period.</p>

<p>syllabus by the court.</p> <p>1. Temporary Injunction — Wrongfully Issued — Action on Bond. The rule that an action will not lie on a bond given to procure a temporary injunction until the principal action is determined relates to the action in which the injunction' was procured.</p> <p>2. Action — For Temporary Injunction — Final Determination — Action on Bond. Where an action for an injunction is begun in a district court of this state to restrain the prosecution of a damage suit against the plaintiff in another state, and the plaintiff procures a temporary injunction and gives a bond to indemnify the defendant for all damages if it should be finally decided that the injunction ought not to have been granted, a cause of action in favor of defendant arises on the bond when the injunction case is finally determined, and such action is not prematurely brought merely because the damage case in</p> <p>• the foreign state is still pending and undetermined.</p> <p>3. Temporary Injunction — When Action for is Finally Decided. It is conclusively determined that a temporary injunction ought not to have been granted when it is finally decided on the merits that the plaintiff is not entitled to an injunction of any sort, temporary or permanent.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Divorce and Alimony — Wife ■Awarded Homestead — Lien of Husband for $700 thereon Valid. The plaintiff was granted a divorce from his wife. The homestead of the parties was awarded to the wife, subject, however, to a lien in favor of the plaintiff for $700. The lien not having been satisfied within the time prescribed, an order was issued for the sale of the property. Held, the sale should not be enjoined on the ground the court had no power to disturb the homestead rights of the defendant existing before and after the divorce.</p>

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

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

<p>Appeal from Cherokee district court; JAMES N. DUNBAR, judge.</p>

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

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

<p>SYLLABUS BY'THE COURT.</p> <p>1. Bridge — On County Line — Must be Maintained by Both Counties — : Mandamus. Where two counties unite in building a bridge over a navigable river which divides them the expense of maintaining and repairing the same must be borne by both counties in the proportion fixed by the statute, and where the board of county- commissioners of one of the counties refuses to unite in making the necessary repairs, upon plans and specifications approved by the public utilities commission as it is its duty to do, mandamus may issue to compel the performance of that duty.</p> <p>2. Same — County-line Bridge — Neither County Qan Abandon Its Main*■ tenance. The board of county commissioners of one of the counties can not abandon the maintenance of a bridge So jointly constructed, and cast the entire expense of maintenance and repair on the other merely because the commissioners think it is unnecessary or that the repairs are impracticable and burdensome. .</p> <p>3. Same — County-line Bridge — No Funds Available for Repairs — Procedure by Commissioners Directed. As the testimony shows that the bridge funds now available to the defendant board are insufficient tó pay its share of the expense of making the repairs, the writ will issue directing it to unite with plaintiff and take the steps that may be taken at this time by appointing a commissioner to supervise the work, and by raising the funds necessary to pay its share of the expense of making the repairs.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Defective Highway • — ■ Frightened Horse — Proximate Cause — Petition Failed to State Cause of Action. In an action against a township to recover damages for injuries alleged to have been caused by a defect in the highway, it is held that the petition fails to state a cause of action, for the reason that it shows the proximate cause of plaintiff’s injury was the frightening of his horse and not a defective condition of the highway.</p>

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

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Burglary and Larceny — Conviction—Evidence. The evidence examined and held to be sufficient to support a conviction on a charge of burglary and larceny.</p> <p>'2. Same — Attempt to Break Jail — Competent Evidence. Evidence of an attempt of the defendant in a criminal case to break jail pending trial . is admissible as tending to show guilt.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Statute — Establishing City Courts in Certain Counties — “Special Act.” Chapter 196 of the Laws of 1915, although couched in terms of a general enactment, makes so restricted a classification of the counties in which it is to be effective that it is in fact a special act.</p> <p>2. Same — Special Legislation. Chapter 196 of the Laws of 1915, which attempts to establish courts in counties of 55,000 population or less, having cities of 16,000 population' or more, but exempting from the control of such courts all cities of less than 16,000 inhabitants in such counties, and providing that only after a vote of the people shall the act be operative in such counties as would fall within such class if they comprise a separate judicial district, is special legislation under the test of section 17 of article 2 of the state constitution.</p> <p>3. Same — City Courts — Classification of Counties — Statute Unconstitutional. An act of the legistlature which attempts a classification of counties which is capricious, illogical and unreasonable is essentially special and not general in its nature, and can not be upheld under the scrutiny of the constitutional amendment of 1906. (Const., art. 2, § 17.)</p> <p>4. City Courts — Chapter 196 of the Laws of 1915 — Unconstitutional. Chapter 196 of the Laws of 1915, which prescribes a different rule from that of the general law for the administration of justice as to service of process, procedure, the law of garnishment, the giving of bonds in garnishment and on appeals, violates the uniformity clause of the state constitution. (Const., art. 2, § 17.)</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Workmen’s Compensation Act — Personal Injuries — Notice of Accident to the City. An employer can not avoid the payment of compensation to an injured employee under the workmen’s compensation act because written notice of the accident was not given to the employer by the employee within ten days after the accident occurred unless the epiployer has been prejudiced by the lack of such notice.</p> <p>2. Same — Written Demand for Compensation. Nor is a recovery barred by the failure of the injured employee to make a written demand for compensation within three months after the accident if an oral demand was made within that time.</p> <p>3. Same — Written Demand for Compensation — Application of Statute. The provision of the statute that claims or demands against a city of the second class shall be presented in writing duly itemized and veri-</p> <p>' fied and that unless so presented and verified they shall not be audited or allowed by the city officers, applies to demands of injured employees against a city under the workmen’s compensation act.</p> <p>4. Same — Failure to Present Written Demand for Compensation — Costs. If an action for compensation is brought against a city of the second class upon a claim not so presented and verified a recovery may be had upon it, but no recovery can be had against the city for the costs of the action.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. ’ School Bond Election — Refusal of Mayor to Call Special Election— Mayor’s Duty is Mandatory. When a board of education by regular proceedings under sanction of section 7557 of the General Statutes of 1909 has determined the necessity for a school bond election and has certified its action to the mayor, that officer has no option of refusal to issue his proclamation to call the election. His duty is mandatory and purely ministerial. (Gen. Stat. 1909, § 7558.)</p> <p>2. Same — No Money to Pay Expenses — Does Not Excuse Mayor from Issuing Election Proclamation. The fact that a city government did not take into account the contingent expense of possible special elections in making its financial budget, and that it has no money set apart to defray the expense of such an election, will not excuse a mayor from the performance of his statutory duty to call a special election when the proceedings precedent to the demand for his official action are regularly certified to him.</p> <p>3. Same — Mayor has no Discretion — Must Obey Statute. The statutory restrictions against the financial improvidence of the mayor and city commissioners (Gen. Stat. 1909, §§ 1040, 1041, 1328, 1329) relate only to matters within their official control, and do not relate to matters where the- legislature itself has directed what action shall be taken and which may subject the city to liabilities or expenditures wholly outside the discretion of the city government.</p>

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

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

<p>OPINION ON REHEARING.</p> <p>Original proceeding in mandamus.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Courts — State—Jurisdiction—Interstate Shipments — Action for Repairing Cars. State courts have jurisdiction in actions to recover the amounts due shippers of interstate freight for repairing cars to put them in condition for holding the shipment, where the maximum charge for such repairs is fixed by the tariff on file with the interstate commerce commission.</p> <p>2. Limitation of Actions — Accrual of Cause — Cost of Repairing Ca/rs. The three-year statute of limitations applies to actions to recover the cost of repairing cars to put them in condition to receive the property to be shipped therein, and the statute begins to run on each item when the shipment is made.</p> <p>8. Railroads — Tariff—Repair of Cars — •“Actual Cost of the Samp.” The words “actual cost of the game” in the following tariff provision, “When cars furnished by carriers named below for grain or other loading require repairing in order to insure against leakage in transit, and material necessary for this repair is furnished by the shipper, the' carrier will pay the actual cost of the same, but not to exceed eighty cents per car,” include the cost of the material and labor necessary to repair, but do not include the cost of inspecting or cleaning cars or the cost of attaching grain doors.</p> <p>4. Appear and Error — Harmless Error — Evidence—Admission. The admission in evidence of “Santa Fe Cooperage Circular No. 1” did not prejudice any substantial right of the defendant.</p>

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Municipal Corporations — Performance of Governmental Function— Public Parks ■ — Zoological Garden — No Actionable 'Negligence. The maintenance of a zoological garden in a public park by a city is a governmental function, and the city is not liable in damages for injuries inflicted on visitors by animals through the negligence of the city’s officers or agents in not properly confining the animals.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Insurance — Premium Note — Only Extension of Time For Payment of Premium — Default in Payment — Policy Avoided. Where a promissory note is taken for a premium on a life insurance policy, and the insurance policy provides that the note is not to be considered as a payment of the premium but only an extension of time for payment and that a failure to pay the note at maturity shall forfeit the policy, a default in payment of the note relieves the insurance company from payment of the policy.</p> <p>2. Same — Premium Note — Payable to Agent — Delivered to Company- — • Property of Company Ab Initio — Default -in Payment — Policy Avoided. Where a promissory note is taken for a premium on a life-insurance policy, payable to the agent of the insurance company, and is received by him as agent for the company and delivered by him to the company, the insurance company is the owner of the note from the inception of the transaction, and if the note is not paid to the company at maturity, the forfeiture clause in the policy for nonpayment of the premium note will protect the insurance company.</p> <p>3. Same — Premium Note — Payable to Agent — Agent Conditionally Charged with Company’s ¡Share of Premium — Note Property of Company Ab Initio — Default in Payment — Policy Avoided. Where a premium note is taken by the agent of an insurance company in his capacity as agent and the note is delivered to the company, and by an arrangement between the agent and the company he is conditionally charged with the company’s share of the premium, the charge to be remitted if the note is not paid, the premium note belongs to the insurance company from the inception of the transaction, notwithstanding that it is payable to the agent; and where the policy issued to the maker of the note provides that the obligation of the policy shall be void unless the note is paid at maturity, a failure of the assured to pay the premium note avoids the policy.</p> <p>4. Same — Premium Note — Payable Up Agent — Credit Not Extended by Agent — Default in Payment — Agent Liable for Medical Examination-Fee — Policy Avoided. A life insurance policy was issued to the husband of the plaintiff beneficiary. The policy provided that it should be void if any premium or premium note was niot paid when due. The insured gave his note for the first premium, defaulted in its payment and soon after died. The note was made payable to the agent of the insurance company, hut it was admitted that he merely received it in his capacity as agent and that he delivered it to the company. It was also admitted that for the convenience of the insurance company and its agent, and agreeable to an understanding between them, when a premium note was taken for an insurance policy the agent should he conditionally charged with the company’s share of the premium and that the charge should be remitted if the note was not paid, but that in such case the agent should pay the medical fee for examining the applicant for the policy: Held, that the insurance company was interested in the premium note as owner from the inception of the transaction and that these admissions show that credit was not independently extended to the applicant by the agent on his own responsibility and that by the plain terms of the policy the default of the insured to pay the premium note when due relieved the insurance company from liability on the death of the insured.</p> <p>5. Same — Claim Compromised — Settlement Sustained. The allegations' of fact and admissions of facts relating to a settlement of a debatable liability on an insurance policy examined and the settlement sustained.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Damages — Fright—Mental Anguish — Bodily Injuries. In general there can be no recovery for fright or mental anguish unless it results in or is accompanied by bodily injury.</p> <p>2. Same — Extreme Fright — Willful Negligence — Bodily Injuries — Proximate Cause. Á recovery may be had for bodily injuries which are the natural and proximate result of extreme fright caused by negligence, and especially where the fright is caused by willful wrong or an act so grossly negligent as to show utter indifference to consequences.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Pleadings — -Petition—Reply—Proof—Immaterial Variance — Instructions —Evidence. The proceedings examined, and held that objections to the sufficiency of the petition are not tenable; that a slight discrepancy between the allegations of the reply and the proof was not material; that the cause was properly submitted to the jury under appropriate instructions; and that the special findings and general verdict were sustained by sufficient evidence.</p>

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Pleadings — Petition—Two Inconsistent Clauses — Election. Where a party to an action pleads facts which constitute two causes of action, one for rescission of a contract and the other for damages for breach of warranty contained in the contract, it is proper for the court to require the party to elect on which of the two causes of action he will rely for recovery.</p> <p>2. Appeal and Error — Motion for New Trial-NExelusion of Evidence. An error in the exclusion of evidence on the trial of a cause can not be considered by this court unless it is produced on the hearing of the motion for a new trial.</p> <p>3. Same — Motion for New Trial — Exclusion of Evidence — Judgment. A judgment will not be reversed for error in giving or refusing to give instructions to the jury or in refusing to submit special questions, when based on evidence excluded on the trial, and it is necessary to have that evidence to determine the correctness of the instructions given or refused, and to determine whether the questions should have been submitted, where that evidence is not produced on, the hearing of the motion for a new trial.</p> <p>4. Same — Refusal of Instruction on Immaterial Matter — Not Reversible Error. Where parties agree to submit a cause to a jury on special questions and for a general verdict, and agree that the court shall then render such judgment as it might deem proper, it is not reversible error for the court to refuse to give an instruction on a question of fact which does not materially affect those necessary for the court to know in order to render judgment.</p> <p>5. Same — Refusal to Submit Immaterial Special Questions — Not Reversible Error. Under the circumstances disclosed in the last paragraph, a judgment will not be reversed for error in refusing to submit special questions where the answers to those submitted give the court sufficient facts on which to render judgment.</p>

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Vendor and Purchaser — Purchase of Real Property — Oral Contract Partly Performed — Statute of Frauds no Defense. A purchaser of real property under an oral contract, who pays a part of the purchase price, takes possession of the property under the contract, and retains possession until the commencement of an action against him for the recovery of the balance of the purchase price, can not defeat that action by setting up the statute of frauds.</p> <p>2. Same — Warranty Deed — Balance on Previous Contract — Recovery. The purchaser of a tract of land who obtains a deed therefor is entitled to receive the unpaid purchase money outstanding on a previous contract for the sale of the land by the grantor in the deed to a third person.</p> <p>3. Judgments- — Personal—Wife Not a Party — Homestead. A personal judgment may be rendered in an action against a defendant whose wife is not a party, although the claim on which the judgment is rendered is one against which there is no .homestead exemption.</p> <p>4. Pleadings — Petition — Failure to Allege Tender of Deed — Defect Cured by Judgment. A defect in a petition in not alleging a tender of a deed is cured by judgment requiring the plaintiff -to deposit a deed before judgment is rendered.</p> <p>5. Appeal and Error — -Installment Notes — Judgment on Installments Not Due — Error. It is error to render judgment for the entire unpaid purchase price of real property payable in installments, when only a part of the installments are due and there is nothing in the contract of sale accelerating future payments.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Evidence — Competency—Written Indorsement on Note — Fraud. In a written contract for the sale of land, the purchaser agreed to transfer certain notes of which he was payee as a part of the purchase price. After the transfer had been completed, these words, “Protest and notice of protest waived and payment guaranteed,” appeared on the back of the notes above the signature of the payee. He contended that the words were fraudulently put on the back of the notes after he had signed them. Evidence to show when the words were written was competent.</p> <p>2. Same — Admissibility—Unsigned Memorandum. An unsigned written memorandum can not be introduced in evidence against a party, where it is not shown that the party knew anything about it, ever saw it, or ever had anything to do with it.</p> <p>3. Appeal ane Error — Question Taken from Jury — Finding by Court. A personal judgment on guaranteed promissory notes will not be reversed because the court took' from the jury the question of whether or not the notes were guaranteed as part of the purchase price for land, and found that the indebtedness represented wás the balance of the obligation contracted for the purchase of the land.</p> <p>4. Evidence — Alteration of Note — Burden of Proof. In an action by the payee of promissory notes against a guarantor thereof, where one of the defenses is that the notes sued on were given to take the place of other notes endorsed by the grantor to the plaintiff, that the endorsements on the original notes were fraudulently altered after being signed, and that the guarantor of the notes sued on did not know of the alterations until after he had signed the guaranty on the new notes,, it is not error to instruct the jury that the defendant is not discharged from liability unless the alterations were made by the plaintiff or by his authority and that the burden is on the defendant to show the-alterations by a preponderance of the evidence.</p> <p>5. Jury — Competency of Juror• — Indebted to One Tarty. It is not error to overrule a challenge to a juror for cause, where it appears that the juror is indebted to one of the parties to the action.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Appeal and Error — Judgment — Ambiguous Oral Contract — Evidence. A judgment rendered on an oral contract between banks concerning the transfer of notes and credit given will not be reversed when based on a general finding, where the evidence is not clear as to what the oral contract was, but shows that the contract was afterward confirmed by letters which referred to the oral contract but did not state the complete terms thereof, and the contract is partly explained by the subsequent conduct of the parties.</p> <p>2. Evidence — Competency—Notes—Endorsement—Purpose. Where notes are transferred from one bank to another by endorsement, evidence to show the contract betwen the banks as to the purpose for which the notes were transferred is competent.</p> <p>3. Pledges — Notes as Collateral Security — Delay in Returning — Laches. Where notes are endorsed by one bank to another as collateral security for a credit obtained under an agreement that any of the notes may be returned if found unsatisfactory, a delay of two months and twenty days in returning notes found unsatisfactory can not be said to be unreasonable as a matter of law, although the bank transferring the notes and obtaining the credit has in the meantime been placed in the hands of a receiver.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Judgment — Binding Effect — Res Judicata. A party is bound by and may plead the conclusiveness of a former judgment only in the same capacity in which he was a party to it.</p> <p>2. Same — In Favor of Minor — Not Binding on Same Defendant in Action by Father. A judgment in favor of a minor in an action brought in his behalf by his father as guardian or next friend, to recover for personal injuries resulting from the negligence of his employer, is not conclusive or binding against the defendant in another action brought by the father in his own right to recover for loss of the son’s services.</p> <p>3. Master and Servant — Injury to Minor Servant — Loss of Services— Action Maintainable by Father — Mining Statute. A father may maintain an action, under the provisions of section 4992 of the General Statutes of 1909, to recover for the loss of services resulting from injuries received by his minor son by reason of the failure of defendant to comply with the statute which provides for the safety of persons employed in coal mines (Gen. Stat. 1909, §4987).</p> <p>4. Appeal and Error — Newly Discovered Evidence — New Trial. On the facts stated in the opinion it is held that it was error not to grant a new trial on the ground of newly discovered evidence.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Appeal and Error — No Error in Record. No error is found herein, regarding the admission of evidence, the giving or refusing of instructions, the demurrer to the evidence, the denial of a new trial or the award of damages.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Master and Servant — Injury to Servant — Premature Explosion — ■ Negligence — Evidence. An inexperienced shot firer was injured by a premature explosion, and recovered damages from his employer on the ground of the negligence of the latter in failing to instruct and warn him of the dangers incident to the work and in failing to furnish him with suitable and safe appliances with which to work. The evidence is examined and held to be sufficient to sustain the finding of the jury, that the injury was the result of the negligence of the defendant and not the negligence of the plaintiff.</p>

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

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Contracts — Breach—Future Delivery of Wheat — Measure of Damages. Where one sells wheat in August and agrees to deliver the same September 15 or any time during the month of September before the 15th, and on September 9 notifies the purchaser that he will not de- • liver the wheat, the purchaser may go on the market at the place of delivery on September 9 and purchase the amount of wheat contracted for and recover from the seller the difference between the con-, tract price and that paid.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Mines and Minerals — Oil and Gas Lease■ — Forfeiture — Laches— Waiver. Rule followed that a right of forfeiture must be promptly asserted or it will be treated as waived.</p> <p>2. Same — Oil and Gas Lease — Construction—Forfeiture—Waiver. An oil and gas lease for a term of one year and as long thereafter as gas and oil might be found in paying quantities contained a clause:</p> <p>“Second party agrees to commence well on the above described premises within 90 days from the date hereof, and in case of failure to do so this lease shall become null and void and without any further effect whatever, unless the Lessee shall pay for the delay at the rate of One Dollar per acre per annum thereafter until a well shall be commenced.”</p> <p>No well was commenced within the time agreed, but the lessor did not assert her right of forfeiture for nearly three months thereafter, at which time she made a second lease to other parties in which it was stipulated that the lessees should be “responsible for all action that may be brought from former lease.” Held, that the failure of lessor to assert her right of forfeiture promptly and unequivocally on the first default waived that right, and the first lease was not void for uncertainty as to the time when rent should be paid if the well was not commenced in ninety days, and payment of rent at any reasonable time on demand would be sufficient to avoid the forfeiture, following Smith v. Steele, 96 Kan. 106, 150 Pac. 519.</p> <p>3. Same — Oil and Gas Lease■ — Rent—Payment—Time. In such a lease time of payment of rent is not of the essence of the contract and payment at any reasonable time or upon reasonable demand would be sufficient to avoid forfeiture. (Smith v. Steele, supra.)</p> <p>4. Same — Oil and Gas Lease — Broach—Evidence—Oral Contemporaneous Agreement. Evidence of the lessor as to an oral agreement made at the time the written lease was executed that she was to get rent in ninety days if the well was not commenced is not sufficient to support an adjudication of forfeiture when the lessee, during the first year and definitely fixed term of the lease, put down a well producing two million feet of gas per day, and when the lessor’s rights can otherwise be adequately protected.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Taxation — Property Brought into State between March 1 and September 1 — -Nonresident—Resident—Statute Valid. The provisions of chapter 248 of the Laws 1899, as amended by chapter 364 of the Laws of 1901, which authorizes the assessment of property brought into the state after March 1 and prior to September 1 of any year, and which contains an exception that a resident owner will not be required to pay taxes on such property if he shall show to the assessor that the property has been listed for taxation for that year in some other county of the state or in some other state or territory, is not an unjust discrimination against a nonresident, nor does it deny to him the equal protection of the laws.</p> <p>2. Same — Property Taxed in Foreign State — Brought into Kansas— Taxable Here. It is competent for the state to impose taxes upon all property brought within its jurisdiction, and this power is not lost because such property may have been subjected to taxation for that year in the state from which it was brought.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Watercourse — Definition—Statute. Section 2 of chapter 175 of the Laws of 1911, permitting an owner of land to drain the same in the course of natural drainage by constructing open or closed drains whereby water will he carried into some natural watercourse, uses the term watercourse according to its previously accepted meaning which excluded depressions lacking the characteristic of a distinct channel cut in the soil by running water and having a bed and banks discernible by casual glance.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Master and Servant — Duty of Master to Provide Safe Appliances. In this state a railroad company is required to use ordinary care to provide for its track layers simple tools like sledge hammers free from defect.</p> <p>2. Verdict and Findings — Negligence—Evidence—Findings—Inconsistency. The testimony showed that the hammer which caused the plaintiff’s injury was so battered and misshapen as necessarily to have required some considerable continued use to bring about such condition. There was evidence of repeated complaints and promises to furnish proper tools. Held, that the general verdict should not be set aside and judgment entered on the special findings because the jury in answer to a question as to how long the defect had existed replied, “No evidence as to how long face was defective.”</p> <p>3. Same — Duty of Court to Harmonize, if Possible. Rule followed that the findings should not control the general verdict unless the inconsistency between the two compel such result.</p>

<p>SYLLABUS BY- THE COURT.</p> <p>1. Agency — Commissions — Instructions. Instructions concerning the liability of a principal to his agent for commission have been examined, and found to correctly state the law.</p> <p>2. Same — Exclusive Contract Valid — Statute. Under section 1649 of the General Statutes of 1909, it is not a violation of the law for one to appoint a sole agent for the sale of goods, wares and merchandise in a particular community.</p> <p>3. Appeal and Error — Groundless Complaint. A complaint that evidence was excluded will not be considered where it appears from the transcript that the evidence was admitted and read to the jury.</p> <p>4. Evidence — Sufficiency■—Instructions. On an examination of the evidence and instructions, it is found that the evidence supported the conclusion reached by the jury under the instructions, and that, the instructions correctly stated the law.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Negotiable Instruments — Check—Bill of Exchange — Accepted by Bank — Bank Liable to Payee. Under the negotiable instruments act (Laws 1905, ch. 310, Gen. Stat. 1909, §§ 5247-5446) an ordinary bank check is a bill of exchange (Gen. Stat. 1909, § 5379) and when it is presented to and retained by the bank and the account of the maker is charged therewith, the bank is liable to the payee as an acceptor (Gen. Stat. 1909, § 5315).</p> <p>2. Banks and Banking — Check Payable to Order of Creditor — Paid on Unauthorized Endorsement — -Bank Liable to Creditor. Where a debtor has ample funds in a sol rent bank and gives a check thereon to satisfy his debt, and the check is made payable to the order of the creditor, the bank which receives and retains the check and charges the drawer’s account therewith is liable to the creditor thereon, and by a payment of the check to a third party on an unauthorized endorsement the bank does not avoid its liability to the creditor.</p> <p>3. Appeal and Error — Vital Question of Fact — Judgment on Pleadings — New Trial. Where a vital question of fact is involved in a lawsuit, it is not error for a court to set aside its judgment on the pleadings and grant a new trial.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Indemnity — Bond—Innocent Mistake Not Included. A surety bond indemnifying a principal against loss sustained by “any act or acts of fraud, dishonesty, forgery, theft, embezzlement, wrongful abstraction or misapplication” on the part of an agent, does not extend to a loss occasioned by a simple mistake of the agent made without fraud in paying for merchandise which he had authority to buy.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Adoption — Consent of Probate Judge — Contract and Conduct of Parties — Property Bights. Inasmuch as the statutory proceeding for adopting a child includes the consent of the probate judge, no legal adoption can result from the mere contract and conduct of the parties, although under certain circumstances property rights growing out of promises made in that connection may be enforced.</p> <p>2. Same — Contract—Question Suggested. The question suggested but not determined, whether a contract between the father of a four-year-old girl and a married couple, reciting that he relinquishes to them his rights to her “for to have and claim as their own,” is to be interpreted as including a promise of adoption on their part.</p> <p>3. Deeds — Possession—Delivery Presumed. The presumption of delivery arising from the possession of a deed by a grantee arises even in the absence of evidence that such possession was obtained' prior to the death of the grantor.</p> <p>4. Evidence — Deed—Possession—Delivery—Presumption. The evidence held not to overcome the presumption of delivery arising from possession of a deed.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Appeal and Error — Testimony Not in Transcript — Can Not he Considered on Appeal. Testimony which it is not claimed appears in the-transcript of the evidence can not be considered in this court for any purpose. (Root v. Street Railway Co., 96 Kan. 694, 153 Pac. 550.)</p> <p>2. Hamtc — Harmless Error — Failure to Make Formal Proof of Title. While it is necessary in order to sustain a judgment of foreclosure that there be proof of title in the mortgagors and of title in the defendant, it is held in this case that, since the appellant makes no claim that the mortgagors were not in fact the holders of the legal title, is not denying the source of his own title, and makes no claim that he has the least defense to the action, he is not entitled to a reversal, although the transcript of the evidence fails to show formal proof that when the mortgage was executed the mortgagors owned the property.</p> <p>3. Mortgage — Foreclosure — Deficiency — Receiver — Code Provision Not Repealed. Section 498 of the civil code, which is part of an act revising the procedure in the sale of real estate on execution or other judicial process (Laws 1893, ch. 109), does not repeal the general provisions of section 266 of the code, which authorizes the appointment of receivers in actions for foreclosure where it appears that the property is in danger of being lost, removed or materially injured, or that the condition of the mortgage has not been performed and the property is probably insufficient to discharge the mortgage debt.</p> <p>4. Same — Foreclosure—Receiver—Discharge after Sale — Waste. A receiver appointed under section 266 of the code before sale in a foreclosure case should be discharged when the sale is confirmed, and it is error to continue the receivership after the sale without a showing under section 498 of the code that a receiver is necessary to prevent waste. ■</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Vendor and Purchaser — Mortgage—Recitals in Recorded Deed — Constructive Notice. A purchaser of real property, the recorded deed to whose grantor contains the following: “Same to be free and clear of all encumbrance except ... a second mortgage of Seventeen Hundred and Fifty Dollars ($1750) due Jan. 1st, 1914, which said second party assumes and agre.es to pay,” is not an innocent purchaser against such mortgage, although at the time of the conveyance to him the mortgage is not recorded and he has no actual notice thereof.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Contracts — Breach — Building Contract — Default of Builder — Estoppel. A builder can not avail himself of a provision in a contract providing for a penalty of a certain sum per day for the failure of a contractor to complete the work on the day fixed where the delay has been occasioned by his own acts and defaults.</p> <p>2. Same — Building Contract — Partial Payments — Waiver. A provision in a building contract that payments shall be made to the contractor as the work progresses and when it is completed upon certificates issued by an architect may be waived, and a finding by the trial court herein that the issuance of certificates provided for in the contract had been waived by the parties is upheld.</p>

<p>SYLLABUS'BY THE COURT.</p> <p>Municipal Corporations — Performance of Governmental Duty — Erection and Maintenance of Hospital — No Actionable Negligence. Dynamite caps were used in blasting preparatory to installing water and sewer systems in the city’s detention hospital while it was under construction. Employees of the city negligently failed to remove an unused sack of caps from the grounds on completion of the hospital. The plaintiff, a child of nine years, was taken to the hospital with his parents, who were afflicted with smallpox, and was allowed to play about the grounds. He found the caps and exploded one of them and was injured. The hospital was established, owned and maintained by the city for the sole purpose of detaining and treating persons afflicted with smallpox. Held, the city is not liable in damages for the plaintiff’s injury. •</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Judgment — Quieting Title — Not Res Judicata as to Damages. A judgment in a suit to remove a cloud cast upon plaintiff’s title to real estate by a fraudulent deed is not res judicata on the question of damages sustained on account of attorney fees and expenses incurred in clearing the title, and resulting from the wrongful acts of the grantee in procuring the deed.</p> <p>2. Appeal and Error — Evidence—Demurrer—Former Judgment not Res Judicata. Plaintiff sued defendant in the county where he resided to recover damages for his. fraud in procuring from her a deed purporting to convey real estate in another county. Defendant pleaded as res judicata a former judgment obtained against him in the county where the land was situated, in which action plaintiff sued to set the deed aside and to quiet her title, but set up no claim for damages. Held, error to sustain a demurrer to plaintiff’s evidence on the ground that she should have pleaded and proved her claim for damages in the former suit.</p> <p>3. SAME — Evidence — Demurrer — Facts Admitted — Pure Question of Law — Transcript Unnecessary. Where error is predicated solely upon a ruling sustaining a demurrer to plaintiff’s evidence, but the facts are not disputed and the ruling is expressly based upon a question of law, it is not necessary for the appellant to have a transcript of the evidence made or to bring up the evidence.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Quieting Title — Homestead—Final Receipt — Patent—Antecedent Indebtedness — Judgment—Execution—Owner Can Not Maintain Action. The owner of land patented under the homestead law, upon which an execution has been levied based on indebtedness antedating the issuance of a final receipt or patent (U. S. Rev. Stat. 1375, § 2296), upon whom no personal service has been made, after sale and before the redemption period fixed by the court has expired, the attention of the court not having been called to such indebtedness, can not maintain an action to remove from such homestead the apparent lien of such judgment. '</p> <p>2. Same — Judgment Creditor — Attachment—Prior Judgment — Subrogation. The holder of another judgment who had attached the same land subject to the one referred to, after his attachment had been quashed for want of service, by redeeming from such prior judgment could subject the land to the payment of his lien by subrogation to the rights of such prior judgment creditor.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Constitutional Law — County Aid to State Fairs — Unequal Taxation — ■ Subject of Act — Act General — Classification. Chapter 177 of the Laws of 1915, which, among- other pertinent and related matters, requires any county having over thirty thousand population to contribute $1500 to a state-wide fair held in such county, is a constitutional and valid act of the legislature.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Waters and Watercourses — Flowing Stream — Water Power Rights Diversion of Water — Measwre of Damages. One who has obtained water power rights in a flowing stream has no ownership in the water itself hut only a right to its use, and if the water is diverted from the stream he may recover damages for any loss or injury actually sustained but is not entitled to recover the value of the water diverted.</p> <p>2. Eminent Domain — Water—(My of Second Class — Second Exercise of Power — Bona Fides. A city of the second class is authorized to exercise the right of eminent domain in order to supply its inhabitants with water, and the mere fact that it had previously condemned property for that purpose did not exhaust the power nor preclude it from afterwards condemning property at the same or another location, if the officers to. whom the power is entrusted determine in good faith that the public interest requires another exercise of the power.</p>

<p>Appeal from Riley district court; Fred R. Smith, judge.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Parent and Child — Parental Right to Custody of Child — Order of Probate Court. The right of a mother to the custody of her child is not impaired hy an order of the prohate court appointing a guardian, notwithstanding a recital therein that the guardianship extends to the person as well as the property, where no issue concerning the mother’s fitness in that regard was actually presented or determined in the proceeding in which such appointment was made.</p> <p>2. Same — Mother Entitled to Custody of Child — Evidence. The evidence, held not to require depriving a mother of the custody of her child.</p>

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Insurance — Fraternal Societies Organized Before 1898■ — Controlled by Act of 1898. Since the act of 1898, providing for the organization and regulation of fraternal beneficiary societies, took effect, constitutions of societies organized before 1898 and continuing to do business under the act without reincorporation are to be treated in the light of articles of association or charters under the act, so far as they relate to the same subjects, including provisions relating to plan of organization and provisions for amendment.</p> <p>2. Same — Fraternal Societies — Plan of Organization — Amendment—Constitutional Requirements. The plan of organization of such a society, set forth in its constitution, can not be amended by a simple by-law not enacted according to the provision of the constitution relating to its amendment.</p> <p>3. Same — Fraternal Society — By-law Contravenes Constitution — Invalid. Section 56 of the by-laws of The Knights and Ladies of Security, a fraternal beneficiary society of the character described in paragraph 1 above, providing that appointments by the national president to committees, the members of which become ex officio members of the supreme legislative body, shall not become effective until approved by the national executive council, contravenes section 2 of article 4 of the constitution of the order giving the president unconditional power to make such appointments.</p>

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

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

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

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

<p>HEADNOTE BY THE REPORTER.</p> <p>Life Insurance — Policy Avoided by Suicide, Sane or Insane — Insured Insane — Death by Suicide. Where a policy of life insurance provided that the policy was to be void if the insured’s death resulted from “suicide, sane or insane,” and the insured committed suicide, the policy was avoided notwithstanding the jury found that because of his insanity and mental derangement the insured was not responsible for his acts.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Railroad — Negligence Specified in Jury’s Findings — All Other Negligence Excluded. Where a recovery is sought by reason of several negligent acts of the defendant, and the jury in answer to a special question finds that the negligence upon which they base their verdict is a certain single act of the defendant, the finding in effect acquits the defendant of every charge of negligence alleged in the petition or mentioned in the evidence except the one specifically designated in the finding.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Landlord and Tenant — Constructive Eviction — Acts of Third■ Per-so-ns — •When Not Binding on Landlord. In order to constitute a constructive eviction, the acts complained of must be those of the landlord or those for which he is responsible, and acts of third persons impairing the usefulness or enjoyment of the premises do not amount to an eviction by the landlord unless committed under his direction or at his instance or with his consent. •</p> <p>2. Same — Constructive Eviction — Not Result of Wrongdoing, Direction or Consent of Landlord — Verdict. In an action to recover rent where the defense is a constructive eviction, a general verdict in favor of the defendant will be set aside where the special findings show that none of the grounds upon which the defendant claims the right to abandon the premises resulted from any wrongdoing of the plaintiff or by his direction or consent. .</p> <p>3. SAME — Eviction Claimed — Tenant Guilty of Laches by Remaining in Possession. Where a tenant claims that circumstances have arisen which give him the right to abandon the lease and he claims an eviction, he must act within a reasonable time after the discovery of the conditions, and where he remains in possession of the premises under the lease for eleven months and the conditions were the same before and after the execution of the lease, he will be held to have waived any claim that he has been evicted by reason of the conditions.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Appeal — Amount Involved Less Than $100 — Appeal Dismissed. Under section 3654 of the General Statutes of 1909, the justice of the peace had no right to entertain the garnishment proceeding involved herein, but the district court, although acting erroneously, was not without jurisdiction, and the amount involved being-less than one hundred dollars, and no constitutional question being involved, the appeal must be dismissed.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Landlord and Tenant — Subtenancy — Relation of Subtenant and Landowner — Evidence. In an action for damages alleged to have been sustained by the plaintiff by being dispossessed by the defendant of land alleged to have been leased by the plaintiff from the defendant through its agents, it is proper to introduce in evidence written leases for the land to another person, for the same time, and to show that the other person leased the land to the plaintiff, where the ánswer alleges that the defendant did not lease the land to the plaintiff nor authorize anyone to do so.</p> <p>2. Same — Termination of Lease Fixed — Notice to Quit Unnecessary. To terminate the rights of a sublessee of land, it is not necessary to. give him notice to quit, where the lessor of the sublessee holds from the landowner under a written lease which fixes the time for the termination of the tenancy.</p> <p>3. Same — No Error in Instructions. The instructions given have been examined and are found to have correctly stated the position of the defendants.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Corporation — Incomplete Incorporation — Promoters Liable as Partners. All who participate in a project to found a corporation are liable as partners for the debts thereby incurred when the project is abandoned before completion, following Walton v. Oliver, 49 Kan. 107, 30 Pac. 172, and Bank v. Sheldon, 86 Kan. 460, 121 Pac. 340.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Promissory Note — Transferred by Indorsement — Guaranteeing Payment — Payee Secondarily Liable. The payee of a note who transfers it by an indorsement guaranteéing payment becomes secondarily liable within the meaning of section 127 of the negotiable instruments act (Gen. Stat. 1909, § 5373).</p> <p>2. Same — Extension of Time — Release of Person Secondarily Liable. A person secondarily liable is discharged by any agreement binding on the holder to extend the time of payment unless the agreement be made with such person’s assent or unless recourse against him be expressly reserved. (Negotiable Instruments Act, § 127, Gen. Stat. 1909, § 5373.)</p> <p>3. Same — Extension of Note — Meaning of “Assent.” Assent as used in section 127 of the negotiable instruments act (Gen. Stat. 1909, §6373) means concurrence in the agreement to extend the time of payment when made. Without such assent an agreement to' extend time of payment ipso facto discharges the person secondarily liable.</p> <p>4. Same — Knowledge of Extension — Does Not Imply “Assent.” Knowledge of an extension does not alone constitute assent, and it is not necessary that an extension be expressly objected to to entitle a person secondarily liable to his discharge.</p> <p>5. Same — Release by Extension of Time — Revival of Liability. After a person secondarily liable has been discharged by an extension made without his assent his liability can be revived only by virtue of a new contract or by virtue of. conduct creating estoppel.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Taxation — Listing Capital Stock of Certain Corporations for Taxation — Statute Construed. The statute providing that no person shall be required to list for taxation any portion of the capital stock of certain corporations, but that their agents shall list “the full amount of stock paid in and remaining as capital stock,” which shall be taxed at its true value, as other personal property, a deduction being first made of the amount of stock invested in specific property which is given to the assessors for taxation, is interpreted to mean that taxes are to be paid upon the actual value of the shares of stock outstanding, less the amounts assessed against specific property, and that this rule applies even where the corporation is engaged in no other business than in renting real estate which it has procured by the expenditure of the whole amount paid in by stockholders, and the stock is appraised at a greater value than the realty.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Note — Taken for Building Material — No Materialman’s Lien. Notes taken for building material can not, in the absence of a materialman’s lien, be made a lien on the premises.</p>

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

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

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

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

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Factory Act — Two Acts of Negligence Alleged — Only One Proven— No Material Variance — No Prejudicial Error. Where a cause of action sufficiently pleads and the evidence sufficiently proves such negligence as will render a defendant liable thereon it is not a material variance that the same cause of action also alleged other acts of negligence which were not established by the proof, when the superfluous allegations not proved could not have misled the defendant to his prejudice. (Civ. Code, § 134.)</p> <p>2. Same — Railroad Repair Shop — When Governed by Factory Act. In the conduct of its car-repair shop, a railroad company which has elected not to come under the provisions of the workmen’s compensation act (Laws 1911, ch. 218; Laws 1913, ch. 216), is governed by the factory act (Laws 1903, ch. 356, Gen. Stat. '1909, §§ 4676-4683), and its liability for injuries sustained by its workmen in such car-repair shop is controlled by the latter act, and not by the common 'carriers’ liability act (Laws 1911, ch. 239), following Bubb, Adm’xj v. Railway Co., 89 Kan. 303, 131 Pac. 575.</p> <p>3. Factory Act — Unguarded Circular Saio — Injuries to Workman — Certain Evidence Properly Rejected. Where a workman in a car-repair shop sustained injuries to his hand which came in contact with an unguarded circular saw it was not error to exclude evidence that the sawing machine had been examined and found without fault by the state factory inspector; nor was it material error to exclude testimony that other saws were similarly operated in the community without safeguards.</p> <p>4. Same — Finding of Jury — Conclusive. Ordinarily a jury’s finding that it is practical to attach a safeguard to a piece of dangerous machinery, when such finding is approved by the trial court, is conclusive.</p> <p>5. Same — Unguarded Machinery — Burden of Proof — Proper Instruction. The court’s instructions to the jury that the plaintiff was not required to prove that it was practical to attach a safeguard to the machinery which injured him and that the burden to prove its impracticability rested on the owner of the machine were proper and in conformity to the provisions of the factory act and the doctrine announced in Caspar v. Lewin, 82 Kan. 604, 109 Pac. 657.</p> <p>6. Same — Excessive Verdict. A judgment for $8000 as damages to plaintiff’s hand discussed and held to he excessive. Plaintiff given option of a judgment for $5000 or a new trial.</p>

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

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

<p>Appeal from Cowley district court; Oliver P. Fuller, judge.</p>

<p>Appeal from Meade district court; Littleton M. Day, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Embezzlement — Warehouseman — Wheat — Certain Evidence Erroneously Excluded. In the prosecution of a warehouseman for the alleged embezzlement of seven hundred and thirty-five bushels of wheat, it was error to reject evidence offered by the defendant touching his efforts to keep his mill a going concern, to obtain funds to meet his obligations, and a contract signed by the prosecuting witness tending to show a recognition of the defendant as a creditor instead of a bailee, and other evidence fairly going to the question of intent.</p>

<p>Appeals from Montgomery district court; THOMAS J. Flan-net.t.y, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Trial — Order of Proof — Immaterial When Not Prejudicial — Judicial Discretion. Ordinarily proof that a crime has been committed should precede evidence tending to implicate the defendant-, but the order of proof is a matter largely within the discretion of the court, and a departure from the usual order that does not operate prejudicially is no ground for a reversal.</p> <p>2. Rape — Contradictory Evidence by State’s Witnesses — State May Cross-examine or Contradict. Where witnesses called to testify in behalf of a party give testimony contradictory of former testimony and inconsistent with previous statements, the party calling them may be permitted to cross-examine them and call their attention to their former evidence and statements, and may also offer testimony which contradicts and impeaches their present testimony.</p> <p>3. Same — Sentence Properly Pronounced. An entry of judgment that “the defendant . . . was . . . duly arraigned for sentence in open court, all the officers of the said court being present in person, and the court being fully advised in the premises passed sentence upon the said William Terry,” stating the sentence imposed, does not warrant the inference that the court in rendering judgment omitted the statutory requirement to inform the defendant of the verdict returned by the jury, and to ask him whether he has any legal cause to show why judgment should not be pronounced against him.</p> <p>4. Rape — Evidence Sustains Verdict. The evidence examined and found to be sufficient to support the verdict.</p>

<p>Appeal from Decatur district court; William S. LANG-made, judge.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Bigamy — Trial by Jury May be Waived — Plea of Guilty Waived Question of Jurisdiction. The constitutional guaranties in section 10 of the bill of rights, which insure to every person accused of crime a speedy public trial by an impartial jury of the county in which the offense is alleged to have been committed, etc., are personal privileges which the accused may waive, and when they are freely waived by a person charged with crime, by a plea of guilty in a district court of general jurisdiction, it is too late thereafter to challenge the constitutionality of the statute conferring jurisdiction upon the court which imposed judgment upon him.</p> <p>2. Same — Plea of Guilty in County Where Apprehended — -Jurisdiction Can Not be Raised in Habeas Corpus Proceedings. The constitutionality of section 2714 of the General Statutes of 1909 authorizing the prosecution of a bigamist “in the county in which the offender may be apprehended,” can not be raised in a habeas corpus- proceeding by a person who has waived his constitutional privileges and pleaded guilty to the crime of bigamy as charged in the information filed against him in the district court of the county in which he was apprehended.</p> <p>3. Same — Indeterminate Sentence- — Not Void for Uncertainty. A judgment and commitment in a bigamy case recited that “thereupon the defendant . . . being duly arraigned enters his plea of guilty to the charge of bigamy as charged in the information filed in this case . . . and . . . the court thereupon finds the defendant . . . guilty of bigamy as charged in the information.</p> <p>“It is therefore by the court considered, ordered and adjudged that the said defendant, Bob Mote, be confined at hard labor in the Kansas State Penitentiary, located at Lansing, Leavenworth County, Kansas, until discharged therefrom as by law provided,” etc. Held, that such judgment and commitment are not void for uncertainty, and that the duration of the petitioner’s imprisonment is governed by sections 225, 226 and 227 of the crimes act (Gen. Stat. 1909, §§ 2711-2713) and by the provisions of the indeterminate sentence act (Laws 1903, ch. 375, Crim. Code, §§ 272a-272j).</p>

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

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