Volume 99 — Kansas Reports

<p>SYLLABUS BY THE COURT.</p> <p>1. High-school Bonds — Statutory Procedure Must Be Followed. Where a series of statutes dealing with a particular subject forms a complete and independent method for guidance to official action the procedure therein prescribed must be substantially followed, and the failure to follow such procedure can not be remedied by invoking other general statutes which do not pertain to .that particular subject.</p> <p>2. Same — Authority of County Commissioners to Call Election — Statutes Construed. The authority of a board of county commissioners to call an election to vote bonds for a county high school in a county of less than six thousand population is the statute which deals with that particular subject,- and not the general statute conferring power on the county board to determine, at its discretion, the necessity for' permanent county buildings and to call an election to vote bonds therefor.</p> <p>3. Same — Commissioners’ Authority to Call Election■ — •Dependent upon Presentation of Petition Therefor. Where a statute provides that upon presentation of a petition of twenty-five per cent of the legal voters of a county asking for an election on a proposed bond issue to build a county high school it shall become the duty of the board of county commissioners to call such election, the presentation of such petition is a condition precedent to lawful action by the board; and an election held on call of the county board without such petition is void, and the registration of bonds thus irregularly voted for can not be compelled by a writ of mandamus.</p>

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

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Action for Divorce — Death of One Party — Action Abated — Appeal Dismissed. The death of either party, pending an appeal from a judgment denying a divorce, abates the action, and where the record shows no property rights are involved in the action the appeal will be dismissed.</p>

<p>HEADNOTE BY THE REPORTER.</p> <p>Attorney-at-Law — Contempt Proceedings — Contemptuous Conduct Shown — Suspension From Practice. Where an attorney, in a document filed in this court, uses insulting and contemptuous language, disrespectful to the court and the individual justices thereof, and who willfully and maliciously persists in maintaining toward this court and the justices thereof “persistent insolence and effrontery,” thereby showing contempt for this court and the justices thereof, and where in his answer in contempt proceedings against him he presents ho reasonable explanation of or excuse for such contemptuous misconduct, he will be suspended from practice in all the courts of this state.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Insolvent Estate — Claims Allowed — Creditor’s Right to Appeal. Where the individual estate of a decedent is insolvent, having no assets except what may accrue to it from the decedent’s share of a partnership estate after the partnership debts are paid, a creditor of the individual estate has such interest in the accounting and settlement of the partnership estate as will entitle him to appear in the probate court and resist the allowance of questionable claims against the partnership estate, and to appeal from the decision of the probate court thereon.</p> <p>2. Same — Claim Compromised by Administratrix — Investigation by Probate Court. In an accounting and settlement in the probate court, an administratrix is not absolutely entitled to credit for a judgment rendered against her as administratrix which she has paid; and the court may inquire whether the lawsuit on which the judgment was founded was diligently defended, whether it was prudently com-' promised, or whether she subjected herself to the judgment by negligence, fraud or collusion.</p> <p>3. Appeal — Trial Court’s Findings — Not Disturbed. Rule followed on appeal that the trial court’s findings of fact based upon tangible and sufficient evidence can not be disturbed.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Personal Injuries Collision Automobile and Street Car Driver of Automobile Guilty of Contributory Negligence. The evidence examined,and held, that a demurrer to the evidence of the plaintiff, an automobile driver, who sustained injuries in ,a collision with a street car, was properly sustained because the plaintiff was’guilty of contributory negligence.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Highway — Defective Bridge on County Line — Damages—-Liability of Adjacent Townships. Under sections 658 and 659 of the General Statutes of 1909, in order to hold a county or township responsible for a defective bridge or for failure to maintain guard rails, such bridge must have been wholly or partially constructed by such county or township or erected by some township or road district thereof; mere assumption of responsibility for such bridge after its construction will not work such liability.</p> <p>2. Same — Former Decision Modified. The former decision herein, Olsson v. Lawrence Township, 93 Kan. 440, 144 Pac. 997, is modified as indicated in the preceding paragraph.</p> <p>3. Same — Bridge Built by Township Trustee — Inference of Authority. Proof that a bridge was built by a township trustee bears the fair inference that he was acting for the township.</p> <p>4. Defective Bridge — Road District Boundaries — Township Records — Competent Evidence. Township records of the boundaries of its road districts, showing the place of the injury to be within one of such districts, were competent for the purpose of indicating for whom the trustee was acting when he built the bridge.</p> <p>5. Same — County Building Bridge — Knowledge of County Clerk — Competent Evidence. The knowledge of the county clerk as to whether Cloud county had ever contributed anything towards the building of the bridge was proper to be shown by competent evidence.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Contractor’s Bond — Limitation of Action — Construction of Statutes. The time for commencing an action under section 1 of chapter 183 of the Laws of 1909 is not fixed by section 6257 of the General Statutes of 1909 (Civ. Code, 1909, § 662).</p> <p>2. Contractor’s Bond — Cost of “Extras” Included in Indemnity Bond. An action to recover the cost of “extras” can be maintained on a building contractor’s bond given to secure the faithful performance of the contract, or given to secure the payment of all claims which might become the basis of liens, and to comply with the requirements of section 5577 of the General Statutes of 1905, where the contract provides for alterations in the plans and specifications and for increasing or decreasing the cost of construction in accordance with the changes made.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Pleadings — Verified Account — No Denial Under Oath — Issues Raised Thereby. Under section 110 of the civil code, which provides that the correctness of an account duly verified shall be taken as true unless denied under oath, the failure to deny the account, under oath admits only its accuracy and not its legality. . ■ ■</p> <p>2. County Officers — Can Not Charge County for Unofficial Services-. Without an order from the board of county commissioners, or a con7 tract with that board, a county officer can not charge the county for services voluntarily performed by him which his predecessors in office had neglected to perform and which were not within the ordinary scope of his own official duties.</p> <p>3. Same — Can Not Charge for Cost of Articles Purchased Without Authority. A county officer has no claim against the county for the cost of articles which he has purchased for the use of his office without the sanction of the board of county commissioners.</p> <p>4. Same. The plaintiff, while register of deeds, purchased a typewriter for the use of his office without the sanction of the board of county commissioners. Held, that he can not charge the county for the cost of the typewriter.</p> <p>5. Same — Can Not Charge for Unauthorized Services. The plaintiff, while register of deeds in 1911-1912, indexed, preparatory to their destruction, several thousand old chattel mortgages which had served their purpose and which had accumulated in his office since 1888. Held, that in the absence of an order from the county board, or a contract with the board for such services, he has no legal claim against the county therefor.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Landlord and Tenant — Covenant in Lease — Landlord to Remove Personal Property — Breach—Special Damages — Pleadings—Plaintiff Relieved from Duty to Lessen Damages. In an action by a tenant against his landlord to recover for breach of a covenant in a farm lease by which the landlord agreed to remove his personal property from the leased premises, held:</p> <p>(1) Special damages, which may be the natural and contemplated result of the breach of such a covenant, may be recovered where the plaintiff pleads the facts upon which he bases his right to recover such damages.</p> <p>(2) A petition, which after setting forth the covenant relied upon, alleged that defendant had wholly neglected and refused to remove certain feed in one of the silos upon the leased premises whereby plaintiff had been deprived of its use, although he had sufficient feed to fill the same and enhance its value, on account of which plaintiff claimed damages in the sum of $500, sufficiently alleged the facts on which to base a claim for special damages.</p> <p>(3) The evidence was sufficient to sustain a verdict and judgment for special damages.</p> <p>(4) Under the facts stated in the opinion, evidence of a threat by the defendant that if plaintiff removed defendant’s feed he would make trouble for the plaintiff, absolved plaintiff from any obligation to attempt to lessen his damages by removing or causing to be removed the old feed at his own expense.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Petition- — Motion to Make Definite and Certain — Separately State and Number Causes of Action — Judicial Discretion. The’ allowance or denial of a motion to make a petition more definite and certain and to separately state and number the causes of action therein contained is ordinarily within the sound discretion of the trial court. (Civ. Code, § 122.)</p> <p>2. Same. Where the chief aim of a petition filed by tenants in common against their cotenant is to state a cause of action for partition, the allegations asserting a right to’ an accounting and for rents and .'profits .may be treated as mere incidents of the main'cause of action, and need not be separately stated and numbered, unless this is required by the trial court.</p> <p>8. Tenants in Common — Recognition of Cotenants — Evidence. Where a defendant tenant in common has agreed to purchase the interest of his cotenants in common, all the circumstances, including a deed prepared to convey such interest on the payment of the agreed price, are ¡competent evidence on the question whether defendant was recognizing thé rights of his cotenants in common or holding adversely to them.</p> <p>4. Tenants in Common — Possession by One Cotenant — Possession of All. The possession of property by one tenant in common is the possession of all his cotenants in common, and the rights of the latter can only be extinguished by clear, convincing and satisfactory proof of open, notorious, exclusive, adverse possession for fifteen years, following Schoonover v. Tyner, 72 Kan. 475, 84 Pac. 124.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Adoption op Child — Oral Promise to Adopt — Unperformed — No Right of Inheritance. While an unperformed promise to adopt máy in some circumstances give the beneficiary a valid claim against the estate of the promisor, no right of inheritance can be thereby created.</p> <p>2. Same — Promise to Adopt — Promisor Free to Dispose of His Property. Neither a promise to adopt nor an actual adoption will prevent the promisor from making such disposition of his property as he may see fit, acting in good faith.</p> <p>3. Adoption Contract — Unperformed—No Inheritance — Ejectment by Promisee. The existence of a valid but unperformed contract to adopt a child gives to the child no right, to maintain ejectment for an interest in land conveyed by the promisor to his own son upon the death of the latter intestate, leaving neither issue nor parent, although the child would then have inherited it if an adoption had taken place in accordance with the agreement.</p>

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

<p>Appeal from Stanton district court; William H. Thompson, judge pro tem.</p>

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

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

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Workmen’s Compensation Act — Injuries — Offer of Employer to Settle — Refusal by Employee — No Bar ,to Future Action. Refusal of an employee who has been injured to accept an offer of his employer to pay, under the compensation act, one-half of the average earnings until the employee is able to return to work, will not bar an action to recover under the compensation act, where at the time the offer is made there is a dispute between the parties as to whether the employee’s disability is permanent or only temporary.</p> <p>2. Same — Petition—Irrelevant Allegations — Not Considered — Not Prejiodicial. In this case the petition contained averments of matters which had no proper place in an action under the compensation law. No evidence was admitted in proof of the extraneous matters; the court charged the jury not to consider them, and the action was tried out as a compensation case. Held, there was no prejudicial error in refusing to strike the objectionable matter from the petition.</p> <p>3. Same — Claim for Compensation — Presented in Time. The evidence examined and held sufficient to show full compliance with the terms of the compensation act, which requires that a claim for compensation be presented within three months from the time of the injury.</p> <p>4. Same — Demurrer to Petition Overruled — No Prejudicial Error. Upon the facts stated in the opinion, it is held there was no prejudicial error in overruling a demurrer to the petition because of failure to allege that a claim for compensation was presented.</p> <p>5. Same — Failure to Allege “Average Earnings” — Not Prejudicial. Failure of the petition to allege the average earnings of the employee or other facts from which they may be computed, as provided by the compensation law, there being no motion to make the petition more definite and certain, is held not to have prejudiced the rights of the defendant.</p> <p>6. Same — Expert Testimony Admissible. In an action under the compensation act expert testimony of physicians is admissible to show that partial disability exists.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Oral Antenuptial Agreement — Failure of Proof to Establish Contract — Statute of Frauds. ■ Plaintiff pleaded an oral antenuptial agreement to marry and care for her husband during the remainder of his life — special need for care being set forth — and to leave her property, save her patrimony, to him should he outlive her, she to have all his property if she survived him. The proof failed to show any agreement for care, save such as might be implied from the marriage itself. Held, that the marriage and care for him while he lived did not remove .the operation of the statute of frauds.</p> <p>2. Trial — Findings—Evidence. The findings of fact are supported by the evidence and justify the conclusions of law in favor of the defendants.</p>

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

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Title to Real Estate — Deed—Will—Findings of Jury Conclusive. A judgment will not be disturbed where it is rendered on a jury’s findings of fact not contradictory to each other, and where the judgment is consistent with, and supported by, the findings.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Workmen’s Compensation Act — Personal Injuries — Trial—Continuance Refused^ — .No Error. On the trial of an action under the workmen’s compensation law it is not error to refuse to grant a continuance for the purpose of permitting time to elapse to ascertain whether the injuries are temporary or permanent, where more than a year has passed between the time of the injury and the time of the trial.</p> <p>2. Same — Evidence — Verdict Sustained. Rule followed that .verdicts based on sufficient evidence will not be disturbed.</p> <p>3. Same — Judgment in Lump Sum — Judicial Discretion. Rule followed ' that, in compensation cases, the rendition of judgment in a lump sum is within the discretion of the trial court.</p>

<p>Appeal from Butler 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>1. Highway — Section Line — Sixty-foot Highway Created by Statute. An act was passed declaring a section line a highway, fixing its width at sixty feet, and providing that claims for damages should be presented within one year from the time it was actually opened to public use. The road was already in use as such, under proceedings establishing it as a highway forty feet wide, but the travel covered approximately sixty feet. Held, that the statute created a sixty-foot highway without further order by the road overseer.</p> <p>2. Same — Section Line — Statutory Survey — Not Conclusive Upon State. The result of a statutory survey to fix the location of a section line is not conclusive upon the state in an action to determine the position of a highway established along such line.</p> <p>3. Same — Location of Section Line — Question of Fact. The evidence held to make the true location of the section line a question of fact upon which the decision of the trial court is final.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Licence Tax — Missouri Laundry — Collecting from and Delivering Linen to Patrons in Kansas City, Kan.- — -Interstate Commerce. A corporation, located and doing business in Missouri as a steam laundry, sent an employee with a wagon to gather up the linen of patrons in Kansas City, Kan,, carrying it to the laundry, and when the service was completed deliver it to the patrons in Kansas and collect the charges. The employee while so engaged was arrested and fined for the violation of an ordinance of Kansas City, Kan., imposing a license tax upon each laundry operated within the city, the amount to be determined by the number of wagons employed; held, that the conviction is unlawful, first, for the reason that the employee of the laundry company was not conducting -a laundry within the city as contemplated by the ordinance, and second, for the reason that collecting the articles in Kansas, carrying them into Missouri, and returning them to their owners after the service had been performed is interstate commerce.</p>

<p>Appeal from Wyandotte district court, division No. 8; Hugh J. Smith, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1 Attempt to Commit Rape — Evidence for the jury. In a prosecution for an attempt to commit rape, the character and extent of the resistance of the woman are questions for'the jury to determine.</p> <p>2. Same. In this case it is held that there is sufficient evidence of overt acts showing an intent coupled with an actual or apparent present ability to complete the offense.</p> <p>3. Same — Trial—Objections to Evidence Without Merit. Objections' to testimony on the ground that the questions called for the conclusion of the witness held to be without merit;</p> <p>4. Same — Former Visit of Defendant — Explanation. In a prosecution for an attempt to commit rape the defendant brought out the fact that on another occasion he had visited at the house of complaining witness. Held, not prejudicial error to permit the complaining witness to state, in explanation of the circumstances of the former visit, that he came for the same purpose.</p> <p>5. Same — Collateral Issue — Evidence' — Conversations Between Complaining Witness and Her Husband — Instructions. Under the circumstances stated in the opinion there was no prejudicial error in permitting the complaining witness to testify to a conversation between herself and husband which occurred prior to the alleged assault, and which referred to an alleged attempt by defendant to commit the same offense upon another woman, the court having charged the jury not to consider any statements in reference to an assault on the other woman as any evidence tending to show that such assault was in fact made.</p> <p>6. SAME' — Requested Instructions Properly Refused. Certain instructions requested by defendant are held to have been inapplicable in a case where the corroborating testimony was not purely circumstantial. Other requested instructions are held to have been properly refused because covered by instructions given.</p> <p>7. Same — Requested Instructions Properly Refused — Outcry of Complaining Witness. An instruction that if the complaining witness failed to make any outcry or concealed the attempt for any length of time after she had an opportunity to complain, these and like circumstances would carry a strong presumption that her testimony was false, was properly refused on the ground that in this case there was no concealment of the attempt, and the testimony showed that the husband discovered the attempt while it was being made.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Workmen’s Compensation Act — Personal Injuries — Cancellation of Written Release. The cancellation of a written contract, purporting to release an employer from further liability on account of ah injury to a workman, is not justified by showing that misrepresentations were made to him as to his physical condition, unless it is also shown that he signed the release by reason of being misled thereby. And where he testifies that he signed it without reading it, not knowing that it was a release, he shows affirmatively that he was not induced to give his employer a full discharge through reliance on the statements made as to his condition.</p> <p>2. Same. A written release of an employer from further liability on account of an injury to an injured workman can not be set aside on the mere ground that it was signed by the employee without reading it, where he was able to read it, and no obstacle to his doing so was presented, and no misrepresentation was made as to its contents.</p> <p>3. Same — Setting Aside “Award" — Statute Inapplicable. The provision of the workmen’s compensation act authorizing an .“award” to be set aside, because of being grossly inadequate or grossly excessive, refers to the amount fixed by arbitration, and has no application to a contract releasing the employer from further liability.</p> <p>4. Same — Substantial Payment — Consideration for Release. The payment of a substantial sum is a sufficient consideration to support a contract releasing an employer from further liability on account of an injury to a workman, although the amount paid was just what the statute made due at that time.</p> <p>5. Same — Weekly Allowance — Former Decision Distinguished. In Girten v. Zinc Co., 98 Kan. 405, 158 Pac. 33, it was not decided that the weekly allowance for partial disability under the compensation act may ever be less than twenty-five per cent of the workman’s former average weekly earnings.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Child — Attending Private School — Not a Truant. A child who attends a private, denominational or parochial school is not a truant.</p> <p>2. Same.— Private, Denominational and Parochial Schools — Statutory Provisions. The legislature has not prescribed the courses of study in private, denominational or parochial schools, nor concerned itself with such schools further than to prescribe that they must be taught by competent instructors.</p> <p>3. Same- — Parents May Send Child to Private School — No- Penalty Attaches. A parent who takes his child out of the public school and sends it regularly to a private, denominational or parochial school, “for such period as said school is in session,” can not be subjected to the penalties of the truancy law.</p>

<p>SYLLABUS BY THE COURT.</p> <p>“Factory” — Premises Where Ba/rrels Are Made by Hand Power not a “Factory” under Workmen’s Compensation Act. Premises wherein no mechanical power is used, and wherein workmen are employed in making and repairing barrels, each workman using only his own tools, consisting' of an adz and driver or hammer and nails, is not a “factory” within the meaning of section 9 of chapter 218 of the Laws’ of 1911 as amended by chapter 216 of the Laws of 1913, known as-the workmen’s compensation law, which defines “factory” as “any premises wherein power is used in manufacturing, making, altering, adapting” etc., articles for the purpose of trade or gain.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Rural High School — Not Within Operation of Barnes High School Law. Rural high-school districts created under chapter 311 of the Laws of 1915 are not within the operation of the Barnes high-school law and are not entitled to share in the fund derived from a levy made under the Barnes law. •</p>

<p>SYLLABUS BY THE COURT.</p> <p>Rural High School — Location Sufficiently Described in Petition — Bonds — Mandamus. A petition for an election to vote on establishing and locating a rural high school under chapter 311 of the Laws of 1915 recited that the proposed school was tc be located “within or close to the village of Rantoul,” and it is held that the location so designated is not so indefinite or defective as to invalidate the organization made or the bonds issued in pursuance of the vote.</p>

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

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

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Will — Probate Court — Jurisdiction to Set Aside Election of Widow. ■ Where no rights have intervened the probate conrt has jurisdiction to set aside the election of a widow to take under her husband’s will,' upon a showing that it was made under a misapprehension brought about by fraud or mistake, or by the omission of the court to make the explanation required by the statute.</p> <p>2. Same — Election of Widow Set Aside — Evidence. The evidence held to support findings to the effect that the election of a widow to take under her husband’s will was made under such circumstances as to justify a judgment setting it aside. -</p>

<p>SYLLABUS BY THE COURT.</p> <p>'Surface Water — Dikes—Flooding Land — Damages. The evidence examined, and held sufficient to sustain the judgment.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Contract — Purchase of Gas from Producing Wells — Contract Executory — Title to Gas Passed upon Delivery. A contract by which a pipeline company agreed to accept a minimum of 5,000,000 cubic feet of gas from the owners of a number of gas leases and producing wells, paying each month at th'e rate of three and one-half cents per thousand,- held to have been executory, the title to the gas passing only as delivery was made.</p> <p>2. Same — Contract for Sale, of Gas — “Merchantable” Gas Construed. In a contract by which a company owning a pipe line for the distribution and sale of natural gas to cities and towns and factories agreed to accept and pay for a stated daily minimum of gas, a provision that the gas was to be “merchantable” is held to imply its conformity to an ordinary and reasonable standard of quality; and the fact that the gas tendered under such a contract contained only from 500 to 550 British thermal units per cubic foot, while the gas handled by the company, which was obtained from other sources, contained about 1000, is held to compel the conclusion as a matter of law that it was not “merchantable” in the sense in which that term was employed in the contract.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Replevin — By Second Mortgagee — Payment or Satisfaction of First Mortgage — Proper Matters of Inquiry. In a replevin action brought by a second mortgagee against the mortgagor and against the holders of a prior mortgage who are in possession of the property, the plaintiff, without having plead payment or satisfaction of the prior mortgage, may offer proof of payment or satisfaction, or of any fact which tends to defeat the priority of the first mortgage;' and the fact that he has plead in his petition that the first mortgage was fully paid will not prevent him from offering proof of satisfaction otherwise than by the payment of money.</p> <p>2. Same — Claim of Mortgagor for Unliquidated Damages against First Mortgagee — Properly Adjudicated.‘ In such an action, where the defendant mortgagor files a cross-petition against his codefendants, claiming that the first mortgage has been paid -and that he is the owner of the property, subject only to the lien of the plaintiff, he may set up as against his codefendants a claim for unliquidated damages arising out of transactions connected with their possession of the property in controversy.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Master and Servant — Personal Injuries — Negligence Found Not Charged, in Petition — No Recovery. The petition alleged that a certain runway over which the plaintiff was carrying heavy lumber was insufficient, that all the hoards were old, weather-worn, rotten and weak and not properly fastened at the ends, and were not fit or proper boards for the purpose for which they were being used, and that the walk or one of the boards therein broke and the plaintiff was precipitated to the cellar. The jury returned a verdict for the plaintiff, but found as the sole ground of negligence that the walk was too narrow. Held, that a judgment for the defendant on this finding must be sustained.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Foreclosure — Mechanic’s Lien — Modified Agreement — Evidence — Findings — Pleadings. In an action to foreclose a mechanic’s lien on a silo the answer denied nothing, but alleged the substitution of material different from and inferior to that specified in the contract and that by reason thereof the silo burst, spoiling part of the contents. The jury found that the substitution of different material Was by agreement of the parties, and allowed defendants damages for the amount of silage found to have been spoiled, and gave judgment to the plaintiff for the difference. Held, that the findings and verdict are supported by sufficient evidence and that the trial court rightly restricted defendant’s proof to the only defense pleaded.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Appeal — Judgment Affirmed — Mandate Recorded — Correction of. Journal Entry — Power of Trial Court. After the expiration of the term at which a judgment was rendered, and after that judgment has been affirmed in the supreme court, the trial court, on personal knowledge of what took place at the time the judgment was rendered, has power to correct the journal entry so as to make it correctly recite the judgment that was actually rendered.</p> <p>2. Same — Decision on Appeal — What Issues are Determined. Where, after a judgment has been affirmed by this court on appeal, the journal entry of that judgment is corrected so as to make the journal entry recite the judgment that was rendered, all questions that could have been presented on that appeal are concluded, even though the corrected journal entry recites a judgment different from that set out in the original journal entry.</p> <p>3. Money Judgment — Proper Party Plaintiff. Quiere: Can the state recover personal judgment against those who wrongfully obtain money from a municipal corporation where none of the money belongs to the state?</p>

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Judicial Sale — Attempt to Redeem — Mistake in Computing Interest— Redemption Completed after Statutory Period. Where land has been sold at judicial sale, and an attempt in good faith is made to redeem within proper time by payment of the required amount to the 'clerk, who accepts a less sum than that due, by reason of computing interest at six per cent instead of at the contract rate of seven per cent (he and the redemptioner through a mistake as to the law supposing that to be sufficient), the court has the power, in furtherance of justice, to permit the redemption to be completed after' the expiration of the statutory period, by the payment of such additional sum as will bring the total up to the amount of the purchase price with interest at seven per cent, computed to the date of the final payment.</p> <p>2. Same — Sheriff’s Deed■ — Redemption —Notice to Subsequent Purchasers. Where within the period allowed by the statute for redemption an attempt to redeem is made and by reason of an error in computation or in the rate of interest the clerk accepts a less sum than the amount due, and the sheriff executes a deed notwithstanding such payment, a buyer from the grantee in such deed is charged by the clerk’s entry of such payment with notice of the redemptioner’s rights.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Foreclosure of Tax Lien- — Publication Service — Decree Can Not be Attacked Collaterally. The grantee of the purchaser at a tax foreclosure sale, under section 9521 of the General Statutes of 1909, brought this action to eject the fee owner who sought to attack the foreclosure decree on the ground that although a resident of this state she was not served with summons and made no appearance. A proper affidavit for publication was made and although the defendant was then a resident of the state such affidavit and the subsequent publication gave the court jurisdiction so that its decree foreclosing the tax lien was not void and could not be successfully attacked at this time in this action.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Note and Mortgage — Authority of Local Agent of Owner to Receive Payments — Evidence. One who negotiates a mortgage loan or an extension of such loan and at whose office the interest and principal are to be paid when due, is not, as of course, the agent of the mortgagees to receive such payments, but such agency may be established by proof of the course of dealing between such person and the mortgagees.</p> <p>2. Same. Where a loan from two mortgagees is negotiated through a loan broker and the principal and interest are payable at the broker’s office, and the money loaned is remitted to him to be paid to the borrower, and the broker divides his commission with one of the mortgagees, and where the mortgagees are accustomed not to forward the coupon notes or principal notes to the designated place of payment— the broker’s office — but to retain them until he collects the payments of interest and principal thereon and remits the money to them, and where it is shown that this is the customary course of business, not only as to this loan but also on a number of similar loans made through the same broker on behalf of the same mortgagees, and that they transacted all such business in that locality in this- manner, such evidence is sufficient to warrant the conclusion that the broker was the authorized or ostensible agent'of the mortgagees to receive partial payments on the principal of the mortgage debt payable at interest-paying periods.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Taxation — Sale Notes Sent into Kansas for Payment and Remittance— Situs for Taxation. A piano company incorporated under the laws of Illinois, with its home office at Chicago, maintained a branch office at Topeka, where pianos were sold and sale notes taken therefor retaining title in the company until paid. These notes were transmitted'to the home office, copies being returned to the register of deeds for filing, and the originals were retained at Chicago, only being sent here for payment and remittance, practically all the payments being made here and credited and remitted to the home office, no part thereof being retained for the use of the local office. Returns for assessment were made on the local bank account and average stock on hand. Held, that such notes were not taxable here to the company, the situs for taxation being the domicile of the owner.</p>

<p>Error from the court of appeals, northern department.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Liquor Cases — Convictions—Defendants Released — Fees of Attorney-general — Not Paid in One Month — Liability of County. Where the attorney-general and his assistants prosecute and secure the conviction of a person for the violation of the prohibitory liquor law the county in which the conviction is obtained becomes liable for the fees of the attorney-general and his assistants which have not been paid within one month after the convicted person has been released from jail, whether the release is granted by the district court or by other authorities and whether or not security for the payment of costs has been given by the convicted party.</p> <p>2. Same — Statute Providing for Attorney’s Fees — Not Repealed. The provisions of the parole law relating to the security for and payment of costs by a paroled person does not operate to repeal or amend the provisions in section 4378 of the General Statutes of 1909 relating to the liability of the county for the fees of the attorney-general and his assistants.</p>

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

<p>Appeal from Doniphan district court; William A. Jackson, judge pro tem.</p>

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

<p>Appeal from Cowley district court; Albert L. Noble, judge pro tern.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Sale — Motion for Judgment on Findings Denied — No Error. Special findings of fact concerning a contract for the purchase of speciosa catalpa seedlings examined, and held that plaintiffs’ motion for judgment thereon was properly denied.</p> <p>2. Sale — Fraudulent Representations by Seller Proven — Instructions. It is needless to examine a trial court’s instructions to the jury touching the measure of damages for breach of contract when a defense of misrepresentation and fraud in procuring the contract is successfully maintained and no damages are recoverable.</p> <p>3. Sale — Catalpa „Seedlings — Purchaser No Opportunity to Read Contract — False Statements by Vendor — Evidence—Instructions. ' Where one of the defenses to a written contract for the purchase of catalpa seedlings was that the defendant did not have a fair opportunity to read the contract, it was not error to permit oral testimony that the vendor had assured the vendee that the latter would have the privilege of countermanding the order, where the jury were carefully instructed that the terms of the written contract were binding on the defendant unless the jury found that he did not have a fair opportunity to read it before he signed it.</p> <p>4. Sale — Parol Evidence — Admissible to Show Fraud in Procuring Written Contract. The ordinary rule that a written contract speaks for itself and that parol evidence to show the oral statements, representations and negotiations of the parties which led up to the contract is inadmissible has no application to written contracts procured by the</p> <p>• fraudulent representations of one of the parties and which were relied upon by the other.</p> <p>5. Sale — When False Representations as to Market Value Amount t,o Fraud. The rule that representations as to the market value of an article or commodity are mere expressions of opinion and not statements of fact is limited in its application to familiar articles and commodities of commerce whose market value is easily ascertainable; and does not apply to sales of articles or commodities whose market value is difficult of determination, especially when such articles or commodities are offered for sale by a vendor who is familiar with their true worth and real market value to a vendee who is entirely ignorant thereof and who buys in reliance on the vendor’s positive statements concerning the market value.</p> <p>6. Sale — Market Value — Instructions. Instructions covering the question whether representations as to market value were positive statements of fact or mere expressions of opinion examined and approved.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Contract — Specific Performance — Incomplete Findings — No Bequest for Further Findings — No Error. A judgment will not be reversed because a trial court’s findings of fact are incomplete and do not state all the facts connected with those found, where no request was made for further, clearer,' or additional findings.</p> <p>2. Same — Findings Supported by Evidence. The seventh and eighth findings of fact are supported by the evidence.</p> <p>3. Same — Contract Procured by Fraud — No Specific Performance. Specific performance of a contract for the conveyance of land will not be compelled where the purchaser secures the contract by fraud, knowing that a contract for the sale of the lánd has been made with another person.</p>

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

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

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Real-estate Contract — Repudition by One Party — Remedies of Other Party — Specific Performance — Damages. Where one of the parties to a contract for the exchange of real property repudiates the contract before the time fixed for its performance, and notifies the other party of such repudiation, the latter party may immediately commence an action for specific performance, or, in the event that specific performance can not be had, for the recovery of the damages sustained.</p> <p>2. Same — Petition—Demurrer Sustained — Amended Petition — Demurrer Thereto — Appeal. A judgment by which a demurrer to a petition is sustained, and from which no appeal is taken, does not control the judgment on the hearing of a demurrer lodged against an amended petition afterward filed by leave of court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Quo Warranto — Promise of Candidate to Appoint Electors to Office —Bribery. Conversations occurring before an election between a candidate for office and persons qualified to vote at the election considered, and held to have the effect of bribery by means of promises to appoint the electors to office in case the candidate was successful at the election.</p> <p>2. Same — Bribed Votes — Not Counted. The candidate referred to received the certificate of election. His opponent brings this action of quo warranto to determine his right to the office. Held, the votes of the electors referred to, which were cast in the defendant’s favor, can not be counted.</p> <p>3. Same — Illegal Promises Communicated, to Third Persons — Votes Not Counted. The promises referred to were communicated to third persons, who voted for the defendant because of such promises. Held, the votes of such persons can not be counted.</p> <p>4. Same — Plaintiff Entitled to the Office. Deducting the void votes from the total number received by the defendant, the plaintiff had a majority of those cast at the election. Held, the plaintiff was elected and is entitled to the office and its privileges and emoluments.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Contract — Purchase of Grain — Contract Completed by Telegrams. The correspondence between the parties examined and held that the telegrams of June 29, 1915, constituted a contract by'which the defendant is bound.</p> <p>2. Same — When Custom and Usage are Admissible. Ordinarily custom and usage are admissible merely to explain or elucidate something uncertain or ambiguous contained in a contract.</p> <p>3. Same — Demurrer to Evidence Erroneously Sustained. Plaintiff was . entitled to judgment on the pleadings, and the petition being supported by competent evidence, the demurrer to such evidence was erroneously sustained.</p> <p>4. Contract — Purchase of Grain — Default of Seller — Remedy of Buyer. Upon failure of the seller to fulfill a contract covering 30,000 to 35,000 bushels of grain, th'e buyer may purchase in the open market at the best prices possible on the seller’s account up to the minimum amount, the delivery of which amount by the seller would have been a compliance with his contract.</p> <p>5. Contract — By Telegram — Mistake in Amount of Grain Sold — When Contract is Binding. When one of the parties to a contract involving a sale of grain by mistake uses a code word indicating a greater amount than he intended, and before the knowledge of such mistake comes to the other party the latter has acted upon the contract, such contract is binding according to the terms actually used by the parties thereto.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Equitable Action — Appeal—Jurisdiction of Trial Court to Interpret Mandate — Retrial—Appeal too Late — Mandamus—Writ Denied. A decision was given upon an appeal in a complicated, equitable action which involved controversies of a complex character between a number of parties holding conflicting claims. The judgment was affirmed in part and reversed in part, directions being given as to the trial of the undetermined.issues. When the mandate was spread of record .and the case was again brought before the trial court that court was vested with jurisdiction and power to interpret the decision and mandate of the supreme court which, it is held, were fairly open to interpretation, and it's interpretation of the decision as well as its rulings and judgment in the second trial, however erroneous, can not be regarded as absolutely void,' but must be treated as errors to be corrected on appeal, and can not be corrected by a proceeding in mandamus.</p>

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

<p>Appeal from Crawford district court; Charles S. Denison, judge pro tem.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. New Trial — Incidents Transpiring in Trial Court — Effect for Determination of Trial Court. Where the grounds urged for a new trial are certain extraneous incidents transpiring in court concurrently with the trial which may have prejudiced the jury, the determination of the trial court thereon is ordinarily conclusive.</p> <p>2. New Trial — Cumulative Evidence. Rule followed that a new trial is not demandable as a matter of right on a showing of mere cumulative evidence adduced in support of the motion for a new trial.</p> <p>3. New Trial — Absent Witness — Diligence Required. Rule followed that where a new trial is sought on account of the absence of a material witness at the trial, diligence to ascertain the whereabouts of such witness and to secure her attendance must be shown.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Descents and Distributions — Inherited Property — Liability for Debts. Under the statute providing that the property of an intestate, who is survived by neither spouse, issue nor parent, shall be disposed of in the same manner as if a parent had outlived him and died in its possession and ownership, property inherited by one son of a deceased father from another can not be subjected to the payment of indebtedness owed by the father to any one other than the deceased son.</p>

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

<p>Appeal from Sherman district court; William S. Langmade, judge pro tem.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Proceedings in Probate Court — No Bar to Partition Suit. The pendency of administration proceedings in the probate court does not necessarily bar a suit in partition in the district court.</p> <p>2. Partition — Accounting between Cotenants — Properly Adjusted. Where the claims against the personal estate in the probate court have been adjudicated they may properly be considered in an incidental accounting which arises in the partition suit.</p> <p>'3. Partition — Unsurping Cotenant — Accounting—Bents. Where upon competent evidence the fact is ascertained by the district court that a cotenant excluded her cotenant from possession of property, the fair rental value of the property may properly be charged against the unsurping cotenant in an incidental accounting which pertains to the partition suit.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Sale — Land — Reservation of Oil and Gas — False Representations by Grantor — Grantee Not Defrauded — No Recovery. A party conveyed a tract of land to a grantee for an agreed price, reserving to himself the oil and gas in it with the right to go upon it to drill wells and take out such oil and gas as might he found there. In his petition plaintiff alleged that the grantor represented to him that there was an outstanding lease upon the land and the grantor would therefore reserve the oil and gas in the land, whereas no lease in fact existed at that time; and believing and relying on the representation so made plaintiff agreed to the reservations that were made and purchased the remaining interest in the land at the stipulated price. Held, that as plaintiff received what he purchased at the price agreed upon, the representation as to the interest not conveyed did not operate as a fraud upon him or give him a right of action against the grantor.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Cancellation op Deed — Equitable Action. The proceedings considered, and held that the form and the essential nature of the action characterize it as an equitable one for the cancellation of a deed on the ground of undue influence.</p> <p>2. Same — Trial by Jury Not Demandable. In an action of the character described, a trial by jury is not demandable as a matter of right.</p> <p>3. Cancellation of Deed — Undue Influence — Statements of Grantor Competent Evidence. In an action by the heirs of a grantor to cancel a deed on the ground of undue influence exercised over the grantor by the grantees, who were not related to him, statements of the grantor, both before and after execution of the deed, showing his feelings toward his relatives and toward the grantees, his desire and intention with respect to the disposition of his property, the motives which actuated him in making the deed, the details of the transaction culminating in the deed and the reasons for them, and other statements revealing the operation of his mind in other business and property relations with the grantees, may be received in evidence, when not too remote, as the basis for an inference respecting the grantor’s freedom from restraint at the time the deed was made.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Compensation Act — Personal Injuries — Lump-sum Judgment — Insufficient Showing for New Trial. A lump-sum judgment under the workmen’s compensation act, based on a finding of permanent total disability, can not be set aside, as being against equity and conscience, nor is a case established for the granting of a new trial'upon the ground of newly-discovered evidence, upon a showing that the injured workman is conducting a cleaning, pressing and tailoring business out of which he is making twelve to fifteen dollars a week, where it is not shown that any of the physical labor in connection therewith is done by himself</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Promissory Note — Indorsement “Without Recourse” — Second Indorser — Oral Evidence. When the plaintiff purchased the note sued on, payable to the order of A. E. Hostetler, the first three lines indorsed theron were:</p> <p>“A. E. Hostetler.</p> <p>“Without recourse</p> <p>“M. E. Long.”</p> <p>Held, that oral evidence was competent to show that the words “Without recourse” were written by and intended to^appply to the payee, A. E. Hostetler.</p>

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

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Negligence — Defective Sidewalk — Injuries—Evidence. In an action for an injury alleged to have been caused by a defect in a sidewalk,'an objection to evidence as to the condition of the walk after the accident held not to be well taken, because there was room for an inference that no change in that respect had taken place, and because the specific objection had not been urged at the trial.</p> <p>2. Same — Defective Sidewalk — Negligence Question of Fact. It can not be said as a matter of law that a city is not liable for an injury to a pedestrian resulting from a fall due to a depression in a sidewalk caused by the scaling off of the cement crust over a space two feet long and six inches wide, although its depth is found to be about half an inch.</p> <p>3. Same. Nor can it be said as a matter of law that the existence of such a defect for a period of several years was not a sufficient basis for charging the city with notice of its existence.</p> <p>4. Same — Instructions. The instructions in such ease held to have suffi • ciently defined the duty of the city.</p> <p>5. Same — Special Questions. The answer to a special question held to be sufficiently responsive.</p> <p>6. Same — Evidence. The evidence held to support the verdict.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Negligence — Damage by Fire — No Departure Between Allegations and Findings of Negligence. A finding that the defendant’s section men set out more fire at one time than they could control is not a departure from the allegation that they “negligently allowed the fire so set to' escape and burn over the entire eighty acres of land, and were negligent in setting out the fire at the time.”</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Action — Cross-demand—Setoff and Counterclaim — Statute of Limita~ tions. Under section 102 of the civil code, parties holding cross-demands against each other, under such circumstances that if one had brought a , suit against'the other a counterclaim or setoff could have been set up, will not be deprived of the benefit of them by reason of the statute of limitations, but if the demand of one party becomes completely barred before the demand of the other comes into existence the barred demand is not available as a setoff against the live demand.</p> <p>2. Action — Failing “Otherwise Than on Its Merits” — Commencement of Action — Limitation of Action, Section 22 of the civil code, which provides in effect that if an action be commenced .within due time, and the judgment thereon be reversed, or if the plaintiff fails.in such action otherwise than on the merits, and the time limited for the bringing of an action has expired, he may bring a new action within one year after such reversal or failure, does not apply where there was no service of summons in the first proceedings and no action was in fact commenced.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>.1. Sale — Land—Vendor Liable for Fraud of Agent. One who sells land through an agent is responsible in damages for the fraud of the agent in making false statements concerning its character, by which the sale is effected, even although the principal had no knowledge of their laving been made.</p> <p>2. Same — Agency Established by the Evidence. The evidence held sufficient to support a finding that the land sold was the property of the ' person in whose name the title stood, and that the person- making the false representations was his agent in effecting the sale.</p> <p>3. Sale — Land—Contract Made by Third Party — Adopted by Vendor— Agency Created — Liability for Fraud. The owner of land who adopts the acts of another in negotiating its sale, thereby makes him his agent, and renders himself liable to the buyer in any damages sustained by reason of false statements by which the sale was effected, made by such person for that purpose before the agency was created, notwithstanding the owner had no personal knowledge of the fraud.</p>

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

<p>SYLLABUS by the court.</p> <p>1. Negligence — Releasing Impounded Water — Death by Drowning— Trial — Instructions. It is-not error to refuse to submit to the jury special questions which assume as established facts about which the evidence is contradictory or which ask for immaterial answers that can be used only as the basis for argument in determining what the material facts are.</p> <p>2. Same — Instructions. It is not error to refuse to give requested in- . struetions where they are given in other instructions substantially as requested, nor to modify requested instructions so as to make them correctly state the law.</p> <p>3. Same — Instruction§ Relating to Established Facts. Where facts are conclusively established by the evidence or are admitted by the parties on the trial, it is not reversible error for the court to refuse to instruct the jury that -such facts are established or admitted, where the court gives to the jury an instruction directing the jury to take into consideration the evidence to establish such facts.</p> <p>4. Same — Instructions—Repetitions. In instructing the jury, it is not error for the court to repeatedly state material facts, where undue prominence is not given to them, and where the issues can not be properly submitted to the jury without such repetition.</p> <p>5. Same — Instructions. A judgment will not be reversed for the reason that a part of an instruction may be subject to criticism, where that-part is controlled and governed by another part of the same instruction in which the law is clearly and correctly stated.</p> <p>6. Same — Instructions—Positive and Negative Evidence. The rule concerning positive and negative' testimony was correctly stated in the instructions.</p> <p>7. Same — Instructions—Taken as a Whole. Where it is error to give to the jury the rule of res ipsa loquitur concernig one alleged negligent act, if the rule can not apply to a different negligent act found by the jury, and if it appears from the whole of the instructions that the jury could not have been misled thereby, the judgment based on the verdict and findings will not be disturbed.</p> <p>8. Same — Formation of Jury — No Error. A judgment will not be reversed for irregularities in the formation of the jury, unless it appears that the party complaining was prejudiced thereby, following Hanson v. Kendt, 94 Kan. 310, 146 Pac. 1190.</p> <p>9. Same — Trial—No Reversible Error. Other matters complained of have been examined and are held not sufficient to warrant a reversal of the judgment.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Banking — Honoring Overdrafts — Not. Ultra Vires. It is not ultra vires for a bank to agree to honor overdraft checks for a regular customer.</p> <p>2. Same — Contract to Honor Overdrafts — Not Ultra Vires. When an agreement has been effected whereby certain profits and advantages have been procured by a banking corporation, a defense that the contract was ultra vires will not be countenanced to permit the bank to avoid its undertaking pursuant to such contract.</p> <p>3. Same — Stock Buyer — Agreement of Bank to Pay Checks — Agreement Enforceable. The president of a bank made an agreement with a stock buyer whereby the latter was to purchase live stock and ship them to market and pay for them by drawing checks on the bank. The bank agreed to pay these checks, and was to receive three dollars per carload of the live stock thus bought and shipped, and eight per cent interest on the money used in this business. The returns from the shipments were made to the bank, and the stock buyer’s account was credited from time to time with the net proceeds. Held, that the bank can not avoid its liability to pay a check given in payment of cattle purchased by the stock buyer pursuant to such agreement.</p> <p>4. Same — Agreement to Honor Overdrafts — Good Consideration. The consideration for such an agreement between the bank and its customer considered and held sufficient to support the contract.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Replevin — Evidence—Partnership—Interest of Partners in Property Involved. Upon an examination of the evidence it is held to be sufficient to sustain a finding of the jury that plaintiff and another were partners in a farm enterprise and that he was the owner of a half interest in the personal property and entitled to the possession of the same as against the defendant.</p> <p>'2. Second Appeal — Issues Determined on Former Appeal. Ordinarily, a decision of questions which were presented upon a former appeal' or which were involved and might have been raised therein will be deemed to be the law of the case in a subsequent appeal where the issues are substantially the same, and herein it is held that the appellant in the second appeal is concluded on certain questions by the decision in the first appeal.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Railroads — Negligence—Death at Street Crossing — Insufficient Warnings of Approaching Train. A work train came into a station -in the dusk of evening on a main line track, took a spur track, and passed over a sidewalk leading to the depot, which was near the crossing. At the front of the train were three flat cars. Next came the caboose, with its red lights showing in front. The engine was at the rear of the train, which was 400 feet long. The spur track curved sharply around an embankment to the crossing, and the sidewalk came down one side of the embankment to the crossing. The embankment prevented persons on the sidewalk from seeing flat cars on the curve until within six or eight feet of the track. A pedes-, trian ran down the walk on his way to the station, hesitated a moment when a few feet from the track, went on, and was killed by the leading flat car, which came from behind the bank at a speed of ten miles per hour. There was no light on the forward end of the leading car, or other light visible, except the red lights on the caboose. The air whistle on the forward end of the leading car was not sounded, and because of the light conditions, the deceased could not see the flat cars when he arrived at the track.</p> <p>It is held, the jury were warranted in finding that warnings such as the engine whistle, sounded when the train was at the outskirts of town, the engine bell, ringing when the engine was around the curve and 600 feet away, an automatic crossing bell ringing at the main line track 150 feet away, and noise of the train, were not sufficient, and that a white light should have been displayed at the forward end of the leading car, and the air whistle should have been sounded.</p> <p>2. Same — Contributory Negligence — Evidence—Findings. The subject of the contributory negligence of the deceased was properly submitted to the jury, and the material findings of fact returned by the jury were sustained by the evidence.</p> <p>3. Same — Negligence—Trains Approaching Street Crossings — Caution Required of Trainmen — Evidence—Rules of Railway Company. Rules of a railway company governing the conduct of its employees in the operation of trains, relating to matters affecting the safety of the public, such as the giving of signals and the displaying of lights, are some evidence of the measure of caution which ought to be exhibited in situations to which the rules apply.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Railroad Building Contract — Indemnity Bond — Liability of Surety for Material Furnished — Alterations in Contract. In a building contract, the performance of which was secured by a guaranty company, provisions were included for alterations and additions and that payments should be made in a particular way as the work progressed. Because of the inability of the contractor to meet claims and obligations as they accrued upon the work, an arrangement was entered into between the contractor and the railway company by which payments were made in a different way, but as the change in the plan of payments was made in good faith and did not result in injury to the guaranty company, the change did not operate to relieve it from liability upon its bond.</p> <p>.2. .Same — Purpose of Statutory Indemnity Bond — Benefit of Laborers— Mechanics and Material Men. The bond of the guaranty company was given pursuant to the provisions of sections 7006 and 7007 of the General Statutes of 1909, and is required for the protection and benefit of laborers and mechanics and those who furnish material for railroad construction. Such claimants have rights under the bond independent of the rights of the obligee, and no acts or omissions of the obligee or of the contractor, for which the laborers, mechanics or materialmen are not responsible, will relieve the. guaranty company from or affect its liability under the bond for the claims of the laborers, mechanics and materialmen.</p>

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

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

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

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

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

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

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

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

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

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

<p>OPINION DENYING MODIFICATION OF JUDGMENT.</p> <p>Appeal from Wyandotte district court, division No. 3; William H. McCamish, judge.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Sewer Contract — Partnership—Indemnity Bond — Fraud—Release of One Joint Debtor — Right to Pursue Other Wrongdoer. A city obtained a judgment against one member of a partnership for damages sustained by the fraudulent acts of the partnership and failure to complete a contract for the construction of a sewer. It released the judgment in a written instrument expressly reserving the right to sue the other partner and the surety on the contractors’ bond. Held,</p> <p>(а) that the release of the judgment against one of those jointly and severally liable was, in effect, a covenant not to sue, and did not prevent the city from subsequently prosecuting an action against the' other partner and the surety (Edens v. Fletcher, 79 Kan. 139, 98 Pac. 784) ;</p> <p>(б) that a partial satisfaction of a judgment against one joint debtor and the release of the same will operate only as a payment pro tanto of the indebtedness of the other debtors.</p> <p>2. Same — Judgment AgaAnst One Joint Debtor — Tender of Amount Did Not Release His Joint Debtor. In a subsequent action brought by the city against the other joint debtors the defendants tendered to plaintiff and offered to pay into court the judgment against the other joint debtor, which had been released. Held, that defendants could not better their position by offering to pay the former judgment.</p> <p>3. Same — Judgment Against One Joint Debtor — Liability of Other Joint Debtors. In the first action.the city, in addition to the judgment which it released, obtained a judgment applying upon the indebtedness of plaintiff a claim which the city owed him personally, and upon which he had brought the action. Held, that as the defendants in the present action were given credit for the amount of this counter-claim, it was proper to render judgment against them for reasonable costs, attorneys’ fees and expenses incurred by the city in establishing its right to the credit.</p> <p>4. Same — Indemnity Bond — Obligation of Surety. The obligation of the surety company in this case is held to be an unconditional promise to answer for the defaults of the contractors, and therefore the city is not estopped to maintain an action upon the bond by reason of the fact that before the fraud was discovered it paid the contractors in full, nor by reason of the fact that the surety company released certain funds it held to indemnify itself against loss under the belief that the city had accepted the sewer. .</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Ejectment — Judgment for Possession — Mortgage Lien Not Affected. The holder of a mortgage on real property, having neither title nor right of possession, and who is not a party to an action brought against the mortgagor to recover possession of the land, is not bound by a judgment rendered therein against the mortgagor. (Loan Co. v. Marks, 59 Kan. 230, 52 Pac. 449.)</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Paying — Contract Let — Defective Petition — City Enjoined — Neither Loss of Profits Nor Damages Recoverable by Contractor. When a city upon an insufficient petition of abutting property owners lets a contract to pave a street, and the city is later enjoined in a taxpayers’ suit under section 265 of the civil code from levying special taxes and assessments to pay for the improvement, and the person who. contracted to lay the paving had notice of the pendency of the taxpayers’ suit before he commenced work, although he was not a party to the suit and no temporary injunction was issued, the contractor can not recover from the city on the contract, nor for loss of profits, nor for damages.</p> <p>2. Same — City Liable for Work Actually Done by Contractor. When the proper city officials make a finding that a petition to pave a street has been signed by a sufficient number of abutting property owners, and adopts a resolution to pave the street and lets a contract pursuant thereto, it is estopped to deny the sufficiency of the petition under which it let the contract, in an action for compensation for the work actually done under it, following Sleeper v. Bullen & Dustin, eh al., 6 Kan. 300, 307.</p> <p>3. Same — Where a contract between a city and a paving contractor is illegal only because of irregularities in the proceedings leading up to» the letting o'f the paving contract, and the contract is not tinctured, with moral turpitude, and there was no want of authority to let the contract if the preliminary proceedings had been strictly regular, the city is liable to the contractor for the work actually done under direction of the proper city officers, when that work is adopted and used by the city (Brown v. City of Atchison, 39 Kan. 37, 17 Pac. 465), and it is liable also for that portion of the work actually done which was only discarded and unused by the city because it afterwards changed! the specifications and paved the street with another kind of paving.</p> <p>4; Same — Statute Requiring Presentation of Claim — Not Applicable-Section 1460 of the General Statutes of 1915, which requires certain, claims to be presented to the city within four months, has no application to such a situation as that outlined in the three first paragraphs of this syllabus.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Foreign Corporation — Independence Gas Company — Liable for Corporation Tax. Although a corporation may lease most of its property to another company it will still be liable for the tax imposed on it for the privilege of exercising its franchise in the state, where it retains its corporate franchise, seal, books, papers, documents and some of its property and agrees to maintain its organization and to perform a number of corporate acts in carrying out the conditions of the lease, and where it is stipulated that it is to take possession of the leased property when the lease is terminated, or at any earlier time that the lessee shall make default in performing the conditions and covenants of the lease.</p> <p>;2. Same — Former Court Proceedings Did Not Exempt Compamy From Payment of Corporation Tax. The fact that an action was brought by the state charging that the corporation had violated the trust laws, in which a receiver was appointed to conduct the business of the corporation until certain perversions and corporate abuses were corrected, did not operate to exempt the company from the payment of the corporation tax.</p> <p>3. Same — Certain Agreements Did Not Relieve Company From Corporation Tax. Nor will an agreement made at the end of the taxing period between the corporation and other companies with their creditors, in which the plaintiff joined, and wherein it was stipulated that upon the making of certain payments, the execution of certain assignments and the performance of other conditions, the property of the corporation taxed should merge in and become a part of the property of another company, relieve it from the payment of the tax for the preceding year.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Verdict and Findings — Verdict According to Voluntary Finding Contravening Instruction — Judgment on Findings Properly Returned— No Error. In an action on. a promissory note the defendant claimed a credit of $2000. The court instructed the jury that if they found stated facts the credit should be allowed. In answer to special questions the jury found the facts necessitating the credit, but voluntarily appended to one -of the answers a statement which presumably they believed justified them in disallowing the credit, and they returned' a verdict for the full amount of the note. The statement concerned a matter not submitted to the jury, and if given effect would contravene the instruction. Held, the district court had authority to allow the credit when rendering judgment, without giving the plaintiff the -option of a new trial.</p> <p>2. Principal and Agent — Agent to Receive Funds — Appropriation of Funds for Services — Payment of Debt to Another — Principal Not Bound. The defendant’s agent to receive certain funds while acting as such agent gave the plaintiff, who was his wife, $2000 of the funds, in payment of a personal debt which the agent owed the plaintiff. The plaintiff, who was cognizant of all the facts, claimed the agent paid himself for services rendered the defendant in connection • with the fund and then paid her. The agent had no' agreement with the defendant respecting compensation, the amount of it, when it should be paid, or how it should be paid. When apprised of what had been done the defendant demanded that the plaintiff give’him credit for $2000. Held, the defendant was entitled to the credit.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Action — Damages — Valuable Fossil Wrongfully Taken — Petition Construed — Tort Waived. In an action to recover damages for the alleged wrongful taking of a valuable fossil from plaintiff’s land and converting the same to the use of another, the petition is construed as showing an intention to waive the tort and rely upon an implied promise to pay the value of the property converted.</p> <p>2. Same — Statute of Limitations. The filing of a petition against A reciting facts which would authorize an action to be maintained against B will not toll the statute as to B, if he is not made a defendant until after the statute has run.</p> <p>3. Same — Board of Administration — Not Liable for Acts of Board of Regents of State University. The board of regents of the state university ceased to exist upon the adoption of chapter 287 of the Laws of 1913, by which the legislature established the state board of administration, an agency of the state to manage and control certain of the educational institutions. The act gave the board of administration no corporate powers, and in the absence of express authority no action can be maintained against either the board or its members to recover for a wrongful act alleged to have been committed by the board of regents in 1911.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Nonresident Dependant — Publication Service — Motion to Set Aside Judgment — Want of Actual Notice Must be Shown. Before a nonresident defendant is entitled to have a judgment rendered against him on publication service set aside, he must make it appear to the satisfaction of the court that he did not have actual notice of the pendency of the action in time to make his defense. (Civ. Code, § 83.)</p> <p>2. Mortgage Foreclosure — Finding that Property Was Abandoned— Evidence. Where a proceeding for the foreclosure of a mortgage and the sale of real estate thereunder is uncontested, it is merely an irregularity for the court, upon the unsworn statements of plaintiff’s attorney, to make a finding that the property is abandoned; and such irregularity is cured when, later, upon full and satisfactory sworn testimony, the court determines that its original finding was true and correct.</p> <p>3. Same — Redemption—Sufficient Proof of Abandonment of Property— Six Months to Redeem. In a sale of real estate pursuant to a decree foreclosing a mortgage thereon, when it is satisfactorily shown that the premises are unoccupied, the residence vacant, its windows broken and its foundation undermined, its arable land idle and untilled, its windmills dismantled, its barns and outbuildings collapsed and collapsing and the property not in the possession of any bona fide caretaker, the statute limits the owner’s right of redemption to six months. (Civ. Code, § 476.)</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Habeas Corpus — Application of Petitioner for nunc ,pro tunc Order— . Judicial Discretion. In a habeas corpus proceeding, the petitioner discovered that a matter required to be of record in another proceeding, but which was not of record, was essential to his case. He moved in the case on trial that the record in the other cause be supplied nunc pro tunc. Held, it was within the discretion of the court to refuse to hear evidence in support of the motion.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Contract — Sale of Wheat — Breach—Futility of Tender — Tender Unnecessary. A contract for the purchase of wheat contained the provision that to make a valid tender a bill of lading must be proffered. The seller advised the buyer of its readiness and willingness to ship two cars of the grain covered by the contract and was notified not to ship, that the buyer would turn down the drafts and refuse to accept. Held, that under these circumstances a formal tender was rendered unnecessary, the settled doctrine being that a tender or demand otherwise indispensable is no longer required when its futility is shown.</p> <p>2. Same — Sale of Wheat — Breach of Contract — Right to Recover Damages. Although the seller upon such notification announced a rescission of the contract it shortly thereafter shipped to the buyer another car of the wheat which was accepted and paid for. Held, that this did not counteract the declaration of the buyer that it would not receive the wheat previously offered so as to entitle it to recover damages for its nonshipment.</p> <p>3. Same — Award of Damages — Findings—Evidence. An award of damages by the jury unsupported by the findings held not to be prejudicial error for the reason that the amount allowed was conceded by the party complaining.</p> <p>4. Same — Judgment Modified on Findings of Jury. The jury found that the defendant suffered damage in the sum of $167.68, loss on wheat refused by the plaintiff, but in answer to an express question how much damage they allowed therefor they answered “Nothing.” Held, that the defendant’s motion for judgment for $167.68 should have been sustained.</p>

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

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

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

<p>SYLLABUS BY' THE COURT.</p> <p>1. Promissory Note — Renewal—Extension—Party Primarily Liable Not Released. Rule applied that one of the makers of a negotiable instrument, being a party primarily liable, is not released from liability by an extension of the time of payment without his assent, although his relation to a co-maker be that of surety.</p> <p>2. Same — Renewal Note — -Whpn Not a Payment. Rule applied- that renewal notes do not pay the note renewed, without an express agreement to that effect.-</p> <p>3. Same — Evidence — Shows Renewal — Not Payment. The evidence considered and held to show renewals only, and not payment.</p>

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Slander — Attorney’s Statement Privileged — No Allegation of Falsity— Petition Demurrable. The petition in an action for damages for slander uttered by an attorney in the trial of a cause considered, and held that a demurrer was properly sustained, because the petition disclosed that the defamatory statement was privileged, and because the defamatory statement was not alleged to be false.</p>

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

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

<p>SYLLABUS by the court.</p> <p>Mandamus — Levy of Taxes to Support High School — Writ Refused. When lapse of time renders it impossible to grant the relief sought by an appeal from a judgment on an application for a writ of mandamus, the appeal will be 'dismissed.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Pleading — Verified Account Against Partners — Partnership Denied Under Oath — Issues Raised Thereby. The petition alleged that the goods mentioned in a verified account attached were sold to 'the defendants doing business as the Scheetz Mercantile Company. One of the two defendants denied under oath that she owed the plaintiff anything and denied the existence of the named partnership. Held, that such verified denial .admitted the correctness of the account but not her indebtedness thereon and that for plaintiff to recover it was necessary to show either a personal or partnership liability.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Limitation of Actions — Corporations—Bankruptcy—Unpaid Stock— Subscriptions. The defendant subscribed two thousand dollars to the capital stock of a corporation and paid five hundred dollars thereon. The corporation became insolvent and was declared a bankrupt in November, 1908. In January, 1911, the trustee in bankruptcy was ordered to bring suit to compel payment of fifty per cent of the unpaid subscriptions to the capital stock, if the same were not paid before April 1, 1911. The right to recover from the defendant the fifty per cent of his' unpaid subscription was sold and assigned, to the plaintiff by the trustee in bankruptcy. In January, 1915, suit was brought to recover that fifty per cent of the unpaid subscription. Held, that the action was barred by the statute of limitations at the time it was commenced.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Forcible Entry and Detainer — Inconsistent Findings — New Trial. Where special findings of the jury are in conflict with the general verdict, inconsistent with each other and part of them are contrary to the evidence in the case, the verdict should be set aside and a new trial ordered.</p>

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

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

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Perjury — Evidence of Official Capacity of Justice to Administer Oath. In a criminal prosecution for perjury the justice before whom the alleged false testimony was given may testify to his official capacity without producing a record of his election and qualification. Evidence of his residence and official character together with proof that the testimony was given in a proceeding before him is sufficient proof of thé venue.</p> <p>2. Same — De Facto Officer. A de facto title to the office of justice of the peace is sufficient to authorize the administration of the oath upon ( which perjury is assigned.</p> <p>S. Same — Manner in Which Oath to Defendant Was Administered. In a prosecution for perjury it is not necessary to prove that defendant held up his right hand when he was sworn as a witness, the proof showing that the justice administered to him an oath in the statutory form.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Workmen’s Compensation Act — Injuries — Findings — “Weekly Earnings.” An erroneous finding as to probable weekly earnings, under the facts, worked no prejudice.</p> <p>2. Same — Minimum Compensation — Partial Incapacity. The minimum of three dollars a week for partial disability is a sum fixed by the legislature with the general view and purpose of compensation, and is not to be withheld merely because in a given case before the expiration of the period of partial incapacity the workman has found other employment and is earning more wages than before the injury.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. City Ordinance — Transportation of Liquors — Powers of Cities of First Class. Under the laws of this state cities of the first class have power to pass ordinances regulating the transportation of intoxicating liquors for legal purposes and prohibiting such transportation for illegal purposes.</p> <p>2. Same — Sufficient Title to Ordinance. The ordinance attacked contains but one subject and that subject is clearly expressed in the title.</p> <p>3. SAUErr-Provisions of Ordinance — Consistent with State Laws. A city ordinance regulating the transportation of intoxicating liquors for legal purposes, and prohibiting such transportation for illegal purposes, is consistent with the law of this state regulating the transportation and delivery of intoxicating liquors.</p> <p>4. Same — Interstate Commerce. Such an ordinance as is mentioned in section 1 of this syllabus is not an unlawful regulation of interstate commerce.</p> <p>5. Same — Ordinance is Law of this State. Such an ordinance as is mentioned in section 1 of this syllabus is a law of this state within the meaning of the United States constitution, and of the Webb-Kenyon act (Part 1, 37 U. S. Stat. at Large, ch. 90, p. 699).</p> <p>6. Same — Unnecessary Allegations in Complaint. In charging an offense under a city ordinance, it is not necessary to¿ plead any of the exceptions named in the ordipance, where such exceptions are not contained in the clause which creates the offense.</p> <p>7. City Ordinance — Violating State Law — Invalid. An ordinance which attempts to regulate the transportation of intoxicating liquors within the city for legal purposes, and to prohibit such transportation for illegal purposes, but which does not permit the transportation of such liquors for all of the purposes recognized as legal by the law of the state, is invalid; and a judgment quashing a, complaint drawn under such an ordinance will be sustained.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Inheritance Tax — Transfer of Stock in Domestic Corporation — Statute Repealed — “Saving Clause” Construed. In 1912 a Kansas statute was in force imposing a tax upon legacies and successions, which contained a provision that if a domestic corporation should record a transfer of its stock by a foreign executor before the payment of the tax thereby required, it should be liable therefor. In that year a nonresident died whose will disposed of stock in a Kansas corporation. In 1913 the statute was repealed ” with no qualification except that found in the general saving clause which preserves “any right which accrued” and “any duty imposed” by virtue thereof. The tax has , never been paid. In 1916 the stock was presented to the corporation and its transfer to the legatees was recorded. The state brought an action against the corporation for the amount of the tax. Held:</p> <p>(1) The obligation of the executor and legatees to pay the tax, and the right of the state to demand it of them, survived the repeal of the statute.</p> <p>(2) The action can not be maintained against the corporation, because the right of the state to look to the corporation to refuse (at such time in the future as its action should be invoked) to record the transfer of the stock while the tax remained unpaid was not at the time of the repeal an accrued right within the meaning of the saving clause; and the obligation of the corporation in that regard had not then become a “duty imposed.”</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Quo Warranto — Ouster — Corporation — Labor Laws■ — Payment of Current Wages. The evidence does not establish that the defendant is paying less than the current rate of wages to its employees.</p> <p>2. Same — Ouster—Labor Lems — Public Works — -Eight H,ours a Day’s Work — Exceptions—Statutes. The facts established by the evidence disclose that the occasions on which the defendant required its employees to work more than eight hours per day were within the exceptions named in section 1 of chapter 220 of the Laws of 1913 (Gen. Stat. 1915, § 5870).</p>

<p>SYLLABUS BY THE COURT.</p> <p>Inheritance Tax — Nonresident Testator — Stocks in Domestic Corporation — Present Law Not Retroactive. Where the will of. a testator who died before the enactment of the inheritance tax law (Laws 1915, ch. 357, Gen. Stat. 1915, §§ 11203-11229) created a life estate in certain stocks of a Kansas corporation in favor of his widow, and bequeathed the remainder to such beneficiaries as might be named in a power of appointment created by his will and conferred upon his widow, the remainder thus taken is part of the testator’s estate, and is specifically exempted from the payment of the inheritance tax by section 23 of the act, notwithstanding the power of appointment was exercised after the act took effect.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Jurisdiction — Title to Land in Another State. The courts of the state where land lies have exclusive jurisdiction of actions, legal or equitable, which directly relate to and affect the title to such land.</p> <p>2. Same — Lands in Another State — Jurisdiction of Kansas Courts— Equitable Relief. A court of equity of one state that has acquired personal jurisdiction of a defendant may compel performance of contracts to convey land in another state, or enforce trusts as to the same, .or grant relief for fraudulently depriving one of the title or evidence of title to land in another state, or to grant other relief arising out of contract, fraud or trust; but an action may not be maintained in this state which involves merely the title and possession of land in another state.</p> <p>3. Same — Partition—Kansas Land — Title and Possession of Land in Another State — Pleadings—Misjoinder. In an action for the partition of land in Kansas an amended petition was filed making a stranger to the Kansas land a party, upon whom personal service was obtained. As against him it was alleged that plaintiff was owner of land in another state and that the new defendant claimed the title and exclusive right of possession of the land and wrongfully excluded the plaintiff from any possession or right in it. A motion was made by another defendant claiming an interest' in the Kansas land to strike from the petition the averments as to the new defendant and the land in another state, and the new defendant demurred to the petition upon the grounds of misjoinder and that a cause of action was not stated against him. The motion and the demurrer were sustained, and upon appeal it is held that they were rightly sustained.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Criminal Trial — Contradicting Verdict — Affidavit pf Jurors Inadmissible. The affidavits of jurors in a criminal case are not receivable in evidence to show that they intended to bring in a verdict finding the defendant guilty of an offense less serious than that specified in the verdict which was returned.</p> <p>2. Same — Assault with Intent to Maim — Sufficient Verdict. A verdict of guilty returned under section 38 of the crimes act (Gen. Stat. 1909, § 2526), which refers in proper manner to that section and to the information, and is otherwise sufficient, is not invalid because the words “on purpose and of malice aforethought” were not inserted, or because no degree of crime was stated.</p>

<p>SYLLABUS BY THE COURT.</p> <p>T. Legislative Power — limitations. The doctrine is reiterated that the legislature has no inherent power, but only such as it derives from the people through the constitution.</p> <p>2. Public Roads — State Aid in Construction — Unconstitutional. Section 8 of article 11 of the constitution is equally binding on every member of each of the three coequal and coordinate departments of state government and. precludes the appropriation of the state's money to aid in the construction of public roads.</p> <p>3. Same. House bill No. 4, Laws of 1917, is, by reason of the prohibition expressed in section 8 of article 11, unconstitutional and void.</p>