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Per Curiam:
In their motion for a rehearing, the appellants rehearse and vigorously urge a reconsideration of several errors assigned and argued in their former brief. Some of these assignments of error in the trial are technically well taken. The case is complicated and involved three parties. This court was confronted with the question whether it should reverse the judgment and remand the case for a new trial, or whether, being informed of all the facts and the situation of the parties without additional evidence, and in view thereof, believing that the judgment failed in some particulars to do full justice, a modification thereof should be ordered. The latter course is adopted.
‘ On a reconsideration of the whole case, we have concluded that other changes in the judgment should be made, and that it is our duty under the provisions of section 581 of the new code to set aside the old judgment and to order the trial court to render judgment as herein directed after causing notice of the time and place of rendering such judgment and allowing the administratrix of the Seaton estate the option of taking or refusing judgment in its favor upon the facts pleaded in the answer and cross-petition of John Seaton, deceased.
The judgment is to be rendered for plaintiff as of the date of the original judgment and in amount as modified in the former decision. If the administratrix so elects, judgment to be for the estate for the amount pleaded as due in the answer; also, orders are to be made as follows: for the sale of the. land under plaintiff’s judgment in bulk, subject, first, to remainder of indebtedness on the Seaton mortgage not included in the judgment; second, to remainder unpaid on plaintiff’s contract not included in the judgment. Proceeds of sale to be applied, first, to costs; second, to judgment, if any, for Seaton; third, to plaintiff’s judgment.
No order should be made for procuring judgment, without a formal action, for any indebtedness maturing in the future to the Nesbitts on the contract or on the Seaton note and mortgage.
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Per Curiam:
A motion is made by the appellees to modify the decision in this case (Andrew v. Reid, ante, p. 135, 136 Pac. 793) by directing that a reduction of the tax lien be made by disallowing interest after the tender referred to in the opinion.
It was stated in the opinion that the evidence relating to tender was conflicting. This statement was made because evidence tended to show a tender to the grantee in the tax deed in October, 1902, the month in which the deed was issued. Evidence was also given tending to show that no tender was made to the defendants, to whom the title was conveyed in the same month. It does not appear whether the tender was made before or after the conveyance, and therefore it is not shown whether it was made to the right person. Attention is now called to the fact that the judgment recites that a tender was made to the holder of the tax deed, although that fact was not referred to in the briefs.
It was held in Russell v. Hudson, 28 Kan. 99, that when a sufficient tender is made to the holder of a void tax deed, and the tender is kept good, he can only be allowed a lien for the amount tendered.
It will be seen from the opinion that the tax title in this case was held ineffectual, not because the deed was void, but because the holder of the title failed to take possession under it within the time allowed by law for that purpose. The deed does not appear to be void upon its face, and it had been of record more than five years when the suit was commenced.
The motion is overruled.
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The opinion of the court was delivered by
West, J.:
The plaintiff sued to recover for the death of her husband occasioned by the falling of "a bridge over which he was attempting to pass with a traction engine. The petition alleged that it was impracticable to plank the bridge, and that on account of its weak condition the laying of planks or boards would not have prevented its breaking and falling. A demurrer to the petition was sustained and the plaintiff appeals. The question involved concerns the construction of three statutes. The plaintiff contends that unless the failure to plank the bridge, contributed to the injury it would not preclude a recovery, and the defendant insists that such planking is a condition precedent to a recovery.
In 1886 section 7317 of the General Statutes of 1909 (Laws 1886, ch. 144, § 1) was enacted, making it the duty of all persons operating steam traction engines over a public highway to lay down planks of certain dimensions on the floor of all bridges and culverts while crossing the same, and a penalty for the failure so to do was provided. The next year section 658 of the General Statutes of 1909 was enacted (Laws 1887, ch.' 237, § 1), giving a right of recovery to one suffering-damages received on a defective bridge or culvert, “without contributing negligence on his part,” when the chairman of the county board or township trustee had had certain notice of the defect. These two statutes remained in force until the passage of chapter 248 of the Laws of 1911. section 45 of which reenacted the first section already quoted literally except changing the proviso so that the act should not apply to any machine or engine not exceeding three tons instead of one ton in weight, and except that instead of describing the vehicles as in the former section it followed the description until coming to “steam traction engines of any kind,” and in place thereof used the words “traction engines transfer wagons or vehicles of any kind used for the transportation or distribution of oil or any merchandise or commodity.” After thus reenacting the section the following was added: “provided further, that no person, firm or corporation seeking to recover damages against any city, township or county under the provisions of this section shall secure a judgment therein, unless the jury shall find that such' person, firm or corporation had before receiving the injury complained of complied with the provisions of this section.” The same penalty for violation was left in force.
It is first contended that as there was no comma after the words “traction engines” the amendment was intended to include only such traction engine, transfer wagon or vehicle as was used for the transportation or distribution of oil, merchandise or other commodity. While the punctuation would justify this construction the result would be so ludicrous and absurd that the legislature could not be presumed to have intended it, for certainly it was not the purpose to subject the bridges of the county to the damages of passing traction engines except when they were used in transferring oil, merchandise or other commodities, and one would weigh as much and endanger a bridge as seriously whether used to move a thresher or an oil wagon. Under statutes somewhat similar to those in force before 1911 some courts have held that failure to plank is not material except when such failure contributes to the injury, while others hold that without obedience to such demand of the.law.no recovery can be had.
Considering and construing the three statutes here involved we have no hesitation in concluding and holding that the intent and effect of the act of 1911 was and is so to modify the law regarding the recovery of damages in this kind of an action that planking is a condition precedent to a recovery. To hold otherwise would be to leave practically meaningless the proviso added in 1911 when amending the act of 1886.
It is suggested that the wording of the proviso, “seeking to recover damages . . . under the provisions of this section,” shows that the requirement can not have reference to an action to recover damages under section 658, and if we should regard the quoted words alone this conclusion would necessarily follow. But we can not ignore the patent fact that in amending and adding to the act of 1886 the legislature had in mind bridges, traction engines and damage suits, and was manifestly intending and endeavoring to make planking a prerequisite to a recovery in a case of this kind; and as such intent, notwithstanding some inapt words used in the proviso, appears so clearly as to be convincing we must give effect thereto rather than to a few misued words unfortunately found in an expression which taken as a whole is not difficult to understand.
It is also argued that section 45 of the act of 1911 is unconstitutional for the reason that its subject is not clearly stated in the title of the act, if it be construed to amend or affect section 658. The title relates to roads and highways and repeals certain former enactments, including the act of 1886. All of the statutes in question relate in some way to roads and highways. The title to section 658 (Laws 1887, ch. 237) being “An act making counties and townships liable for defects in bridges, culverts and highways in certain cases.” The title to the act of 1911 was considered in The City of Winfield v. Bell, 89 Kan. 96, 130 Pac. 680, and was there said to be one of the broadest and most comprehensive of titles. We do not think that section 16 of article 2 of the constitution leaves the validity of the section now under consideration in any doubt.
The requirement of that section that an amendatory act contain the entire act amended does not apply to amendments by implication. (Parker-Washington Co. v. Kansas City, 73 Kan. 722, 85 Pac. 781; Bank v. Pearce, 76 Kan. 408, 92 Pac. 53; The State v. Pauley, 83 Kan. 456, 464, 112 Pac. 141.)
The proposition is also advanced that by giving effect to the section in question we would be permitting the legislature to invade the province of the judiciary and say on what evidential showing a litigant may be permitted to recover. Such is not the purpose or purport of the section. The legislature gave the right to an action for damages in this class of cases and the legislature may take it away. Likewise- it may prescribe new conditions or require the performance of certain statutory duties as prerequisites to a recovery, and in none of these is there any invasion of the province of the judiciary.
The ruling of the trial court is affirmed.
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The opinion of the court was delivered by
Johnston, C. J.:
This proceeding involves the title to the office of county clerk of Brown county. At the general election in 1912 Jessie Campbell and John E. Mathewson were candidates for that office. According to a canvass of the votes Jessie Campbell received 2349 votes as against 2331 received by John E. Mathewson, and the certificate of election was therefore issued to her. A contest was instituted by Mathewson, and the contest court found that he had received 2314 while Campbell had received but 2312 votes, and he was declared to have been legally elected. While all the ballots cast were examined by the contest court, the validity of but one hundred and twenty-two of them was actually in dispute. Of the challenged ballots twelve were counted for each of the contending parties, thirty-four which had been cast in favor of Mathewson were deemed to be invalid and were not counted, and sixty-four of them that were cast in favor of Campbell were held to be illegal in some particular and were rejected. She appealed from the decision and findings of the contest court, and on the appeal the challenged ballots were examined by the district court, and that tri bunal found that nine of them were legal ballots which should be counted for Mathewson, and that nine of them were legal ballots in favor of Campbell. The remaining one hundred and four ballots, thirty-six of which had been cast for Mathewson and sixty-eight for Campbell, were found to be illegal, and were accordingly rejected. The result as declared was that Mathewson had received a total of 2811 votes and Campbell 2309.
The decision of the district court has been brought here for review, and it is contended that the findings of that court, based on evidence as to distinguishing marks and defects in the ballots, should be regarded as settling the questions of fact. It is conceded that an appeal is given by statute, and on the appeal the challenged ballots are presented here in the same form that, they were presented in the district court. This court can no more rest its decision on the findings of the trial court, nor escape the responsibility of determining the validity of the challenged ballots, than if the contest for the office had been brought in this court in an original proceeding in quo warranto. The decision of that court is, of course, entitled to consideration, but,, as has been frequently decided, where the case comes' before this court on written or documentary evidence’ practically as it was presented in the district court,, this court must decide for itself what the facts establish, substantially as it would if the case was original, in this court. (Moore v. Pye, 10 Kan. 246; Robinson v. Melvin, 14 Kan. 484; Durham v. C. C. & M. Co., 22 Kan. 232; Bank v. McIntosh, 72 Kan. 603, 84 Pac. 535; Belknap v. Sleeth, 77 Kan. 164, 93 Pac. 580.)
In this case there was no oral evidence, and none’ that was conflicting. The legality of each ballot is to’ be determined solely by the markings on its face, and all that are in question are presented here just as they were in the district court. The contested ballots fall into few classes, and not all of these require consideration.
The first that will be considered is a class consisting of eight ballots, in which the cross marks had been made in squares by penciling one line across a mark which the printer had made in printing the ballot. In some unexplained' way the printer had made a short horizontal mark in the center of the squares in a number of ballots, thus, | — (. These were sent out and delivered to the voters as valid ballots, and in marking the ballots some of the voters made a perpendicular mark with a lead pencil across the printed mark, thus, 14~| • Seven of these votes were in favor of appellant Campbell and one in favor of Mathewson. This defect resulted from the form of the official ballot delivered to the voters, and might be called an invited defect. The voter is not responsible for the form of the ballot, nor for the mistakes made in its preparation. He knows of the statute which provides that no. ballot shall be delivered to voters except those printed and indorsed as the law requires, and he naturally accepts without question those that are delivered to him with official authentication. He should not lose his vote where he, in good faith, marks and casts his official ballot merely because of an irregularity in the printing of it. It hás been held that not every departure from the prescribed forms operates to destroy a ballot, and that slight errors of the officers in the preparation and printing of the ballots which are furnished voters will not invalidate an election or a ballot otherwise legal. It was held that the voting of ballots printed on colored paper and delivered to the voters by the officers did not destroy the validity of the ballots, although the statute expressly provided that they should be printed on white paper. (Boyd v. Mills, 53 Kan. 594, 37 Pac. 16, 25 L. R. A. 486, 42 Am. St. Rep. 306.) In another case it was decided that the printing and delivery to the voters of ballots without a party emblem, and where the voters placed a cross in the circle at the head of the ballot, they were not invalidated by the absence of the required party emblem. (Ogg v. Glover, 72 Kan. 247, 83 Pac. 1039.) Again, it was ruled that ballots could not be rejected because officers whose duty it was to prepare them disregarded a mandatory provision of the law by printing thereon a ticket of a political party that was not entitled to a place on the ballot. (Peabody v. Burch, 75 Kan. 543, 89 Pac. 1016.) Another case of this character is where an officer erroneously printed squares on the ballots at the end of the words, “No Nomination.” In placing crosses in the squares as they marked down the ticket some of the voters placed crosses in the squares opposite the words “No Nomination,” and it was held that in the absence of a showing of fraudulent intention the ballots should be counted. (Short v. Davis, 90 Kan. 147, 132 Pac. 1172.) Other authorities of like purport are: Stackpole v. Hallahan, 16 Mont. 40, 40 Pac. 80, 28 L. R. A. 502; Blackmer v. Hildreth, 181 Mass. 29, 63 N. E. 14; Earl v. Lewis, 28 Utah, 116, 77 Pac. 235; Schuler v. Hogan, 168 Ill. 369, 48 N. E. 195; State of Iowa v. Bernholtz et al, 106 Iowa, 157, 76 N. W. 662; 15 Cyc. 352. The ballots in question come within the rule of these authorities. The voter found one line of the cross mark within the square and, naturally enough, completed the cross by making a line across the printed line. He had some reason to fear that if he made a third line within the square it might be regarded as a distinguishing mark which would invalidate the ballot. Evidently it was not done to identify the ballots or for any fraudulent purpose, and, the effect being the result of the irregular printing and preparation of the ballots, they should be counted.
Two ballots that were cast in favor of appellant were rejected because the name of “Theodore Roosevelt” had been written by the voters within the space in the blank column left for the names of presidential electors. The statute provides for a blank column on the ballot within which voters not satisfied with the candidates whose names are printed on the ballot may write the names of persons for whom they desire to vote. Under this statute the voters in question were entitled to write the name of any person in the blank column for presidential electors. While the name written is the same as that of a candidate for president it can not be assumed that there was no one of that name within the state for whom the voters desired to cast their votes. In California it was held that: “A ballot on which the voter wrote the name ‘William McKinley’ in the blank column under the title ‘Presidential Electors,’ bears a legal mark in a legal place and should be counted. The court can not take judicial notice that there was no person of that name in the state of California eligible to the office of presidential elector.” (Patterson v. Hanley, 136 Cal. 265, syl. ¶ 4, 68 Pac. 821.) Here the voters had placed a cross mark in the circle at the head of the Republican column of each of the ballots and had also written names in the blank column, thus voting for two persons for the same office. Under the law the vote could hot be counted for either candidate for presidential elector, but it did not destroy the legality of the ballot as to the other candidates on the ballot for whom the votes were legally cast. It is provided that: “Whenever a cross X mark shall be made in the square at the right of the name of more than one candidate for the same office, such vote shall not invalidate the ballot, nor shall the same be counted for any such candidate.” (Gen. Stat 1909, § 3270.) The appellant was entitled to have these votes counted in her favor.
In one case an absent voter cast his vote in a senatorial and also in a congressional district in which he did not reside. A ballot printed for the second con gressional district was delivered to him and he struck out the designation “2nd” and substituted the designation “1st,” and he crossed out the word “Sixth” which designated the senatorial district and the one in which he did not reside. This ballot was cast in favor of appellant and should have been counted for her. These changes were made to make the ballot furnished to him applicable to the needs of the voter and to adapt it to the district in which it was to be counted. He was authorized to apply to the election board for a ballot and of necessity was given one prepared for the district in which he voted. Changes were necessary to adapt it to the district in which the absent voter resided. The changes in question were made to that end and not for identification or other wrongful purpose. Besides, absolute secrecy is impossible in the case of an absent voter as he is required to make an affidavit setting forth his identity, residence, right to vote in his own township or ward, and showing that he was unavoidably absent from his home. This affidavit is sealed up with the ballot which he casts and transmitted with it to the county clerk of his home county where it is opened and canvassed by the county commissioners in the presence of the county clerk. These officers necessarily know how the votes of absentees have been cast, but they are admonished by law to keep the contents of the ballot secret and not divulge to any one for whom the votes were cast. (Laws 1901, ch. 180, Gen. Stat. 1909, §§ 3312-3318; Laws 1911, ch. 181.) This vote was legal and should have been counted in favor of appellant..
A number of ballots were properly rejected because of markings which fell within the express prohibition of the statute and the condemnation of the court in prior decisions. For instance, a number were marked with a purple-colored pencil. On some marks and figures were placed outside of the squares and on the margin of the ballots. A number of them were where the voter had made more lines than were necessary to make a cross mark, and still others had peculiar markings not at all like the cross mark prescribed by statute. Names were written on ballots with no cross marks in the squares opposite the names so written. A number of votes were of a class found among the ballots marked “Blank, void and objected to ballots” and from which the corners were not clipped. None of them can be regarded as legal ballots. (Gen. Stat. 1909, § 3270; Wheeler v. Caldwell, 68 Kan. 776, 74 Pac. 1031; Ogg v. Glover, 72 Kan. 247, 83 Pac. 1039.)
A number of votes were rejected about the legality of which there is considerable doubt and the validity of them has not been determined because of the fact that they were in favor of the appellant and the counting of them would not affect the result of the election.
On the record presented it appears that of the contested ballots Jessie Campbell should receive ten, making the whole number of legal ballots received by her to be 2319, and that 2312 ballots were received by appellee, John E. Mathewson. It therefore appears that Jessie Campbell received a majority of seven votes and was duly elected as county clerk of Brown county. The judgment of the district court will be reversed, with directions to enter judgment in favor of Jessie Campbell.
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The opinion of the court was delivered by
West, J.:
The defendant was charged in the first count of the information with the offense of adultery committed with a married woman therein named. The second count charged lewd and lascivious cohabitation; the third, open and gross lewdness; and the fourth, unlawfully living with the.woman as man and wife. He appeals from a conviction on the first count only, and assigns as error the failure to join the woman, the ruling of the court touching the statute of limitations, and in the admission of evidence and in giving certain instructions.
It is urged that the offense of which the defendant was convicted could not be committed by him alone, and therefore he could not be charged and prosecuted alone. The decision in The State v. Hook, 4 Kan. App. 451, 46 Pac. 44, is cited. It was therein held that an information charging lewd and lascivious abiding and cohabiting must join both parties unless one of them be unknown or dead, and that such charge against the man alone is bad. But this court in The State v. Learned, 73 Kan. 328, 85 Pac. 293, a case involving the offenses of rape and incest committed by the same act, held that one of the two offenders jointly charged could be tried separately, and disapproved the decision in the Hook case. Our statute (Gen. Stat. 1909, § 2718} does not define adultery, but it has been held that it can not be committed by an unmarried person, and that when illicit intercourse is had between two persons, one married and the other single, it is adultery in the former -and fornication in the latter (Bashford v. Wells, 78 Kan. 295, 96 Pac. 663; The State v. Chafin, 80 Kan. 653, 103 Pac. 143). In the Chafin case the information charging adultery between a married woman and a single man was quashed on the motion of the latter because adultery can not be committed by an unmarried person in this state, and this ruling was upheld. As both can not be charged jointly with adultery we see no reason why the one married may not be charged and tried separately, and the authorities holding that he can be so charged and tried are numerous. (1 Cyc. 955; Bishop on Statutory Crimes, § 670; 2 Wharton’s Criminal Law, 10th ed., § 1730; The State of Iowa v. Dingee, 17 Iowa, 232, and cases cited; State v. Searle, 56 Vt. 516, and cases cited; The State v. Nelson, 39 Wash. 221, 81 Pac. 721; see, also, The State v. Dreany, 65 Kan. 292, 69 Pac. 182.)
The information was filed March 7, 1913, charging the adultery as having been committed March 16, 1911, the other counts being confined to March 16 and March 14, 1911. On June 16, 1913, certain verbal changes were permitted to be made in the second and third counts, and the information was then reverified but not refiled, no change having been made in the first count. The defendant contends that when these changes were made and the information was reverified the old one was functus officio, and the new or amended one should have been refiled, which would bring the charge more than two years subsequent to the commission of the alleged offense and, therefore, entitle him to a discharge on the ground that the statute of limitations had run. If, however, instead of four counts there had been four informations the amendment of certain ones would not have affected the others, and whether the verbal changes permitted amounted to a material amendment or not they did not in any wise change the first count, the only one under which conviction was had, and it would seem like an extremely technical ruling to hold that reverification and failure to refile destroyed the original information, or the first ■count thereof. The State v. Oliver, 55 Kan. 711, 41 Pac. 954, is cited. There the information was amended by giving a different date to the alleged offense, the ■one first stated being later than the date of the information, and it was said that it was necessary that the information as amended should be verified, and the filing thereafter was proper. The trial was upon the amended and not upon the original charge, hence the •objection to the former was held to be without avail. Brown v. State, 4 Okla. Crim. Ct. xiii, 115 Pac. 615, is relied on by the defendant to support his contention. In that case there was an original information charging an offens'e on one date and an amended information ■charging it on a later date, and after the overruling of a demurrer to the latter the defendant was tried ■on the former and this was held to be erroneous. It was also held that by filing the amended information before plea the original was set aside and abandoned, a statute there in force requiring the state to try but ■one alleged criminal transaction at a time being also considered. But there the information contained but ■one count and was not amended, and another document ■called an amended information was filed, thus presenting a situation materially different from the one under consideration. If the first information had been •quashed the statute of limitations would still have been tolled during its life, and a new one could have been filed at the time the amendment was made. (The State v. Child, 44 Kan. 420, 24 Pac. 952.) In The State v. Moberly, 90 Kan. 837, 136 Pac. 324, we refused to set aside a conviction for robbery merely because an ■amendment to the information setting out the ownership of the property was allowed after plea to an original information omitting such allegation, except inferentially, and the changes here involved are found -to have been even less material than the one there considered.
It is suggested that the husband of the woman involved in the charge was an incompetent witness. Even if his wife had been -“the accused,” he could have testified voluntarily either for or against her, and certainly under the circumstances he was a competent witness. (Crim. Code, § 215.) The statute on which the decision in People v. Fowler, 104 Mich. 449, 62 N. W. 572, cited by counsel, was based expressly forbade the husband to testify.
Complaint is made that a copy of a photograph was received in evidence without a preliminary showing as to circumstances and conditions under which the original or the copy was taken. But here the essential foundation was laid by testimony that the copy looked like the person whose identity was sought to be established, and this was sufficient. (Shorten v. Judd, 56 Kan. 43, 48, 42 Pac. 337; People v. Loper, 159 Cal. 6, 112 Pac. 720, 23 A. & E. Ann. Cas. 1193; Dedrichs v. Railroad Co., 14 Utah, 137, 46 Pac. 656, 35 L. R. A. 802; 1 Wigmore on Evidence, §§ 790-794.)
Objections to. evidence touching certain apparel found in a room where the offense was supposed to have been committed, and to testimony concerning a certain hotel register, were overruled, but an examination discloses no error in such ruling.
It is urged that the testimony of the marriage of the woman to the witness claiming to be her husband was insufficient to establish it. It is hardly necessary to consider this matter, for the reason that the defendant’s guilt iñ no wise depended on the question whether his paramour was married or single. But we think the evidence was sufficient and competent. (The State v. Hughes, 35 Kan. 626, 12 Pac. 28; The State v. Pendleton, 67 Kan. 180, 72 Pac. 527.)
Testimony that the parties were seen together at various places a few months before and after the alleged commission of the offense was received over the defendant’s objection, and it is insisted that this was both incompetent and prejudicial. It would seem, however, on principle, that such prior and subsequent association together would- shed some light on their relations and mutual sentiments at the time charged, the weight of such evidence being for the j ury, and such is the rule. (1 Wigmore on Evidence, §§ 395-399; 4 Elliott on Evidence, § 2796; 1 Cye. 961; 1 A. & E. Encycl. of L. 754; The State v. Briggs, 68 Iowa, 416, 27 N. W. 358; People v. Girdler, 65 Mich. 68, 31 N. W. 624; State v. Snowden, 23 Utah, 318, 65 Pac. 479; State v. Nelson, 39 Wash. 221, 81 Pac. 721.) The county attorney stated what he expected to show concerning a certain transaction between the accused and the paramour’s husband, and this, with an instruction relative thereto, is criticised. But the evidence by way of admissions by the husband when on the stand so nearly justified both the statement and the instruction that no material prejudice resulted.
The trial court undertook the doubtful task of clarifying the meaning of reasonable doubt, and it is urged that the definitions were so worded as to deprive the defendant of the benefit of the protection of a reasonable doubt correctly defined. But, taking together the different expressions used, it appears that the court substantially followed the guide furnished by The State v. Patton, 66 Kan. 486, 71 Pac. 840, and, this having been since approved (The State v. Wolfley, 75 Kan. 406, 89 Pac. 1046, 93 Pac. 337; The State v. Shufeldt, 86 Kan. 975, 122 Pac. 895), it will not now be rejected.
The charge as to the sort of proof necessary to establish guilt is criticised, but no specific ground for the criticism is pointed out, and none suggests itself.
Still other complaints are made, and they have all been examined and considered, with the result that no substantial error appears.-
The defendant’s cause has been vigorously presented by able counsel, but the adverse verdict reached, after considering sufficient evidence under proper instructions, can not be disturbed.
The judgment is affirmed.
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The opinion of the court was delivered by
Smith, J.:
The journal entry of the proceedings in this case in the district court, after reciting the date of the hearing and the appearance of the parties, including the county surveyor, recites:
“Thereupon said Lewis H. Hinnen and Edward L. Hinnen, by their said attorneys, made an oral motion to dismiss said appeal for the reasons that no notice has ever been served as by law required upon the Appellees, and that the pretended notice served upon the Appellees does not state the time when the survey was made, but purports to appeal from a survey made on the 11th day of April, 1912, and no notice of appeal was ever served upon these Appellees of the completion of the survey made by the surveyor herein, and that the notice served is contrary to law and insufficient and void, and also that no appeal bond was filed within thirty days from the time of the filing of said survey, as by law required, and no appeal bond was filed at the time of the pretended notice was given to the surveyor and no appeal bond was filed as by law required, and that this court, by reason of the premises, has no jurisdiction of the matter. Thereupon the Attorneys for .Appellant Noah Artz offered to show that G. W. Miller, one of the Attorneys for Appellant prior to preparing the notice of appeal and the bond in appeal, asked the County Surveyor, Chas. W. Buskirk, when the survey was made, and that he informed him that it was made on the 3d, 4th, 5th and 11th days of April, 1912, to which offer the Appellant objected as incompetent, irrelevant and immaterial and not the best evidence, and original survey having been filed and is a Public record, and the evidence offered is hearsay. Which objection was by the Court sustained and the offer made by the .Appellant was by the Court refused. To which ruling of the Court sustaining said objection and refusing said offer Appellant Noah Artz excepted. And the Court, after hearing the argument of Counsel, and being fully advised in the premises, sustained said motion to dismiss said appeal, on the grounds that the notice of appeal was insufficient. To which ruling of the Court defendant Noah Artz excepted.
“It is therefore by the Court considered, ordered and adjudged that the said appeal of Noah Artz from said survey Number 647, made by Chas. W. Buskirk, County Surveyor of Butler County, Kansas, be and hereby dismissed, and the Appellees do have and recover of and from the Appellant, Noah Artz, the costs made on said appeal, taxed at $......and hereof let execution issue. To which order and judgment of the Court, Appellant Noah Artz excepted.”
It is contended by the parties designated as appellees that the recital of the appearance of parties in the journal entry is incorrect, but no motion was made to amend the journal entry in the trial court and, of course, no correction or change can be made here.
The notice to landowners, by the county surveyor, was that he would begin the survey of certain lands, describing them, on April 2, 1912 (or the following dasO. The report of the surveyor filed in his office, so far as material to this hearing, is as follows:
“I sent F. A. Palmer up to the site of Survey on the second of April, 1912, to search for corner rocks & monuments & on the 3 day of April, 1912 I began work on the S.E. corner of Sec. 17-24-4, there being present Messrs. Jas. D. Harrison, Joe King, Lewis H. & Edw. L. Hinnen, W. W. Kemper, J. C. Adams, Noah Artz, J. Mertz, and Mr. Carlisle. Not all of above appearing at one time but at different times in the Survey. I worked Wednesday April 3, Thurs. April 4 and part of forenoon of Friday April 5: I then adjourned until Tuesday, April 9, 1912, when I returned and finished the survey, setting all corners except the 1-4 corner on the West side of Sec. 18-24-4 which I had set in the forenoon of Friday April 5. Later found had made a mistake in counting distance on S. line of Sec. 18 next to the lake, so in presence of Mr. Artz & his son I re-chained half mile on S. side of S. W. 1-4 of 18-24-4 finding error and resetting the S. E. & the N. E. Corners of the S. W. 1-4 of S. W. 1-4 of 18-24-4.”
To the survey was attached a plat of the land surveyed and it is certified as a true and accurate plat of survey No. 647. The notice of appeal, signed by the . appellant, Noah Artz, described the land involved in the survey and notified the surveyor that Artz intended to appeal to the district court of Butler county from the survey made on the 3d, 4th, 5th and 11th days of April, 1912, and also described the survey as No. 647. It was dated October 5, 1912; signed by Artz and filed by the clerk of the district court on the same day. A bond for costs was executed by Artz and two sureties, the sufficiency of which is not questioned, and was filed on the same date, October 5, 1912. The survey was filed September 9, 1912.
As an appeal in such case is allowed, by section 2275 of the General Statutes of 1909, thirty days after the filing of the report of the survey, it will be seen that the appeal, notice of appeal and bond for costs in this case were filed in ample time.
Practically the only question in the case is whether the recital in the notice of appeal as to the time when the survey was made, which was there designated as the 3d, 4th, 5th and 11th days of April, 1912, was a bad notice in that it recited that the survey was made in part on the 11th day of April.
By a reading of the report of the surveyor, above quoted, it will be noticed that it recites that the surveyor worked April 3d, 4th and a part of the 5th and then adjourned until April 9, to which is added, “when I returned and finished the survey.” Farther on he says, “Later found had made a mistake . . . so in presence of Mr. Artz & his son I rechained half mile,” etc. The. report does not show upon what date the survey was completed.
Again, the report shows that on April 4 a controversy arose between the surveyor and Mr. Artz, and the surveyor agreed to take the matter up and gave Artz until April 20, to investigate on his own account. Whether the survey was finished on April 11 or not does not appear, although the entire survey made by the surveyor does appear in his report. The most that can be said is that while the surveyor reported that he finished the survey on the 9th, in the same report he says he made a part of the survey thereafter without fixing the date. It also appears that in certifying the plat of the survey made, he designates it as No. 647, and the notice of appeal and the bond for costs, in addition to the other information given therein, designates it as survey No. 647.
It is true the court correctly held that the record could not be supplemented by oral evidence; it is also true that no one could be misled as to the particular survey from which the appeal was taken. In fact the court, in a signed journal entry, designated the survey as No. 647.
The order dismissing the appeal is reversed and the case is remanded with instructions to vacate the judgment for costs and to grant a new trial.
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The opinion of the court was delivered by
West, J.:
The two principal questions presented by this appeal are: the authority of an agent, and the legal effect of a mortgage clause in a policy of insurance. An agent of the insurance company, with authority to write policies and make contracts for insuring property, wrote and issued a policy insuring the owner against loss on a certain building in the sum of $750. The agent was at the time cashier of a bank which held a mortgage of $350 on the insured property. The policy was accepted and the premium paid to and retained by the insurance company. Among the conditions in the .policy was one to the effect that if, with the consent of the company, an interest under the policy should exist in the favor of a mortgagee, the condition thereinbefore contained should apply to such interests as should be written upon, attached or appended to the policy; another was that the policy should be void if any change other than by the death of the insured should take place in the interest, title or possession of the property, whether by legal process, judgment, voluntary act of the insured, or otherwise. The policy also contained a provision that it should be void “if foreclosure proceedings be commenced or notice given of sale of any property covered by this policy, by virtue of any mortgage or trust deed.” The mortgage clause made the loss, if any, payable to the mortgagee as his interest might appear, “subject, however, to all the terms and conditions of this policy.”
The defendant contends that, as it was neither alleged nor proved that it had notice or knowledge that the agent was acting for the bank and its benefit in issuing the policy, it is not bound by the act of one wh^ in trying to serve two masters, could in law serve neither. Also, that in view of the conditions of the policy and the mortgage clause the institution of foreclosure proceedings avoided the policy.
The plaintiff argues that as the agreed statement of facts shows that the adjuster denied liability upon the ground that the policy had become void by reason of the mortgage and the foreclosure proceedings, this amounted to a waiver by the company of the defense that its agent acted without authority. As to the second defense, the plaintiff insists that the retention of premiums by the company and its failure to cancel the policy amounted to a waiver of its rights under the mortgage clause.
Concerning the authority of the agent, it may be said that the rule invoked by the defendant, while founded oh the inherent frailty of human nature and the experience of mankind and supported by abundant decisions, does not apply to the facts of this case so as to relieve the insurance company from liability on its policy. There is nothing inherently wrong in acting for two parties whose interests are dissimilar if all concerned so desire, and when an agent for one party voluntarily acts for his principal and also for another whose rights do not conflict in the transaction and no question arises as to his right to recover compensation from both and no fraud has been intended and'no wrong done, and especially when the principal has retained the proceeds and benefits of the transaction, no reason exists why the mere fact that the agent assumes to act in a dual capacity should result in loss to either of the parties. Upon what principle should the insured be made to suffer loss because the one who wrote and issued the policy on behalf of the company was also in some matters agent of the former?. If he acted fairly with each and did exactly what one not thus circumstanced would have done with the approval of his principal, what is there in the mere dual relation that should penalize one party for patronizing the other? Rockford Ins. Co. v. Winfield, 57 Kan. 576, 47 Pac. 511, is relied on. But in that case the agent was cashier of one bank and president of another, which banks had taken warehouse receipts for the grain upon which the agent issued the policy. The company, however, not knowing the relation of the agent to the property insured, refused the risk, but the notice of refusal did not reach the agent until two or three days before the fire and the agent did not notify the insured until after the loss. It was said in the opinion that the assured was indebted to the banks in a sum exceeding the value of the property covered by the policy, and that the latter was really issued for the use and benefit of the banks. Also, that the doctrines of dual agency as there announced is subject to certain exceptions. In Wilson v. Insurance Co., 90 Kan. 355, 133 Pac. 715, a property owner contracted with an agent representing several insurance companies to insure for a certain amount — not designating which company should issue the policy — and paid the premium and arranged with the agent to hold the policy and thereafter keep the property insured. It was held that the action of the agent in agreeing to hold the policy and keep the property insured was not repugnant to his duty to the company, there being no fraud or collusion, and that the maxim that “No man shall serve two masters” does not prevent the same person’s acting as agent for certain purposes of two or more parties when their interests do not conflict and when loyalty to one is not a breach of duty to the other. Here the fact that the agent was cashier of a bank which held a mortgage for about half the amount of the insurance did not prevent his acting with fidelity to his principal, and there is no reason to suppose that the risk would have been refused had all the facts been fully disclosed. On the other hand, the company might with justice have complained had its agent permitted this business to go to a rival.
“An exception to the general rule exists, however, where the interests of the two principals are not conflicting and loyalty by the agent to one of them is not a breach of his duty to the other, as Where the agent exercises no discretion in the matter, but acts merely to bring the parties together, and they themselves settle the terms of the agreement between them. Furthermore, the rule does not disqualify one who is agent of one party for a certain purpose from acting as agent for an adverse party for an entirely different purpose.” (31 Cyc. 1449.)
Many authorities go to the extent of holding that the mere duality of relation is in law a fraud and that the maxim that from a wrong no action can arise applies. But decisions are also numerous to the effect that the law will not presume a fraud where none exists, and that a wrong in fact and not merely in theory is' necessary to strike down a contract executed by an agent of both parties thereto, and this we deem the sounder doctrine.
“A person may act as agent of two or more principals in the same transaction, if his duties to each are not such as to require him to do incompatible things.” (Mechem on Agency, § 67.)
The point is sought to be made that because the adjuster denied liability on the ground that the mortgage and its foreclosure had avoided the policy, this was a waiver of the agent’s lack of authority, and Redinger v. Jones, 68 Kan. 627, 637, 75 Pac. 997, and later decisions to like effect are cited. But having air ready concluded that the agent rightfully acted for the insurance company this question becomes immaterial and its decision unnecessary.
The remaining question is whether the mortgage together with the conditions of the policy avoided the latter. It is urged with force that the mention in the clause of a mortgage presupposed a possible or probable' foreclosure, and that under the former decisions it was for the benefit of the mortgagee who is not to be denied a recovery because of certain conditions in the policy. It is well settled that whatever distinctions may be drawn between the “open mortgage clause” and the “union mortgage clause,” a policy with either attached inures to the benefit of the mortgagee to the extent of his interest. (Insurance Co. v. Coverdale, 48 Kan. 446, 29 Pac. 682; Insurance Co. v. Boardman, 58 Kan. 339, 49 Pac. 92; Insurance Co. v. Truskett, 65 Kan. 861, 70 Pac. 1131; Dodge v. Hamburg-Bremen Fire Ins. Co., 4 Kan. App. 415, 46 Pac. 25.)
In the Coverdale case the loss, if any, was made payable to the mortgagee in general terms, not merely as its interest should appear. The mortgage clause also provided among other things that the insurance as to the interest of the mortgagee should not be invalidated by any act or neglect of the mortgagee or owner. It was held the owner could not maintain an action on the policy unless the mortgage was paid, without obtaining authority from the mortgagee, and that the mortgage clause created an independent and new contract with the mortgagee and did not merely appoint it as the party authorized to receive the proceeds of the policy. In the Boardman case a similar clause was attached which also contained a provision that it should take precedence over the provisions of the policy. The ruling very naturally followed that with such a clause a provision in the policy that commencement of foreclosure should avoid it could not defeat the mortgagee. It was said:
“The commencement by the mortgagee of proceedings to foreclose a mortgage is not prohibited by the express terms of the mortgage clause, nor by any fair implication therein contained. If prohibited at all, it must be by reason of the provisions of the policy quoted. Construing both the original policy and the mortgage clause together, in the light of the plain purpose to insure the interest of the mortgagee, the commencement of foreclosure proceedings can not be held to be a violation of any stipulation forbidding the mortgagee. The insurer must have known when attaching the mortgage clause that it might become necessary for the mortgagee, in order to protect his interest under the mortgage, to commence foreclosure proceedings; that this would not have a tendency to diminish the interest of the mortgagee in the property, but rather to increase it.” (58 Kan. 343.)
The case of Dodge v. Hamburg-Bremen Fire Ins. Co., 4 Kan. App. 415, 46 Pac. 25, is referred to with apparent approval, wherein it was held that a clause making the loss, if any, payable to the mortgagee or his assigns, as his interest may appear, insures the owner of the mortgage to the extent of his interest, and that a change of title which increases his interest, even to absolute ownership, will not release the insurer from liability. Further, that no notice need be given of such increase. There the mortgage clause was very long, and provided that notice should be given by the mortgagee of any change of ownership or increase of hazard which should come to his knowledge, and all of its many provisions were expressly made to take precedence over any confuting provision or condition contained in the policy, and it was held that it must be construed as if it read “loss, if any, . . . payable to . . . [the] mortgagee.” (p. 421.) Also that a company insuring a mortgage lien must anticipate foreclosure; that the mortgagee is protected until a foreclosure, confirmation of a sale and payment of the money ordered made to him. It seems that the mortgagee purchased at his own foreclosure, and the company defended on the ground that he had failed to notify it of this change of ownership, but the court said this was not such change as was contemplated by the subrogation contract, and that it in no manner increased the risk, and the title had not vested in some one not insured, and Insurance Co. v. Ward, 50 Kan. 346, 31 Pac. 1079, was followed, holding that a change of title which increases the interest of the insured, whether by judicial sale or voluntary conveyance, will not defeat the insurance.
Here it appears that the mortgagee foreclosed and caused the property to. be sold and was holding a certificate of purchase, the period of redemption having expired since the fire. But under the rule announced in the cases already referred to, this would not of itself avoid the insurance.
No such clause as the one now under consideration is found in any of the foregoing cases nor in any cited by either party. So that the real question is whether the words “subject, however, to all the terms and conditions of this policy” mean what they say, or mean anything. There is a seeming inconsistency in insuring a mortgage lien and at the same time contracting that a foreclosure shall destroy or avoid the insurance, but to the writer it seems clear that when those competent to contract have settléd upon the terms by which they are to be bound, neither can call upon the courts to make different terms. Such appears to him to be the unmistakable force of the rule announced in Insurance Co. v. Thorp, 48 Kan. 239, syl. ¶ 1, 28 Pac. 991; Insurance Co. v. Russell, 65 Kan. 373, 69 Pac. 345; Insurance Co. v. Knerr, 72 Kan. 385, 83 Pac. 611, and Bank v. McIntosh, 72 Kan. 603, 611, 84 Pac. 535. But the court is of the opinion that the clause in question does not differ essentially from the ones considered in the previous decisions referred to, and that no different rule of construction should apply. This holding is in accord with the practical doctrine that the province of insurance companies is to insure, and is consonant with the theory that by a contrary ruling an unsuspecting mortgagee might lose an indemnity for which he had paid in good faith believing he was secure.
The judgment is affirmed.
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The opinion of the court was delivered by
Mason, J.:
On January 25, 1909, S. W. Abernathy sold a piano to W. B. Kirkland, taking in part payment a note for $300, due November 9, 1909, which within a day or two was sold to the First National Bank of Hays. A few days later Abernathy sold Kirkland another instrument, taking in payment the old one, and a note for $315 secured by a chattel mortgage on the new piano, which, however, was not recorded. On November 13, 1909, a representative of the bank went to Kirkland’s residence and obtained possession of the mortgaged piano, which was delivered to W. J. Madden, the cashier. On the same day the mortgage was recorded. Abernathy brought replevin against Madden and obtained a judgment for the possession of the piano. Madden appeals.
Madden contends that the court erred in instructing the jury that he claimed title to the piano by reason of its sale to him by Kirkland’s wife in consideration of the payment of a note. He asserts that he did not claim the property as a purchaser, but as a creditor enforcing his demand against the property. In- his brief he gives this version of the transaction by which he obtained possession of the piano:
“The note being past due, the Bank sent its collector to Mr. Kirkland’s residence for the purpose of collecting it. The maker of the note, William B. Kirkland, had at this time left the country. Upon consultation with the wife of William B. Kirkland, she concluded that she could not pay the note and gave the collector the piano in payment of the note, and she received the note.”
We think the court committed no error against the defendant in holding that this transaction amounted to a sale. It was a sale if Mrs. Kirkland was authorized to act for her husband. Otherwise-it was a mere physical seizure of the property by Madden, which gave him neither title nor lien. Madden maintains that the bank was a “creditor” within the statute making an unrecorded chattel mortgage void as to “creditors” (Gen. Stat. 1909, § 5224), and that the court erred in refusing to instruct that the bank was entitled to retain the piano if it obtained possession of it before the mortgage was filed for record, whether it had notice of the mortgage or not. The prevailing doctrine is that no creditor (at least none whose claim originated before the mortgage was given) can take advantage of the failure to record a chattel mortgage until he has obtained a lien by legal process. (5 A. & E. Encycl. of L. 1016; 6 Cyc. 1070.) And this rule is recognized in Kansas. (Dayton v. Savings Bank, 23 Kan. 421; Neerman v. Caldwell, 50 Kan. 61, 31 Pac. 608; Geiser v. Murray, 84 Kan. 450, 452, 114 Pac. 1046; Paul v. Lingenfelter, 89 Kan. 871, 873, 132 Pac. 1179.) The facts in Neerman v. Caldwell were quite similar to those here presented, except that the mortgaged property was taken as security for an old note, instead of in payment; the. fact that the holder of the note knew of the prior chattel mortgage was held to prevent his taking advantage of the failure to record it. In Paul v. Lingenfelter the distinction was recognized between & “creditor” within the meaning of the statute, and one who has received chattels as security for the payment of an existing debt. In New York the statute has received a different interpretation. (See Davidson v. Osborne, 185 N. Y. Supp. 675, and cases there cited.)
Complaint is also made of an instruction to the effect that the possession in behalf of the bank could not be upheld, if it was obtained after the mortgage was filed. The objection is that the evidence presented no such issue. The testimony was that the loading of the piano began about eleven o’clock in the morning, and that it was delivered at Madden’s house before noon. The register’s endorsement showed that the mortgage was filed at 1:20 P. M. of the same day. The difference in time was so narrow that we think the court was justified in submitting the question. At all events no prejudice appears.
The court charged that the plaintiff was entitled to recover if the bank knew of the chattel mortgage when Madden obtained possession, provided the mortgage was given as a part of the purchase price of the piano. The proviso is complained of as introducing an extraneous issue. It was necessary, because if the mortgage had not been for purchase money the signature of Kirkland’s wife would have been necessary to its validity.
The judgment is affirmed.
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The opinion of the court was delivered by
Porter, J.:
The defendant seeks to reverse a judgment in plaintiff’s favor on the ground that upon the evidence and findings of the jury the plaintiff was either entitled to judgment for a larger sum or for nothing.
The action was for a breach of contract by which plaintiff claimed he was employed by the defendant as a traveling salesman for six months and was to receive a salary of $25 a week for two months, $50 a week for four months, $75 per week for traveling expenses while on the road, and a commission of 7 per cent on all sales made in his territory. The contention of the defendant was that plaintiff was employed upon a guarantee that he could sell $30,000 worth of goods in six months; that the 7 per cent commission was to ■cover his entire compensation; that the $25 and $50 a week and the amount paid for traveling expenses were merely advances against his commission account. The plaintiff claimed that these weekly payments were •a guaranteed sum which he was to receive regardless 'of sales made or commissions earned, and that there was due him a balance of $585. His sales amounted to only $2956.68. Defendant in its counterclaim alleged that it had advanced him during the four months period $1250, and claimed that he was indebted to the company in the sum of $1043.04, after allowing him his commissions on actual sales.
The jury returned a verdict in plaintiff’s favor for $420. The defendant filed a motion for judgment on the special findings for the full amount of its counterclaim, and also a motion to set aside the verdict and for a new trial. The plaintiff filed a motion for judgment on the special findings for $585. The motion of the plaintiff to set aside the verdict was sustained, but the court rendered judgment against defendant for ■'$463.63.
The verdict of the jury was evidently a compromise, as appears from two special findings which were permitted to stand. Asked to state if the plaintiff was to receive the guaranteed sums referred to, the jury answered as follows: “Yes, but we deem the expenses •as exorbitant in plaintiff’s account.”
The same answer was returned to another question in which they were -not asked anything respecting his expense account. It is quite obvious that the jury believed that he had charged more for expenses than he had paid out. There was no evidence offered by defendant as to the amount of the expenses, the defendant's theory being that it was not responsible for •any portion of them.
We think that in principle the case is controlled by the decision in Bressler v. McVey, 82 Kan. 341, 108 Pac. 97. There the verdict of the jury was for $250. The defendant claimed that the judgment should be set aside because the plaintiff was either entitled to all his claim of $500, or nothing. It was said in the opinion:
“In deciding that he was not entitled to $500 they in effect refused to accept his version of the matter. The case was not one where by discrediting a portion of his testimony his claim could be allowed in part, nor was there room for error in computation or for misapprehension in estimating the amount of recovery.” (p. 342.)
In the present case, if there had been a finding showing the amount of expenses that the j ury believed from the evidence plaintiff was entitled to, the judgment, if in his favor for any sum, must necessarily have included that amount. In the absence 'of a finding that he was not entitled to any expenses the court was not authorized to disallow the whole sum claimed on that account. The court could not, without some basis in the findings or evidence, adopt part of plaintiff’s theory and arbitrarily reject the rest. If plaintiff’s theory of the contract was true, he was entitled' to $135 more. In his briefs in this court he still asserts that the judgment should have been for $585. If, on the other hand, the contract was that the payments were mere advances on the commission account, the defendant was entitled to recover. Other cases in point are: Thompson v. Burtis, 65 Kan. 674, 70 Pac. 603; and Miller v. Miller, 81 Kan. 397, 105 Pac. 544.
In each of the last two cases judgment was reversed at the instance of the plaintiff because the amount allowed him was less than the evidence showed him to be entitled to, if entitled to anything. In Bressler v. McVey, supra, the right of the defendant to have a new trial where the judgment is not in accordance with any theory contended for was sustained, although, the amount of the judgment was less than the plaintiff claimed.
In our view justice will best be served by a reversal of the judgment with directions to grant a new trial.
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The opinion of the court was delivered by
West, J.:
The defendants appeal from an order granting a new trial. The action was for damages alleged to have been sustained by the plaintiff in an assault committed by one of the defendants while in the act of serving a warrant. One of the principal contentions in the case was whether the plaintiff had first assaulted the officer so that the latter acted in self-defense. In its charge the court stated the claim, as set out in the petition, that the officer “without right, provocation or authority and without resistance on the part of said Andrew Busalt, unlawfully, willfully and wrongfully assaulted and beat said plaintiff,” and instructed that the burden was upon him to prove every material allegation, and that a public officer in making an arrest should not use any force that is not necessary, and should he use any unnecessary'force he is liable for any in j ury he may have inflicted while making the arrest. Then instruction No. 1 was given.
“No. 1. — I instruct you that if you believe from the evidence that the defendant, William Doidge, while ■making the arrest of the plaintiff, used only such force as to him, the said Wm. Doidge, appeared necessary to accomplish the same and to defend himself from the assault made or attempted to be made on him by the plaintiff, then your verdict should be for the defendant.”
This was followed by No. 2, which was in exactly the same language except the words “and to defend himself from the assault made or attempted to be made on him by the plaintiff.” The jury returned a verdict for the defendants, and a motion for a new trial was granted for the reason “that the court erred in giving instruction number one asked for by said defendants, and for that reason only.”
The sold question is whether the court erred in granting a new trial for the one reason assigned. Upon the argument the second instruction referred to was criticized, but the briefs both state that there is but one question in the case — the correctness of the quoted words — and this is correct. It may be proper to say, however, that the true rule is that the defendant could use only such force as reasonably appeared necessary to him. (Sloan v. Pierce, 74 Kan. 65, 85 Pac. 812.)
The fault found with instruction No. 1 is that it assumed a fact and amounted to an assertion by the court that the plaintiff had assaulted or attempted to assault'the officer. The answer did not allege an assault or self-defense, but was simply a general denial, and while the petition averred that the assault was without provocation, authority or resistance, it did not devolve on the plaintiff to prove nonresistance, which the law would presume, nor the absence of a defense of which the defendant might avail himself. (Frick v. Carson, 3 Kan. App. 478, 43 Pac. 820; Akin v. Davis, 11 Kan. 580; Bingman v. Walter, 80 Kan. 617, 103 Pac. 120; Bliss on Code Pleading, 3d ed., §§ 200-205; 6 Standard Encyc. of Proc. 681-685.) Self-defense seems to have been tried regardless of the pleadings, and to have been the vital point of the contention. This made it the more necessary to cover the matter carefully and correctly in the instructions, and considering the pleadings and the real nature of the controversy it can hardly be said that the instruction complained of was such as to afford the plaintiff a fair trial before a jury properly charged as to the law of the case. (Cronk v. Frazier, 86 Kan. 879, 122 Pac. 893; Murray v. Railway Co., 87 Kan. 750, 125 Pac. 45; Putnam v. King, 87 Kan. 842, 126 Pac. 1093.)
In criticizing the instruction the plaintiff can not be charged with singling out one of the many expressions in a charge, regardless of the others, for this is the only one touching the mattér of assault by the plaintiff. Situations in some degree similar were touched upon in Baugh v. Fist, 84 Kan. 740, 115 Pac. 551; The State v. Swartz, 87 Kan. 852, 854, 126 Pac. 1091; and Barker v. Railway Co., 88 Kan. 767, 772, 129 Pac. 1151.
Granting a new trial is attended with different circumstances from refusing one, and a much stronger showing is essential to establish error in such ruling. (City of Sedan v. Church, 29 Kan. 190; Brick Co. v. Silvers, 79 Kan. 694, 100 Pac. 477; Turner v. Bank, post.) The trial court evidently concluded, after considering the effect of the charge given, that the plain tiff was entitled to a trial in which the jury could be more specifically and correctly advised as to the rights of the parties, and in this conclusion we find no error.
The order is affirmed.
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The opinion of the court was delivered by
Johnston, C. J.:
The Burrel Collins Brokerage Company presented a claim of $1489.96 to the assignee of the Garden City Wholesale Grocery and Fruit Company, which was disallowed. An appeal to the district court was taken, and on a trial there the court found that only $101.07 of the claim was a legal charge against the assignee, and an appeal from that judgment was taken by the Burrel Collins Brokerage Company.
Appellant claims that in May, 1910, George W. Chesebro started a grocery and fruit business in the name of the Garden City Fruit Company and purchased several bills of goods from appellant for which payment has not yet been made, and that about July 1, 1910, Chesebro and four others incorporated the Garden City Wholesale Grocery and Fruit Company for the purpose of buying and selling groceries, fruits and vegetables, and that the corporation took over the property of the Garden City Fruit Company and assumed liability on the debts of that company. Appellant therefore claimed to be a creditor of the new corporation, and entitled to have the full amount of its claim allowed. On the part of appellee it is contended that, practically, Burrel Collins himself was the Garden" City Fruit Company, and that the shares of capital stock of the new company were full payment for all the assets and credits turned over to the new company. The testimony tends to support the claim of appellee. Chesebro himself testified that Collins furnished all the money and goods that went into the business of the old company, that Chesebro was managing that business for Collins on a salary, that the incorporation was made at the instance of Collins, and that the corporation was to take over all that the old company had in exchange for the Collins stock in the new company. He further testified that the stock was subscribed for in his name, but that he was acting for Collins and was to assign the shares of stock to Collins. Collins, according to the testimony, desired to extend the bfisiness and to procure some new money to carry it on, and two of the incorporators did pay into the treasury considerable sums of money for stock. If, as the testimony tends to show, Collins was the Garden City Fruit Company, and that he turned over whatever interest he had in that company, whether it be goods or claims, to pay for the shares of stock issued to Chesebro for him, he is not entitled to set up any claim that he owed to himself as a liability against the corporation. So far as creditors are concerned, the capital stock must be treated as a trust fund pledged for the payment of the debts of the corporation, and one who subscribes for stock must pay for the same either in money or money’s worth. (10 Cyc. 472.) Under some of the testimony, the payment of the claims of Collins would be to require the corporation to return to him the money which he invested in the stock purchased for himself. Whatever may be his rights as against other incorporators, he is not entitled to an allowance of his claim as against the creditors of the company. Allowance was made for so much of the claim as was for goods purchased from appellant after the incorporation, and as there appears to be sufficient testimony to uphold the decision of the trial court'disallowing the remainder of the claim, its judgment will be affirmed.
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The opinion of the court was delivered by
Mason, J.:
S. E. Adams appeals from a conviction under the statute making guilty of a misdemeanor any one who “.shall voluntarily throw down or open any bars, gates or fences and leave the same open or down,’ other than those that lead into his own enclosure, or shall drive across any lands used for agricultural purposes after such gates or fences have been thrown down, and shall damage such lands thereby, without the consent of the owner of such real estate.” (Gen. Stat. 1909, § 9693, as amended by Laws 1911, ch. 166.) The conviction was upon two counts, one charging the throwing down of a fence, and the other the driving across lands after the fence had been torn down. The punishment assessed was a fine of ten dollars upon each count.
The complaining witness, E. K. Robinson, is the owner of land on the south bank of the Arkansas river, in Barton county. There is now a considerable tract between the meandered line which originally constituted his north boundary and the present south bank of the river. The defendant maintains that this tract is school land, and that he has acquired rights as a settler upon it, under the statute. His general contention is that the trial court committed error in refusing to allow him to give evidence of his claims in this regard. The state answers this general contention by asserting that the defendant was tried and convicted of an offense with respect to an offense committed wholly within the original boundary lines of the patented land of the complaining witness, and that therefore the nature of the defendant’s claims with reference to the tract north of the original meander line were immaterial. This court concludes that the state’s position is correct — that any controversy with respect to the land between the old and new banks of the river is foreign to the case, and that the judgment should be affirmed.
The defendant complains of the refusal of the trial court to allow hm to make proof of his settlement. The refusal was based specifically upon the ground that in 'order to convict it must be found that the fence in question was within the meander lines established by the government suryey, and the jury were instructed to that effect. It is argued that the defendant should have been permitted to show the basis of his occupancy, because the jury would naturally be prejudiced against him if it appeared that he was merely a squatter without color of right. We think the trial court was justified in excluding the evidence on the ground that it related to a controversy not involved in the present action.
The defendant testified that in the course of plowing a fire guard he removed parts of a fence. His attorney asked him: “What was your intention in opening it that way?” An objection was made by the state, which the court sustained. It is contended that this ruling prevented the defendant from making his defense, and that he thereby suffered a prejudice, which was intensified by the court’s refusal to give an instruction reading as follows: “If the defendant opened the fences in controversy under an honest mistake, believing that the same were on land belonging to the state of Kansas, on which he had settled with the intention of proving up and purchasing the same as school land, he can not be convicted.”
The defendant maintains that by these rulings he was prevented from showing that he removed the fence under a justifiable, even if mistaken, belief that it stood upon the land to which he was asserting a claim. If he actually tried to make this defense and was denied the opportunity he has at least plausible ground of complaint. But we think the record as a whole does not disclose that situation. The inquiry as to the defendant’s intention did not affirmatively suggest such a defense. Malice or even willfulness is not an ingredient of the misdemeanor defined by the statute, and in one point of view the defendant’s motive was immaterial. It seems probable that the court had this thought in mind, and was desirous also that the issue on trial should not be confused with the controversy as to the title to the new bank of the river.. If the purpose of this question was to elicit testimony that the defendant had acted under a mistake as to the location of the meander line, the court should have been so informed. The question did not clearly indicate such an object, and'the court can not be regarded as having excluded an inquiry into the matter of mistake as to the boundary. (Marshall v. Marshall, 71 Kan. 313, 80 Pac. 629.) No other effort appears to have been made to present this issue. The defendant testified that he plowed across the whole tract, right through the fences, laying them out of the way; that he ran a straight line from one quarter-mile post to another, not seeking to follow the angles, which varied a little to the north and a little to the south. In reply to the question whether in running such a straight line there would be times when he would cut first on one side and then on the other of the true meander lines — the true boundary — he replied: “We would give and take.” The question followed: “You would perhaps slice off one side and then take it back from the other side as you run your line?” He answered: “We went straight from one point to the other at each quarter of a mile.” In view of this evidence we think it was not error for the court to refuse to submit to the jury the issue whether the defendant had removed the fence under an honest mistake, believing that it was upon what he regarded as school land. It does not appear that the defendant made any claim to the land south of the meander line, or that there was any actual difference of opinion as to where that line ran.
The suggestion is also made that the defendant was denied the right to show that he was entitled to remove the fence because it interfered with his ingress and egress to the land on which he claimed to be a settler. The evidence already quoted seems to indicate that such an issue was not presented.
It is difficult to resist the conclusion that upon his own testimony the defendant was guilty of a violation of the statute, if, as the jury must have found, he threw down the fence which stood upon the land of the complaining witness — the title to which was not in dispute. There is a difference of judicial opinion as to whether even an honest mistake is a ground-of defense to a prosecution under a statute which makes certain acts an offense, without requiring the existence of any specific motive. (38 Cyc. 1179.) The offense here charged is not one which necessarily involves moral turpitude. The sole punishment provided is a fine of not over one hundred dollars. Doubtless an undue importance has been attached to this case by reason of feeling engendered by the controversy over the disputed tract, which does not really affect it. We do not think the •circumstances require a new trial.
Complaint is also made that the trial court required the defendant to give a bond of $400 to keep the peace. The statute makes such a requirement discretionary (Crim. Code, §242), and there is nothing to suggest an abuse of discretion in the present case..
The judgment is affirmed.
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The opinion of the court was delivered by
Benson, J.:
This appeal is from a judgment against the defendants for specific performance of a contract for the exchange of land, signed by the plaintiff and defendant W. W. Hush. The defense now relied on is based upon the homestead right of the defendants. Fraudulent misrepresentations were also pleaded in the answer, but were eliminated by the findings.
The plaintiff owned a farm of 200 acres in Greenwood county, and defendant W. W. Hush owned a farm of 120 acres in Chase county, occupied as a homestead. Both farms were incumbered by mortgages. Oral negotiations for an exchange were opened between the owners, leading up to the contract. The material facts found by the court are that on January 25, 1912, the plaintiff and defendant W. W. Hush entered into a written agreement for an exchange of farms, in which Martin was given five days to accept or reject the contract. Hush examined the Martin land before signing the contract. On January 28 Martin examined the Hush land and advised Hush of the acceptance of the contract, in the presence of Mrs. Hush, who made inquiries regarding the neighborhood and schools in the vicinity of the Martin land. Hush then said that he and his wife would go to Cottonwood Falls the next day to consummate the exchange. On February 3 Martin deposited a warranty deed, made by himself and wife, conveying his farm to W. W. Hush, with John Bell, a person agreed upon “as the person with whom each of the parties were to deposit their papers, pending the completion of the transaction, with the-agreement that the papers of each should be left with. Bell until each party had furnished the other with abstracts of title showing good title covering their respective lands, and until each of the parties had had an opportunity to have such abstracts examined.” On the same day Hush and wife signed and acknowledged their warranty deed, conveying their farm to the plaintiff, and a note and mortgage on the Martin land to secure the payment of $500 in favor of the plaintiff, and left these papers with Bell “as per agreement between the parties,” and defendant Hush instructed Martin to pay the $500 to Bell for the use of the defendant. Martin returned to Greenwood county to perfect his abstract, with the understanding with Hush that he would return to Cottonwood Falls on the 6th of February, or as soon as possible, to consummate the exchange. On the 7th of February he returned with his abstract, and was informed by Bell that Hush had notified him not to deliver the papers. Martin then tendered the abstract to Hush, and said he was ready to pay the $500 and complete the exchange. Hush promised to close the deal. On the 6th of February Hush, through his attorney, sent a notice to Martin that he would not perform the agreement. This notice was received by Martin on February 9. The court further found:
“The defendant, Gertrude Hush, jointly with her husband, consented to the contract of exchange.”
The court concluded that the plaintiff was entitled to specific performance and gave judgment accordingly, and also against defendant Bell for the possession of the deed.
The testimony bearing upon the deposit of the deeds will now be given. The plaintiff testified:
“That he went to see Hush’s land in Chase county on or about January 28, 1912; that Hush asked him if he was going to trade, and that he said he was; that Mrs. Hush was present; that she didn’t say anything, except to ask about the country and neighbors and schools; that Mr. Hush said that he would be in Cotton wood Falls the next day. I said, you and your wife put up your deed, and I will go home and get my abstract and deed and bring them .right up here.”
Mr. Bell testified:
“That he made out deed on February 3, 1912; that Mr. Martin left the deed with him. Martin said he would come back on the following Tuesday (February 6, 1912) to close up the deal. He then left immediately to catch a train.
“Hush’s deed had been made before Martin left. The parties made arrangement to come back on the sixth. After Mr. and Mrs. Hush signed the papers Mr. Hush said that if Martin was not back on Tuesday to close up the deal he wanted his papers back; he had fooled away time enough.
“After Mr. Hush had bought the Chase county land he left the abstract with me. Mr. and Mrs. Hush had never authorized me to deliver the deed to Martin. Martin never authorized me to deliver his deed to Hush. He made no statement about it. Martin stated that the abstract was on the way. I did not receive any abstract out of the mail. Hush asked me to pass on the title when the abstract was presented. The abstract did not arrive by the sixth. Martin did not come on the sixth. Hush came to my office on that day and came back after dinner. In. the evening he asked me for his deed back. I did not turn it over to him, as I wished to avoid trouble myself. Martin came to my office the next day. He brought the abstract to the .Greenwood county land, and said, ‘Here is the abstract.’ I told him no use, as these people would not trade.”
Mr. Hush testified that he examined the Martin land on January 25, and after relating matters bearing on the issue of misrepresentation, proceeded:
“While on the place he (Martin) said that Ed. Harrison had offered him thirty dollars an acre for the Greenwood county land, and that statement had effect bn me. I was trading for the land to get out of debt; and I figured to sell a part of the land (Greenwood county land) to get out of debt. I intended to sell it to Ed. Harrison because Martin told me so; and I told my wife about it after I came home, and we figured that we could sell the part of the land and get out of debt and get a smaller home. I never told her about signing up any contract until about the first of February, 1912.
“I told Martin on the twenty-ninth of January that I wanted time to investigate that property down there. I told my wife the conversation I had with him, and we wrote a letter to Harrison inquiring about his offer, and he wrote to me on the fourth of February, 1912, which we received on the sixth, that he did not want to buy any more land at present. . . . My wife saw this letter on the sixth of February. On February 3, 1912, we went to Bell’s office and signed up the deed. Martin came in and said to Bell, ‘there is my deed,’ and left it lying there and said he would be back on the sixth to straighten or settle this up. . . . When my wife and I signed my deed I told Bell that if Martin did not come on the sixth I wanted that deed back. I made that statement when I turned my deed over to Bell. I left the deed with Bell because I wanted to investigate the Greenwood property to see whether it was worth what it was represented to me. Another reason why I left the papers with Bell is that I had no vault to keep them. I did not leave them there for Martin; I left them there for myself.”
He then related the fact that after waiting for Martin all day on the 6th, he then gave notice through his attorney that the deal was off.
Mrs. Hush testified:
“That she had no knowledge of the writing signed by her husband, dated January 25, 1912, until two or three days before she signed the deed that was left at Bell’s office. Mr. Hush told me after he had been down to Greenwood county that he had looked at the Greenwood county land and that it looked pretty good to him, and that Martin told him he could sell a part of it for thirty dollars an acre. ... On February 3, 1912, I went to Mr. Bell’s office and saw Mr. Martin there. There was nothing said at any time prior to me about signing the deed. ... I would not have signed the deed had I known that Harrison had not offered to buy the land. I expected to hear from Harrison. We had written him to find out the truth of the matter of what we were told by Martin; that was my understanding of things on the day I signed the deed. I wrote the letter to Harrison myself. We received a letter from Harri son about the land about noon on the sixth of February, 1912. ... I understood that we were to meet on the sixth of February, 1912, and talk the matter over. The matters to be talked over was the hearing of the truth about the representation of the land in regard to Mr. Harrison’s offer.”
Testimony of Mrs. Hush relating to a misdescription of the Martin land is omitted as she testified that it had nothing to do with her objections. She also testified:
“If he wanted the exchange to go through, that would have been satisfactory to you, wouldn’t it? A. If everything else was all right.
“Q. If he had said it was satisfactory to him, it would have been to you. A. Well, yes.
“Q. You relied on his judgment in the matter? A. That part of it, yes.
“Q. You knew he was going down there for the purpose of examining the land for the purpose of exchange? A. Yes, sir.
“Q. When he came back, did you ask him for the contract? A. No, sir.
“Q. You did n’t inquire at all? A. No, sir.
“Q. What day did you come in and sign the deed? A. Monday.
“Q.- At whose request? A. Mr. Hush’s request.
“Q. Did you sign the note ? A. Yes, sir.
“Q. Did you sign the mortgage? A. Yes, sir.
“Q. What did you understand the papers were for? A. Well, they were for — to pay the money, to make the change.
“Q. You did n’t inquire into the details of it? A. No, sir.
“Q. You were satisfied to let your husband go ahead ? A. Yes, in this case.”
The contention of the defendants is that no enforceable contract for the conveyance of the homestead was made. A statute of this state, enacted in the year 1905, provides:
“That no action for the specific performance of a contract for the sale or exchange of real estate in the state of Kansas, or for damages by reason of the violation of any contract to sell or exchange lands within the state of Kansas, occupied as a homestead by the owner and his family, shall be maintained, unless the contract of sale is signed by both the husband and wife, or by an agent or broker duly authorized, in writing, by both the husband and wife, to make such sale or exchange.” (Laws 1905, ch. 154, § 1, Gen. Stat. 1909, § 3648.)
The contention of the plaintiff is that although Mrs. Hush did not sign the contract of January 25, by herself or any agent, as the statute provides, still “the contract and deeds, note and mortgage, constituted altogether á transaction of exchange.” It is true that “any contract to sell,” as the term is used in the statute, may be made by a deed without a precedent written agreement, or by an agreement alone if signed by husband and wife, or by an agreement and deed, but the deed or contract relied upon must be delivered as well as signed. The wife having knowledge of a contract made by her husband, which she has not signed, may in expectation of carrying it out sign and acknowledge a deed, but if she withhold the delivery it is of no effect, as a ratification of the contract or otherwise. It simply indicates a purpose such as she stated at the conclusion of her testimony “to let her husband go ahead,” but she was at perfect liberty to change this purpose at any time before delivery of the instrument, with or without a good reason. She stated a reason, however. It was the intention of Mr. and Mrs. Hush to sell a part of the Martin land. Her husband had informed her that such a sale could be made to Harrison for $30 an acre. She immediately wrote for a verification of the information, and receiving an unfavorable answer, went no further with the deal. It is of no consequence whether Martin had told Hush that such a sale could be made. It was the information she had when she signed the deed and left it with Bell. She also had a right to limit the timé of delivery to February 6, or any other time. It is not sufficient to say that relying upon her husband’s judgment she permitted him to act for her. He could not be made her agent to make the contract, otherwise than in writing, as the statute requires.
It is said that the deed was delivered in escrow. The evidence, however, is insufficient to prove an escrow. The custodian, as he testified explicitly, had no authority to deliver either deed, and there is no evidence to the contrary. No witness testified to any such authority. The finding of the court as to the agreement of deposit was that “each of the parties were to deposit their papers pending the completion of the transaction.” This is as far as the evidence warranted, and in view of the testimony is understood to mean that for convenience, to avoid delay while the preliminaries should bp settled, “pending completion of the transaction,” the papers should be left with Bell for speedy exchange upon such completion.
As the contract of sale was not signed by both husband and wife, and the deed was not delivered nor its delivery authorized, the statute forbids specific performance. The joint consent found by the district court is insufficient to uphold the judgment, in the absence of a compliance with the statute.
The judgment of the district court is reversed with instructions to enter judgment for the defendants.
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The opinion of the court was delivered by
Burch, J.:
The question in this case is whether or not the plaintiff, who was negligent in driving upon a railway crossing in front of one of the defendant’s moving trains, should recover damages on the ground that the defendant was guilty of recklessness and wantonness in injuring him.
The collision occurred on Fourth street in the city of Centraba, a city of the third class. The street extends north and south. Three of the defendant’s tracks cross it from east to west near the center of the business section of the town. The street is the principal thoroughfare of the town, many crossings of the tracks are made daily, and a city ordinance limits the speed of trains to eight miles per hour. Coming from the south the first track to be encountered is a sidetrack. Forty-one feet north of it is the main track. The plaintiff approached from the south while the train approached from the east on the main track. The plaintiff was driving a team of horses hitched to a farm wagon. He stood up in his wagon, drove in a walk across the sidetrack, across the space intervening between that track and the main track, and then drove upon the main track without looking for or giving heed to the approaching train, which could have been seen for a distance of one thousand or twelve hundred feet. It was about three o’clock in the afternoon of a bright, clear day in January. The plaintiff was in full possession of all his faculties, frequently passed over the track and was familiar with it. His team moved at the rate of about three miles per hour and did not become frightened at the approaching train. The train, which was a work train consisting of an engine and five cars, was moving at the rate of thirty miles per hour.. The whistle was sounded fifteen hundred feet east of Fourth street, and the bell was ringing at the time the engine approached the crossing, when near it. The engineer and fireman were in their proper positions on the engine, the fireman being on the south side. When the fireman discovered the plaintiff he was crossing the sidetrack. The fireman supposed the plaintiff would act according to the habit of people generally, approach the main track and stop, and consequently did not notify the engineer at once. When the fireman saw that the plaintiff was attempting to cross in front of the train he notified the engineer, who immediately applied the air brakes and sounded the alarm whistle, but it was too late to avoid the collision.
At the trial the court gave the jury the following instructions, which were accepted by the plaintiff and which are the law of the case:
“Before the plaintiff can recover in this case, you must not only find that the defendants’ servants and employees were guilty of ordinary negligence, but you must find that such negligence and want of care was-reckless and wanton. The undisputed evidence in this case clearly shows that the plaintiff was guilty of negligence at the time he approached the crossing in question by not looking to the east to see whether or not a train was approaching from that direction. And being so negligent he can not recover in this case on account of the mere want of ordinary care and prudence on the part of the defendant company’s servants and employees. But even though the plaintiff was guilty of such negligence, yet if you believe from the evidence that the operation of the train in question by the servants and employees of the defendant company, at the time of the accident, was reckless and wanton, then the defendant company can not avail itself of the defense of negligence on the part of plaintiff, and plaintiff would be entitled to recover.
“The words ‘reckless and wanton’ as herein used, mean the conscious failure of one charged with a duty to exercise due care and diligence to prevent an injury, after the discovery of the peril, or under circumstances where he is charged with the knowledge of such peril, and being conscious of the inevitable or probable result of such failure still acts without due care and diligence. And it is immaterial whether the failure to discharge the duty in the exercise of care and diligence springs from an act of commission or omission. The duty referred to, the disregard of which amounts to wantonness, is that which arises only when the person charged with dereliction has knowledge of the danger, or of the facts which imputed that knowledge to him. One who is properly charged with recklessness or wantonness is not simply more careless than one who is only guilty of negligence; his conduct must be such as to put him in the class with the willful doer of wrong. The only respect in which his attitude is less blameworthy than that of the intentional wrongdoer is that instead of affirmatively wishing to injure another he is merely willing to do so, or indifferent whether he does so or not.
“The trainmen in charge of said engine had the right to assume and rely upon the fact that plaintiff was in the possession of all of his faculties, and that he, having an unobstructed view of said approaching train, knew of said approaching train, and that he had a team that was safe and that he would stop said team and would not attempt to cross over said track in front of said train, or drive so close to said track that the train passing along would collide with said team, and if you find from the evidence that said trainmen exercised reasonable and ordinary care to avert.said accident after it became apparent to them, or would have been apparent to a reasonably prudent man that plaintiff was about to go upon said railroad track in front of said train, then you would not be justified in finding them or either of them guilty of wanton negligence, and this is the law, even though you should find that said train was being operated at a greater rate of speed than provided for in the ordinance of the city of Centraba, and without causing the bell to be rung.”
The jury returned, among others, the following special findings of fact:
,“3. What distance east of plaintiff was the fireman when he first discovered the plaintiff or his team? A. 550 feet.
“Q. 25. After plaintiff had driven over said house track, and his wagon had cleared the same, how far were the heads of the horses from the main track, on which said train was approaching? Ans. Nineteen feet six inches.
“Q. 26. When plaintiff drove his team onto said main line track on which said train was approaching how far was the engine from him? Ans. 140 feet when horses’ feet struck south rail of main track.
_ “Q. 41. Did those in charge of said engine when they discovered the plaintiff was about to cross over said track in front of said approaching train, fail to do anything which they, or either of them, might have done to notify plaintiff of the approach of the train, and to prevent the accident? Ans. Yes.
“Q. 42. If the next preceding question is answered ‘Yes,’ then state in detail in what such failure consisted? Ans. The fireman should have called the engineer’s attention sooner to give the alarm by whistling.
“Q. 52. When those in charge of said engine discovered that plaintiff was apparently going to attempt to cross over said track and in front of said approaching train, what was there that they could have done which they did not do, if anything, which would have prevented the accident? Ans. Should have.given alarm by whistling.
“Q. 55. When plaintiff drove his team from a point where they were a sufficient distance from the track so that the train could have passed along the track without striking them, how far was the engine from him ? Ans. 190 feet.
“Q. 56. When plaintiff drove his team from a point where they were a sufficient distance from the track so that the train could have passed along the track without striking them, could those in charge of said engine then have done anything which they did not do, which would have prevented the accident? Ans. No.”
The jury returned a verdict for the plaintiff, upon which judgment was entered.
It is plain from the foregoing facts that the jury either disregarded the instructions or mistook slight delay, and perhaps an error of judgment, on the part of the fireman, for wantonness. It is neither a fair nor reasonable inference that the fireman, knowing of the plaintiff’s peril and conscious of the inevitable or probable result of failure to act, delayed notifying the engineer through either willingness to run the plaintiff down or indifference to whether he did so or not. All che jury could say was that the fireman should have called the engineer’s attention sooner, to give the alarm by whistling. The fireman was at his post, he did see the plaintiff, he did notify the engineer, the whistle was sounded, the bell was rung, the emergency brake was applied, and everything was done which could be done to avert disaster. If these measures had been taken a few seconds earlier the collision would have been prevented. There was no compelling occasion to take them until the fireman appreciated, contrary to what he had the right to suppose and did suppose, that the plaintiff was oblivious of the train and was actually driving into it. While immediate action was impor tant, there is nothing in the facts to indicate that the' fireman coolly waited, either through malice or indifference, until too late, and then gave the engineer the notification to make the very efforts which would have saved the plaintiff if they had been exerted a moment sooner. The plaintiff was in sight of the fireman some twelve and one-half seconds. In that time the plaintiff left the sidetrack, drove his unfrightened team across the space between the two tracks, and instead of stopping went on the main track. The train moved five' hundred and fifty feet. The only legitimate inference is that the fireman was not quick enough in action, and possibly in apprehension.
The findings of fact cover the essential features of the case. The plaintiff, however, seeks to uphold the verdict under the decision in the case of Railway Co. v. Baker, 79 Kan. 183, 98 Pac. 804, by directing attention to the speed of the train and the public character of the crossing. The opinion in the Baker case contains all that need be said with reference to the law governing-the subject of wantonness in cases of this character.. The syllabus reads as follows:
“In an action to recover damages on account of an injury to a pedestrian resulting from a locomotive being driven along the public street of a city at an unlawful and dangerous rate of speed, with no signal being given of its approach and with no outlook being kept, the misconduct of those in charge of it may amount to such recklessness and wantonness as to cut off the defense of contributory negligence, although such employees did not know of the presence of the' person injured, if to their knowledge the extent to which the street was used made an injury so probable that they must be deemed to have realized its imminence and to'have refrained from taking steps to prevent it because they were indifferent whether it occurred or not.”
In the opinion it was said:
“The running of a train at an excessive speed along- or across a busy street of a populous city, without either- outlook or signal, may well be held to exhibit such contempt for the rights of others as to supply the place of positive malice. . . . The conduct of the employees in charge of an engine in failing to take measures for the protection of a person upon the track can be characterized as ‘wanton,’ in the sense in which that word is used m this connection, only when they actually know of his presence, or when the situation is substantially the same as though they had such knowledge — when such knowledge may fairly be imputed to them. It is not enough for that purpose that the exercise of ordinary diligence would have advised them of the fact, for their omission of duty in that regard amounts only to negligence. Nor is it enough that they know some one might be in the place of danger; the probability must be so great — its obviousness to the employees so insistent — that they must be deemed to realize the likelihood that a catastrophe is imminent and yet to omit reasonable effort to prevent it because indifferent to the consequences.” (pp. 186, 187.)
Some witnesses estimated that there were as many as twelve hundred or fifteen hundred crossings of the defendant’s track each day. These estimates were arrived at by the following method: “If one hundred persons crossed over the crossing twelve times a day each, there would be twelve hundred crossings.” The same witnesses testified that there were a large number of school children who lived south of the track and crossed it to attend school — all of whom, so far as the evidence shows, were safely housed in school when this train approached. There is no evidence to indicate that a congestion of traffic on this street of a country town about the middle of the afternoon of a Tuesday in midwinter was to be anticipated, much less that it was so likely to occur as to render a catastrophe fairly imminent. The day was bright and clear. The crossing was visible for a long distance and the trainmen had an unobstructed view of just what the situation actually was. The train was light, and was equipped with air brakes in working order. Eyewitnesses watched the train come into the town and saw the collision. Not one testified that anybody crossed the railway tracks ahead of the plaintiff, after the train whistled for the crossing. Both signals and lookouts were employed. The whistle was blown substantially as for a highway crossing. The engineer and fireman were both on guard at their proper posts, and the collision with the single traveler who appeared could have been prevented even up to the time that it became apparent he was going to try to make the crossing, by means within the trainmen’s control. .The Baker case forbids the inference, as a just and rational conclusion from these facts, that the engineer was guilty of wantonness because of the speed of the train. Besides this, the speed of the train was not the cause of the collision. It was caused by the negligence of the plaintiff in blindly driving on the track and the omission of the fireman to' notify the engineer the moment the plaintiff’s determination became manifest.
The plaintiff was engaged in an active disregard of his own safety up to the last moment when he might have been saved, and consequently has no standing to invoke the doctrine of last clear chance.
In view of the findings of the jury and the instructions of the court, the judgment is reversed and the cause is remanded with direction to enter judgment for the defendant.
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Per Curiam:
The single question presented is whether or not the verdict is supported by the evidence. The inventory and account books are sufficient for that purpose. The oral testimony was conflicting. Its weight and credibility were matters for the jury to determine, and the conclusion that the documentary evidence was not overthrown can not be disturbed.
Judgment affirmed.
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Per Curiam:
This was an action of partition and. the principal questions which divided the parties were determined on a former appeal. (Stephenson v. Patton, 86 Kan. 379, 121 Pac. 498.) Judgment could not' be ordered at that time as the interest of one cotenant had not been determined. It was decided that the conveyance to Stephenson did not carry with it any claim, for rents and profits which had accrued to his grantors.. It was also decided that the rents and profits which Patton had received prior to the time Stephenson had' purchased an interest in the land exceeded the improvements made and the taxes paid by Patton and that it. was equitable to set off the former against the latter. The case was remanded with directions, and the trial' court appears to have correctly interpreted the mandate- and faithfully followed directions in the final disposition of the case. The only objection here is that no-part of the costs of the lasting improvements made by Patton prior to the time Stephenson acquired his interest in the land was credited to Patton in making an accounting betwen the parties as to rents and profits, of the land since the time of Stephenson’s purchase. That question was settled on the former appeal. As between Patton and his cotenants it was equitable-that the rents received and enjoyed by him should beset off as against the improvements he had made and the taxes he had paid, and since the benefits which he received exceeded his disbursements by way of improvements he has no ground for complaint.
The judgment is affirmed.
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The opinion of the court was delivered by
Mason, J.:
Alpha' G. Siegrist and Hazel Siegrist recovered a judgment against the Atchison, Topeka and Santa Fe Railway Company for causing the death of two- infant children of the plaintiffs, and the defendant appeals. The petition did not allege, nor did the proof show, the existence of facts sufficient to give the plaintiffs a cause of action under the statute. In their brief'it is stated that the action was brought as a common-law action, and the judgment is sought to be upheld upon the ground that under the common law the father can recover damages against one who negligently causes the death of his child. Many decisions are cited to the effect that a father, being entitled to the services of his minor child, has a cause of action against one who deprives him of them. But these decisions merely announce the general principle, and they are based upon acts which did not result in death. It is held that where a minor receives an injury which results in death, the father may recover for the loss of services between the time of the injury and the death, but no further. (8 A. & E. Encycl. of L. 856; 18 Cyc. 311.) The specific question involved is fully treated in a note in 41 L. R. A. 807, under the topic, “Common-law right of action of parent for loss of services of child killed.” The conclusion there reached, which appears to be fully sustained by the authorities, is that, in the absence of a statute, no action will lie by the parent for the death of a child, except in Georgia, and that even there no recovery is allowed in the case of a child too young to render valuable services. See, also, Note, 70 Am. St. Rep. 669. In this state it has been held that an action by a parent on account ©f the death of a child can be maintained only in virtue of the statute. (City of Eureka v. Merrifield, 53 Kan. 794, 37 Pac. 113.) In Kansas City v. Hart, 60 Kan. 684, 57 Pac. 938, it was held that a petition asking damages for the death of a child, which omits averments requisite under the statute, can not have the omission supplied by amendment after the period fixed by the statute of limitations has run. Language was there used which might seem to suggest that a good cause of action at the common law was stated. The averments of the petition, however, were referred to as indicating “an attempt” to state a common-law liability, and the amendment was obviously desired because it was seen to be necessary to the statement of a cause of action.
We feel constrained by these considerations to hold that the plaintiffs can have no recovery outside of the statute, and therefore their action must fail. We ca-n not regard the soundness of the reason back of the established rule as open to inquiry. The legislature, recognizing the defect of the eommon law, has undertaken to remedy it, and the statute passed for-that purpose must be regarded as covering the subject, and affording an exclusive remedy. This view makes it unnecessary to examine the other matters argued.
The judgment is reversed, and the cause remanded with directions to render judgment for the defendant.
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The opinion of the court was delivered by
Porter, J.:
Accusations were filed charging the defendant with the violation of permanent injunctions issued against certain premises under the prohibitory liquor law. The trial court found him guilty of contempt, and the only contention raised by the appeals is, that in neither case was there evidence to sustain the judgment.
While the evidence connecting the defendant with the premises where the liquors were found was circumstantial, we think it was sufficient to support the judgments. In one case the sheriff and deputies who raided the premises testified that the defendant.was in charge of the place; that he at once telephoned to one Bishop to bring the key to the frame building where two cases of beer were found. Bishop, who was accused jointly with the defendant, testified that he held a revenue license for the sale of liquor in the frame building. There were some inconsistencies in the testimony of the witnesses for the defendant, but the trial court heard the evidence and had the opportunity of observing the appearance and the demeanor of the witnesses and his finding is conclusive. In the other case the existence of the nuisance was likewise established beyond question; and the testimony of a number of witnesses showed that the defendant appeared to be in charge of the place. The sheriff testified that the defendant was in the habit of going to the place as early as eight o’clock in the morning and remaining during the day and evening. Several witnesses testified to his conduct at the time the raid was made, and we think there was sufficient evidence to warrant the court in finding that he was in charge of the premises where the nuisance existed.
There being some evidence to sustain the judgments, they will be affirmed.
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Per Curiam:
The only question presented by the motion for rehearing is the question of res judicata. The paragraph relating to this subject in the original opinion (Gille v. Emmons, ante, p. 462, 464, 138 Pac. 608) is withdrawn. The trial court made no ruling upon the question of res judicata, and the question remains open for the determination of any court of competent jurisdiction which may try the case.
The motion for rehearing is denied.
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Per Curiam:
U. G. Mason and W. L. Johnston were partners in the live-stock business. To facilitate the enterprise they leased a farm in Johnson county, which Mason conducted while Johnston operated at the Kansas City stockyards. They acquired considerable property, including some cattle which were kept on the farm and which were mortgaged to secure the purchase price. Dissensions arose between the partners, and Johnston commenced an action against Mason for an accounting and for dissolution. An order was issued restraining Mason from disposing of the partnership property, which was set aside on December 11, 1911. After the restraining order was set aside, but on the same day, Johnston undertook to make a sale of all the partnership property to Eugene Bauman. Mason refused to surrender possession, and Bauman brought an action of replevin to enforce his demand. A writ was duly issued under which Bauman secured the property, including the cattle referred to, which he sold. Out of the proceeds of the sale he discharged the chattel mortgages. On the trial of the replevin action Mason recovered judgment for the value of all the property obtained by Bauman in the sum of $7470.75. Bauman appeals and assigns various errors.
In his brief and at the hearing in this court Mason called attention to facts occurring subsequent to the rendition of the judgment, which led the court to question the right of the appellant to be heard. Time was given each of the parties to make a showing, with the following result:
Bauman was made a party to the accounting suit between Johnston and Mason, filed an answer, and participated in the proceedings. The court found that the judgment in the replevin suit was not the property of Mason, but was the property of the partnership and was obtained by Mason for its benefit. From the face of the judgment the court deducted the sums paid by Bauman to discharge the chattel mortgages on the cattle, in the sum of $2962.08, and the balance only, in the sum of $4695.44, was treated as assets of the partnership. On a statement of the partnership accounts it appeared that a certain firm obligation for $1250 should be.paid by Johnston and Bauman, and that when this payment should be made Mason would be entitled to the sum of $871.48 as his share of the partnership assets. Judgment was rendered in Mason’s favor against Bauman for this sum, and against Bauman on the obligation referred to. It was then provided that on compliance with-these orders the judgment in the replevin case should be satisfied in full. The parties have all acquiesced in this result of the accounting suit.
The judgment appealed from now has no other effect than that given it in the accounting case, and if it were reversed, and if Bauman should ultimately recover, he would be confronted by the judgment in the accounting case, which has become final. Consequently the propriety of the judgment appealed from is no longer a matter of consequence. It has been established by a long line of decisions that the court will not hear appeals for the decision of purely moot questions.
The appeal is dismissed.
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The opinion of the court was delivered by
Burch, J.:
The city of Ottawa undertook to improve several of its streets. To that end contracts were let to N. E. Stucker. Stucker sublet a portion of the work to Lightfoot Brothers, who failed before performance. The action was brought by W. E. Griffith, who is the assignee of laborers and material-men having claims against Lightfoot Brothers. The defendants are the obligors in a bond given by Stueker to the state of Kansas, and the surety in a bond given by Lightfoot Brothers to Stueker. The defendants recovered and the plaintiff appeals.
Chapter 179 of the Laws of 1887 (Civ. Code of 1909, §§ 661, 662) provides as follows:
“That whenever any public officer shall, under the laws of the state, - enter into contract in any sum exceeding one hundred dollars, with any person or persons, for the purpose of making any public improvements, or constructing any public building or making repairs on the same, such officer shall take from the party contracted with a bond with good and sufficient sureties to the state of Kansas, in a sum not less than the sum total in the contract, conditioned that such contractor or contractors shall pay all indebtedness incurred for labor or material furnished in the construction of said public building or in making said public improvements.
“That such bond shall be filed in the office of the clerk of the district court of the county in which such public improvement is to be made or such public building is to be erected; and any person to whom there is due any sum for labor or material furnished, as stated in the preceding section, or his assigns, may bring an action on said bond for the recovery of said indebtedness: Provided, That no action shall be brought on said bond after six months from the completion of said public improvements or public building.”
Before beginning work Stueker gave a bond that he would faithfully perform the obligation of his contract according to the plans and specifications furnished by the city. No relief is sought on this bond. After work on certain streets had been fully completed according to contract, but before the city had accepted the work, the city took from Stacker a bond to the state of Kansas, conditioned as follows: ...
“Now, therefore, if the said N. E. Stacker shall- well and truly pay all indebtedness incurred by him for labor or material furnished in the construction of said improvement according to law, then the obligation shall be void and of no effect, otherwise to be and remain in full force.”
This bond was not. filed with the clerk of the district court, but it covered improvements of street's included in Lightfoot Brothers’ subcontract, -and the plaintiff seeks the benefit of it. The court is of the opinion that it may be enforced by the pláintiff ás a statutory bond.
It is said that the bond limits liability to the indebtedness incurred by the contractor alone, the language, being “indebtedness incurred by him.” All labor and material expended on improvements embraced in Stucker’s contract were furnished by him, whether furnished directly or furnished indirectly through Light-foot Brothers, whom he employed. ' Stucker’s contract with the city expressly provided that he should furnish the bond to secure claims for labor and material required by chapter 179 of the Laws of 1887, and the execution of the bond to the state shows an intention to comply with the contract and with the law. The purpose of the statute was to protect the contributions of laborers and materialmen to public works. Where mechanic’s liens are allowed, as upon public buildings, the statute furnishes additional security. (Comm’rs of Jewell Co. v. Manufacturing Co., 52 Kan. 253, 34 Pac. 741.) Where mechanic’s liens are not possible, as upon street improvements, the purpose was to secure laborers and materialmen against loss by a quasi mechanic’s lien, the lien being upon the bond instead of upon the property; and the language of a bond tendered in compliance' with the statute will be construed as designed to accomplish the end which the legislature had in view.
The statute under consideration is analogous to the one enacted to protect laborers and others who aid in the construction of railroads, which requires railroad companies to take from contractors bonds to pay to laborers, mechanics, and materialmen all just debts incurred in carrying on construction work. (Gen. Stat. 1909, § 7006.) Such bonds protect laborers and materialmen employed by subcontractors. (Wells v. Mehl, 25 Kan. 205; Mann v. Corrigan, 28 Kan. 194; Parkinson & Co. v. Alexander, 37 Kan. 110, 14 Pac. 466.) On account of the peculiar wording of this statute the bond provided for covers supplies in the nature of goods and provisions only when furnished to the contractor. . The weight of áuthority is that a contractor’s statutory bond given to secure the payment of claims for labor performed and material furnished in making municipal improvements is available to those who deal with subcontractors. (Note, 27 L. R. A., n. s., 588, 593.) If this were not the law, it would be very easy for public contractors to defeat the statute and perpetuate the evils it was designed to remedy.
It is said that the obligation of the bond was not perfected by filing the instrument in the proper office. The requirement of the statute that the bond shall be filed with the clerk of the district court was intended for the benefit of laborers and materialmen who might have occasion to enforce it. The purpose was to preserve the instrument and make it easily accessible. The obligation.was complete when it was executed and delivered.
It is said that the bond was given upon a past consideration, and consequently that it is unenforceable. The bond was given pursuant to a statutory duty which had not been discharged, and delay on the part of the city officials and the contractor in preparing and delivering the instrument necessary to fulfill the requirement of the statute could not invalidate it.
Lightfoot Brothers as principal and the American Fidelity Company as surety executed and delivered to Stucker a bond reading as follows:
“Whereas, said principal has entered into a certain contract in writing bearing date of April 11th, A. D. 1910, with the said N. E. Stucker to macadamize certain streets in the City of Ottawa, Kansas, and for furnishing crushed stone, which contract is hereby referred to and made a part hereof.
“Now, therefore, if the said Lightfoot Brothers shall well and faithfully perform all of its obligations under said contract and shall pay all bills for labor and material used in the performance of said contract and shall hold the said N. E. Stucker harmless from any and all loss, costs or expense on account of injury to any person or persons or property, then this obligation shall become null and void, otherwise to remain in full force and effect.”
The court is of the opinion that this bond is available to the plaintiff. Stucker stood toward Lightfoot Brothers and their laborers and materialmen in the same relation that the city stood toward Stucker and his laborers and materialmen. The weight of authority is that without any statute the city could take a bond from Stucker conditioned to pay all laborers and materialmen, upon which they could sue directly. (2 Dillon, Municipal Corporations, 5th ed., § 830, p. 1266; Note, 27 L. R. A., n. s., 581.) The reasoning by which the right of laborers and materialmen to sue on such bonds is established applies here.
It is said that the surety company can be liable only on two conditions: First, that some privity existed between Stucker and the laborers and materialmen because of some duty or obligation in the premises owed by him to them; and, second, that the object of the bond was to benefit the laborers and materialmen directly and not merely incidentally. Both conditions are clearly present. Stucker was obligated by law and by his contract with the city to provide security for the payment of the claims of Lightfoot Brothers’ laborers and materialmen. These claims were debts of Light-foot Brothers and not of Stucker. They were primarily liable to their own laborers and materialmen. Stucker was in effect only a surety of his subcontractor, and the very purpose and object of the bond was to secure payment by Lightfoot Brothers of their own debts, a matter of direct and special importance to those to whom they were indebted. This being true, a long line of cases, extending from Anthony v. Herman, 14 Kan. 494, to Ballard v. Bank, post, and Wood v. Bank, post, establishes the right of the laborers and materialmen employed by Lightfoot Brothers to ado.pt the bond and enforce it by action brought directly against the surety company which signed i-t.
It is said that the laborers and materialmen could not take advantage of the bond unless they knew of it and acted upon the faith of it. In the following cases the court has held to the contrary: K. P. Rly. Co. v. Hopkins, 18 Kan. 494; Mfg. Co. v. Burroughs, 40 Kan. 361, 19 Pac. 809; Stewart v. Rogers, 71 Kan. 53, 80 Pac. 58; Ballard v. Bank, post; Wood v. Bank, post.
The contract of Lightfoot Brothers with Stucker shows that they were subcontractors and not mere laborers and materialmen.
The plaintiff sued on a bond not heretofore mentioned, relating to work on a particular street. It was good as a statutory bond, but it was conceded at the hearing in this court that the right to relief upon it was barred by the statute of limitations. Consequently it may be regarded as eliminated from the case.
The plaintiff is entitled to recover on Stucker’s bond for those claims only which represent indebtedness incurred for labor or material furnished in making street improvements, and on the surety company’s bond for those claims only which represent bills for labor and material used in the performance of Lightfoot Brothers’ contract. It is contended that some of the plaintiff’s claims fall outside these classes. The question can not be determined here from the findings of fact in their present form. Should the district court conclude that there is anything substantial in the contention, the' findings should be extended to cover it. Perhaps this can be done on the evidence already taken.
The judgment of the district court is reversed and the cause is remanded with direction to proceed as indicated and to render judgment in favor of the plaintiff for the sums found to be due him.'
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The opinion of the court was delivered by
West, J.:
The plaintiff contracted to sell a tract of land for a certain quantity of wheat to be grown thereon during a term of years. The grantee transferred his interest to another, who rented the land to Lang, who permitted Augustine to farm a part of it. The plaintiff sued to recover back the land for default of payment, and also sued to recover the wheat raised by the tenants last named. It was decided that she was entitled to only a portion of the crop, and the two tenants, Lang and Augustine, recovered a judgment against her for $192.52 for wheat which she had by her agent Nelson threshed and sold. Afterwards Lang sued Nelson in justice court for conversion of certain kaffir corn, hay and straw, and recovered a judgment among other things for $2.25 for straw taken August 27, 1910, by Nelson at the time he was threshing the wheat for the plaintiff herein. Nelson paid the judgment, and thereafter the plaintiff in this action moved the district court to order the $192.52 judgment canceled; which was refused, and the plaintiff appeals.
Her theory is that as the straw for which the judgment for $2.25 was recovered and paid was taken by Nelson while acting as her agent the principal and agent were joint tort feasors, and that Nelson having settled for his part of the joint tort no further liability exists against his former principal. Upon refusing the motion to cancel the judgment against the plaintiff herein the court made findings of fact, and in No. 5 expressly found that in the former suit against Lang and Augustine no recovery was sought nor finding made as to straw, and that in the subsequent case in the justice court against Nelson no recovery was had or finding made concerning wheat; that in the former case no finding was made of the exact nature of the rights of either Lang or Augustine in the straw converted by the plaintiff, as to whether they were joint owners or owners severally, or how much of the wheat belonged to either. The court also found that Nelson testified that three or four days before the threshing and conversion of the wheat he bought the land on which it was grown, and the taking of the wheat and straw was one transaction. An attempt was made upon the hearing of the motion to show the respective interests of Lang and Augustine in the wheat converted by Nelson’s former principal, which so far as it went indicated that of the straw in question Lang owned about four-fifths and Augustine about one-fifth, less the rental due the landowner. Suffice it to say that the straw involved in the case in justice court was not a subject of litigation of the former case in district court. The parties were different, the subject matter was different, and if Nelson was in fact the owner of the land before he -disposed of the wheat he could not well have been acting as the agent of the plaintiff. On the other hand, if he was acting for her in converting certain wheat it does not necessarily follow that she had anything to do with straw converted by him, and the apparent finding of the justice that the straw was taken at the time of the threshing of wheat for the plaintiff is not conclusive that it was for her benefit or by her connivance any more than that the kaffir corn for which the justice awarded a judgment of $9 is chargeable to the plaintiff. The judgment against the plaintiff is a joint judgment in favor of Lang and Augustine, and neither claimed or recovered anything in the former action against Nelson. Indeed, he was not a party thereto.
Assuming without deciding that the plaintiff’s theory that only one possible satisfaction for a joint tort is correct, before she can justly demand a,cancellation of her judgment she must show that it was in fact recovered for a joint tort so that its payment is necessarily a finality.
The following decisions shed some light on the question at issue: Westbrook v. Mize, 35 Kan. 299, 10 Pac. 881 W. & W. Rld. Co. v. Beebe, 39 Kan. 465, 18 Pac. 502; Edens v. Fletcher, 79 Kan. 139, 98 Pac. 784; Brush v. Rich, 83 Kan. 531, 112 Pac. 158; Routh v. Finney County, 84 Kan. 25, 113 Pac. 397; Clifton v. Meuser, 88 Kan. 408, 129 Pac. 159; Wardell v. McConnell, 25 Neb. 558, 41 N. W. 548.)
From the record, including the findings, we find no error in the refusal to cancel the judgment, and such ruling is affirmed. .
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The opinion of the court was delivered by
Porter, J.:
The plaintiff’s son, nineteen years of age, was killed while at work in an underground coal mine owned and operated by the defendant. His death was caused by the fall of a heavy rock from the roof of the room in which he was at work. The mother recovered a judgment of $2000, from which the defendant has appealed.
The only negligence alleged is the violation of the statute (Laws 1883, ch. 117, § 6, Gen. Stat. 1909, § 4987) which requires that mines of this character shall be supplied with prop timber of suitable length and size, and easy of access. The defendant demurred to the evidence, requested an instructed verdict, moved for judgment on the special findings, and also for a new trial; the court ruled against defendant on all these matters, and the principal contentions raised by the appeal are, that the plaintiff failed to show that deceased had made a request of defendant for props; that there was no evidence of a willful violation of the statute, and further, that the evidence shows that the injury was caused by the negligence of the deceased.
All these contentions have been foreclosed, either by the facts which the jury determined against the defendant, or by former decisions of this court, to which brief reference will be made. In Ozorkiewicz v. Carr, 83 Kan. 473, 112 Pac. 135, where the alleged negligence of the defendant was the failure to comply with this provision of the statute, a judgment sustaining a demurrer was reversed on the ground that both the question as to whether the defendant had violated the law by neglecting to furnish suitable props as well as the question whether such failure was willful was for the jury to determine, and that it was error to decide these questions upon a demurrer to the evidence. The claim of contributory negligence is based upon the fact that the rock which fell was called a “pot rock,” which experienced miners know is liable to fall at any time; that Henry LeRoy was an experienced miner and knew the danger of the rock falling, and therefore was guilty of contributory negligence in remaining at work in a position in the room where, if the rock fell,, it would injure him. If contibutory negligence were a defense to an action under this statute, the question whether he was negligent was one which the jury have also determined against the defendant.
In the special findings they say that it was necessary for him to be all over the room in the performance of his duty, and they find that he did not consider the rock unsafe without propping, although he had requested that props be furnished. But contributory negligence is no more available as a defense under the mining statute than under the factory act. (Caspar v. Lewin, 82 Kan. 604, 629, 109 Pac. 657; Cheek v. Railway Co., 89 Kan. 247, 131 Pac. 617; Slater v. Railway Co., ante; p. 226, 137 Pac. 943.)
The purpose of the legislature was to prevent as far as possible the awful toll of death and disaster occasioned by carelessness and indifference on the part of mine operators in failing to take proper measures for the safety of' their employees in underground mines.
The findings are, that at this mine, and in other mines in the district, the general supply of props is kept at the top of the mine. Usually a supply is kept, also, at what is known as the “parting” of the entries. It is the custom for a miner, when he desires props, to notify his driver, and for the driver to request the props from the boss driver, who is stationed at the “parting.” The boss driver then furnishes to the driver the props from the supply kept there or, if necessary, obtains them from the general supply. The ■driver loads the props on his car and delivers them to the miner at the room where they are wanted. This had long been the custom and was well known to all the employees of defendant. On the morning previous to the accident Henry LeRoy requested from his driver that props be furnished him 2 ft. 10 in. long. They were not supplied. He made another request to the same effect to the driver on the morning of the accident, about half an hour before the rock fell. The driver testified that he communicated the request to the boss driver, but the jury disbelieved his testimony and found that he had not communicated it to any one. The jury find further that if the request had been complied with Henry LeRoy would have used the props for the purpose of preventing the fall of the rock in question.
There is no provision in the statute that a demand must be made by the miner and served upon the owner or boss of the mine before the obligation of the statute arises. The provision is that the mine shall be supplied with prop timber of suitable length and size and kept easy of access. • As said in the Ozorkiewicz case, “whether this requirement was complied with was manifestly a question of fact” (88 Kan. 475), for the jury to determine.
The point is made that there was no evidence showing willfulness on the part of the defendant in failing to comply with the provision of the statute. Section 12 of the original act (Gen. Stat. 1909, §4992) gives a cause of action for loss of life “occasioned by any violation of this act, or any willful failure to comply with its provisions by any owner, lessee or operator,” and the defendant insists there was no evidence showing willfulness in failing to comply with the provisions of the statute. The defendant established its own method of conducting the operations of this mine, including the method and means for complying with its statu tory obligation in respect to furnishing prop timber. It made the driver its agent to receive and forward requests for props and to deliver the props to the miners. It must have realized that drivers were likely to become careless and indifferent, and at times would fail to perform these duties. Having chosen the method by which the mine was operated, it is responsible for a failure resulting from any deficiency in the means by which its statutory obligation was to be complied with. Its primary duty was to furnish suitable props and keep them easy of access to the miners, whose safety and lives depended upon the performance of this duty; and it can not be permitted to avoid its liability for failure to comply with the statute because some agency employed by it has proved untrustworthy.
The legal question involved in this contention has already been decided adversely to defendants in Cheek v. Railway Co., 89 Kan. 247, 131 Pac. 617. An instruction was approved in that case which told the jury “that a corporation must act through agents; that if a duty which the corporation must perform be delegated to one of its agents, he becomes a vice principal, taking the place of the corporation itself; and that the corporation is. liable if he fails to perform the duty delegated to him.” (p. 269.) In the opinion “willful failure” as employed in the section of the statute now under consideration was construed and the law was declared as follows :
“In the case of omissions neither bad purpose nor determined obstinacy is essential to create liability, and if one charged with the duty to observe the statute intentionally suffer mining operations to proceed without taking prescribed precautionary measures, he is guilty of a willful failure within the meaning of the law.” (Syl. ¶ 8.)
We find no error in the record and the judgment is affirmed.
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The opinion of the court was delivered by
Mason, J.:
Upon full consideration of a petition for a rehearing, the court adheres to the views already expressed upon the merits of the case. (Epp v. Hinton, ante, p. 513, 138 Pac. 576.) The appellants specifically ask, however, that in the event of the overruling of the petition for a rehearing the order already made be modified so that upon the further trial evidence may be introduced upon the actual value of the dry land, as well as upon what its value would have been had it been irrigable. The defendants say that, relying upon the proposition that no evidence had been introduced upon the latter proposition, they did not feel called upon to offer evidence upon the former. No injustice can result from a full examination of the matter, and the amendment asked for will be made.
The petition for a rehearing is denied, but it is directed that the district court, upon such evidence as the parties shall offer, shall find the actual value of the land, and what its value would have been had it been irrigable, and render judgment for the difference.
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The opinion of the court was delivered by
West, J.:
In 1906 one of the plaintiffs, on behalf of both, entered into a written contract with one N. D. Rand concerning about fifty head of cattle which were ■owned by the plaintiffs and placed in charge of Rand. The petition alleged that about two years later Rand delivered to the defendant seventeen head of these cattle; that the plaintiffs demanded their return, which was refused, and they prayed judgment for their alleged value, $610. They recovered judgment for $190 ■and the defendant appeals.
Various rulings are complained of, but the assignments of error are mostly based on the theory that the plaintiffs and Rand owned the cattle in partnership, and that as the plaintiffs allowed him to have possession and appear to be the owner they are estopped to deny his authority to sell and pass title. The portions of the contract relating to the original herd are as follows:
“The said J. A. Simmons furnished to the said M. D. Rand, fifty head of cows branded J. S. on left hip, also ■one bull registered, white faced, called Barnard, to keep on the terms hereinafter named for a term, of three years from this date to-wit:
“The said Rand is to receive said cows at Clements, Kansas, to feed and care for the same and to breed the cows to said bull and divide the first year’s increase at the end of the second year, to-wit: on October 15th, 1908, and the increase of the said stock for the next two years at the end of this contract to-wit on October 15th, 1909. ... At the end of said term the said Rand is to return to the said J. A. Simmons all the -original herd above named with the following shrink, the cows are to be valued at $20.00 each and the bull at $60.00. The said J. A. Simmons is to stand a shrink six per cent in value for the first year, and any loss •above that is to be borne two-fifths, by the said Simmons and three-fifths by the said Rand. If the bull dies or becomes disabled he is to be replaced by the ■said Simmons but the said Simmons need not replace any cows that die. The said Simmons is to pay the taxes on the said original herd of cattle.”
According to the terms of this contract Rand was as to the cattle composing the original herd a bailee and not a partner, the cattle furnished by the plaintiffs still belonging to them and to be returned to them at the time specified. (Shepard v. Pratt, 16 Kan. 209; Rider v. Hammett, 63 Kan. 733, 66 Pac. 1026; Beard v. Rowland, 71 Kan. 873, 81 Pac. 188; Concannon v. Rose, 9 Kan. App. 791, 59 Pac. 729.)
The answer set up the ignorance of the defendant that the plaintiffs claimed to be the owners of the cattle, and an alleged estoppel arising from their acquiescence in or ratification of Rand’s dealing with them. The defendant complains of the refusal of an instruction to the effect that if the plaintiffs knowingly permitted Rand to deal with the cattle as his own and ratified sales or exchanges made by him they would be estopped to deny title in him of the cattle sold to the defendant. While a proper instruction upon the subject ought, if offered, to have been given it was not error to refuse the one requested as it failed to confine the effect of such estoppel to one deceived by such permission and ratification. There was no showing that the defendant had been misled by such alleged conduct on the part of the plaintiffs, and unless he was it is not perceived how it could constitute a defense.. (Dent v. Smith, 76 Kan. 381, 92 Pac. 307.) The mere fact that the cattle were in Rand’s possession would no more authorize him to sell them than the possession of a livery team would authorize the bailee to sell and pass title to property hired for temporary use. (Ladd v. Brewer, 17 Kan. 204.) An instruction that if the jury found that Rand sold some of the plaintiffs’ cattle to the defendant the only other question would be as to the amount of recovery is criticised, but as it left it for the jury to say whose the cattle then were (plaintiffs’ or Rand’s) no error is apparent. It is suggested that as Shaft innocently bought the cattle, knowing nothing of any claim by the plaintiffs, he was less negligent than they and should not be the one to suffer the loss. There was testimony, however, indicating that most of the cattle were branded in a way which might -cause a prudent purchaser to inquire into their real ownership. At any rate no instruction on this point was requested, and the jury with all the facts found generally in favor of the plaintiffs and no error is apparent in such finding. Complaint is made of an instruction touching the burden of proof, which though, not happily worded we do not find to have been materially prejudicial.
A motion for. a' new trial was supported by an affidavit setting forth alleged newly discovered evidence, but this appeared to be cumulative and hence was-insufficient. (Daly v. Gregg, ante, p. 506.)
The judgment is affirmed.
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The opinion of the court was delivered by
Johnston, C. J.:
In this action, begun May 7, 1912, the appellants, E. T. Arnold & Company, sought to recover damages in the sum of $5000 from appellees on an abstractor’s bond given by O. C. Barner, as principal, and M. R. Barner, W. A. Brown and F. E. Marsh, as sureties. In the petition the appellants alleged that Barner was engaged in the business of making abstracts of title to real estate, and as a condition precedent he gave a bond in the sum of $5000, dated March 29,1909, and approved on April 9,1909, with the above-named parties as sureties, conditioned, among other things, that “O. C. Barner shall well and properly demean himself in the business of abstracting,” and after some provisions to the effect that he would not mutilate or destroy public records nor interfere with or delay public officers in the performance of their duties and would become liable for a violation of these requirements it was further recited that:
“O. C. Barner shall be liable to any person or persons for whom said O. C. Barner may compile, make or furnish abstract of title to the amount of damage done said person or persons by any incompleteness, imperfection or error made by said O. C. Barner in compiling said abstract, and shall honestly and faithfully discharge and perform such other duties as abstractor as are prescribed by law, then this obligation shall be void, otherwise to remain in full force and effect.”
It is alleged that on February 9, 1909, Barner was employed by a former owner of the land involved herein to examine the records and prepare an abstract of title to the land, and that he made one which purported to be correct and complete up to and including February 9, 1909, that later, at the request of another, he posted and recertified the same abstract down to April 22, 1909, and that on June 24, 1909, Barner was employed by one O’Meara to continue and recertify the abstract down to and including the 24th day of June, 1909, and that the abstract made and so recertified by him was incorrect and incomplete in that he failed to note that a mortgage for $3200 belonging to Jere Culham had been given while the existence of the mortgage, the name of the mortgagee, the amount of the debt secured and the rate of interest which the debt brought were all clearly shown by recitals in three conveyances of the land which were on record. One of these conveyances was recorded on January 8, 1909, another on January 12,1909, and still another on January 28, 1909. It was averred that O’Meara sold the land to appellants, stipulating that it was free and clear of all incumbrances except a certain mortgage of $2600 in favor of Coleman Puett, and that he employed and paid Barner for reissuing and recertifying the abstract up to date, but that the abstract so furnished omitted any mention of the Culham mortgage of $3200, and that appellants, relying upon the abstract, purchased the land and paid the agreed purchase price. It was further averred that an action was brought to foreclose the Culham mortgage, in which it was adjudged to be an incumbrance upon the land, and appellants were compelled to pay the mortgage debt as well as the costs and attorneys’ fees, which amounted to $5000, as the grantors of the land were insolvent and unable to respond in damages for the breach of the covenants of warranty of their respective deeds. The court sustained a demurrer to appellants’ petition, and this ruling is brought here for review.
It is contended that as the abstract was not made for appellants, and no direct contract relation had with them, there is no liability of the abstractor to them. In the statute as it existed prior to 1908 it was provided that the abstractor should be liable to the person or persons for whom the abstract was compiled, and under that statute it was held that there must be privity of contract to create liability, and therefore there could be no liability to third persons. (Laws 1889, ch 1; Mallory v. Ferguson, 50 Kan. 685, 32 Pac. 410, 22 L. R. A. 99; Allen v. Hopkins, 62 Kan. 175, 61 Pac. 750.)
After these decisions had been rendered the statute was changed and the liability on the bond extended so as to include all damages caused to any person or persons by reason of the incompleteness, imperfections or errors made by the abstractor. (Laws 1903, ch. 1, Gen. Stat. 1909, § 1690.) Instead of confining the liability of the abstractor to the person who employs him, it was the evident purpose of the legislature to broaden the liability and extend protection to any person or persons who purchased or invested in land on the faith of an examination and abstract made by a bonded abstractor for that purpose, regardless of who ordered or paid for the abstract. A statute of Nebraska provided for a liability upon an abstract in somewhat similar terms, and it was held that the legislature intended to extend the abstractor’s liability beyond the limitation fixed by the common law, and that any person Vho purchased or invested in land, relying on an abstract furnished by an abstractor, was within the provision of the statute and the protection of the bond. (Gate City Abstract Co. v. Post, 55 Neb. 742, 76 N. W. 471; see, also, Goldberg et al. v. Loan & Title Co. et al., 24 S. Dak. 49, 123 N. W. 266; Economy B. & L. Ass’n v. West Jersey Title Co., 64 N. J. Law, 27, 44 Atl. 854; West. Loan & S. Co. v. S. B. A. Co., 31 Mont. 448, 78 Pac. 774, 107 Am. St. Rep. 435; Anderson v. Spriesterbach, 69 Wash. 393, 125 Pac. 166.)
It appears that the original abstract herein was prepared about two months prior to the time that the abstractor’s bond was accepted and approved, and ordinarily there would be no liability upon the bond for negligent omissions and errors of the abstractor previous to its execution. However, it is specifically alleged that the abstract as originally prepared was reissued and recertified by the abstractor as a correct and complete abstract under an agreement with O’Meara, the grantor of appellants, who delivered it to appellants, and that they, relying on its correctness, purchased the land and suffered loss through the negligent errors and omissions of the abstractor that have been mentioned. If the abstract was then reissued and recertified as a whole, as alleged, the abstractor is liable to- the extent that he would have been if a new and complete document had been made at the time of reissue. Ordinarily an abstractor who is employed to bring up to date ah abstract previously made is only expected and required to examine and certify as to matters which have been brought on the records during the intervening period, and in such event his liability would be limited to such errors as were made in the extension of the abstract. If, however, he undertakes to examine the entire records and to reissue the abstract which he had previously prepared, and he then represents and certifies that it is a complete .epitome of all the facts affecting the title from the beginning to the time of reissue the abstractor would be liable not only, for omissions and errors in the extension of the abstract but for those in the original abstract. (Bremerton Development Co. v. Title Trust Co., 67 Wash. 268, 121 Pac. 69.)
There is a contention that the terms of the bond do not cover any liability except such as may arise in favor of the persons for whom the abstract was compiled and made. It is true that a condition of the bond is to the effect that the abstractor shall be liable to the person for whom the abstract is made, but it contains other conditions as well. One is that the abstractor “shall well and properly demean himself in the business of abstracting,” and that can only be done by the performance of his duties as the law provides. Another condition of the bond is that he “shall honestly and faithfully perform such other duties as abstractor as are prescribed by law.” By this provision the sureties undertake that the abstractor will comply with the statutory provisions respecting abstracting. The provisions of the act of 1903 are, in effect, carried into the bond, and the abstractor and his sureties are therefore liable on the bond as that act provides, and, as we have seen, a liability arises in favor of others than the one who employed the abstractor.
There is a contention that the action sought to be set up by the appellants is barred by the statute of limitations. It is insisted that the cause of action against the abstractor accrued on February 9, 1909, and the action would, therefore, be barred on February 9, 1912, while the action was not commenced until May 7, 1912. Assuming that the action is based on a liability created by statute and is within the three-year limitation, as appellees contend, it is, nevertheless, not barred as it was brought less than three years after the abstract was reissued under the agreement with O’Meara. The petition alleges that the abstract was reissued and recertified on June 24,1909, and the action was brought in less than three years after that time. It is true, as appellees contend, that the statute begins to run from the time the abstract is furnished rather than from the time the negligent errors or omissions are discovered or when damage results from them. (Russell & Co. v. Abstract Co., 87 Iowa, 233, 54 N. W. 212, 43 Am. St. Rep. 381; Note, 12 A. & E. Ann. Cas. 410.) Taking the averments of the petition the statute had not run as to the reissued abstract.
Holding that the petition states a cause of action, it follows that the judgment of the district court must be reversed and the cause remanded for further proceedings.
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The opinion of the court was delivered by
West, J.:
The plaintiff sued to enjoin the collection of a sidewalk tax on the ground that the walk had been built by the city without lawful authority — that is, by resolution and not by ordinance as required by statute (Gen. Stat. 1909, § 1374), and being defeated he appeals. The pleadings and rulings were such that the only question necessary to be determined concerns ti e alleged lack of authority. It is conceded that an ordinance was indispensable, but the city claims that a proper and sufficient one was in force. It appears that at some previous time the city had enacted ordinance No. 157, entitled “An ordinance relating to the sidewalks, and prescribing the width, material, manner of constructing sidewalks in the City of Marysville, the width of space reserved therefor, and repealing all ordinances in conflict therewith.” In addition to prescribing the width, space, material and manner of construction, the procedure incident to the ordering of a sidewalk and its construction was prescribed by section 4, which in effect provided that upon the presentation of a proper petition a walk could be ordered built by resolution followed by a certain prescribed notice. A proper petition was presented and granted, and the walk was ordered constructed, proper notice was given, and the tax was levied by an ordinance duly enacted. If this all amounted to a compliance with the statutory requirement, then the tax was valid and the injunction was rightfully refused.
The plaintiff’s theory seems to be that a general ordinance like No. 157, authorizing the council to proceed by resolution upon the presentation of a proper petition, falls short of the requirement, and the case of Dilts v. Stockton, 73 N. J. Law, 158, 62 Atl. 448, is cited. It was there held that as the statute required the common council to act by general or special ordinance, a general ordinance assuming to authorize action by resolution was insufficient. Here the general ordinance itself disposed of many matters touching any walk thereafter to be laid, and expressly required each one contracted to be petitioned for, a proper notice to be given, and the adoption of a resolution. After these things were done the tax was levied by-ordinance, so that really the authority for the expense of the walk in question consisted of two ordinances and one resolution. The statute empowers cities of the-second class to enact ordinances for the following purposes :
“To open and improve streets . . . make sidewalks . . . for the purpose of paying for the same-shall have the power to make assessments in the following manner.” (Gen. Stat. 1909, § 1374.)
It has been held that it is necessary to act by ordinance in appointing a deputy marshal (Prell v. McDonald, 7 Kan. 426, 443); that a stone sidewalk is not authorized by an ordinance calling for a plank sidewalk (Sloan v. Beebe, 24 Kan. 343); that resolutions are not. sufficient to authorize the work of street improvement and the levy of a tax therefor (Newman v. City of Emporia, 32 Kan. 456, 4 Pac. 815); that a city can not. by resolution only build a walk, having “never enacted any ordinance regulating the procedure for the building of sidewalks” (Barron v. Krebs, 41 Kan. 338, 339, 21 Pac. 235). But considering the statute, the decisions, the ordinances and the resolution, we conclude and hold that the city acted in substantial compliance-with the statute, and in view of the requirements of the general ordinance-, supplemented by the petition,, the notice, the resolution and the ordinance levying the tax, the sidewalk was in fact and in law authorized by, ordinance. Municipal officers are presumed to act in accordance with the law (Kindley v. Rogers, 85 Kan. 645, 118 Pac. 1037), and there is no showing that the-walk in question did not conform in all respects to the-provisions of ordinance No. 157, and certainly, by means of the notice, the resolution, and the levying-ordinance, the abutting owner had full opportunity to be advised of the work and to make any desired protest, or resistance.
The question of estoppel is principally discussed, but the views already expressed make it unnecessary to consider or determine that question.
The judgment is affirmed.
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The opinion of the court was delivered by
Benson, J.:
The question to be decided is whether the indorsement of the promissory note, which is the subject of this action, is sufficient to constitute the plaintiff a holder in due course, as defined in the negotiable instruments law, in the circumstances disclosed in an agreed statement of facts.
The promissory note in question recites a promise “to pay to the order of Lew W. Cochran or R. F. Dygert.” It is agreed that the note was indorsed before maturity by Cochran, while he had it in his possession ; that he delivered, it to the plaintiff for value, who took it without notice or knowledge of any infirmity, or defect in title, and without any bad faith. It is also agreed that if the indorsement of Cochran was sufficient without the indorsement of Dygert, the defendants have no defense. The note was, however, indorsed by Dygert after its maturity.
Section 15 of the negotiable instruments law provides :
“The instrument is payable to order where it is drawn payable to the order of a specified person or to him or his order. It may be drawn payable to the order of: (1) A payee who is not maker, drawer, or drawee; or (2) the drawer or maker; or (3) the drawee; or (4) two or more payees jointly; or (5) one or some of several payees; or (6) the holder of an office for the time being. Where the instrument is payable to order, the payee must be named or otherwise indicated therein with reasonable certainty.” (Gen. Stat. 1909, § 5261.)
It will be observed that subdivision 4 refers to joint payees, while subdivision 5 refers to one or some of several payees. This instrument falls under this last subdivision. Section 48 of the same law declares that:
“Where an instrument is payable to the order of two or more payees or indorsees who are not partners, all must indorse, unless the one indorsing has authority to indorse for the others.” (Gen. Stat. 1909, § 5294.)
Construing this section with subdivision 4 of section 15, a note payable “to A and B” must, if the payees are not partners, be indorsed by both, but if payable “to A or B,” the order to pay is complete on the indorsement of either.
A statute of Iowa is identical with section 48 of our law. In an action in that state upon a promissory note, made payable “to the Royal Mutual Life Insurance Company, or Hugh Blackman,” the court said:
“It is manifest that the note before us does not fall within the terms of the statute, for the reason that it was not made payable to two or more payees or to their order. It was made payable to either one of two payees, and under Code Supp. section 3060a8, its indorsement by either one of the payees named therein would pass title. Under the last-named provision of the statute a note made payable to one or some of several payees is payable to the order of any of the payees named, and is negotiable.” (Union Bank v. Spies, 151 Iowa, 178, 179, 130 N. W. 928.)
While the provision of the Iowa code last referred to in the opinion differs in phraseology from section 15 of our negotiable instruments law, we believe the legal effect is the same. Without regard to that decision, however, it seems clear that where a note is made payable “to A or B” the indorsement of either constitutes the order and is sufficient. The district court so held, and the judgment is affirmed.
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The opinion of the court was delivered by
Benson, J.:
This is an action to recover damages for personal injuries.
The plaintiff was a laborer in a gang whose usual service was unloading merchandise, supplies and material, at the storeroom in the yards of the defendant company at Pittsburg. He had been engaged in this general work for about forty days before he was injured. In the last two weeks he had worked around the company’s storeroom, unloading oil, shovels, picks, and other articles received there. He had also worked with the same men unloading lumber, including timber for car sills. At the time in question the gang consisted of seven men. One of them, defendant Sorrensen, was a subforeman, called a straw boss. Defendant Loving was the foreman of the store department, and had general charge of the men working with Sorrensen, and also of other laborers. He employed and discharged the men.
On the day in question Loving directed Sorrensen to unload a car loaded with timbers 34 to 40 feet in length, 14 inches wide and 10 inches thick, designed for car sills. Loving was not present when the plaintiff was in j ured, and had not been for the preceding half hour. Sorrensen directed the men while laboring with them. The floor of the car was four and one-half or five feet above the ground, and about three feet higher than a platform at the side of the track. The car had been loaded to a height of ten feet above the floor. In unloading, two 4x4 oak skids nine to twelve feet in length were used, the sills being rolled upon the skids by the use of cant hooks, thence sliding down to the platform. After working .several hours the load was removed so far as to leave a clear space upon the floor on the side next to the platform. The method then pursued was to place one end of a skid upon the floor near each end of the car, and then to place the sill upon the ends of the skids, the other ends projecting out over the platform. The weight of the timber when pushed off the car would bring the outward ends of the skids down so that the sill would slide upon them. In continuing the work after so reaching the floor a sill forty feet in length was rolled over to the side of the car to be unloaded. Sorrensen and three of the men were upon the north end of the car, and the plaintiff and two fellow laborers were on the south end. Sorrensen stepped down to the ground, and as the north end of the sill was lifted up, thrust the end of a skid Under it, and resumed his place on the car. Ruddick, one of the men at the south end of the car, then stepped off and placed, or attempted to place, a skid under the sill there. Whether he succeeded or not is not clear; there is evidence, however, that the skid was not put under the sill, but the men at the north end pushed it off upon the skid there. In sliding down that skid the sill displaced the other skid so that it fell upon the platform, leaving one end projecting over it toward the track. The south end of the sill then fell upon this projecting end of the skid, which caused it to fly up over the car with great force, and strike the plaintiff, causing a serious injury.
The railroad company, Loving, and Sorrensen were sued jointly for negligence in failing to furnish the plaintiff a safe place, safe appliances, and competent and sufficient workmen, and in failing to provide proper rules for the work. It is charged that there was negligence in requiring the men to do this dangerous work under the direction of Sorrensen, who, it is alleged, was inexperienced and incompetent; in furnishing insufficient skids; in the failure to provide hooks or other means of securing the skids from slipping from the car, and in requiring the work to be-done by hand when a derrick or crane should have been, provided. It is also charged that Sorrensen was negligent in throwing one end off before the plaintiff and’ his fellow laborers at the other end had placed it upon the skid there.
Special findings were made as follows:
“1. If you find that one of the skids slipped or fell', from from the car, state what you find caused it to fall. Ans. North end of sill being pushed off first.
“2. State whether or not the plaintiff knew the-kind and character of skids that were being used at the-time he was hurt. Ans. Yes.
“6. Was there any risk or danger connected with, the using of said skids not known to plaintiff? Ans. Yes.
“7. If you answer question number six in the affirmative, then state what it was. Ans. Working with inexperienced men.
“8. Whose duty was it to employ and discharge the men working with plaintiff at the time in question?' Ans. Claud Loving.
“10. If you find a verdict against the defendank Sorrensen state in what way he was careless or negligent? Ans. By not having sill properly placed on. skids.
“11. If you find a verdict against defendant Loving-state in what way he was careless or negligent. Ans. In not having competent foreman.
“12. State whether or not you find from the evidence that any of the men working with plaintiff, other than Loving or Sorrensen, were guilty of' any negligence which caused the injury. Ans. No.
“14. Was defendant Loving present or taking any part in the work at the time the injury occurred?' Ans. No.”
A demurrer to the petition was overruled. Improperjoinder is urged here in support of the demurrer. As the demurrer was not based upon that ground but upon the ground that the petition did not state facts sufficient to constitute a cause of action, there was no- error in overruling it. It is also argued that the petition was defective in uniting charges of negligence of the individual defendants with other charges of negligence on the part of the company. If the petition was defective in this respect the defect was waived, no objection having been presented by demurrer or answer. (Civ. Code, § 95; Laws 1911, ch. 230; Lyons v. Berlau, 67 Kan. 426, 429, 73 Pac. 52.)
Error is also assigned upon the order overruling a demurrer to the evidence, and this presents the principal question in the case. It is insisted that the work was simple, involving no particular skill or experience, attended with no extraordinary dangers, and that the plaintiff’s injuries were caused by mere mischance for which no one is to blame. On the other hand the plaintiff contends that the subforeman was negligent in causing the north end of the sill to be pushed off without pushing off the south end also, resulting in the fall of the other skid; that the skids were insufficient, being made of rough timber and not provided with hooks or claws to hold them in place; and that the work was done in a haphazard way, without a sufficient number of men and without competent oversight or direction. Brief quotations from the evidence may be useful here. One of the plaintiff’s fellow laborers testified:
“We were unloading car sills about forty feet long, eight or ten inches thick. Mr. Sorrensen was in charge of squad. We unloaded on 4 x 4 oak skids. The one at the north end was about a foot and a half longer than the one at the south. Hisle, a Mexican and I were working at the south end. Do not remember who was working at the north end. Mr. Ruddick was there. The north end of this timber we were rolling off came a little ahead of the south end. The north skid was under and we had the other end rolled to the edge or near the edge of the skid. The skid was not clean under that end and the timber went off in some way. The weight of the sill threw the skid off.”
Another testified:
“North end skid was longer than the one at south. Hisle worked at south end. I at north. North end was placed on skid first by Mr. Sorrensen/ North end was adjusted right on the skid. South end was not hardly up to the point yet. The men meant to roll the timbers so that both ends could go off at the same time. After the piece of lumber left the car and got on the skid I saw one skid reel over, like that, and knock Mr. Hisle down. . . .
“Q. These skids, as I understand, were out here on a level with the timber, stick out straight? A. Yes, sir.
“Q. Then when the timber went out on them they both went down, and both of them went right down to the platform? A. Yes, sir; our skid did.
“Q. Well, the other one did also, did it not? A. I could not say whether it did or not.
“Q. Did you notice whether it did or not? A. No, sir.
“Q. So you don’t know whether it was long enough to reach from the car to the platform or not? A. No, sir; I could not say, I know that the end of the skid at the south end was considerably shorter than the one that we had at the north end.”
The same witness testified that there were no rules and no signals used in this work.
Mr. Sorrensen testified:
“. . . Q. And then when it got to the edge of the car, how were the skids placed under it? A. Two men would take a pair of carriers, one man would take a cant hook and raise the end and the other parties would shove it through under the skid.
“Q. The party that shoved the skid through under the sill, where did he stand? A. On the ground.
“Q. In this particular instance, who put the skid under the north end of the timber? A. I did myself.
“Q. Did you put one end of the skid under before the other end was put under? A. Yes, sir.
“Q. Was that the method in which you were doing the work? A. Yes, sir.
“Q. Now, Mr. Sorrensen, will you state to the jury-why that was? A. Because you could not get men enough on a car to lift the whole thing up bodily.
“Q. That is, to lift the entire timber or sill? A., Yes, sir.
“Q. You mean by that, so you could put both skids, under at the same time? A. Yes, sir.
“Q. So you lifted one end of the sill and put one skid under and then lifted the other end of the sill and put the other skid under? A. Yes, sir.
“Q. You put the skid under the sill at the north end? A. Yes, sir.
“Q. Who put the skid under the sill at the south end? A. A man by the name of Ruddick.
“Q. After you put the skid under the sill at the north end, what did you then do ? A. I got on the car.
“Q.. For what purpose? A. To help roll it off.
“Q. Did you know whether or not before the accident happened the sill had been placed on the skid at the south end? A. Well, I could not be positive, but I think it was.
“Q. Did you see what happened, and how this skid happened to fly up? A. No, I did not.
“Q. What did you see in regard to the accident?' A. I did not see it. My back was turned to the north, and I was lifting with my back to the north.
“Q. How did you know when to lift? A. When they were all ready to turn we started in to. turn it.
“Q. So as to roll it off on the platform? A. Yes,, sir.”
Mr. Ruddick testified:
“In this instance the north skid was placed first-The timber was raised and I placed the south skid. I was at the east end and raised the sill and I pried the-skid and that would hold the skid out straight. Then I was instructed to get out of the way so that I would be clear of the sill when it came down. Then I walked to the east end of the platform and the sill came down, and Mr. Hisle was hurt. I did not see it.”
The jury found that the south skid slipped and fell because the north end of the sill was pushed off first. This finding is consistent with the testimony, which, tended to prove that the south skid was not under the: sill. The fact that the skid was not properly adjusted could easily have been seen by the boss had he looked. Even if the skid was in place it was a question for the jury whether proper care on the part of Sorrensen, who caused the sill to be moved at the north end, did not require him to direct a simultaneous movement at the south end. In either case the jury might well find, as they did, that Sorrensen was negligent, and this will uphold the general verdict against him and against the company.
The allegations of the petition were sufficient to admit evidence and sustain a recovery, not only under the common law and statutes in force before the enactment of chapter 239 of the Laws of 1911, but also under that statute, which provides:
“That every company, corporation, receiver or other person operating any railroad in this state shall be liable in damages to any person suffering injury while he is employed by such carrier operating such railroad . . . resulting in whole or in part from the negligence of any of the officers, agents or employees of such carrier; or by reason of any insufficiency of clearance of obstructions, of strength of road bed and tracks or structure, of machinery and equipment, of lights and signals, or rules and regulations and of number of employees to perform the particular duties with safety to themselves and their coemployees, or of any other insufficiency, or by reason of any defect,, which defect is due to the negligence of said employer, its officers, agents, servants or other employees in its cars, engines, motors, appliances, machinery, track, road bed, boats, works, wharves, or other equipment.” (Sec. 1.)
Without determining whether a recovery could be sustained because of any of the insufficiencies detailed in the statute other than negligence of the company, its agents or employees, it is sufficient to say that there was evidence, as already indicated, of the negligence of Sorrensen. It is not necessary to determine whether he was a vice-principal or a coemployee with the plain tiff. The company would be: liable for his negligence-in either capacity. The defendants, however, allege error in refusing instructions requested by them to the effect that a recovery could not be allowed for failing ■to furnish safe appliances, - machinery, equipment or implements, or for failing to furnish competent and sufficient employees, or for failing to promulgate proper-rules and regulations. The refusal of these requests would require careful consideration of the various matters referred to were it not for the fact that the jury found that the injury was caused by the negligence of Sorrensen. That is, they found that the skid slipped and fell because the north end of the timber was pushed off first, and that was done by Sorrensen’s direction and with his assistance. The injury to the plaintiff resulted from the fall of the sill on the skid, and the fall was caused by pushing the sill off at the north end without causing a corresponding movement at the south end. In this situation the jury were warranted in the finding of negligence necessarily implied in this special finding and without regard to other matters referred to in the statute and in the defendant’s request. The negligence of Sorrensen, resulting in the plaintiff’s injury, having been thus found, the other matters or insufficiencies referred to in the requests for instructions and in the statute need not be considered.
Objections were made to the evidence of a witness who, having had considerable experience in similar work, was allowed to testify that the skids used were of insufficient length and should have been made smooth or greased; and that he had observed the use of machinery in doing such work. The specific objection is that opinion evidence was not admissible. If this should be conceded we must still observe the wise admonition of the civil code (§581) to disregard all technical errors and irregularities which do not affirmatively appear to affect substantial rights. It will be observed that the skids were fully described, together with the manner in which they were used, and all the details of the work were related. It was held in Insurance Office v. Woolenmill Co., 72 Kan. 41, 82 Pac. 513:
“It is error to permit a witness to testify to the ultimate fact to be determined by the jury, or to give his opinion in answer to an inquiry embracing the whole merits of the case; but where, upon further examination, he relates in detail the. facts and circumstances upon which his opinion or statement is based the error may become immaterial.” (Syl. ¶ 1.)
Further citations are unnecessary. Prejudice from the ruling complained of does not affirmatively appear, nor can it be reasonably inferred.
Another question to be considered relates to the liability. of the general foreman, Mr. Loving. He was not present when the injury occurred, and took no part in the work then béing done except to direct Sorrensen to proceed with his gang and unload the car. The jury found that Loving’s negligence consisted in not having a competent foreman while having authority to employ and discharge the men. (Findings 6 and 11.) Thus the liability of Loving is based upon the fact that he had an incompetent subforeman under him whom he had employed. The ultimate question, however, is whether Loving is liable because he employed an incompetent man; for while the petition alleged that Sorrensen was incompetent, and charged Loving as well as the company with knowledge of such incompetency, there is no evidence tending to prove either allegation, except the proof that Sorrensen was negligent in this one instance. There is no evidence that at the time Sorrensen was employed or afterwards (until this injury occurred) Loving had any information, notice or reason to suppose that he was not competent. The rule applicable to Loving in this situation is thus stated in 7 Labatt’s Master & Servant, 2d ed., § 2592:
“The cases in which this question has arisen are comparatively few, but the sound rule may be said to be that the superior seivant or middleman is not answerable unless he had some direct control or participation in the wrong complained of, or possibly in event of his being careless in their choice.”
(Ellis v. Railway, 72 S. Car. 465, 52 S. E. 228, 2 L. R. A., n. s., 378, and case note; see, also, 4 Thompson’s Commentaries on the Law of Negligence, § 4908.)
The same principle is referred to in Hussey v. Michael, ante, p. 542.
It is concluded that the evidence does not sustain the judgment against Loving, and so far as it affects Claud Loving it will be reversed, but the judgment against the railway company and S. Sorrensen will be affirmed. The cause is remanded for the necessary modification of. the judgment in the district court.
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The opinion of the court was delivered by
West, J.:
The defendant appeals from a judgment holding him guilty of contempt. In December, 1909, he was permanently enjoined from maintaining a place where intoxicating liquors were sold in the building and places appurtenant thereto situated on certain described lots. He was arrested for having violated this injunction. The testimony showed that when the raid was made upon the place, which is called a hotel, three bottles of whisky were found in an old storeroom on the third floor. On the kitchen stove was found a tin tub containing about twenty bottles of beer on ice. In front of the stove was a long table which had “evidently been intended as a bar.” The defendant was standing in the doorway between this kitchen and the dining-room and was the only person in that part of the house at the time. He was not seen behind the table referred to. It was in August, and he was standing- with his hat and coat on. He denied being in charge of the place, but was put under arrest. Another man came in while the officers were present and was asked if he was in charge and said “No,” and was also placed under arrest, these being the only men found there during the raid. A son of the second man arrested was shown to have paid a government tax as retail liquor dealer on the premises. The defendant testified that at the time he was not in charge of the hotel, nor of the liquors found by the police, and was not then or at any time in the employ of the one holding the tax receipt; that he was rooming at the hotel and was just returning from the yard in the rear of the hotel; that he had nothing to do with the management of the hotel, and had no control over or interest in the liquors that were confiscated. Several of the officers testified that they did not know who had charge of the building. The charge was that the defendant had, from May 1 to August 5, kept and maintained the place as a drinking resort, and had actually sold intoxicating liquors there on July 21. The arrest was made on August 5. It is urged that the evidence failed to show guilt. The prosecution refers to section 4396 of the General Statutes of 1909. That section makes the finding of intoxicating liquors in the possession of one not legally authorized to sell prima facie evidence that they are kept for sale or use in violation of law. It also makes the finding in a place fitted up with a bar of a receipt for special revenue tax for a period not then expired prima facie evidence that the person to whom such receipt was issued was maintaining a nuisance. Under the statute referred to there was a sufficient prima facie showing that the holder of the tax receipt was maintaining a nuisance, but the defendant was not found in actual possession of the beer, in the act of dispensing it or in the exercise of authority over it.
In The State v. Demoss, 74 Kan. 173, 85 Pac. 937, the defendant unlocked the door, invited the customers to come inside, had the keys to the room, claimed to own the register and water filter, knew the kind of liquor in the particular bottles and boxes, exercised ownership, and tried to employ the prosecuting officer and to induce him to accept a retainer in his behalf. But here we have no such evidence of knowledge or authority. The circumstances disclosed are such that a suspicion of guilt might be entertained, but we find no substantial evidence to prove a violation of the injunction. (See, also, The State v. Sweizewski, 73 Kan. 733, 85 Pac. 800.)
The judgment is therefore reversed with directions to discharge the defendant.
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Per Curiam:
In the petition it is alleged, among other things, that on August 4, 1890, a charter of incorporation was granted by the state of Kansas to the appellant, the Masons and Odd Fellows Joint Stock Association, under which it exercised powers in the state; that the defendant corporation has perverted and abused its corporate powers in certain particulars, which are specifically set forth. Among the recitals it. is alleged that the corporation permitted its president and treasurer to usurp the rights, privileges and duties of the corporation, to mismanage its affairs, and to appropriate its money to their use and to the detriment of its minority stockholders. Also, that on August 4, 1910, the charter of the corporation having then ex pired, defendants Jennings and Berry, who had been respectively president and treasurer of the corporation, made a false and untrue certificate for the purpose of procuring an extension of such charter and did procure such extension'without any notice to the stockholders of any meeting of the stockholders for such purpose, and that no such meeting was held at which the owners of two-thirds of the capital stock were present and signified their desire and intent to extend the charter; that by such’false and fraudulent conduct the extension of such charter was procured.
To the petition a general demurrer was filed and overruled. The defendants appeal on three grounds. First, that the plaintiff has no legal capacity to sue; second, that the county attorney of Wyandotte county has no authority to institute or maintain the action; third, that the petition does not state facts sufficient to constitute a cause of action.
The appellee contends that the action was brought under sections 680 and 681 of the civil code, relating to offices and franchises. The action seems to be fully authorized thereby to be brought by the county attorney in the name of the state, and, under the provisions of the.article, the petition states facts sufficient to constitute a cause of action.
The order overruling the demurrer is affirmed.
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The opinion of the court was delivered by
Smith, J.:
The appellant in this case brought suit to recover the purchase price of a combined gasoline tank and pump. A verified account was attached to the petition and the petition alleged the account was true and correct.
The appellee, in answer, denied all the allegations of the petition not specifically admitted, specifically denied the correctness of the account, and denied that he was indebted to the appellant in any sum whatever. The answer further alleged that an agent of the appellant “told said defendant that if said pump and tank did not work in first-class condition and did not measure accurately he did not need to keep same and would not need to pay for the same. That said plaintiff installed said gasoline tank and pump and measuring apparatus at this defendant’s premises and he undertook to use the same for the purposes for which it was intended, but that said tank, pump and measuring apparatus was so defective in workmanship and construction that it would not work properly in this, to wit: That the said pump and measuring apparatus would not measure correctly.” It was further alleged that the tank and pump were not as guaranteed and warranted by appellant and were of no use or value to the appellee, and that about six months after the purchase appellee returned the same to the appellant and owes the appellant nothing therefor. The answer was not verified.
In reply, the appellant made general denial of all the allegations of the answer and alleged that the contract between appellant and appellee for the sale and purchase of the property was in writing and was signed by the appellee. A copy of the order was attached to the reply. The judgment was in favor of the appellee for costs.
On the part of the appellant it is urged that under section 110 of the civil code the account attached to the petition should have been taken as correct, the account being verified and the answer thereto not being verified. This is the clear provision of the statute and would have been applicable if the appellant had relied thereon, but, by its reply, it put the matter of warranty in issue.
On the other hand, the appellee contends correctly that under section 129 of the civil code, the contract having been pleaded in the reply only, the allegations therein should be deemed to be controverted by the adverse party as upon direct denial or avoidance. Under this provision it devolved upon the appellant to prove both the execution and the delivery of the contract. It can not be said that this was affirmatively done.
The appellee introduced evidence tending to prove the purpose for which the machine was bought, and over the objection of the appellant also was allowed to prove that the appellee had no opportunity to inspect the machine and that the appellant’s agent who made the sale represented that it would pump and correctly measure gasoline; that the machine was shipped to and installed by the appellee; that it did not work properly in that it failed to correctly measure gasoline; that the appellant sent a man to fix the machine, but it after-wards failed, as before, to do the work; that the appellee had reshipped the machine to the appellant and had not thereafter been in possession of it. ■
To this evidence of the appellee the appellant demurred on the ground that it constituted no defense under the pleadings. The demurrer was overruled. Appellant then offered evidence that it had not accepted a return of the goods.
In the instructions the court submitted the case to the jury upon the theory that where a machine is sold for a specific purpose there is an implied warranty that it will reasonably perform such service; that the burden of proof was upon the appellee to establish by a preponderance of the evidence that the machine would not work as it was impliedly warranted to do, and that appellee returned or offered to return it to the appellant upon its failure to work; that if they should find from the evidence that the machine was sold as being suitable for the purpose of measuring gasoline, and should find that it did measure gasoline as impliedly warranted, they should return a verdict for the appellant, but if they should find that the machine did not work and did not fill the implied warranty, and that it failed to measure gasoline as impliedly warranted, their verdict should be in favor of the appellee.
The case differs very much from Ehrsam v. Brown, 76 Kan. 206, 91 Pac. 179. In that case the article sold was a “known, described and specified” article of commerce by. a dealer. The article in this case seems to have been sold for a definite purpose, viz.: to measure gasoline, and it does not appear to have been a known article of commerce, but whether it was manufactured on the order or whether sold by a dealer does not appear.
If the purchaser had no opportunity, to inspect the article before the purchase but relied on the representation of appellant’s agent, the case is analogous- to Johnston v. Lanter, 87 Kan. 32, 123 Pac. 719. The sale was made on an executory contract, and in such cases where there is no. opportunity for inspection of the article a representation of quality amounts to an implied warranty. Many cases sustaining this rule are collated in Morse v. Moore, 83 Maine, 473, 22 Atl. 362, 13 L. R. A. 224.
Notwithstanding the irregularities in the pleading, the appellant was not in a position to complain.
The judgment is affirmed.
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The opinion of the court was delivered by
Porter, J.:
In an action against the railroad company to recover for the death of plaintiff’s husband, the court sustained a demurrer to her evidence, from which judgment she appeals.
The defendant’s main tracks run north and south through the city of Manhattan, and cross Colorado avenue, which runs east and west. Morgan, the deceased, was in the employ of a milling company, and about seven o’clock on the morning of the accident left the freight depot on the west side of the tracks and started to cross to the east side to examine a freight car on a sidetrack in the yards, to which he had been directed by the agent of defendant. A freight train was on the first track, headed north. He stopped and waited for this train to pull out. Another freight train had been standing on the track east of this, headed in the same direction, but it had been divided at the crossing of Colorado avenue, and the front section had pulled some distance to the north. The freight train on the first track, by which Morgan was standing, left for the north, and he crossed that track and walked in a southeasterly direction. The forward part of the divided train in the meantime was backing south, the train moving about as fast as a man or a horse could walk. Plaintiff’s witnesses testified that Morgan walked south along the end of this moving train for a little distance, and then, as it seemed to some of them, he stepped around the end of the train, when he fell and was run over. Persons who were looking directly at him testified that they thought he fell before the trucks of the car struck him, and that he had his hand on the rear car as he walked south alongside of it, and they thought that he attempted to step around the end of the car to get to the east side. One witness called to another person near by and said, “There is a man going to get killed.” At the street crossing, which was about sixty feet distant from where he fell, the company had divided the train and stationed a watchman. The train which ran over the deceased was the one he had been walking at the side of, and according to some of the witnesses, he had his hand on the car as he walked along. We think the evidence showed such negligence on the part of the deceased as prevents a recovery. Apparently he must have thought that, at the speed the train was moving, he could safely step around the end of the car, and some misstep caused him to fall. The negligence of the defendant which plaintiff relied upon was the failure to give any signal of the movement of the train; but from the evidence the deceased must have known that the train was moving, for he followed alongside of it for some distance, so that the failure to sound the whistle or ring the bell could not have been the proximate cause of the injury. (See Crane v. Rail way Co., 89 Kan. 472, 131 Pac. 1188, and cases cited in the opinion.)
'There was evidence that the freight train that had stood on the first track had left a few cinders and ashes which were sending up some smoke; and plaintiff contends that it was a question for the jury to determine whether this did not prevent the deceased from seeing that the train was moving. Of course, if the smoke obscured his vision so that he could not have seen there was a train on that track, or that it was moving, it would have been his duty to wait until he could discover the true situation by looking. (Railway Co. v. Wheeler, 80 Kan. 187, 101 Pac. 1001; Gage v. Railway Co., ante, p. 253, 137 Pac. 938.)
The judgment is affirmed.
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The opinion of the court was delivered by
Benson, J.:
This is an action to set aside a family settlement and to quiet the title of a widow to a tract of land against the claims of one of her sons.
Edward W. Romary died intestate, leaving six children and a wife, his only heirs. Frank, the youngest child, was nineteen years old and is the defendant. His brothers and sisters were of full age. His mother, the plaintiff, was sixty years of age then — sixty-five at the time of the trial. Edward Romary owned 500 acres of land in Coffey county, and when each child reached majority he placed him or her in possession of eighty acres of this land and also gave a team to each, with the understanding between the parents and children that the title to the land should eventually follow the possession, and improvements, were made by each of them accordingly. It was also understood that Frank was to have the homestead of 120 acres at the death of his parents. Upon the death of the father, Frank returned home from the State Agricultural College, where he was a student, and an oral agreement was made between the widow and children, intended to carry out the original plan, by which the title to the eighty-acre tract of which each child was still in possession should be transferred to him or her; that the mother and Frank should occupy the homestead where he should care for her during her life and have the place at her death. To make this agreement effectual an application was made to. the district court to confer upon Frank the rights of majority, which was done, and on November 1, 1906, all the children made conveyances of all their interests in the lands, including the homestead, to the mother. She in turn made a conveyance to each son and daughter of the eighty-acre, tract occupied by him or her, but held the title to the homestead, which she devised to Frank by her will, which she deposited with the probate judge, promising Frank that she would not change it. Frank then gave up attending school and remained with his mother upon the homestead. The father left about $500 worth of personal property which was used by Frank and his mother on the farm, and out of it Frank paid expenses of his father’s funeral, about $100, and erected a monument at his grave. After a time the farm was leased. The mother and son lived together pleasantly until Frank’s marriage, which occurred on December 27, 1909. When he brought his wife home his mother met them at the door, and after greetings said that another son and daughter, naming them, had told her that they would never darken her doors while Frank’s wife, Bernice, lived there. • It appears that they were hostile to the marriage. Soon after Bernice came it was arranged that the tenant of the farm should occupy the lower floor of the dwelling house,, which contained eleven rooms, and the mother and Frank and his wife the upper floor. In June after the marriage the mother criticized Bernice for buying a $4.50 hat, and told Frank in her presence that such extravagance would send him to the poorhouse. This led to ill feelings and caused distress to Bernice. Later when she was working in the flower bed, and two little children of the tenant were with her, the mother came out and complained of her conduct in allowing the children to be with her, and directed her to order them away. This incident increased the ill feeling. Some controversy also occurred about the cooking, causing distress to both. Trouble about other domestic matters followed. Frank tried to compose these difficulties, but they still continued at intervals about rather trifling matters, the details of which it is not necessary to state. In September, 1910, because of the expected birth of a child, Bernice’s mother came to remain for a time with her daughter. Frank’s mother accused him of thinking more of his mother-in-law than of her, and he retorted by saying, in substance,, that she treated him more like a mother than his own mother did. About a month after Bernice’s mother came, Mrs. Romary, the plaintiff, went away to Arkansas and Oklahoma and remained until January, 1911. On her return different arrangements about the farm were discussed. She offered to lease the farm to Frank for $200 per year, he to live on the lower floor, of the house. He was willing to take such a lease provided a clause was inserted in it that he should have the farm at her. death. She made an offer to pay him $2500 for his, interest, and he offered to take $8000. No agreement j\yas .reached. She then, requested him to send his .^mother-in-law away, which he refused to do, and requested .her not to make .any trouble with his wife or go.to ,her room, because of her delicate condition. Mrs. . Eomary left the homestead at or soon after her return from Oklahoma. • The mother-in-law left in April, 1911, the child having been previously born..
.. • Mrs. Eomary took her will from the probate office and destroyed it just before leaving for Arkansas. She had previously changed it by making the devise to Frank and the heirs of his body. • ■
There was evidence of harsh and reproachful language used by Frank, and his wife when differences between the mother and wife were being discussed. At one time he became angry over an April fool joke of his mother and used profane and contemptuous language. The mother used reproachful and unkind language towards the young people, and made charges of infidelity against Bernice. She testified that harsh words were spoken by all three. With respect to these unkindnesses, the age and physical condition of-the mother and the son’s duty of forbearance should be remembered; on the other hand, the situation and condition of the young wife, .and his duty to protect and care for her so far as he could honorably do so should be borne in mind.
There is some complaint that the mother received but little of the proceeds of the farm for her personal use, which is true. She also complained that she was not strong and that the assistance of a girl in the household was promised and should have been provided. It seems that at one time a girl was engaged, but was soon discharged by the mother, and that Frank assisted in washing and other work in the home. On. the whole, without stating further details, it is believed that these minor matters would never have .been the grounds of serious complaint had not the difficulties following the advent of the son’s wife into the home led to the dis agreements between the mother and her daughter-in-law and the final rupture which followed. The mother loved her son fondly, and expressed her feelings about the new situation in her testimony, saying: “He ceased to love his mother and he loved his wife so well that he had no room for his mother.”
The district court made no special findings, but found generally for the plaintiff, set aside the contract and quieted the plaintiff’s title to the homestead; adjudged that she should recover half the crops of the farming season beginning March 1, 1911, and have possession January 1, 1912, but that Frank should recover from her the sum of $2500, which was made a lien upon the land. This judgment was entered December 1, 1911. t
It is obvious that these conclusions were reached upon finding that because of the ill feeling and strife engendered between the plaintiff and the young wife it was not possible for them to live happily together, and that therefore the agreement could not be specifically performed. Hence its annulment and the allowance made to Frank of a sum doubtless-deemed equitable by the district court in the situation then presented, and the provision out of the crops for her support after she left the homestead until she should obtain possession. The court probably considered the expectation of life of the mother at that time and directed the payment of a sum deemed equivalent to the son’s interest in the land, charged as it was with her support for the remainder of her life. The evidence is that the 80-acre tracts were each worth about $1900 when possession was taken by the other children, but the dates of possession were not shown. The value of the homestead at the time of the trial was shown to be $6000 and its rental value $200 to $250 per year. The mother died June 21, 1912.
It is argued that Frank will obtain by the judgment $500 more than his brothers arid sisters, but it must be remembered that they have had the use of their land since majority, and it may fairly be presumed that the lands have increased' in value meanwhile. The present value of these lands might'have afforded the'district court' additional information in settling the decree. However, this court believes that it is its duty now to dispose of the case in the situation existing at this time, changed as it is by the death of Mrs. Romary. A careful consideration of values and the probable expense of caring for the mother' are not so important now. It was the intent of all concerned that Frank should have the homestead upon his leaving school and caring for his mother. It is not reasonable to suppose that it was intended that he should remain single, nor could it have been anticipated that his marriage would cause a rupture in the home. His kindness to his mother before his marriage is not questioned, nor indeed afterwards except at times of altercation between his mother and his wife. The repetition by the mother of what other members of the family had perhaps thoughtlessly told her, showing their hostility to Frank’s wife, at the moment of her entrance into the household was most unfortunate. Petty quarrels and hasty accusations followed. True, the son should not have allowed anything to cause him to speak a harsh or angry word to his mother, but his wife was also entitled to his' solicitous care — especially when her own motherhood was approaching. There was a lack of mutual forbearance. Mindful as we all must be of the common frailties of human nature, may we not pity rather than harshly condemn the members of this unhappy household? Shall we not, so far as safe procedure will permit, condone faults and carry into effect the good intentions of all, temporarily defeated by resentments born of an imperfect understanding of each other’s motives ?
The will has been' cancelled. The mother is dead. The other children have secured and for years enjoyed all that the father and mother intended they should have and just what they agreed to accept. The home stead alone remains for disposition. It was the cherished purpose of the father, which the agreement was designed to effectuate, that his youngest son should have the home, subject only to the care of his mother, but death has canceled that sacred charge so far as the future is concerned, and no obstacle now remains to prevent carrying out the plan as the parents intended, and as all the parties agreed, with such provisions relating to the mother’s care after, she left the home as may be equitable. It is concluded that this can better be done now by a specific performance of the agreement, upon the conditions just stated, rather than by giving Prank a sum of money and a release from the obligation of support, as the district court directed in the circumstances existing at the time of the trial.
To accomplish this end the judgment should be modified by vesting the title to the homestead in the defendant, J. F. (Frank) Romary, and quieting that title upon his paying, in lieu of her support after leaving the home, one-half the value of the crops raised upon the farm for the farming seasons of 1911 and 1912 and the expenses of the funeral of his mother, if he has not already done so. These amounts will probably be fixed by agreement, but if not they will be determined by the district court. Costs in that court will be taxed in its discretion. The costs in this court will be-divided.
The cause is remanded for modification of judgment as directed.
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The opinion of the court was delivered by
Mason, J.:
H. C. Wiley and G. W. Hurless entered into a written contract by which the former agreed to sell, and the latter to buy, a tract of land at $25 an acre, and in pursuance of the contract a deed was delivered conveying the land from a third person to Hurless, who paid for it. A week after the execution of the contract Wiley signed and delivered to Hurless an agreement to find a purchaser for the land at $30 an acre within the ensuing year. No buyer was found and Hurless sued Wiley Ur a breach of the contract. The plaintiff recoverea a judgment, and an appeal is taken by the administrators of the defendant.
The appellants maintain that the contract sued upon is unenforceable because not supported by a sufficient consideration. The plaintiff contends, and the fact must be regarded as established by the judgment, that at the time the first written contract was made the defendant orally agreed to find a buyer at $30 an acre within the year, this agreement being a part of the inducément for the purchase, and that the subsequent writing was given in pursuance of this promise. The appellants insist that to sustain a recovery on this ground would be to allow the terms of the written contract to be varied by parol.
The agreement on the part of the seller, that he would find a purchaser for the property at a certain price within a fixed time, appears to be one of that class which may be shown by parol to have been entered into at the time of the written contract of sale, although not mentioned or referred to therein. It has relation to the consideration of the contract, and is a part of its inducement. Such matters are ordinarily allowed to be shown by oral evidence, where they do not contradict the terms of the written instrument. (17 Cyc. 648, 693; Note, 17 L. R. A. 274; Note, 25 L. R. A., n. s., 1194.) A somewhat similar question, concerning which there is some conflict, is whether the purchaser of a lot may show an oral agreement by the seller to make certain improvements on the tract of which it is .a part. (Note, 36 L. R. A., n. s., 896.) The present situation seems to be one where the connection between the two writings might be shown by parol. This likewise is a matter concerning which there is a want of harmony in the authorities. (17 Cyc. 647; see, also, Schneider v. Anderson, 75 Kan. 11, 88 Pac. 525; Hendricks v. Brooks, 80 Kan. 1, 101 Pac. 622.) We prefer, however, to put the decision on this ground: If originally the buyer would not have been permitted to show that at the time of his purchase, and as an inducement thereto, the seller orally agreed to find a new buyer at an advanced price within the year, the reason is that the law protects the seller from having his documentary evidence overthrown by mere word of mouth. When he reduced the promise to writing the requirement of the law was met. The reason for his protection no longer existed. Oral evidence was necessary, not to prove the promise, but to show for what it was given. A consideration was implied from the contract being in writing, and its character was properly shown by parol.
The appellants also contend that no liability could attach for the breach of the contract to find a purchaser for the land at $30 an acre, .because that was impossible, such a purchaser not béing procurable. The performance of the agreement wag not impossible in any such sense as to relieve the defendant from responsibility. (See Hampe v. Sage, 87 Kan. 536, and cases therein cited on p. 541, 125 Pac. 53.)
The judgment is affirmed.
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The opinion of the court was delivered by
Smith, J.:.
This was an action in replevin to recover the possession of a newspaper press and implements and outfit connected therewith. Appellant brought the action and alleged that it was the owner of the property by virtue of a chattel mortgage, a copy of which was attached to the petition; that the property was of the value of about $1000.
The appellee answered by general denial; admitted the execution of the chattel mortgage attached to the petition, but alleged that it was void at the time of bringing the action for the reason that it had not been renewed as required by statute; also alleged certain transfers of the property made by the parties executing the mortgage sued on by appellant, and finally the execution of a mortgage by the last transferee of the property to himself, under which he had taken possession of the property, and attached a copy of his mortgage.
The case was tried without a jury. The court made extended findings of fact and conclusions of law, in substance, as follow: On October 28, 1907, one C. E. Nelson and E. J. Lowe, the wife of the appellee, were copartners and as such were the owners and in possession of the property in question; that on that date the firm was indebted to appellant in the sum of $1010, and interest, upon three promissory notes aggregating that amount, and executed a chattel mortgage thereon to the appellant to secure such indebtedness; that the appellee signed the promissory notes as surety but did not sign the mortgage; that small payments had been made upon the notes, but at the time of the trial $1160 was due thereon; that at all times the appellee acted as the agent of his wife and transacted business for her as long as she owned an interest in the property; that on October 28, 1909, the appellee bought the interest of his wife therein; that on December 30, 1907, C. E. Nelson was adjudged a bankrupt and was thereafter discharged; that a referee and trustee in bankruptcy were appointed and elected and the trustee took possession of the Nelson estate, including the property in controversy; that on the 28th day of October, 1909, being the same day upon which he purchased his wife’s interest in the property, the appellee bought the Nelson interest in the property for $10, subject to all existing liens; that on the same day the cashier and other officers of the appellant authorized the appellee to dispose of the property as he thought best, using his own judgment in the matter as to the price of the property, and to take care of the interests of the appellant in the matter; that on the same day the firm of Stapp & Birkholz was informed by the president of the appellant bank that it had a lien on the property but the matter was in the hands of the appellee, that they could do business with him and he would take care of the interests of the bank; that on the same day the appellee sold the piopeity to the firm and received therefor $200 in cash and promissory notes signed by the members of the firm individually, and- by their wives, for $1000, and also secured a chattel mortgage on the property,- signed by the same parties, to secure the payment of the notes; that after-wards, and before the commencement of this action, the appellee took possession of the property under the mortgage with the consent of the firm and holds possession and claims ownership and right of possession thereof; that the property is -of the value of $1000, and the appellant, before the commencement of the action, demanded possession thereof from the appellee and the demand was refused; that the sheriff of the county took possession of the property under the writ of replevin and delivered it to the appellant, the appellee having failed to give a redelivery bond therefor; that the appellee had full knowledge of the claim and lien of the appellant on the property during all the times referred to and at the time of the purchase of the property by him from his wife and the trustee in bankruptcy.
The conclusions of law are, in substance, as follow: That in purchasing the interests of his wife and Nelson, appellee was not an innocent purchaser but bought the property subject to the mortgage lien of appellant; that appellee acted as the agent and trustee of the appellant in the sale of the property to Stapp & Birkholz; that Stapp & Birkholz bought the property free and clear of the appellant’s mortgage lien and received full title thereto as against -the claim of appellant; that the appellee in selling the property to Stápp & Birk holz received payment therefor in money and notes in trust for the appellant to the extent of its claim and lien, and in taking possession of the property from the firm, under the chattel mortgage executed by them, did so in pursuance of the authority vested in him by the appellant and holds the same as trustee thereof to the extent of appellant’s interest; that in making the appellee agent and trustee of the property, the appellant waived its rights to the possession of the property, under the mortgage set out in its petition. Thereupon the court rendered judgment that the appellant take nothing in the action by virtue of the mortgage sued on and that the appellee recover his costs and have judgment against the appellant for the return of the property or, in case a return can not be had, for the sum of $1000.
The appellant then filed successive motions as follow : For a new trial; for leave to amend its petition to conform to the facts proven and to vacate the judgment rendered and for judgment in its favor; also, a motion to vacate the findings of fact included in No. 10, which are to the effect that appellant’s officers on October 28, 1909, authorized appellee to sell the property and to take care of the bank’s interest in the matter, and also the notice given by the bank officers to Stapp & Birkholz of their interest in the property; that the matter was in the hands of the appellee, that if they wished they could purchase the property of him, that he would take care of the interests of the bank; and also the findings in regard to the sale of the property from the appellee to the firm, the recovery of the consideration therefor and the retaking of the property on the chattel mortgage executed by the firm. This motion also asked judgment for appellant on all other findings. Thereupon the appellant filed its motion for judgment on the findings as made by the court. Each of these motions was overruled. The bank appeals.
It is apparent, as contended, that the court found the real issues' in this case in favor of the appellant, and in furtherance of justice, even after making its findings of fact and conclusions of law, the motion to amend the petition to conform to the facts proven should have been allowed (Civ. Code, § 140) and judgment should have been rendered in favor of the appellant.
On the authority of Kennett v. Peters, 54 Kan. 119, 37 Pac. 999, and Ward v. Ryba, 58 Kan. 741, 51 Pac. 223, it is urged that as appellant' claimed full ownership of the. property, while at most it had only a lien thereon, it can not recover. In the petition it was also alleged that plaintiff was the owner under a certain chattel mortgage. The basis of the claim of ownership was thereby disclosed and the defendant could not be misled,
The judgment is reversed and the case is remanded with instructions to render judgment in favor of the appellant.
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The opinion of the court was delivered by
Johnston, C. J.:
This action was brought by C. C. Winfrey against the Galena Automobile Company to recover damages for the failure of the defendant to assign an insurance policy. The plaintiff recovered, and the defendant appeals.
On August 18, 1921, the plaintiff purchased a Ford car from the defendant for $312.50 and the agreement of sale included among other things an assignment of an insurance policy that had been previously taken out on the car. It appears that the car had been first sold to one Flynn, and at that time the defendant procured insurance to be taken out in the name of Flynn with a clause in it that the insurance was payable to the defendant as its interests might appear. Shortly after the sale the plaintiff asked for the transfer of the insurance, and according to his testimony the defendant said that the matter had slipped his mind but that he would attend to it. About a week later he asked for the insurance, but was told by the manager' of the defendant that he had neglected it, but to come back in a few days and that he would bring the policy down and attend to the transfer. It was testified that other calls were made, one with the same result, one as late as September 20, when the manager was absent from his place of business. The car was 'stolen from the plaintiff' on September 27, 1921, and the following day notice of the theft was given to the defendant and according to the testimony the manager'acknowledged that he had agreed to transfer the insurance as plaintiff claimed but at a later time the defendant denied that such an agreement was made and also any liability for the loss sustained.
The objections urged on the appeal are that instructions requested were improperly refused. One was, in effect, that if the agreement to transfer the theft insurance was made and the defendant had breached the contract it was the duty of plaintiff to use diligence in obtaining other insurance, and that if he failed to do so it would not be diligence on the part of the plaintiff and he was not entitled to recover in the action. The court, in an instruction given, covered the rule, saying in effect that if the defendant refused to comply with his contract it was the duty of the plaintiff to protect himself by procuring other insurance on the car and he could not recover from the defendant unless the defendant had assured the plaintiff that defendant would procure the assignment and transfer of the insurance and plaintiff relied thereon and for that reason did not procure other insurance.
It is a well settled rule that if a person has been wronged by another from whom he seeks damages the wronged person should use, reasonable efforts to avoid the consequences, and no recovery can be had for losses which might have been avoided by the reasonable efforts of the injured party. (Town Co. v. Leonard, 46 Kan. 354, 26 Pac. 717; Frick Co. v. Falk, 50 Kan. 644, 32 Pac. 360; Atkinson v. Kirkpatrick, 90 Kan. 515, 135 Pac. 579.) This rule was properly stated by the court with the added clause, which was appropriate to the facts in the case, that if the defendant instead of refusing compliance promised to carry out the agreement and led the plaintiff to believe that defendant would fulfill the agreement, a recovery might be had. If the plaintiff had been informed of the breach in the first instance, a different rule would apply but as the defendant had acknowledged the agreement, and continued to assure plaintiff that he would fulfill it, the plaintiff had good reason to expect com pliance. It would have been unreasonable for the plaintiff to have assumed a repudiation, and that it was necessary for him to procure other insurance. The rule is well stated as follows:
“If, however, a contract has been practically broken, the fact that the other party has from time to time made promises leading to a belief that it would be fulfilled will authorize a full recovery, although plaintiff, relying on such promises, may have taken no action to prevent the injury.” (17 C. J. 774.)
The instruction requested ignored the subsequent promises of defendant to assign the insurance and the element of what was reasonable diligence and prudence on the part of the plaintiff as to the taking of steps towards mitigating damages resulting from the defendant’s breach. The court was justified in the refusal.
Another request upon the refusal of which error is predicated is that if the insurance was taken in the name of another, the defendant could not transfer it, and defendant would not be liable to plaintiff for the breach of the agreement, if plaintiff knew that the insurance stood in the name of another. This was properly refused.
The insurance appears to have been taken by the defendant in the name of Flynn, a former purchaser of the car. It was possible for the defendant to have transferred or furnished the insurance on the car. It had contracted to provide insurance for the period named. It was liable for the breach of the contract although contingencies or circumstances arose which made it difficult or even beyond its power to perform, circumstances which might have been provided against when the contract was made. In Drug Supply Co. v. Board of Administration, 106 Kan. 256, 187 Pac. 701, it is said:
“Generally, when one contracts to do a thing possible in itself he will be liable for breach of such contract, notwithstanding the occurrence of a contingency, which although not forseen by him or within his control, but which might have been provided against, has put it out of his power to perform.” (Syl. ¶2; see, also, Hampe v. Sage, 87 Kan. 536, 125 Pac. 53; Hurless v. Wiley, 91 Kan. 347, 137 Pac. 981; Carter v. Wilson, 102 Kan. 200, 169 Pac. 1139.)
There is a complaint that special questions requested by the defendant were not submitted to the jury. As these called for matters of evidence and not ultimate questions of fact in the case, and the questions, if submitted and answered, could not have affected the result of the suit, the refusal was not error.
Objections to rulings on the admission of evidence have been examined and nothing approaching material error is found in them.
Judgment affirmed.
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The opinion of the court was delivered by
Harvey, J.;
This is'an appeal from a judgment in favor of plaintiffs in a suit for a real-estate commission.
The defendant was the owner of 1,120 acres of land and made a written agreement with plaintiffs, who were real-estate agents, by which defendant employed plaintiffs as exclusive agents to sell or exchange his land. This listing agreement recites: “Price $33,600 Cash $7,000 Balance $26,000 Int. 6% due 10 yrs. Commission to be all over $30 an acre land sells for.” .The owner agreed to give warranty deed and to furnish abstract showing merchantable title within sixty days after sale.
Plaintiffs found a purchaser who, on August 30, 1920, entered into a written contract with defendant to buy the land for $39,200 ($35 per acre), on the following terms: to deed a residence property of the agreed value of $2,500; pay $1,000 by October 5, 1920, pay $7,000 March 1, 1921, and to give a note for the balance, $28,700, dated March 1, 1921, due in five years, bearing 6 per cent interest and secured by a first mortgage upon the land.
The residence property was conveyed to plaintiffs and accepted by them as a payment of $2,500 upon their commission, leaving a balance of commission as claimed by plaintiffs of $3,100, for which sum they brought suit in April, 1921.
In this suit defendant pleaded several defenses, but now urges only one, viz.: That at the time of signing the contract of sale, because the terms of payment differed from those named in the listing agreement by reason of which he was not receiving enough cash to pay the commission in full, the plaintiffs agreed to wait for the balance of their commission until the $7,000 payment was made; that the $7,000 payment was never made and therefore he owed the plaintiffs nothing. At the close of the evidence the court instructed, the jury to return a verdict for plaintiffs, which was done, and judgment was rendered thereon. Defendant appeals and complains of the instruction and judgment of the court.
On the trial plaintiffs offered the listing agreement, the contract of sale, admitted they had received $2,500 of their commission, testified to general matters concerning the dealings, and that in April, 1921, they had demanded the balance of the commission from defendant, who said he did not expect to go ahead with the deal and that he did not expect to pay any more commission.
Defendant and his wife testified that when the sale contract was signed, there not being enough cash payment to pay the commission, the plaintiffs stated that they would wait for their commission, or for the balance of their commission, until the purchaser made the $7,000 payment. Defendant further testified that he did nothing about getting his abstracts brought to date or furnishing them to the purchaser; that about March 1 the purchaser and a banker came to him and said he was ready to pay the $7,000 but he refused to take it. The purchaser also wanted the abstracts, and defendant said they jyere .at the bank. Defendant further testified that he had leased 140 acres of the farm, land until after harvest and wanted time -(twenty days), to find a place before giving possession. The purchaser came to see defendant several times, trying to close the deal, but defendant and he could not agree and the deal was never closed.
It will be noted that the purchaser offered to pay the $7,000 and defendant refused to accept it. It seems quite clear from defendant’s own testimony that the purchaser was making an honest effort to complete the purchase according to the terms of the contract of sale, and that defendant was trying to avoid it. Put in 'the most favorable light for defendant, plaintiffs agreed to wait for the balance of their commission until the purchaser paid the $7,000. At the time that payment was due the purchaser was ready and wanted to pay it, but the defendant refused to accept. He gives no reason that would justify his course. He cannot now defeat plaintiffs because this payment which he refused to accept was not made. There was nothing to submit to a jury and the court properly directed the verdict for plaintiffs.
Some questions are raised ;as to rulings of the court upon the admission of evidence, but we see no prejudicial error in any of the rulings. The defendant got before the court all the evidence he offered on his supposed defense, which by his own testimony was no. defense. The judgment is affirmed.
Dawson, J., not sitting.
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The opinion of the court was delivered by
Dawson, J.:
This was an action for breach of a contract for the purchase of 5,000 bushels of grain.
The trial court instructed the jury, among other matters, that if they found the contract was made and breached by the defendants, they should render a verdict for the admitted or ascertained damages, $1,300, and for interest thereon from the date of the breach.
The jury returned a verdict for plaintiff for $1,300 with no interest, underscoring the word “no.”
The defendant filed a motion for a new trial on all the statutory grounds. The plaintiff filed a motion for judgment for $1,625, being his computation of the amount of the verdict, $1,300, plus interest since the contract was breached. Plaintiff’s motion was denied, and defendant’s was granted.
Plaintiff appeals, arguing plausibly that since the general and special findings of the jury established the contract, the damages, and the date of the breach, the computation and addition of the interest were merely matters of mathematical calculation which the court could and should make, and enter judgment accordingly. If the trial court, as judge and as thirteenth juror, had been satisfied that defendant had been given a fair trial in all respects, including the fidelity and sincerity of the jury in following its instructions, plaintiff’s contention would have considerable merit. (Citizens’ Bank v. Bowen, 25 Kan. 117; Mills v. Mills, 39 Kan. 455, 18 Pac. 521; Marsh v. Kendall, 65 Kan. 48, 68 Pac. 1070; Smith v. Railway Co., 90 Kan. 757, 136 Pac. 253; Matthews v. McNeill, 98 Kan. 5, 10, syl. ¶ 9, 157 Pac. 387; Note in 25 L. R. A., n. s., 311.)
But how are we to say on what particular ground the district court granted a new trial? The manifest insincerity of the jury in disregarding the instruction relating to interest may have led the court to believe that it was only by compromise of conflicting views on the question whether there was a contract at all that unanimity as to any sort of verdict could be reached. The court may have believed that neither the general verdict nor the special findings would have been for the plaintiff if the jury had dutifully regarded all the instructions. In Dodson v. Moran, 101 Kan. 592, 594, 168 Pac. 841, it was said:
“In uttter disregard of this instruction, the jury, after finding that there had been a transfer, returned a verdict in favor of the plaintiff. It was the bounden duty of the jury to accept and follow the law as expounded to them by the court. Where a jury disregard so plain an instruction as the one in question and become a law unto themselves, who can say that other instructions of the court have not been ignored, or that proper consideration has been given to other questions involved in the case?”
And since the trial court did not specify the particular ground upon which it granted a new trial, there is no plain, conclusive, incontestible ground upon which this court can say that error was committed. (Hughes v. Vossler, 110 Kan. 279, 203 Pac. 1107.)
Plaintiff submits for our inspection a personal letter written by the trial judge to counsel for plaintiff after the judgment granting a new trial was rendered. This is no part of the record and cannot be considered. (Emery v. Bennett, 97 Kan. 490, 494, 155 Pac. 1075; Whittaker v. Coffman, 112 Kan. 594, 598, 212 Pac. 912.) Moreover, if the trial judge’s letter could be considered, it by no means supports the contention of plaintiff. In part it reads:
“I felt that the jury positively disobeyed the instructions given them and for that reason I ordered the verdict set aside.”
This rule also bars consideration of matters which appear in certain correspondence between counsel for the litigants, which form no part of the record.
Affirmed.
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The opinion of the court was delivered by
Burch, J.:
The action was one by the surety on a building contractor’s bond to recover for expenditures made in discharge of liability created by the bond, and for other relief. The plaintiff prevailed, and the defendant Helwig appeals.
Dunn entered into a contract with a school board to erect a schoolhouse. Helwig participated with him in the enterprise in such a way that, for all purposes of this case, they were partners. Dunn was required to give a contractor’s bond, and both- Dunn and Helwig applied to the plaintiff to become surety. The written application of Dunn assigned to the plaintiff all money to become due by virtue of the construction contract, and the bond was executed and delivered. As further security to the plaintiff, Dunn executed and delivered to the plaintiff a mortgage on his homestead. Helwig sued Dunn for an accounting, garnished the school board, and the school board paid into court the sum of $1,026. Helwig recovered judgment against Dunn for $524. Subcontractors’ judgments against Dunn, Helwig, and the plaintiff, were paid by the plaintiff, and the prayer of its petition was for reimbursement and for attorney fees and expenses. Dunn asserted his homestead privilege. The judgment was that out of the money in the hands of the clerk of the court, the plaintiff be paid $924, and that Helwig be paid the balance remaining after payment of costs of the action.
Complaint is made because Helwig was not paid first. The complaint is without merit.
Complaint is made because the plaintiff was not required to exhaust its mortgage security before resorting to the fund in court, and because, that fund having been practically exhausted by the plaintiff, Helwig was not subrogated to the mortgage security held by the plaintiff. To save the plaintiff harmless, Helwig and Dunn assigned to the plaintiff the fund to which it resorted. Helwig could acquire no lien on that fund by his garnishment which would impair the assignment, and Dunn’s homestead could not be taken, over his objection, to pay the plaintiff, while the firm had assets sufficient for the purpose. When Dunn gave the mortgage on his homestead, he waived his homestead privilege in favor of the plaintiff only, and not in favor of other creditors, and the court was without authority, by subrogation or otherwise, to extend the waiver.
Some other matters referred to in Helwig’s brief are not of sufficient importance to require discussion, and the judgment of the district court is affirmed.
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The opinion of the court was delivered by
Dawson, J.:
Here is another railway-crossing case. It was an action by a husband and son for the death of Bessie Rathbone, wife of one of the plaintiffs and the mother of the other.
Bessie Rathbone and her son, while on an errand for her husband, were traveling northward on a public road in a Reo speed-wagon, approaching the defendant’s railway crossing at the village of Hallowell. At that' point the defendant’s railway consisted of a main line and sidetrack, running east and west. The sidetrack was about 9 feet south of the main track. On the east side of the highway, immediately south of the railway, were an elevator, a corn crib, a coal bin and stockyards which shut out the view' of trains approaching from the east. As Mrs. Rathbone and her son were passing over the main line track, their vehicle was struck by a westbound train, and she was killed.
Plaintiffs pleaded various wrongful acts and delicts on the part of defendant. The latter pleaded contributory negligence.
The jury’s general verdict was in favor of the plaintiffs, but it was set aside and judgment entered for defendant on special findings also rendered by the jury. The propriety of such judgment is the question in this appeal, and its determination requires us to set out the special findings at some length:
"DEFENDANT’S. . . SPECIAL QUESTIONS.
“Three: On the occasion in question did Emmett Rathbone completely stop the automobile truck to ascertain before driving on the main line track whether it was safe to proceed? Answer: He did not.
“Five: On the occasion in question at what rate of speed per hour was defendant’s train approaching the point of accident? Answer: 35 to 40 mi. per hour.
“Six: If on the occasion in question, when Emmett Rathbone or Bessie Rathbone, where they sat in said automobile truck, got within nine feet of the main line track, they had come to a complete stop and had listened and looked for an engine or train along the main line in the direction from which the engine and train were then coming thereon, what, if anything was there to prevent them or either of them from seeing or hearing the approaching engine and train? Answer: Nothing.
“Seven: If on the occasion in question, when Emmett Rathbone or Bessie Rathbone, where they sat in said automobile truck, got within seven feet of the main line track, they had come to a complete stop and had listened and looked for an engine or train along the main line in the direction from ,which the engine and train were then coming thereon, what, if anything, was there to prevent them or either of them from seeing or hearing the approaching engine and train? Answer: Nothing.
“Eight: If you find for plaintiffs, please state upon what grounds of negligence, if any, you base your verdict. Answer: Condition of crossing.
“Nine: On the occasion'in question, when Emmett Rathbone and Bessie Rathbone, where they sat in said automobile truck, were nine feet south of the south rail of the main line track, could the defendant’s fireman have seen them or either of them if he had then looked in that direction from the fireman’s cab? Answer: Yes.
“Ten: Do you find that Emmett Rathbone first saw the defendant’s approaching engine between twenty-five and fifty feet away when the seat of the automobile truck was about over the south rail of the main line track? Answer: Yes. '
“plaintiffs’ special questions.
“No. 1. If the crossing had been level and free of ruts and depressions, would the train have struck the truck containing Bessie Rathbone, deceased? A. No, not in our judgment.
“No. 2. If the crossing had been level for thirty feet on each side of the main line track and free of depressions, where, in reference to the main line track, would the truck containing Bessie Rathbone, deceased, have been at the time the train arrived at the point where the accident did occur? A. Clear of the main line.
“No. 3. At the time when the train struck the automobile truck, how fast was truck traveling? A. 2 to 3 miles per hour.
“No. 4. If you find that the truck had almost come to a stop what caused the truck to almost stop? A. Condition of the crossing.
“No. 5. What were Emmett Rathbone and Bessie Rathbone doing just before entering upon said crossing? A. Don’t know.”
It will be noted that the negligence of the railway company (finding 8) was limited to the condition of the crossing. This in effect acquitted the defendant of the other charges of negligence. (Roberts v. Railway Co., 98 Kan. 705, 161 Pac. 590.) As to this particular negligence, the plaintiffs’ brief reads:
“The facts were, as disclosed by the evidence, that the distance between the north rail of the side track and the south rail of the main line track was nine feet nine inches; that the highway of the crossing was four or five inches higher on the south than the side track; that there was a sharp incline just before reaching that point about five or six feet from the south rail of the side track and that the road was five or six inches higher than the side track; that there was a rut between the side track and the main line and that it was rough between the rails. That the main line track was fourteen inches higher than the side track and the rail of the main line higher than the road right next to it by two or three inches; that the main line track was rough; that there were some plants between the rails on the crossing and that it was rough between the planks. Testimony . . . proved conclusively that the crossing was in a dangerous condition and in such condition as would retard the progress of a vehicle. . . . The rails on the main line were an inch to an inch and a half higher than the boards.”
But notwithstanding defendant’s negligence in the way it maintained the crossing it was incumbent upon Emmett and Bessie Rathbone, before they attempted to cross the railway track where their vision was shut off by obstructions to ascertain positively that no train was approaching and that they could safely cross. This they did not do. Note the plaintiffs’ question No. 5 and its answer. The jury did not know that they did anything; that is, it was not shown to the jury’s satisfaction that Emmett and Bessie Rathbone had taken the requisite precaution to ascertain that they could cross in safety. The answers to defendant’s questions Nos. 6, 7 and 9 clearly establish the fact that if they had stopped their car before attempting to cross the track, and had looked, they would have seen the defendant’s train near at hand and traveling 35 or 40 miles per hour. These findings, in effect, resolve the question of Emmett’s and Bessie’s contributory negligence in accordance with the railway company’s main defense to this action.
In Williams v. Electric Railroad Co., 102 Kan. 268, 271, 170 Pac. 397, it was said:
“Was the plaintiff free from negligence? The embankment and weeds obscured his vision as he approached the crossing, yet he did not stop his automobile to determine whether he might cross in safety. At fifteen feet from the crossing nothing prevented him from seeing the approaching car. Even then, if plaintiff had been taking proper precaution for his own safety, he could have stopped his automobile before it reached the track, for its speed was only four or five miles an hour. The rule in this state is that when one is about to cross a railroad track, and cannot otherwise assure himself that he may safely do so, he must stop, look, and listen. (Bunton v. Railway Co., 100 Kan. 165, 168, 163 Pac. 801; Burzio v. Railway Co., post, p. 287, just decided, and citations therein.) Such, indeed, was the general rule in the cases of pedestrians and horse-drawn vehicles before the coming of automobiles. (A. T. & S. F. Rld. Co. v. Townsend, 39 Kan. 115, 17 Pac. 804; Railroad Co. v. Willey, 60 Kan. 819, 58 Pac. 472.) With the coming of the automobile, a highly scientific invention and easy of control, and with its great weight and steel construction and its consequent capacity for imperiling the traveling public in case of collision, the courts have been compelled to develop a more rigid rule, or rather to insist more rigidly upon the application of the old rule, touching the duty of self-preservation imposed on those about to cross a railway track in such a vehicle. (Wehe v. Railway Co., 97 Kan. 794, 156 Pac.,742; Jacobs v. Railway Co., 97 Kan. 247, 154 Pac. 1023; Cathcart v. Oregon-Washington R. & Nav. Co., [Ore.] 168 Pac. 308.)”
We do not overlook the answers of the jury to plaintiffs’ questions Nos. 1, 2, and 4. It is settled law in this state that it is negligence to attempt to cross a railroad track ahead of a speeding train, even in a case where but for a defective crossing the party making such foolhardy attempt would have escaped unscathed, by a few ticks of the clock. (Bunton v. Railway Co., 100 Kan. 165, 163 Pac. 801.)
Plaintiffs adduced some evidence to show that Bessie Rathbone was on a shopping errand of her own and not on the business of her husband when she was killed. In that situation the negligence of her son under some circumstances would or might make a difference in the extent of the rights of any nonculpable members of her family to a claim against the, railway company for her death. (Schaefer v. Interurban Railway Co., 104 Kan. 394, id., 740, 179 Pac. 323; 181 Pac. 118.) But even if she were riding as a guest, she would be bound to look out for herself as far as practicable. The jury found that she did nothing at all so far as they could tell. (Fair v. Traction Co., 102 Kan. 611, 171 Pac. 649; Kirby v. Railway Co., 106 Kan. 163, 186 Pac. 744.) Even if that fact were not in itself a complete bar to recovery, here one of the plaintiffs is the son whose contributory negligence brought about his mother’s death, so he cannot recover. And as the son was the agent of the father, who is the other plaintiff, the son’s contributory negligence was attributable to the father, under the ordinary rules of law relating to principal and agent, so the father cannot recover.
Affirmed.
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The opinion of the court was delivered by
Dawson, J.:
The appellant who prevailed in this court moves for a special mandate directing the nature of the judgment to be entered in its behalf in the trial court, and suggests that it should be for $650 as the value of the car, and for $2,956 [$2,856] for the value of its use at $6 per day for the 476 days during which appellant was deprived of its use.
The proper judgment to be entered is for the delivery of the car and for costs of suit, together with a sum'of money equal to the difference between the present, depreciated value of the car and its value, $650, as testified to, without dispute, at the time demand was made upon defendant for its surrender. If the car is not delivered, the judgment should be for $650 and interest thereon since demand was made for its surrender. These are details which the trial court must determine and compute.
The appellant is not entitled to the value of the use of the car during the time it was in defendant’s possession, because no damages were proved which could be the, basis of such, recovery. The only evidence on the subject was merely in the circumstance that he was deprived for a time of his security; the evidence showed no other damages. Plaintiff had no use for the car in the ordinary sense of 'use, for which a per diem compensation should be allowed. The record shows a stipulation that if a certain expert had been called as a witness he would have testified that the value of the use of such a car was $6 per day, but there was no evidence .that the deprivation of its mere use damaged the plaintiff in any respect. In reality the wrong done plaintiff was the withholding of his security; it was as a lien holder he sued, and only as a¡ lien holder was he entitled to possession.
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The opinion of the court was delivered by
Mason, J.:
Mary A. Ludlum brought an action against the Northwestern National Insurance Company upon a fire insurance policy, and the defendant appeals from a judgment in her favor.
Frances Turney had a mortgage upon the insured property. The policy was issued to the plaintiff, but contained a clause reading: “Loss or damage, if any, under this, policy, shall be payable to Frances Turney as first mortgagee, as interest may appear.” The defendant contends that its demurrer to the petition should have been sustained upon the ground that, inasmuch as the amount of the mortgage exceeded that of the insurance, the mortgagee was the only person who could sue upon the policy. Reliance is placed upon Insurance Company v. Coverdale, 48 Kan. 446, 29 Pac. 682, as sustaining this contention. In that case, however, the policy was made payable to the mortgagee absolutely, neither the words “as interest may appear” nor any equivalent phrase being used, a difference which was noted in Bank v. Insurance Co., 91 Kan. 18, 23, 137 Pac. 78. There is.much apparent and some real conflict of judicial opinion as to whether the mortgagor or mortgagee is the proper or necessary plaintiff in an action on a policy insuring mortgaged property. (26 C. J. 484; 14 R. C. L. 1427, 1428.) And the matter has been held to be affected by the presence or absence of the phrase “as his interest may appear.” (Staats v. Insurance Co., 57 W. Va. 571, annotated in 4 Ann. Cas. 541.) Whatever may be the rule in any other situation, the defendant in the present case has suffered no possible prejudice from- the action having been brought by the mortgagor, because the mortgagee was made a party defendant and filed an answer claiming the proceeds of the policy. The defendant was therefore abundantly protected against any possibility of a further claim. Moreover, before the trial was had the mortgage was fully paid and released of record. Regardless' of whether the action should or could have been brought in the name of the mortgagee, for this court to order a reversal because the mortgagor was named as the plaintiff, when both were in court and bound by the judgment, would be to sacrifice substance to form.
The case was tried without a jury. The defendant demurred to the plaintiff’s evidence, the demurrer was overruled, the defendant stood upon the demurrer, and judgment was rendered for the plaintiff. Complaint is made of the overruling of the demurrer on the ground that while the petition alleged the plaintiff’s full performance of all the requirements of the policy no evidence had been produced of giving notice or furnishing proof of loss, and while there was evidence sufficient to sustain a finding that such notice and proof had been waived, no waiver had been pleaded.
The majority view, acquiesced in by this court, is that allegations of the giving of notice and furnishing proof of loss will not support evidence of their having been waived. (26 C. J. 497, 498.)
The case was submitted on the demurrer to the plaintiff’s evidence and taken under advisement on June 25, 1920, the defendant announcing that it would not introduce any evidence, but would stand upon the demurrer. On August 24, 1920, while the matter was still under advisement, the plaintiff asked, and over the objection of the defendant was given, permission to amend the petition to conform to the proof by alleging facts in relation to such waiver, the defendant being given ten days to plead thereto, with leave to both parties to introduce further evidence if desired. The amendment was made September 2, 1920. The demurrer to the evidence was overruled March 28, 1922.
The following are the allegations inserted in the petition by the amendment:
“That J. C. Burnett of Emporia, Kansas, was the local agent for the defendant insurance company, was familiar with the location and character of the said property and had, as such local agent, written the policy of insurance, copy of which is attached to plaintiff’s original petition. That immediately after the occurrence of said fire, the plaintiff orally notified the said J. C. Burnett of the occurrence of said fire and requested him to inform the defendant insurance company; that the said J. C. Burnett did fully inform the defendant insurance company of the occurrence of the said fire, and thereafter and within a short time the defendant insurance company, having received full notice, sent its duly authorized agent and adjuster,' one Carl N. Hiefeldt, to examine the property and ascertain and settle the loss thereon, and the said Hiefeldt came to Emporia, examined the said property and did attempt to settle with the plaintiff. That by agreement of the parties, one Kiefer, a qualified builder and contractor of Emporia, Kansas, was employed to make an estimate of the loss and damage, which the said Kiefer did, and submitted the same to the agent of the defendant insurance company; that the said agent refused to agree to the actual amount of the loss and damage, or to the estimate made by the said Kiefer, and claimed that the loss did not exceed $880, of which one-half only would be due from the defendant insurance company; and thereupon refused to settle said loss or adjust the same, or pay the plaintiff anything on account-thereof, and ever since has so refused. That the said defendant insurance company did not make any demand in writing for arbitration, but wholly breached and rejected the said contract of insurance.”
The original petition contained these paragraphs:
“That after the loss and damage by fire as above recited, the said defendant, The Northwestern National Insurance Company of Milwaukee, Wisconsin, sent its duly authorized agent and adjuster, one Carl N. Hiefeldt, to examine the property and estimate and settle the loss thereon and thereto and the said Carl N. Hiefeldt did come to Emporia, Kansas, and did examine the property and estimated the damage and the loss caused thereto by said fire and talked about settling with this plaintiff for said loss.
“That said defendant, The Northwestern National Insurance Company of Milwaukee, Wisconsin, acting through said agent and adjuster, and this plaintiff could not agree upon the amount of damage caused to said property by said fire, the company claiming that the property was only damaged to the amount of $880.
While the original averments are lacking in detail they do set out in general terms the sending out by the defendant of an adjuster, who- discussed a settlement with the plaintiff, the negotiations resulting in a disagreement concerning the amount of the damage. We think the essential portions of the amendment may fairly be regarded as merely an expansion and amplification of the matters already pleaded.
It does not appear that the defendant in fact was in any way hampered in its defense by the evidence that was introduced or by the amendment that was made. It did not avail itself of the opportunity to introduce further evidence which was expressly extended to it at the time leave to amend was given. The statute provides:
“No variance between the allegations, in a pleading, and the proof is to be deemed material, unless it have actually misled the adverse party, to his prejudice, in maintaining his action or defense upon the merits. Whenever it is alleged that a party has been so misled, that fact must be proved to the satisfaction of the court, and it must also be shown in what respect he has been misled, and thereupon the court may order the pleading to be amended, upon such terms as may be just.” (Civ. Code, § 134.)
No showing seems to have been made as to the respect in which the defendant was misled by the variance, or that he was actually misled at all, nor does it appear likely from the record that such was the case.
In Insurance Co. v. Johnson, 47 Kan. 1, 27 Pac. 100, a reversal was ordered because of the reception of evidence of a waiver which had not been pleaded, but there the trial court had refused to allow an amendment. In one case cited by the defendant (Gillett v. Insurance Co., 53 Kan. 108, 36 Pac. 52) the trial court rejected the evidence offered upon matters not .pleaded, and in another (Palmer v. Blodgett, 60 Kan. 712, 57 Pac. 947) refused to make a finding in accordance with it.
The judgment is affirmed.
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The opinion of the court was delivered by
Harvey, J.:
This is an appeal by plaintiff from a judgment sustaining a demurrer to plaintiff’s evidence and finding the defendants not guilty of contempt, at a hearing in which the defendants were charged with the violation of a permanent injunction previously rendered against them and in favor of plaintiff in the same case. A brief statement of the case will enable us better to understand the questions presented.
Rattlesnake creek flows through township 24, range 11, in Stafford county, entering the township at the southwest quarter of section 31 and running north of east to the northwest corner of section 35, then northeast to the northeast quarter of section 25, thence northward and leaves the township in the northwest quarter of section 1. The plaintiff, J. P. Smith, is the owner of land in sections 1, 12, 13 and 24, through which the creek runs. C. A. Clothier is the owner of the west half of section 35; the Stafford County Gun Club Association owns the east half of section 35, and the Salt Marsh Hunting Association the northwest quarter of section 36. There is low, marshy ground in the northeast quarter of section 35 and the northwest quarter of section 36, frequented by ducks during the season and used for hunting ground. If the water is low or entirely gone there are few ducks, but when plenty of water is in the marsh it is quite a hunting resort. In March, 1909, C. A. Clothier leased for 99 years to the Stafford County Gun Club Association the right to maintain a ditch from Rattlesnake creek, at the northwest quarter of section 35, east along the north line of said quarter section. The Stafford County Gun Club Association and the Salt Marsh Hunting Association constructed a ditch near the north line o-f section 35 from the northwest corner of the section to the northeast corner, connecting it with Rattlesnake creek at the northwest corner of the section and placed a 24-inch tile in the ditch to carry the water from Rattlesnake creek to the salt marsh. The ditch was dug to a depth lower than the bed of Rattlesnake creek and through the ditch they diverted a large portion of the water in the creek. Rattlesnake creek ordinarily carries a flow of water a foot to eighteen inches deep, at times of a freshet it carries more, and at times of prolonged drought it carries very little water, but is usually a. running stream. The plaintiff Smith objected to the defendants diverting the water from Rattlesnake creek to fill the salt marsh for hunting purposes, and brought a suit to enjoin them from so doing. The defendants named in this suit were: C. A. Clothier, Stafford County Gun Club Association, and the Salt Marsh Hunting Association. This case was tried by the court upon an agreed statement of facts. The court held the plaintiff to be a riparian owner and entitled to the use of the water; that the defendants, the Stafford County Gun Club Association and the Salt Marsh Hunting Association, owned no land through which the creek ran, and, hence, were not riparian owners, and that they had no right to divert the water from Rattlesnake creek to fill their marsh for hunting purposes; that the same was not a beneficial use of the water within the definition of that term as used in Campbell v. Grimes, 62 Kan. 503, 64 Pac. 62, and that Clothier had no right to authorize the construction of a ditch through his land to permit the gun club and hunting association to divert the water from the creek for a purpose not beneficial. This injunction was made permanent in December, 1919. The judgment entered was:
“That the defendants and each of them, their agents, employees and assigns be forever enjoined and restrained from diverting the water in Rattlesnake Creek out of the same through the ditch mentioned and described in plaintiff’s petition, and that defendants and each of them be forever enjoined from maintaining said ditch for the purpose of diverting the water of said Rattlesnake Creek through said ditch from out of said stream, and that defendants are restrained and permanently enjoined from hereafter permitting the flowage of water out of said creek into and through said ditch.”
In August, 1921, the plaintiff Smith filed a motion, verified by his affidavit, in the original injunction suit, setting out the final judgment entered in December, 1919, setting forth that the defendants had persistently and continuously violated the order of the court, except for a short period of time, and moved the court to issue an attachment and to name a day certain for a hearing why the defendants should not be punished as for contempt. The court' made such an order and fixed a date for the hearing, and notice thereof was served upon defendants. On the day named the defendants appeared by counsel, orally demurred to the motion as being insufficient to put them on trial for contempt of the court’s injunction, and their demurrer was sustained. The plaintiff then filed what he entitled a “Bill of Particulars, dr Complaint,” specifically naming the officers of the Stafford County Gun Club Association and the officers and members of the Salt Marsh Hunting Association; setting out the final judgment of the court of December, 1919, in the injunction suit, and charging the defendants, their officers, members, agents and employees, with the violation of the final judgment in the injunction suit. This was verified by plaintiff, and attached thereto were a number of supporting affidavits, and it contained a motion for an order to defendants to show cause why they should not be punished as for contempt. The court made an order, fixing a date certain, for the defendants to show cause why they should not be dealt with by the court as for an indirect contempt. Defendants appeared and filed an answer: first, a general denial; second, that if the water ran through the ditch it was without the knowledge, consent or authority of defendants; third, that plaintiff acquiesced in the violation of the injunction; fourth, that the reason plaintiff did not have water at his place was because the water evaporated before it reached plaintiff’s land; fifth, that plaintiff had plenty of water for his needs, and that one Rose who had land adjoining plaintiff diverted some of the water; sixth, that plaintiff was himself diverting water from the creek; seventh, that this complaint was made through malice and for extortion; eighth, that the property of defendants is kept for a game preserve, and is a breeding place for wild ducks, and when water is low it is necessary to turn water into the marsh to preserve the life of the fowls, and that the lay of the land is such that the water from the marsh flows back into the creek before it reaches plaintiff’s premises; and ninth, that defendants had made application to the game warden under the Laws of 1921 to establish a game refuge, which application had been allowed and that the state of Kansas was in possession of their premises and interested therein. The plaintiff moved severally to strike out each of these defenses as not setting forth a legal excuse or justification for the defendants to violate the injunction granted by the court, which mdtion was overruled, and plaintiff filed a reply denying the allegations of the answer. The court held the burden of proof to be on plaintiff. The' plaintiff offered his evidence; the defendants demurred thereto; the court sustained the demurrer, found defendants not guilty of contempt and discharged them, and taxed the costs to plaintiff.
The plaintiff appeals, alleging that the court erred, first, in sustaining the oral demurrer to plaintiff’s motion and requiring plaintiff to file an amended motion, bill of particulars, or complaint, supported by affidavit; second, in overruling plaintiff’s motion to strike out the several defenses in defendants’ answer; third, in sustaining the demurrer to plaintiff’s evidence and rendering judgment thereon.
Before considering appellant’s alleged errors, we must consider an important question raised by the appellees.
Appellees contend that the appellant has no standing in this court; that the order sustaining the demurrer to the evidence and finding the defendants not guilty is not an order from which an appeal can be taken by plaintiff; that it is not a final order, as defined by section 566 of the’civil code.
To determine this we must inquire into the nature of the contempt proceedings in this case. While the line of distinction is not always easy to point out, it is well recognized that contempt of court may be either criminal or civil. Rapalje, in his work on Contempt, section 21, gives the following general definitions relating thereto:
“Civil contempts are those quasi contempts which consist in failing to do something which the contemnor is ordered by the court to do for the benefit or advantage of another party to the proceeding before the court; while criminal contempts are all those acts in disrespect of the court or of its processes, or which obstruct the administration of justice or tend to bring the court into disrepute.”
In 13 C. J. 6, the rule is thus stated:
“A criminal contempt is conduct that is directed against the dignity and authority of the court and may occur in either criminal or civil action and special proceedings. Civil contempt consists in failing to do something ordered to be done by a court in a civil action for the benefit of the opposing party therein, and is therefore not an offense against the dignity of the court but against the party in whose behalf the violated order is made. If, however, the contempt consists in doing a forbidden act injurious to the opposite party, the contempt may be considered criminal.”
And further, on page 7:
“Criminal contempts being offenses directed against the dignity and the authority of the court, are offenses against organized society, which, although they may arise in the course of private litigation, are not a part thereof but raise an issue between, the public and the accused and are, therefore, criminal and punitive in their nature. . . . Contempts prosecuted to preserve the rights of private parties are civil and remedial in their nature.”
In. Gompers v. Bucks Stove & Range Co., 221 U. S. 418, the court considered and made a very clear analysis of the' matter, as follows:
“Contempts are neither wholly civil nor altogether criminal. ’And ‘it may not always be easy to classify a particular act as belonging to either one of these two classes. It may partake of the characteristics of both.’ Bessette v. Conkey Co., 194 U. S. 329 [48 L. Ed. 1002, 24 Sup. Ct. Rep. 665], But in either event, and whether the proceedings be civil or criminal, there must be an allegation that in contempt of court the defendant has disobeyed the order, and a prayer that he be attached and punished therefor. It is not the fact of punishment, but rather its character and purpose, that often serve to distinguish between the two classes of cases. If it is for civil contempt the punishment is remedial, and for the benefit of the complainant. But if it is for criminal contempt the sentence is punitive, to vindicate the authority of the court. It is true that punishment by imprisonment may be remedial as well as punitivé, and many civil contempt proceedings have resulted not only in the imposition of a fine, payable'to the complainant, but also in committing the defendant to prison. But imprisonment for civil contempt is ordered where the defendant has refused to do an affirmative act required by the provisions of an order which, either in form or substance, was mandatory in its character. Imprisonment in such cases is not inflicted as a punishment, but is intended to be remedial by coercing the defendant to do what he had refused to do. The decree in such cases is that the defendant stand committed unless and until he performs the affirmative act required by the court’s order.
“For example: If a defendant should refuse to pay alimony, or to surrender property ordered to be turned over to a receiver, or to make a conveyance required by a decree for specific performance, he could be committed until he complied with the order. Unless these were special elements of contumacy, the refusal to pay or to comply with the order is treated as being rather in resistance to the opposite party than in contempt of the court. The order for imprisonment in this class of cases, therefore, is not to vindicate the authority of the law, but is remedial, and is intended to coerce the defendant to do the thing required by the order for the benefit of the complainant. If imprisoned, as aptly said In re Nevitt [54 C. C. A. 622], 117 Fed. Rep. 451, ‘he carries the keys of his prison in his own pocket.’ He can end the sentence and discharge himself at any moment by doing what he had previously refused to do.
“On the other hand, if the defendant does that which he has been commanded not to do, the disobedience is a thing accomplished. Imprisonment cannot undo or remedy what has been done, nor afford any compensation for the pecuniary injury caused by the disobedience. If the sentence is limited to imprisonment for a definite period, the defendant is furnished no key, and he cannot shorten the term by promising not to repeat the offense. Such imprisonment operates not as a remedy coercive in its nature, but solely as punishment for the completed act of disobedience.
“It is true that either form of imprisonment has also an incidental effect. For if the case is civil and the punishment is purely remedial, there is also a vindication of the court’s authority. On the other hand, if the proceeding is for criminal contempt and the imprisonment is solely punitive, to vindicate the authority of the law, the complainant may also derive some incidental benefit from the fact that such punishment tends to prevent a repetition of the disobedience. But such indirect consequences will not change imprisonment which is merely coercive and remedial, into that which is solely punitive in character, or vice versa.
“The fact that the purpose of the punishment could be examined with a view to determining whether it was civil or criminal is recognized in Doyle v. London Guarantee Co., 204 U. S. 599, 605, 607 [51 L. Ed. 644, 645, 27 Sup. Ct. Rep. 313], where it was said that ‘while it is true that the fine imposed is riot made payable to the opposite party, compliance with the order relieves from payment, and in that event there is no final judgment of either fine or imprisonment. . . . The proceeding is against a party, the compliance with the order avoids the punishment, and there is nothing in the nature of a criminal suit or judgment imposed for public purposes upon a defendant in a criminal proceeding.’ Bessette v. Conkey Co., 194 U. S. 328 [48 L. Ed. 1002, 24 Sup. Ct. Rep. 665]; In re Nevitt [54 C. C. A. 622], 117 Fed. Rep. 448; Howard v. Durand, 36 Ga. 359 [92 Am. Dec. 767]; Phillips v. Welch, 11 Nev. 187.
“The distinction between refusing to do an act commanded — remedied by imprisonment until the party performs the required act; and doing an act forbidden — punished by imprisonment for a definite term; is sound in principle, and generally, if not universally, affords a test by which to determine the character of the punishment.” (p. 441.)
Under these definitions there is no difficulty in classing the contempt proceedings in this case as civil rather than criminal. The suit in the first place was purely a civil suit in equity to enjoin the defendants from doing a thing which injuriously affected the plaintiff. The suit was not in any sense one of a public nature, but was private litigation between private parties for the protection of civil rights. The injunction granted by the final decree of December, 1919, was mandatory in its nature, and the-complaint, which gave rise to the contempt proceeding was that the defendants had failed to do and perform the acts and things required of them by the mandatory injunction. The relief, if any, granted in the contempt proceedings, while it might take the form of imprisonment of defendants or a fine (though the fine might be paid into the school fund) would be remedial in its nature and inure to the benefit of the plaintiff, and, of course, defendants could relieve themselves of the punishment imposed by a compliance with the terms of the injunction.
There is some confusion among the authorities concerning the right of appeal or right of review from the judgment of the court in a contempt proceeding. Much of this confusion is eliminated when the questions are classified as to whether or not the contempt is civil or criminal and as to whether or not the right of review is conferred by statute. While there are some decisions to the contrary, the weight of authority is that in a purely civil contempt proceeding the judgment of the court, whether it finds the defendant guilty or not guilty, is such a final order respecting the rights of the. parties that the aggrieved party may appeal from it, and this view is supported by the better reasoning. In 13 C. J. 100, the rule is thus stated:
“In some jurisdictions either party may appeal in like manner and with like effect as from a judgment in an action and an order adjudging one not guilty of a civil contempt is appealable, but in others an order refusing to punish for an alleged civil contempt is not reviewable on appeal.”
In Vilter Mfg. Co. v. Humphrey, 132 Wis. 587, it was held that an order in a civil proceeding under the statute of 1898, § 3477, subdivision 3, authorizing a proceeding to punish for contempt for violating an order of the court adjudging that one is not guilty of contempt, is appealable.
In Jastram v. McAuslan, 29 R. I. 390, it was held that a decree denying and dismissing a petition that defendant trustees be adjudged in contempt for not paying to complainant a specified sum in satisfaction of a decree previously entered, determines the rights of the complainant and is a “final decree” within the constitutional amendment (art. 12, § 1), granting to the supreme court appellate jurisdiction on all questions of law and equity.
In Red River Valley Brick Corp. v. Grand Forks, 27 N. Dak. 431, 440, it was held that an appeal will lie to the supreme court from an order finding defendants not guilty of civil contempt.
In Railroad v. Gildersleeve, 165 Mo. App. 370, it was held that an appeal from a judgment adjudging one guilty of contempt for violating an injunction in a civil action involves a civil controversy under the statute authorizing appeal in civil cases.
In Howard v. Durand, 36 Ga. 346, it was said:
“In. some cases the punishment of a party for a contempt is a remedial proceeding to which the opposite party is entitled, though it may not be necessary for the vindication of the authority of the court.”
“In such a case if the court below fail to give the party his rights this court will correct the error and grant the party that relief to which he is entitled.” (syl. ¶¶ 3, 4.)
Vilter Mfg. Co. v. Humphrey, 132 Wis. 587, 13 L. R. A., n. s., 591; was an appeal from an order denying a motion to punish for contempt of court in violating an injunction order. The action was in 'equity to enjoin the strikers and labor unions from interfering with plaintiff’s business. The court entertained the appeal for the reason that the primary purpose was the protection of the rights of the opposite party, and held it to be a civil proceeding.
In The State v. Horner, 16 Mo. App. 191, being a mandamus suit to compel the trial court to issue its process commanding third persons to obey the decree of the court where the court has made final order refusing such relief, mandamus was refused for the reason that the matter was appealable as final judgment in a civil case. The court said:
“Where, as in this case, the proceeding is instituted by .a party to enforce a civil remedy, it assumes the essential characteristics of an adversary proceeding, and the court does not, as a general rule, confine its inquiry to the answers of the respondent to interrogatories, but it hears evidence produced by both parties. (Citing cases.) The decision of the court, by whatever name it be called, and whether it be in favor of or against the accused, possesses the essential characteristics of a final judgment dispositive of a substantial right. This being so, whilst it is a rule of common law procedure that an appeal does not lie from a judgment in a proceeding for a criminal contempt, yet it is generally held that where the proceeding is, as in this case, a remedial proceeding as for a contempt, the final judgment or order by which the court ends the proceeding and exhausts its jurisdiction', is subject to revision by appeal. (Citing cases.) . . . Clearly, such an order is a ‘final judgment or decision’ in a ‘civil cause’; and whether it be the subject of appeal cannot be determined by the question of whether it was rendered in favor of the one party to the controversy or the other. If it be a judgment convicting the defendant of the contempt charged and imposing upon him a punishment therefor, it is a final judgment by which he may be aggrieved and which may be the subject of an appeal by him. If, as in this case, it be a judgment discharging the accused from prosecution, it finally disposes of the right demanded by the other party to the civil proceedings, and it is a judgment by which he may be aggrieved within the meaning of the statute.” (pp. 195, 196.)
Many other cases might be cited.
In this case a judgment upon the contempt proceedings is “an order affecting a substantial right, made in a special proceeding or in a summary application in an action after judgment” within the meaning of the term as used in section 566, of the civil code, and is, therefore, “a final order” from which the aggrieved party may take an appeal within the meaning of that term as used in section 565 of the civil code.
This leads us to a consideration of the matters alleged by appellant as error. First, that the court erred in sustaining the oral demurrer to plaintiff’s motion.
Section 3107, of the General Statutes of 1915, provides the procedure for indirect contempt as follows:
“That upon the return of an officer on process or an affidavit duly filed showing any person guilty of indirect contempt, a writ of attachment or other lawful process may issue, and such person be arrested and brought before the court or judge in chambers; and thereupon a written accusation setting forth succinctly and clearly the facts alleged to constitute such contempt shall be filed, and the accused required to answer the same, by an order which shall fix the time therefor and also the time and place for hearing the matter; and the court or the judge in chambers shall, on proper showing, extend the time so as to give the accused a reasonable opportunity to purge himself of such contempt. After the answer of the accused, or if he refuse or fail to answer, the court or judge may proceed at the time so fixed to hear and determine such accusation upon such testimony as shall be produced. If the accused answer, the trial shall proceed upon testimony produced as in criminal cases, and the accused shall be entitled to be confronted with the witnesses against him; but such trial shall be by the court or judge. If the accused be found guilty, judgment shall be entered accordingly, prescribing the punishment.”
This is one section of chapter 106, of the Laws of 1897, as amended by chapter 123 of the Laws of 1901, pertaining to contempts of court, and outlines the proceedings that should be followed in all that class of contempt cases properly classified as criminal contempt.
Section 7158 of the General Statutes of 1915, being Section 260 of the civil code, as revised and passed in 1909, reads as follows:
“An injunction granted by a judge may be enforced as the act of the court. Disobedience of any injunction may be punished as a contempt, by the court or any judge who might have granted it in vacation. An attachment may be issued by the court or judge, upon being satisfied, by affidavit, of the breach of the injunction, against the party guilty of the same, and he may be required, in the discretion of the court or judge, to pay a fine not exceeding two hundred dollars, to make immediate restitution to the party injured, and give further security to obey the injunction; or, in default thereof, he may be committed to close custody until he shall fully comply with such requirements, or be otherwise legally discharged.”
The record in this case would indicate that the respective parties rather mingled the procedure as outlined by the two sections above quoted.
Where the suit is one for injunction relating to private rights and the final injunction decree is mandatory in its nature, requiring certain things to be done by defendant, the proceeding for contempt for the disobedience of such mandatory injunction is for the benefit of the plaintiff and remedial in its nature, and the procedure outlined by section 7158, of the General Statutes of 1915 above quoted applies. The verified motion filed by plaintiff in this case treated as an affidavit under this section, while naming the defendants as in the original suit, did not name the officers and members of the defendant associations and the court did not commit error in requiring a new affidavit to be filed more specifically naming the particular persons charged as being guilty of the contempt and more specifically setting out the facts.
Appellant contends that his motion to strike out the several so-called defenses in the answer of the defendants should have been sustained. The first defense was a general denial, amounting to a plea of not guilty, and the second was in effect a plea of good faith. It is not improper for a court of equity to let a party show his good faith. There was no error in the court overruling the motion to strike these two defenses.
The third paragraph is rather a weak effort to plead acquiescence by the plaintiff of the violation of the injunction by defendant, but is insufficient for that purpose. The books have but a few cases discussing the acquiescence of one party to an injunction suit in the violation of the injunction order by the other party.
In Howard v. Durand, 36 Ga. 346, the defendant was enjoined from selling certain machinery. Soon after the final decree was entered in the injunction suit the parties entered into a contract in writing 'by which, for a named consideration, the sale might proceed. Later the defendant did not comply with the payments under the contract and plaintiff proceeded against him for contempt. The court declined to find the defendant guilty, saying:
“These parties entered into a new contract, by which the injunction was in effect dissolved; and because defendant failed, as it is alleged, to comply with this contract, the court is asked to punish him for the violation of the injunction previously granted.” (p. 360.) ,
In Holcombe v. Dupree, 50 Ga. 335, a sheriff was cited for failing to levy an execution. He answered that he had not proceeded because of written orders of the plaintiff not to proceed with it and it was held that the sheriff should not be punished for contempt.
In Kempson v. Kempson, 61 N. J. Eq. 303, the husband and wife lived in New Jersey. The husband went to North Dakota, claiming to have established residence there, and brought suit for divorce. The wife obtained an injunction restraining him from procuring such divorce. He had notice of this but proceeded to obtain his decree, in which was made an order to pay the wife alimony. He later returned to New Jersey, resumed his former relations with his wife for a time, paid her weekly alimony as ordered by the North Dakota court for several months, and wrote on the checks “in accordance with the decree of divorce in North Dakota.” The wife thereafter brought contempt proceedings. He claimed she had acquiesced in his violation of the injunction. The court held she was not estopped and required the husband to pay a fine to the state and to take proper measures to undo the contemptuous act by having the decree in North Dakota opened and set aside.
In ex parte Cash, 9 L. R. A., n. s., 304; (50 Tex. Crim. Rep. 623) it was said:
“The mere offer by an agent of the complainant in the suit to purchase an article which defendant is enjoined from selling, for the purpose of determining whether or not the injunction is being violated, is not such an invitation to violate the injunction that he will not be guilty of contempt in case he makes the sale.”
In Bond v. Pennsylvania Co., 126 Fed. 749, where a railroad company, against which an injunction had issued at the instance of an abutting owner, restraining it from running its tracks in the street, violated the same, and continued such violation for about eight years without objection on the part of such abutting owner, it was held, not to amount to acquiescence on his part so that it could be used as justification in contempt proceedings for its violation.
In Bower v. Von Schmidt, 87 Fed. 293, it was held that a consent or solicitation by one party to the suit, to the violation by the other of the injunction issued therein, will not justify such violation; but that it is necessary to bring such arrangement to the attention of the court issuing the injunction and to obtain a dissolution or modifica-' tion thereof.
High on Injunctions lays down the rule as follows:
“But to deprive a party obtaining the, writ of the right to move for a committal for its breach, on the ground of his acquiescence therein, a strong showing of acquiescence must be made out. Thus, where defendant seeks to evade his liability for breach of an injunction restraining him from the use of complainant’s trademark, upon the ground of acquiescence, he must show such a degree of acquiescence as would suffice to create a new right in himself.” (§ 1450.)
In this case the plaintiff is a riparian owner with the right to use the water from this stream. It may be questioned whether he could make any valid agreement with the defendants, who are not riparian owners, for an improper use of the water. Certainly, he could not do so as against other riparian owners. True, he might remain silent and not assert his rights, but that would not avail the defendants anything, since it had already been adjudicated that their use of the water was not for a beneficial purpose. From the meager authorities it would appear that the true rule is that after an injunction is granted to a party to protect his rights in a civil matter, his acquiscence in the violation of the injunction could not be available .as a defense unless it was of such a nature, as being a new contract concerning the subject matter of the original suit, that had it been available to the defendant at the time the original injunction was granted, it would have been sufficient to defeat the granting of the injunction, and that such acquiescence must be established by clear and convincing proof. The third paragraph of defendant’s answer falls far short of this, and plaintiff’s motion to strike it should have been sustained.
Without making detailed analysis of the fourth, fifth, sixth, seventh and eighth defenses set up in defendant’s answer, it is clear that they attempted to relitigate the right to use the water as against plaintiff, or set up other matters that in no way constitute a defense, and each of them should have been stricken out.
In the ninth paragraph of their answer defendants plead as a defense the establishment of a game refuge on their property in accordance with chapter 197 of the Laws 1921. There is nothing in that statute that affects the rights of riparian owners to the water in a stream and this paragraph of the answer should have been stricken out.
Practically speaking, there was but one question before the court, and that was whether or not the defendants had complied with the mandatory injunction order and judgment of the court rendered December, 1919. Other matters pleaded should not have been permitted to cloud the real and only issue in the case.
Appellant complains of the court sustaining a demurrer to plaintiff’s evidence. The evidence, so far as is relates to the real question in controversy, is in substance as follows:
The plaintiff, Smith, testified that he had been to the ditch where it opened from the creek a number of times after the injunction was granted, and up to August, 1921, had always found the ditch open and never found it closed. It has a tile two feet in diaméter where the water runs out of the creek into the ditch. This tile was covered. He had seen; it a great many times and was never there when it was closed. C. A. Clothier, a defendant, testified that he was acquainted with the ditch; that it had never been filled; that its condition was just like it was when the permanent injunction was granted; that the flow of water was stopped there once before the permanent injunction was granted and once since. He had been there a number of times; sometimes there was water running through there. In the spring of 1921 it had been shut up to about harvest and been running ever since. He knew the township officers wanted to work a road along near the ditch and that they said they could not on account of the water. He did not shut the water off; did not have time. W. H. Gahm, township clerk, saw the ditch in April, 1921, and six or eight times afterwards. In April the flowage of water through the tile was partly closed by an inch plank nailed together and set at the mouth of the tile and a little dirt thrown on it. The closing was not very permanent; the next time he saw the ditch it was open and the water was running. They wanted the road graded along the ditch, but it was under water which had run into it from the ditch. One day he saw Mr. Petrie and John McGuire working in the ditch, cleaning it out with shovels, so the water would go down into the marsh. Frank Green- lived in St. John; saw the ditch a few times and the water was flowing out of the creek through the tile into the ditch. The tile was about a third full. There was nothing to stop the flow of- the water into the tile. Will Petrie, one of the defendants, lived on the salt marsh and looked after it for the Hutchinson association. He constructed this ditch when it was made and put in a 24-inch galvanized tile 16 feet long, covered with dirt where the water came out of the creek. He never closed the flow of the water after the injunction suit. The officers and some of the members of the Hutchinson association were there after the injunction suit-and it was talked over at the club. “I don’t remember who told me but it was the understanding that the injunction had been allowed, and to keep away from the ditch entirely.” The tile had been closed several times. He had seen the water running. The secretary of the club ordered me to stop- it, but at that time it was stopped. It had two boards that closed up one end and had sticks in it and tumble weeds and was practically stopped. “I have seen it mighty near stopped.” The tile was not taken out. Charles Petrie lived on the Stafford County Gun Club Association premises; was acquainted with the ditch and the tile; had seen them quite often, perhaps twenty times. The water was not at all times flowing through, but part of the time it was. It was not entirely closed all summer. He stopped it up once with a sack of cement at the lower end and four loads of dirt and some boards at the other end. He had put boards in there twice, but they had been removed or washed away. In some places the road running along the ditch was impassable because of the water from the ditch. The tile had never been taken out and the ditch had never been filled although he put some dirt in it. A. H. Watson, a member of the Stafford County Gun Club Association and a director, testified that after the injunction the directors ordered the ditch closed, but after that order he saw the water flowing and again ordered it closed. This time the order was made to Charlie Petrie. James N. Farley, a member and trustee of the Salt Marsh Hunting Association, testified that the board of directora ordered the ditch closed. He never saw the ditch until the middle of August, 1921. At that time the water was running from the creek through the tile. J. W. Richardson was acquainted with the ditch and tile; saw it in the latter part of June, 1921, and it was open. He examined both ends of the tile. There was nothing to obstruct the water. A. W. Hartnett, an officer of the Stafford County Gun Club Association, was at the ditch one Sunday shortly after the permanent injunction was granted and he and two others worked there about two hours, drove some two-by-sixes down in front of the tile and threw dirt on. He was there again in March or April, 1921, and the water was flowing some. The ditch was not filled up and the tile had not been removed. Fred Erdsick was township trustee. He visited the ditch three times in the summer of 1921. Every time he was there the water was running. He had had notice from an attorney that the township would be sued unless it fixed the road along this ditch, and went down to look at it and found water so he could not work. He had a talk with one of 'the defendants and told him he would have to shut the ditch before they could build the road, and he said they would shut it, but the ditch was not shut. The ditch and tile are still there.
From this recital of the evidence it will be seen that there was ample grounds to sustain the plaintiff as against a demurrer to the evidence. In view of the fact that a number of the witnesses called were defendants in the case, including the persons living on the grounds of the two associations, it would seem that practically all of the evidence on the matter was before the court. It seems clear that the efforts of the defendants to comply with the order of the court granting the permanent injunction were superficial and ineffective. We have no hesitation in saying that the court erred in sustaining the demurrer to the evidence.
The case is reversed, with directions to the court below to set aside the judgment in favor of the defendants; to overrule the demurrer to the evidence; to sustain plaintiff’s motion to strike out paragraphs three to nine, both inclusive, of defendants’ answer, and to proceed with the case in accordance with this opinion.
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The opinion of the court was delivered by
Dawson, J.:
This was an action to recover a partial payment on the contract purchase price of a farm.
Plaintiff bought a Douglas county farm from defendant for $1,000 in cash and $8,000 which he was to pay on or before January 1, 1921. He took possession of the farm buildings and part of the land in August, 1920, and made some improvements thereon. In December, 1920, plaintiff left Douglas county for business and pleasure, .leaving some cattle and horses on the premises. He also left some oats in a granary thereon. Shortly afterwards plaintiff’s father and brother took away the live stock and hauled away the oats. He did not pay the balance of the purchase price when due and has not yet tendered payment thereof. On January 1, 1921, defendant reentered the f^irm and still holds possession. The transaction proceeded no further towards completion. Some time later, date not shown, this action was begun by plaintiff to recover the $1,000; he alleged forcible dispossession and rescission by defendant. Defendant’s verified answer alleged that plaintiff had merely entered into the contract of purchase as a speculation, that he had neither the money nor the credit to carry out the contract, that he had abandoned the farm, ‘that plaintiff had neither paid nor offered to pay the $8,000, nor had he demanded a conveyance nor possession since the abandonment. Defendant prayed in the alternative for a decree canceling the contract or for judgment for the $8,000 and interest and for a first lien on the farm to secure such judgment and that the farm be sold to satisfy it.
An advisory jury and the trial court made findings of fact as above narrated, and 'the court deduced therefrom certain conclusions of law:
“1. The plaintiff did not abandon the possession of the farm.
“2. The possession of the farm by the defendant does not amount to a rescission or cancellation of the contract.
“3. The plaintiff is not entitled to a return to him of the $1,000 paid by him or the value of the improvements placed upon the real estate by him.
“4. A judgment should be entered that if the plaintiff- shall tender to the defendant a sum of $8,000 oni or before August 1, 1922, he shall be entitled to performance of the contract according to its terms.”
The court gave judgment accordingly, and the plaintiff’s main contention is the judgment should have been in his favor.
Plaintiff argues that the reentry of defendant was in effect a rescission of the contract. Not necessarily so. Plaintiff was in default of payment. Defendant could not know for certain whether plaintiff would return; he could not know whether plaintiff would ever go further with the contract — whether he ever would pay. So, out of prudence, he reentered. Mayhap he reëntered in reliance on what this court said in the analogous case of Morris v. Derr, 55 Kan. 469, 40 Pac. 908:
“That the mere taking possession of the land by the defendant after plaintiff’s default in payment of the note did not of itself operate as a rescission of the contract, nor give to the plaintiffs the right to recover the $2,000 paid.” (Syl.)
. We have to consider this case upon the trial court’s findings of fact, and these do not compel the conclusion that either party had abandoned the contract, although a conclusion that the plaintiff had abandoned it could scarcely have been disturbed on appeal. There is no clear ground which would have justified a conclusion that the defendant had abandoned the contract, so far as established by the findings. It seems that the trial court dealt very considerately with plaintiff. Notwithstanding his default, it gave him nineteen months’ extension of time to complete his payment of the purchase price, which was certainly not within the contemplation of the parties at the time they made the contract of sale. Plaintiff has no just ground of complaint at the judgment, and he is not entitled to the return of his first payment. (McAlpine. v. Reicheneker, 56 Kan. 100, 42 Pac. 339; Roberts v. Yaw, 62 Kan. 43, 61 Pac. 409; Hull v. Allen, 84 Kan. 207, 113 Pac. 1050; Hillyard v. Banchor, 85 Kan. 516, 118 Pac. 67; Wensler v. Tilke, 97 Kan. 567, 155 Pac. 946; Bentley v. Keegan, 109 Kan. 762, 202 Pac. 70; Note in L. R. A. 1918 B, 544.)
The judgment is affirmed.
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The opinion of the court was delivered by
Hopkins, J.:
John Bertenshaw, receiver for the W. R. S. Oil and Gas Company, appeals from a certain judgment and liens allowed by the district court of Montgomery county.
On the 20th of April, 1918, the W. R. S. Oil and Gas Company sold an undivided three-fourths interest in certain oil and gas leases to the Syndicate Oil Company, of Denver, Colorado, for $22,500, payable in installments. For convenience the W. R. S. Oil and Gas Company will be referred to as the Gas company and the Syndicate Oil Company as the Oil company. The contract, with an assignment of the leases, was deposited in the Citizens First National Bank of Independence, Kan., to be delivered upon the payment by the Oil company of the amounts provided for in the contract, and upon failure to make such payments, the contract to be null and void, and the assignments and all papers to be returned, as liquidated damages, to the Gas company. After the execution of the above contract, the Oil company entered into a contract with H. E. Wilcox, under the name of the Independence Drilling Company, for the drilling of eight wells upon the leases, for which the Oil company agreed to pay three-fourths, and Wilcox one-fourth of the cost. It was provided that Wilcox should act as superintendent of the Oil- company and receive for such services a stated salary.
Wilcox was the president and the owner of an undivided one-fourth interest in the Gas company. Under his contract with the Oil company, he began and carried forward drilling operations. On November 29, 1918, the Oil company made a payment of $2,500 to the Gas company, making an aggregate total payment on its contract of $15,000. This was the last payment made on the contract.
About May 8, 1918, the Beeler & Campbell Supply Company began furnishing certain oil and gas well supplies upon the order of Wilcox, and continued thereafter to furnish such supplies from time to time until November 19, 1918, when it filed a mechanic’s lien for material furnished and delivered upon the property, in the sum of $1,400. December 10, 1918, Wilcox filed a lien for $4,735.40. July 14, 1919, the American Glycerin Company commenced an action in the district court of Montgomery county against the Oil company and the Gas company, and levied an attachment on the property of the two companies. It also named, as co-defendants, the Independence Drilling Company (H. E. Wilcox), The Citizens First National Bank of Independence, the Beeler & Campbell Supply Company, and others. The Bank filed an answer and cross-petition, alleging a balance of indebtedness of the Gas company in the sum of $1,638, secured by a mortgage covering the property which had been sold to the Oil company, which was executed by H. E. Wilcox, 'as president, and J. E. Woodmansee, as secretary. (The Bank’s claim was later allowed and paid and is not now in controversy.)
On July 24, 1919, J. E. Woodmansee filed a petition alleging the insolvency of the Gas company, and praying for the appointment of a receiver. On the same day the Gas company also moved that a receiver be appointed for it.
On July 24, 1919, John Bertenshaw was duly appointed receiver, and thereafter qualified and took possession of the property of the company. Thereafter the two actions were, by an order of the court, consolidated and the Hon. Charles B. Shukers was appointed referee to hear both actions, make findings of fact and conclusions of law. A hearing was had before the referee, who later filed his findings, those pertinent here were, in substance, as follows:
1. That, on and prior to the 20th day of April, 1918, the Gas Company was the owner of (certain oil and gas leases).
2. That, on said 20th day of April, 1918, the Gas company entered into a contract with the Oil company, by the terms whereof, it agreed to sell, assign and transfer to the Oil company an undivided three-fourths interest in the above mentioned leases for $22,500, to be paid in installments.
3. That, on or about the first of May, 1918, the Oil company went into actual possession of the leases and thereafter paid on its obligation under the contract, the sum of $15,000, the last payment on the principal being made November 29, 1918, and thereafter, on or about January 1, 1919, the Oil company secured an extension of the contract for a period of 90 days from January 1, 1919.
4. That the possession by the Oil company of the leases and leaseholds from about May 1, 1918, to about May 1, 1919, was with the knowledge and consent of the Gas company.
8. That the entry and possession of the Oil company was lawful, and that the development and operation of the company, was for and on its behalf, and for and on behalf of the Gas company; that both companies were liable for the costs of the development, including the drilling of wells, purchase of material, and labor incurred in the development.
10. That the Beeler & Campbell Supply Company had a valid lien for $1,360.30;
11. That the American Glycerin Company had a second lien for $153.80;
12. That H. E. Wilcox, as the Independence Drilling Company, had a third lien in the sum of $3,251.55;
13. That the Gas company had a fourth lien for $7,500.
The referee concluded, as a matter of law, that the parties were entitled to liens according to the findings above stated. A supplemental report was afterwards filed, showing the allowance of a claim of Black, Sivalls & Bryson for $119.60, but it was held not to be a lien upon the property.
The findings of fact and conclusions of law returned by the referee were approved by the court and judgment allowed accordingly.
The receiver contends that the court committed error in the allowance of the claims and liens as set out. He urges that the Gas company was. entitled to a first lien on all of the property and proceeds by virtue of the unpaid portion of the amount due on its contract of sale to the Oil company.
The record does not disclose that the contract between the Gas company and the Oil company was ever filed for record. The referee found that the possession by the Oil company of the leases and leaseholds was with the knowledge and consent of the Gas company. We are of the opinion that the Gas company is not, therefore, in position to claim a prior lien on the property. (Gen. Stat. 1915 § 6508; Greeno v. Barnard, 18 Kan. 518; Bank v. Randall, 98 Kan. 744, 160 Pac. 207.)
We note that, in the hearing, the claim of H. E. Wilcox was not admitted. When offered in evidence it was objected to by the receiver as being incompetent, irrelevent and immaterial. The referee stated:
“Well, the objection will be sustained as to its being any evidence of the lien in favor of H. E. Wilcox, but will be admitted for what it may be worth on the Beeler & Campbell Supply Company claim; the court finds that he lost his lien'for the reason — by not foreclosing it within one year.”
The record discloses testimony of officers of the Oil company denying some of the principal items, at least, of the Wilcox claim. It appears that the court was not justified, under the circumstances, in rendering judgment in favor of Wilcox and making the amount thereof a third lien on the property and assets in the hands of the receiver. His judgment must be set aside. Wilcox was president of the Gas company. He was also superintendent of the Oil company in the drilling operations. If he, in good faith, carried out the terms of his contract with the Oil company, he would be entitled to compensation for such services according to its terms. This is a fact to be ascertained by the trial court. There appears, however, no reason for setting aside the other liens allowed by the court.
In Supply Co. v. Oil Co., 110 Kan. 468, 204 Pac. 692, it was said:
“Materials that were used on a gas and oil lease, described in a lien statement were ordered by the president of the corporation owning the lease, or by the wife of the president, or by his son. The materials were received and were used on the lease. Held, that the defendant cannot escape liability therefor', although it was not shown that the president of the corporation or his wife, or son, had authority from the corporation to purchase the materials.” (Syl. ¶ 6; Gen. Stat. 1915, §§ 4996, 4997; Meadows v. Oil Co., 108 Kan. 228, 194 Pac. 916; Skinner v. Oil Co., 112 Kan. 742, 212 Pac. 684.)
The appellees raise the question of the right of a receiver to ap peal from the judgment of the court appointing him. As a general rule, a receiver may not appeal from an order or decree of the court distributing the assets in his hands, or merely determining the relative rights of creditors. However, a receiver represents all the parties in interest, not only the creditors, but the stockholders. It is his duty to faithfully and impartially discharge his duties and to carefully protect the property confided to his keeping. He should, therefore, be diligent in his efforts to protect the estate against questionable claims. The receiver can take no part as between creditors claiming adverse interests in the estate. The parties themselves, who may feel aggrieved by an order of the court, may appeal. Where, however, an appeal is in the interest of the estate, and, therefore, for the benefit of all creditors and stockholders, the receiver should be allowed to conduct an appeal. Ordinarily, however, he should procure permission so to do from the trial court. (Beilman v. Poe, 120 Md. 444; Esmeralde County v. Wildes, 36 Nev. 526; Kavanagh v. Bank of America, 239 Ill. 404; Pryor v. Bank of America, 240 Ill. 100; People v. Brooklyn Bank, 126 N. Y. Supp. 155.)
The judgment is affirmed, except as to the claim of H. E. Wilcox, doing business as the Independence Drilling Company, as to which it is reversed, and the case remanded for a new trial.
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The opinion of the court was delivered by
Johnston, C. J.:
The controversy presented on this appeal involves the ownership and right to the possession of a strip of land adjoining lot 128 in ward 7 of the city of Manhattan.
Prior to December 18, 1912, Inez Fay Rowe owned the lot and upon that date she executed a deed purporting to convey it to Emma H. Bowen. About a month before the execution of the deed the city had vacated the street on which the lot adjoined and the strip in controversy is one-half of the vacated street adj acent to the lot conveyed. It was alleged in plaintiff's amended petition that the circumstances under which the conveyance was made were that in April of that year the city opened a new street in another part of the city, and had condemned lots owned by Mrs. Bowen, and she had filed a claim for damages in the sum of $500. To compensate her for the street condemned the city agreed to procure and have conveyed to her lot 128, and this was done by the city. Plaintiff further alleged that the city agreed that the adjacent street should be vacated and that she should have as part consideration for the lot the adjoining strip of the vacated street which was 30 feet wide and 150 feet long. Defendant answered saying that plaintiff had long been the owner and in the possession of the lot, that the street had been duly vacated by ordinance on November 12, 1912, and that on December 19, 1912, plaintiff conveyed the lot to the defendant, and that by the vacation and the provisions of the statute the adj oining strip reverted to her lot and became her property. She then alleged that all averments of the plaintiff not expressly admitted in the answer were denied. The only part of the evidence brought to this court is that Mrs. Rowe made the conveyance supposing she was retaining the strip, while Mrs. Bowen received the deed 'and upon legal advice assumed that she was getting the strip and that both parties acted in good faith. The court found that there was no mutual mistake of the parties about the deed made, and gave judgment for the defendant ordering that if the plaintiff did not deliver possession of the lot to the defendant within ten days, that the sheriff should place her in possession of it. >
The case, as presented falls within the long established rule promulgated in a number of decided cases, that under a statute providing that when a street of a city is vacated it shall revert to the owners of the lots adjoining on each side in proportion to the frontage, and becomes an appurtenance and a part of such adjoining lot which passes under a conveyance by the mere description of the lot by its name. (A. T. & S. F. Rld. Co., v. Patch, 28 Kan. 470; City of Belleville v. Hallowell, 41 Kan. 192, 21 Pac. 105; Challiss v. Depot and Rld. Co., 45 Kan. 398, 25 Pac. 894; Showalter v. Railway Co., 49 Kan. 421, 32 Pac. 42; Haseltine v. Nuss, 97 Kan. 228, 155 Pac. 55.)
Plaintiff attacks the rule of these decisions and urges that a different view of the statute) should) be taken, but the rule was promulgated in 1882 and doubtless many transfers' .have been made and property rights acquired on the faith and credit of the decisions. As they relate to real estate and vested rights the doctrine of stare decisis is peculiarly applicable and therefore the rule will not now be reconsidered nor changed. It is said that the case of Railway Co., v. Sharpless, 62 Kan. 841, 62 Pac. 662, 'establishes a different rule, but that case involved a mortgage, and it was held under the circumstances the mortgage was not a lien on the vacated strip. Whether or not that decision was rightly made under the circumstances of the case, it was not the purpose of the court to modify the rule previously announced. On the contrary, it is said that the rule applied to conveyances of title such as was made in this instance. That there was no intended departure from the construction previously placed upon the statute is evidenced by the later decision in Haseltine v. Nuss, supra, which was made in 1916.
The contention that there is room for a different construction because of a difference in the language employed in the statute relating to the vacation of streets in cities of the second class, (Gen. Stat. 1915, §1731) from those used as to cities of the first class, (Gen. Stat. 1915, § §1115, 1529) cannot be upheld. The clauses relating to reversion, which have been interpreted in former decisions, are substantially the same and no room is left for a different construction as to the matter of the annexation of the vacated streets to the adjoining lots.
Judgment affirmed.
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The opinion of the court was delivered by
Marshall, J.:
The defendant appeals from a judgment against him in a lump sum under the workmen’s compensation law.
The jury returned a verdict in favor of the plaintiff for $4,000.40 and answered special questions as follows;
“1. Do you find that the plaintiff, Davis, was totally incapacitated from work for any length of time on account of his injury? A. Yes.
“2. If you answer the above question, ‘yes,’ state how long said total incapacity for work continued, or if you find that plaintiff is still totally incapacitated for work, then state when you find said total incapacity for work will cease. A. Two years.
“3. If you find that plaintiff’s total incapacity for work has ceased, or will, prior to the expiration of eight years from the date of his injury cease, then state whether or not plaintiff’s total incapacity for work has been followed or will be followed by a partial incapacity for work. A. Yes.
“4. If you find that plaintiff has sustained, or will in the future sustain a partial incapacity for work on account of his said injury, then state whether or not said partial incapacity for work will be temporary or permanent, and if you find that said partial incapacity will be only temporary, state when said temporary incapacity for work will cease. A. Permanent.
“5. If you find that the plaintiff has sustained, or will in the future after the expiration of his total incapacity for work sustain a partial incapacity for work on account of his said injury, then please state the extent of said partial incapacity for work. A. 2/3 incapacitated.
“6. What was the average weekly' wage of plaintiff at the time of his injury? A. $24.00.”
Before the action was commenced, arbitration had twice been requested by the plaintiff, but the defendant did not consent thereto. The plaintiff prayed for judgment for $5,947, with interest thereon, in a lump sum. Judgment was rendered in his favor for $4,400.
The defendant contends that it was error to render judgment against him in a lump sum. The conduct of the defendant amounted to a refusal to arbitrate. (Roper v. Hammer, 106 Kan. 374, 187 Pac. 858; Southern v. Cement Co., 108 Kan. 213, 194 Pac. 637.) The plaintiff’s injuries were in his spinal column and internal. A process on one of the plaintiff’s vertebrae had been broken. That fact was discoverable only by an X-ray examination. He had been injured by dirt caving in upon him while he was working in a sewer. At the time, there was an abrasion of the skin on his ankle and one on his right shoulder. He was injured in the groin, but that fact could not be discovered by an objective examination. The defendant relies on that part of section 20 of chapter 226 of the Laws of 1917 which reads—
“The judgment in the action, if in favor of the plaintiff, shall be for a lump sum equal to the amount of the payments then due under this act, with interest on the payments overdue, or, in the discretion of the trial judge, for periodical payments, as in an award; provided, in no case shall a lump-sum judgment be rendered for any injury not ascertainable by objective examination, but in such cases the court may order periodical payments during incapacity of such sums as may be due under the provisions of section 4 of this act and such judgment may be reviewed at any time after the expiration of six months upon application of either party and the amount allowed by the court reduced or raised in accordance with the evidence introduced at the time of such review.”
In Southern v. Cement Co., 108 Kan. 213, 215, 194 Pac. 637, this court said:
“A final contention of the defendant is that the court had no jurisdiction to render a lump-sum judgment. Where the matter is settled by arbitration compensation for future loss can be awarded only in periodical payments, but a different rule is provided where the controversy is determined by a court. (Boyd v. Mining Co., 105 Kan. 551, 553, 185 Pac. 9.)” (See, also, Duncan v. Packing Box Co., 110 Kan. 494, 204 Pac. 543.)
The injuries to the ankle and shoulder could be discovered by an objective examination, but those probably were not the injuries for which he recovered. The injury to the spine was disclosed by an X-ray examination. That was objective. That was the injury which expert witnesses who had examined the plaintiff testified would be permanent. Under the statute, a lump-sum judgment was properly rendered for that injury.
Complaint is made of the instructions to the jury. The defendant contends that the instructions were exclusively a recitation of the circumstances under which the plaintiff would be entitled to recover and that the court did not tell the jury that they must find for the defendant under any circumstances. The court rendered judgment in favor of the plaintiff for $4,400, an amount different from that named in the verdict. The plaintiff, for his period - of total incapacity, was entitled to $1,483.20, and for the period of partial disability he was entitled to $2,995.20, a total of $4,478.40. He had been paid $28.80. Judgment should have been rendered in his favor for $4,449.60. Judgment was not rendered on the general verdict but was rendered on the answers to the special questions. The instructions of the court did not control nor influence the answers to the special questions. If there were any erroneous instructions — it is not stated that any were erroneous— they affected only the general verdict. The judgment based on the answers to the special questions should not be reversed because of erroneous instructions which affected the general verdict but did not affect the answers to the special questions.
It is urged that the judgment is excessive. This is based on the contention that the evidence did not show that the plaintiff was injured to the extent found by the jury. The court cannot agree with that contention.
It is urged that the findings of the jury are contrary to the evidence. With this the court cannot agree. There was evidence to support them. It is not necessary to recite that evidence.
The judgment is affirmed.
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The opinion of the court was delivered by
Mason, J.:
Marion B. Wilson under a written contract with Drainage District No. 2 of Doniphan county constructed several ditches, roads and levees. At the conclusion of the work he brought this action for the balance alleged to be due him. The district defended upon the ground that in the case of -two ditches he had not excavated the quantity of earth for which he made claim, and that he had in several respects failed to comply with the specifications, particularly in omitting in some places to leave a ten-foot berm— space between the edge of the ditch and the embankment made from the removed earth. After the introduction of evidence by both parties the court directed a verdict for the plaintiff, on which judgment was rendered. The defendant appeals.
Two witnesses for the defendant testified that they had made measurem'ents and calculated the amount of earth necessarily removed (that being all for which by the terms of the contract payment was to be made), the results of which they gave, the total being 1,852.4 cubic yards less than the quantity upon which the plaintiff’s claim was based. Upon cross-examination, matters were developed tending to cast doubt upon the accuracy of their figures and to detract from the weight of their evidence. Their testimony was sufficient, however, to entitle the defendant to go to the jury upon the question as to the quantity of earth for the excavation of which the plaintiff was entitled to pay, unless the contract is to be interpreted as making the engineer’s decision on that matter final, by virtue of a paragraph reading:
“The engineer shall in all cases determine the quantities of the several kinds of work to be paid for under this contract, and he shall decide all questions as to lines, levels, etc. Any doubt as to the plans and specifications will be explained by the engineer and his interpretation shall be final and binding upon the parties hereto.”
It is of course competent for the parties to a contract to agree that the finding- of an engineer or other. designated person upon the quantity and character of work done shall be conclusive, in which case it can only be impeached for bad faith or what amounts to that. (Atchison v. Rachliffe, 78 Kan. 320, 96 Pac. 477; Edwards v. Hartshorn, 72 Kan. 19, 82 Pac. 520; 6 R. C. L. 962-964; 9 C. J. 772-774.) The texts just cited include these statements:
“But it has been said that -to make conclusive-the decision.or,certificate of an architect or engineer requires plain language in the contract, and that an estimate of the work done or amount due is not conclusive, in the absence of a provision in the contract to that effect.” (6 R. C. L. 963.)
“It has been held that, if the contract does not provide that the architect or other person’s decisions shall be final and conclusive, a provision to that effect cannot be implied.” (9 C. J. 772.)
In a case involving the finality of an architect’s certificate that work had been completed according to the contract it was said: “To make such a certificate conclusive requires plain language in the contract. It is not to be implied.” (Mercantile Trust Co. v. Hensey, 205 U. S. 298, 309.)
In Illinois Central R. R. Co. v. Manion, 113 Ky. 7, a contract for raising the bed of the railroad contained these provisions, which are strikingly similar to those now under consideration:
“The said work shall be executed in strict conformity to the specifications and such explanatory instructions as may from time to time be given by the said chief engineer dr the engineer in charge of the work. The amount of work performed under this contract shall be determined by the measurements and calculations of the engineer in charge of the work, who shall have full power to condemn and reject any and all work which, in his opinion, does not conform to the requirements hereof. Should any dispute arise between the parties respecting the true construction or meaning of the specifications, the same shall be decided by the said chief engineer, and his decision shall be conclusive and binding upon all parties hereto.” (p. 12.)
The interpretation placed Upon this language is shown by an excerpt from the opinion:
“It is earnestly maintained for the company that the estimates of the engineer in charge are conclusive on Manion, unless fraudulent, or so grossly erroneous as to imply fraud or a failure to exercise an honest judgment. City of Covington v. Limerick (19 R., 330) (40 S. W., 254) and cases cited. The contract in this case is different from that in the Limerick case. That contract provided'that the decisions of the engineer should be final and binding on both parties. There is no such provision in the contract before us. It simply provides that the amount of work performed under the contract shall be determined by the measurements and calculations of the engineer in charge. This is nothing more than a stipulation for a means of determining the amount of the work, and the determination by the engineer is entitled to no more weight than a determination by the concurrent act of the two parties under a provision requiring the amount of Work to be done to be settled in that way. If the engineer Was guilty of fraud or made a mistake, it may be shown. Fraud or mistake is a ground for relief from a settlement made by the parties themselves, and we see no reason why the same rule should not apply to a settlement made for them by the servant of one of them alone, unless the contract expressly provides otherwise.” (p. 12.)
The syllabus in The State v. Construction Co., 91 Kan. 74, 136 Pac. 905, contains this language, the phrase which we regard as of importance here being italicised:
“The parties agreed upon the architect as the person upon whose judgment and decision with respect to the character, amount and value of the work payments were to be made. In the absence of fraud or mistake, they are bound by his judgment and decision.” (Syl. ¶ 2 (b).)
The practice of inserting in construction contracts a clause expressly making the decisions of an engineer or architect conclusive, where such is the purpose, is so general that its omission in a particular case suggests an inference that only a prima facie effect was in contemplation. In the present case the omission of the contract to say in so many words that the engineer’s determination of the quantities of the several kinds of work to be paid for should be conclusive is the more significant from the fact that in the second sentence of the same paragraph the engineer’s interpretation of the plans and specifications is explicitly made conclusive. We cannot construe the finality clause as applying to any ruling except upon the meaning of the plans and specifications; nor can we escape the conviction that the failure to incorporate such a clause in the sentence concerning the quantity of work to be paid for must be regarded as making a distinction in this respect between the different kinds of decisions to be made by the engineer. We conclude that the engineer’s determination as to the quantity of earth excavated was not conclusive, and the question of fact in that respect should have been submitted to the jury.
The contract contained also these provisions, which in case of doubt might be thought to have some bearing on the matter; we consider them as at least consistent with the decision we have reached:
“The contractor, upon being directed by the engineer, shall remove, reconstruct, or make good at his own cost any work which the latter shall decide to be defectively executed. Any omission to condemn any work at the time of construction shall not be construed as an acceptance of any defective woi’k, but the contractor will be required to correct any defective work whenever discovered before the final acceptance of the work.”
“Payments will be made to the contractor of 90 per cent of the work completed on the first and fifteenth of each calendar month.”
“Upon the completion of the work as specified above the party of'the second Rart agrees to pay the party of the first part in accordance with the following schedule:”
It is suggested by the plaintiff that the defendant, having called the engineer as its witness, is boupd by all that he said on the stand. The rule that a party may not seek by impeachment to discredit his own witness does not mean, nor imply, that he is not allowed to present contradictory testimony. (Deering v. Cunningham, 63 Kan. 174, 65 Pac. 263.)
The engineer testified that the omission of the berm in some places was caused by the narrowness of the right of way provided by the defendant. No evidence was introduced to the contrary, and the fact in this regard does not appear to be disputed. We think in the situation presented the plaintiff was justified in following the directions of the engineer and keeping the embankment on the right of way although this resulted in narowing or eliminating the berm. There was no evidence in support of.the other breaches of contract alleged. A new trial need therefore be had only upon the issue concerning the amount of earth the contractor had excavated.
The judgment is reversed, and the cause is remanded for further proceedings in accordance herewith.
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Per Curiam:
In this action, the plaintiff asks for a declaratory judgment and questions the power of the governor, the secretary of state, and the auditor of state to do certain things which they are attempting to perform under the soldiers’ compensation law adopted by the people at the general election in November, 1922, and under the subsequent laws concerning that subject, enacted by the legislature in 1923. The law adoted by the people was enacted by the legislature in 1923 as House Bill No. 1. Subsequent legislation is contained in Senate bills 568, 572, and 584, and in House bills 459, 460, 461,. 462, 487, 488, 653, and 654.
The petition alleges—
“The relator herein, in the name of the state, challenges the right, power and authority of the defendants, and each of them, to proceed to issue bonds under the terms of said statutes, and under the procedure by them taken, and in the manner by which such bonds are proposed to be issued, and alleges that they have no such right, power and authority, for the following reasons, to wit:”
After this statement, follows eight alleged reasons numbered consecutively from 1 to 8, inclusive, each of which will be quoted and answered in the order set out in the petition.
“1. That said House bill No. 488, Senate bill No. 572 and'Senate bill No. 584, and each of them, are unconstitutional and invalid, for the reason that such acts have not been submitted to nor ratified by the electors of the state of Kansas, at some general election, in violation of sections 5, 6 and 7 of article 11 of the constitution of the state of Kansas, and that said acts are not consistent with, and are attempts to amend and modify the provisions of said House bill No. 1, which was so submitted and ratified, and that such acts are uncertain and vague, and were not regularly and legally passed by the legislature of the state of Kansas.”
None of these contentions can be sustained.
“2. That in the issuance of the said bonds, the defendants propose that the execution of the bonds be accomplished by the signature of the governor and of the secretary of state, and by the affixing of the great seal of the state, and by the signature and seal of the auditor of state, certifying, to an indorsement upon said bonds that a complete transcript of the proceedings leading up to the issuing of the bonds has been placed on file in his office and that the bonds have been regularly and legally issued, and have been registered in his office, according to law, and that the execution of coupons be acomplished by the lithographed signatures of all of said defendants; all in violation of the provisions of section 2 of said House bill No. 1, wherein it is provided that said bonds be issued by said defendants and each of them.”
The manner of the proposed issue of bonds is proper and does not violate the law adopted by the people.
“3. That defendants are proposing to issue, sell and deliver bonds in the sum of $25,000,000 on or about July 1, 1923, notwithstanding the fact that claims for compensation under the provisions of said House bill No. 1 have not been allowed in the sum of $25,000,000, and will not be allowed in that sum prior to July 1, 1923, and plaintiff alleges that defendants have no reasonable grounds to expect that claims will be allowed in such amount before such date, but, on the contrary that the claims allowed prior to July 1, 1923, will probably not exceed the sum of $10,000,000; and that thereby defendants have violated and will, in the issuance of such bonds, violate the provisions of section 2 of said House bill No. 1, and particularly that portion thereof which provides:
“ ‘Provided, That such bonds may be issued in installments from time to time, in such amounts and upon such terms as may be necessary to meet the payments of compensation as the same are allowed.’ ”
Under the law, the bonds may all.be issued at the same time.
“4. That the said defendants, in the issuance of said bonds, propose to make the same payable at the sub-fiscal agency of the state of Kansas in the city of New York, state of New York, at the option of the holder, under the provisions of the said House bill No. 488; and that such portion of House bill No. 488, and such proposal on the part of such defendants is contrary to and inconsistent with the provisions of said House bill No. 1, and particularly of that portion of section 2 thereof, which provides:
“ ‘Such bonds or the portion thereof at any time issued, shall be made payable at the fiscal agency of the state of Kansas,’ . . .” and that such portion of House bill No. 488, and the proceedings taken and proposed to be taken thereunder, are wholly vQid.”
The bonds may be made payable at either the fiscal agency of the state of Kansas in the city of Topeka, or at the subfiscal agency in the city of New York.
“5. Defendants are proposing to issue bonds dated July 1,1923, one twenty-fifth of which shall be payable on July 1, 1924, and one twenty-fifth on July 1 of each year thereafter, in violation of the provisions of House bill No. 488, above referred to, and particularly to that portion thereof which provides:
“ ‘The bonds issued in any year under the provisions of this act shall be payable in equal, annual installments of one twenty-fifth each year, the first of which shall be payable January 1, 1924, and the last of which shall be payable January 1, 1949. The bonds shall be payable on the first day of January of each year.’ ”
The parts of these laws providing for the date of issue and the maturity of the bonds are directory, but they are to be complied with where practicable; a necessary variation from those dates will not render the bonds illegal.
“6. Defendants are proposing to issue bonds dated July 1, 1923, one twenty-fifth of which shall be payable on July 1, 1924, and one twenty-fifth on July 1 of each year therafter; the last of which shall be payable July 1, 1948, or twenty-five years after the date of issue, in violation of said House' bill No. 1, and particularly of that portion thereof which provides:
“ ‘Such bonds or the portion thereof at any time issued shall be made payable at the fiscal agency of the state of Kansas in twenty-five equal, annual installments, the last of which shall be payable twenty-six years from the date of issue . . . ’ and in violation of the provisions of said House bill No. 488, and particularly of that portion thereof which provides:
“ ‘The bonds issued in any year under the provisions of this act shall be payable in equal, annual installments of one twenty-fifth each year, the first of which shall be payable January 1, 1924, and the last of which shall be payable January 1, 1949.’ ”
The propositions here presented are properly answered in the same way as those presented under No. 5.
“7. That on. account of the provisions of House bill No. 1 and of House bill No. 488, as set out in the preceding paragraph, the said acts are uncertain and vague, and impossible to be complied with in the issuance of bonds thereunder, and are therefore void and of no effect.”
The laws concerning the compensation of those who served in the army, navy, or marine corps during the world war are not so indefinite that they cannot be complied with.
“8. The transcript of the proceedings of said defendants, attached hereto as ‘Exhibit A,’ is insufficient in form and in the subject matter therein contained to show that said bonds by reason of such proceedings are or can be regularly and legally issued, and thereby become an obligation of the state of Kansas.”
No irregularity appears in the transcript of proceedings of the defendants concerning the issue of the bonds that will render the bonds invalid.
A number of the propositions discussed are disposed of by The State, ex rel., v. Younkin, 108 Kan. 634, 638, 196 Pac. 620, and The State, ex rel., v. Wooster, 111 Kan. 830, 835, 208 Pac. 656, where this court said:
“While the powers of a public officer or board are those and those only which the law confers, yet when the law does confer a power or prescribe a duty to be performed or exercised by a public officer, the powers granted and duties prescribed carry with them by necessary implication such incidents of authority are necessary for the effectual exercise of the powers conferred and duties imposed.”
The validity of the laws passed on this subject is challenged by the plaintiff, but no defect is pointed out, and the court is unable to find any. The court is asked to search the law and proceedings for any possible defect which may exist, and to point it out. That the court declines to do.
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The opinion of the court was delivered by
Mason, J.:
J. S. Ball brought against the Red Square Oil & Gas Company an action upon a claim for services, in which a receiver of an oil and gas leasehold was appointed. A number of inter-pleaders asserted claims against the property involved. Final judgment was rendered in favor of the plaintiff and the interpleaders, providing among other things for a sale of the property. The Red Square Company, which will be referred to as the defendant, appeals from practically the entire judgment and the plaintiff appeals from so much of it as directs the sale to be made subject to a right of redemption as in the case of real estate. An appeal is also taken by the Osage Oil Company, an interpleader.
As a part of this appeal the defendant presents, the objections to the receivership which have already been considered and passed upon in the appeal from the overruling of the motion to discharge the receiver (Ball v. Oil & Gas Co., ante, p. 760) the two appeals having been heard together.
All but one of the interpleas asserted specific claims against the property. The defendant was not served with summons or other formal notice of their filing. Its attorneys, however, appeared at the trial of the issues so presented, although they introduced no evidence. The rule in this state is that a defendant once served is bound to take notice of the subsequent proceedings — including pleadings filed by new parties. (Shellabarger v. Sexsmith, 80 Kan. 530, 103 Pac. 992.) There are some reservations in the application of the rule (Beekman v. Trower, 82 Kan. 327, 108 Pac. 110), but they do not apply here. The defendant was present by his attorney at the trial of these interpleas, and having made no application to plead or introduce evidence, is not in a position to complain of the enforcement of the rule.
The order for the disposition of the proceeds of the sale of the property included a direction for the payment therefrom of the costs of the administration of the receiver and similar items — for instance the compensation of the receiver. This portion of the judgment is attacked as an attempt to delegate to the receiver the judicial power of determining the amount and validity of such claims against the fund. We interpret the language as meaning that the various items referred to shall be paid only as they are fixed and allowed by the court, and as so interpreted the objection does not apply.
The plaintiffs judgment is attacked on the ground that his petition was fatally defective in that it did not distinctly allege that he had a contract with the defendant, or the terms of the contract if he had one. Even against a demurrer a petition is liberally construed and held sufficient if the facts stated, whether well pleaded or not, with all the reasonable inferences to -be drawn therefrom, constitute a cause of action. (Bowersox v. Hall, 73 Kan. 99, 84 Pac. 557; Gano v. Cunningham, 88 Kan. 300, 128 Pac. 372; Roberts v. Pendleton, 92 Kan. 847, 142 Pac. 289; Hempstead v. Hospital Association, 112 Kan. 241, 245, 210 Pac. 492.) And where the petition is not attacked by motion or demurrer a still more liberal rule of construction is adopted. “After answer filed, an objection to a petition that it does not state facts sufficient to constitute a cause of action is good only when there is a total failure to allege some matter which is essential to the relief sought, and is not good when the allegations are simply incomplete, indefinite, or statements of conclusions of law.” (Laithe v. McDonald, 7 Kan. 254, 261.) The petition alleges that the plaintiff began drilling and developing the lease at the request of “the then owner,” and continued it after the purchase by the defendant shortly thereafter; that the defendant had been indebted to him on account thereof in the sum of $9,410.75,. for a part of which it had given in two notes for $2,000 each, the debt at the time the action was begun being $8,300.65, for which a recovery was asked. The answer admitted a contract to pay the plaintiff $1.50 and $1.75 a foot for drilling wells. The omission of the petition to state specifically that the work sued for was done under contract with the defendant, and its failure to specify the number of feet drilled, are not now a just cause of complaint.
■ The plaintiff’s judgment was for $9,041.90, which obviously included the amount for which the notes were given. The defendant asserts that the recovery was too large by the amount of the notes, because they were not sued upon; that if the plaintiff had desired to recover upon them he would have been obliged to plead them as separate causes of action and attach copies; and that the notes may be outstanding in other hands. The petition, from what has already been stated, is shown to have sought a recovery of the full amount owing. A petition must be attacked by motion in order that advantage may be taken of a failure to'meet the requirements of the separate statement of different causes of action (Stewart v. Balderston, 10 Kan. 131, 148) or that of attaching a copy of an instrument sued upon (Burnes v. Simpson, 9 Kan. 658.) The evidence has not been brought to this court and in its absence it cannot be presumed that the notes were not surrendered for cancellation.
It is urged that the allegation of the petition that the “defendant, through its officers,” told the plaintiff he would have to get his payment from the production of the lease, is without effect because the officers referred to are not named, and “if they were named, it would not matter, for even the president, the highest officer of a corporation, cannot without express authority from the board of directors, create a valid lien upon the company’s property.” The allegation of the petition is that the defendant made the statements; it could only do this through its officers or other representatives, so the necessary implication is that whoever acted for it did so with authority, for otherwise the act would not be that of the corporation.
The defendant asserts that the lien set up by the Independent Torpedo Company was ineffective because no procedure is provided by the statute for the enforcement of such a lien. The basis for this contention is that the statute giving a lien for labor and material furnished on oil and gas leases reads that such lien shall be enforced “in the same manner as provided for in sections 2 and 3 of chapter 168, Session Laws of Kansas for the year 1899, and all actions brought for the purpose of enforcing any such liens shall be governed by article 27, chapter 80 of procedure civil [the mechanic’s lien statute], as provided in the General Laws of Kansas for the year 1901.” (Gen. Stat. 1915, § 4998; Laws 1909, ch. 159, § 3.) Chapter 168 of the Laws of 1899 relates only to the assignment of mortgages. The reference to it in the above quotation from the statute is an obvious error, the plain intention being to refer to chapter 168 of the Laws of 1889 (instead of 1899), relating to mechanic’s liens. When sections 2 and 3 of chapter 168 of the Laws of 1899 were reprinted in the General Statutes of 1901, they were there described, by a clerical or typographical error, as sections 2 and 3 of chapter 168 of the Laws of 1899, which shows how the mistake in the act of 1909 originated. There is no difficulty whatever in giving the statute the effect obviously intended. (Coney v. City of Topeka, 96 Kan. 46, 149 Pac. 689; Tatlow v. Bacon, 101 Kan. 26, 166 Pac. 835; Note, 5 A. L. R. 996, 1003.)
The defendant further urges that the lien statement did not show that the material furnished was actually used on the premises described, but the statute does not require this to be shown in the statement. (Civ. Code, § 650.) The verification of the statement is criticised because made by an agent who is not shown to have had personal knowledge of the facts. The statute merely requires that the statement shall be “verified by affidavit.” It was sworn to positively and not on information and belief, the affiant swearing that he was the agent for the claimant, a corporation. This was sufficient. The requirement of the code of civil procedure that affidavits made by an agent shall show why it is not made by the principal applies only to pleadings (Johnson v. Laughlin, 7 Kan. 359), and not to them in the case of an agent acting for a corporation (Hornick v. U. P. Railroad Co., 85 Kan. 568, 118 Pac. 60.)
The property ordered to be sold, the proceeds to be applied to the lien of the Independent Torpedo Company after the payment of the costs of administration and like expenses, is described in the judgment as: “The said leasehold, being the oil and gas lease upon [describing the quarter section] and all the equipment, attachments, wells, casings, machinery and supplies used in or about said leasehold, and all pipe lines, pumps and tanks and attachments and equipment used in the transportation, marketing or production of oil from said leasehold.” The defendant contends that it was error to include in the order “the pipe lines and other marketing equipment located at a distance and which were constructed and used in connection with other leases,” because they were not covered by the lien. The lien statute reads:
“Any person,-.corporation or copartnership who shall under contract, express or implied, with the owner of any leasehold for oil and gas purposes, or the owner of any gas pipe-line of oil pipe-line, or with the trustee or agent of such owner, who shall perform' labor or furnish material, machinery and oil-well supplies used in the digging, drilling, torpedoing, completing, operating or repairing of any oil or gas well, or who shall furnish any oil-well supplies or perform any labor in constructing or putting together any of the machinery used in drilling, torpedoing, operating, completing or repairing of any gas well, shall have a lien upon the whole of such leasehold or oil pipe-line or gas pipeline, or lease for oil and gas purposes, the building and appurtenances, and upon the material and supplies so furnished, and upon said oil and gas well for which they were furnished, and upon all the other oil wells, fixtures and appliances used in the operating for oil and gas purposes upon the leasehold for which said material and supplies were furinshed and labor performed.” (Gen. Stat. 1915,'§ 4996.)
We think a pipe-line constructed and used by the owner of an oil and gas lease for the purpose of marketing the product of that particular lease may be regarded as within the operation of the statute quoted. The.evidence not.being before us, the presumption must be that the pipe-line included in the order referred to was of that character. The objection is also made that the description quoted is not sufficiently definite to indentify the property to be sold. We see no practical difficulty in ascertaining what property is meant, but if any develops it can be remedied by further order of the district court.
The Bradford Supply Company asserted a lien under the statute referred to. The trial court held the lien invalid but gave judgment upon the debt, which was evidenced by a note. The objection is made that the note was not due when the original action was begun. It was due when the interplea was filed, and in the' situation presented that is sufficient. Although the lien was defeated,, the claimant was entitled to a personal judgment for the amount due it.
The Osage Oil Corporation held a contract entitling it to one-eighth of the oil produced. In addition to other relief, it was given a judgment for $282.11, found due to it on that account at the time the receiver was appointed. The defendant complains of this allowance on the ground that it was relief not prayed for and the claim on lyhich it is based was not pleaded. The interplea of the Osage Oil Corporation set out its right to one-eighth of the production, but did not allege that anything was due it on this account when the receiver took possession. The evidence must be presumed to have sustained the judgment, and the journal recites that the defendant was present at the time. It is not suggested that the amount was not in fact owing. The pleading may 'be treated as amended to conform to the proof and finding.
The Farmers State Bank intervened, not claiming any lien, but asking and obtaining a personal judgment against defendant on an unsecured note. This is objected to by the defendant upon the ground that the bank had no right to intervene in this proceeding. While it is true the bank could have brought an independent action, it is not clear that the defendant (who is the only party claiming) was in any way prejudiced by the procedure adopted. The various claims• against the defendant were tried separately, a jury trial being Had upon the plaintiff’s claim for a money judgment. There is no suggestion that the defendant did not in fact owe the amount claimed on the bank’s note. It is true also that the action was not one for winding up the affairs of the defendant and distributing its property among those entitled thereto, nor was the receiver appointed for that purpose. But the suit involved the sale of the property to satisfy a lien, and the possession and' operation of the property in the meantime by the receiver. The bank could have attached the property, even without giving a bond, the defendant being a foreign corporation, but for the receivership, which prevented it. The fact that its judgment is made payable out of the proceeds of the sale of the property, after liens and preferred claims have been satisfied, might be a ground of objection on the part of other creditors if they were prejudiced by it, but affords no just basis for complaint by the defendant, for it is merely required to pay an adjudicated obligation out of funds in the custody of the court.
The Osage Oil Corporation complains of the judgment, contending that the $282.11 allowed it should have been made a first claim upon the proceeds of the sale, that it should have been awarded an eighth interest in the personal property and equipment connected with the lease; and that the lease should have been ordered sold subject to the payment to it of a royalty of one-eighth. Its rights are to be determined under a contract between the Triangle Oil Company and the Kirsch Oil and Gas Company.
The Triangle company, while owning the entire lease, assigned to the Kirsch company, whose rights have passed to the defendant, a seven-eighths interest therein, “together with a seven-eighths interest in all the presonal property used or obtained in connection therewith,” the assignment being' accompanied by a written contract which was made a part of it. This contract provided that the Kirsch company should operate the lease (commencing within 60 days and drilling eight wells within 2 years) and pay the Triangle company one-eighth of all the oil and gas produced, and that'the Triangle company should be “in no manner liable for the cost of developing and equipping said lease.” The contract also contained this clause: “And it is . . . agreed . . . that [the Triangle company] shall have recited in said assignment of the said oil and gas lease its one-eighth (1/8) paid-up interest in said lease, equipment and production.” Later, the Triangle company assigned its rights to the Osage Oil Corporation.
Under this arrangement we think the entire lease, appurtenances and appliances were subject to the statutory lien; that the operation of the lease was for the benefit of the holder of the one-eighth interest as well as of the company engaged in the actual operation of the lease, which owned the other seven-eighths; that whatever arrangement was made by the owners of these respective interests between themselves as to who should pay the operating expenses, the lien for labor or material extends to the whole property — to the entire lease and its equipment.
Although we conclude that the holder of the statutory lien may look to the entire property for the payment of his claim, we see no reason why that privilege should 'be extended to general creditors or to the plaintiff, whose right is based upon a contract with the defendant. Although the order of sale properly covers the Osage company’s one-eighth interest, one-eighth of the proceeds should be made payable to that company, subject only to a pro rata deduction on account of the Independent company’s lien.
The plaintiff asks that the judgment be modified by ordering the leasehold to be sold as in the case of personal property, without-allowing a right of redemption. It has been intimated by this court than an (undeveloped) oil and gas lease,.when assigned as security, may be sold outright for the satisfaction of the debt, no period of redemption being allowed. (Barton v. Oil Co., 112 Kan. 436, 446, 211 Pac. 608.) A new statute provides specifically that the right of redemption of property sold on execution or order of sale shall not apply to oil and gas leases or to oil and gas leaseshold estates. (Laws 1923, ch. 163, § 1.) The question here presented, however, is not whether in ordering sale of the lease the trial court might properly have refused a- right to redeem, but whether the ruling allowing it was one of which the plaintiff can effectively complain. The holder of the statutory lien doubtless was in a position to insist upon the sale being made without the reservation of a right to redeem, if that is what the statute then in force contemplated. But the plaintiff’s claim against the property is not of that character; it is based upon equitable considerations, in giving effect to which the trial court had a wide discretion. It cánnot be said that error against the plaintiff was committed in ordering the sale to be made subject to redemption.
The judgment is modified to the extent of directing one-eighth of the proceeds of the sale to be paid to the Osage company, and in other respects is affirmed.
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The opinion of the court was delivered by
Marshall, J.:
This is an original proceeding to disbar H. F. Gorsuch, an attorney at law in Wyandotte county.
One of the charges against the accused is that he “employed certain solicitors and agents commonly known as ‘snitches’ to secure business for him.”
Honorable R. M. Hamer, of Emporia, the commissioner appointed by the court to take the evidence and make findings of fact and conclusions of law, finds:
“That in his work in soliciting and securing causes of action and claims he violates all of the ethical standards of lawyers, and is guilty of what is commonly known as ‘snitching’ cases.”
The evidence to prove that charge and to support this finding may be summarized as follows: That the accused has been engaged in the practice of law in the county of Wyandotte; that John Notz, a frequenter of the office of the accused, was employed by him to solicit business; that John' Notz, during the period of eighteen months, secured for the accused in this manner ninety-seven cases; and that in fifty-three different instances John Notz signed the cost bond in cases commenced by the accused. It appears from the evidence‘that John Notz was of unsavory reputation and was a man unworthy of belief. The accused testified that at the time the cost bonds were signed he did not know the reputation of John Notz but that as soon as that reputation was learned, the accused “fired” John Notz. John Notz testified that he was employed by the accused to secure cases for the latter. The evidence of the accused concerning his discharge of John Notz appears in the abstract as follows:
“Q. Your connection with Notz did not cease until you had trouble over the amount that he claimed in the Finn case, did it? A. Yes; it did.
“Q. Before that? A. Yes, I had fired him before that.
“Q. Fired him? A. Fired him out of the office and told him not to come around any more. He was hanging around the office.
“Q. You had no connection with him after‘that? A. I don’t think so. Not after I was informed as to his general character and reputation.”
The accused also testified that John Notz had driven an old car for the accused and procured witnesses for the accused in. the trial of cases.
That testimony shows that John Notz was in the employ of the accused. A statement by the latter that he “fired” Notz out of the office and told him not to come around any more is not in harmony with the relations which the accused admits existed between him and John Notz. It was not necessary to “fire” John Notz to exclude him from the office of the accused. The testimony of the latter corroborates the testimony of John Notz that he was employed by the accused to secure cases for him. There was other evidence which tended to show that the accused was getting business in the manner described. Reputable lawyers testified that he had the reputation of being a “snitch” lawyer.
The charge of “snitching” contained in the accusation is established by the evidence.
In Judy & Gilbert v. Railway Co., 111 Kan. 46, 49, 205 Pac. 1116, this court said:
“Paragraph 28 of the code of professional ethics, as adopted by the American Bar Association and by the Bar Association of the State of Kansas, reads as follows:
“ ‘It is unprofessional for a lawyer to volunteer advice to bring a lawsuit except in rare cases where ties of blood, relationship or trust make it his-duty to do so. Stirring up strife and litigation is not only unprofessional, but it is indictable at common law. It is disreputable to hunt up defects in title or other causes of action and inform thereof in order to be employed to bring suit, or to breed litigation by seeking out those with claims for personal injuries or those having any other grounds of action in order to secure them as clients, or to employ agents or runners for like purposes, or to pay or reward, directly or indirectly, those who bring or influence the bringing of such cases to his office, or to remunerate policemen, court or prison officials, physicians, hospital attaches or others yvh° may succeed, under the guise of giving disinterested friendly advice, in influencing the criminal, the sick and the injured, the ignorant or others, to seek his professional services. A duty to the public and to the profession devolves upon every member of the bar, having knowledge of such practice upon the part of any practitioner, immediately to inform thereof, to the end that the offender may be disbarred.’
“Tins rule is not statutory, but, in the matter of procuring business, it expresses the reasonable ideals of the able lawyers of the state and of the nation. This court has so far approved the rule that it has been regularly and continuously published in the monthly docket since October, 1920.”
In 6 C. J. 598, this language is found:
“The following acts have been held to constitute misconduct sufficient to authorize the suspension or disbarment of an attorney . . . soliciting business in an unprofessional manner, as by employing paid agents to solicit retainers.”
The practice of which the accused is guilty, that of employing others to secure business for him, tends to interfere with the work of the courts and with the administration of justice. It tends to promote unjust litigation on pretended claims for damages that do not exist. Public-service corporations and large business concerns are the principal objects of prey for this kind of lawyers. The public, the patro-ns of these corporations and business concerns, must in the end pay these unjust claims and the expense of resisting them. Such practice should be condemned by the courts whenever opportunity presents itself.
Another charge against the accused is—
“That in the county of Wyandotte and state of Kansas, and on sundry days during the years 1921 and 1922, the said accused willfully violated his oath and the duty imposed upon him as an attorney at law, and committed acts unbecoming an attorney at law, in connection with an action then pending in the district court in said county and state, entitled: Mike Finn v. The Missouri Pacific Railroad Company, a corporation, No. 15,544, the same being an action brought by the plaintiff to recover damages from the defendant for injuries alleged to have been inflicted upon the plaintiff while riding upon one of defendant’s trains, in this, to wit:
“(1) That prior to the trial of said action the plaintiff, Mike Finn, told said Gorsuch how the accident occurred; that Gorsuch stated to Finn that even if he proved the facts as stated by him, he could not recover, and told the plaintiff to what he should testify, and said if he would so ,testify he could recover damages; thereafter the plaintiff changed his statement of the facts to conform t.o the suggestion of Gorsuch, and so testified upon the trial of the action.”
On this subject, the commissioner found:
“That in his work he secured one particular case, which in this report will be referred to as the ‘Finn’ case, and which‘case was entirely a frame-up and without merit. That after the accused secured the services of one Charles A. Blair, a member of the Wyandotte county bar, to try this case, and the accused and Mr. Blair had investigated this case for the purpose of trying it, Mr. Blair became so convinced that the case was without merit that he withdrew from the trial of this case and the accused persisted in the trial thereof and secured the services of another member of the Wyandotte county bar to try the case. That upon the trial of this cause in the district court of Wyandotte county, Kansas, a verdict was obtained in favor of .the plaintiff for $14,500; and that thereafter such proceedings were had in that cause as to result in the granting of a new trial therein because of the corrupt practice used in framing up this case.
“The accused seek in this investigation to throw the bad odor of this Finn case upon one John Notz. The evidence further shows that this man Notz was such a frequenter of the accused’s place of business that Notz signed cost bonds in some fifty-three cases secured by this accused during'the year 1921.
“This commissioner concludes and finds, as a matter of fact, that it is impossible for the accused to have been innocent of a knowledge of the manner in which these cases were secured and handled, even though the work were done by the man Notz.”
These findings are supported by the evidence of John Notz. His evidence shows that Mike Finn, who had been injured by a railroad train, was in a hospital; that Notz visited Finn and secured a contract from him employing the accused to bring an action against the Missouri Pacific Railroad Company for the damages sustained; that Finn told Notz he was trying to catch a moving train, but was thrown under the train and his foot was cut off; that Notz reported those facts to the accused; and that the accused saw Finn and, in the presence of Notz, told Finn he must testify that he was on the train, that a brakeman came to him and had a conversation with him, and as a result Finn attempted to get off the train, that the brakeman hit Finn on the head and knocked him under the wheels, and that he was then injured and his foot was cut off. Mike Finn on the trial of his case against the railroad company testified as just outlined. The testimony appears to have been false.
It is difficult to conceive of conduct by a lawyer more reprehensible than that of which the accused is guilty. In a country where liberty prevails, law must rule. Life and property may be safe without liberty, but government is then arbitrary and autocratic.' Where arbitrary power prevails, law, as we know it, is not necessary. Where law prevails, lawyers will be found. Their duty is to assist in the interpretation of the law and in the administration of justice. If they will not honestly, faithfully, patriotically perform that duty, government will fail to accomplish its purpose, and liberty will cease. The courts cannot, must not, pass unnoticed misconduct of lawyers admitted by the courts to assist in the interpretation of law and the administration of justice. What was said in In re Macy, 109 Kan. 1, 8, 196 Pac. 1095, is pertinent here.
The findings of the commissioner show that the accused is unfit to practice law.
It is argued that the supreme court does not have authority under the constitution to disbar an attorney at law. The argument is based on the principle that the jurisdiction of the supreme court, as fixed by the constitution, cannot be enlarged by legislative action. The statutes give to the supreme court power to admit and disbar attorneys at law. (Gen. Stat. 1915, § 478 and § 487.) Even if there were no statute giving this court power to disbar, that authority would exist. 6 C. J. 580 uses the following language:
“It is well settled that a court authorized to admit an attorney has inherent jurisdiction to suspend or disbar him for sufficient cause, and that such jurisdiction does not necessarily depend on any express constitutional provision or statutory enactment. Not only has it this power, but whenever a proper case is made out it is its duty to exercise it. This inherent power of the courts cannot be defeated by the legislative or executive departments, although statutes may regulate its exercise. The proceeding is not for the purpose of punishment of the attorney, but for the purpose of preserving the courts of justice from the official ministration of persons unfit to practice in them. The action of the court in the exercise of this power is judicial in its character, and the real question for determination in such proceedings is whether or not the attorney is a fit person to be longer allowed the privileges of being an attorney.”
To support these principles, a large number of cases are cited, among which are several from Kansas. (In re Peyton, 12 Kan. 398, 404; Farlin v. Sook, 30 Kan. 401, 1 Pac. 123; In re Smith, 73 Kan. 743, 85 Pac. 584; In re Wilson, 79 Kan. 450,100 Pac. 75.)
The judgment of the court is that H. F. Gorsuch be disbarred and that his name be stricken from the roll of attorneys of this state.
Hopkins, J., not sitting.
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The opinion of the court was delivered by
Hopkins, J.:
This was an action under the workmen’s compensation law by plaintiff to recover damages from defendant for an injury alleged to have occurred while in its employ. Trial was had to a jury, at the close of which the court submitted special questions only. After the answers to the special questions had been returned by the jury, motions were filed by both plaintiff and defendant. Plaintiff moved to set aside certain findings, to confirm others, and for a new trial. Defendant moved for judgment on the special findings. The court overruled the motions with respect to the findings, except that the answer to one question was set aside. It sustained plaintiff’s motion for a new trial, and defendant appeals.
The motion for new trial set up all the statutory grounds. The court did not indicate on what ground or grounds the new trial was ordered, and the record discloses no application by the defendant to the court requesting such an indication.
The defendant argues that the court- committed error in overruling its motion for a judgment on the answers of the jury to special questions; also in overruling defendant’s demurrer to the evidence and in granting plaintiff’s motion for a new trial. The findings of the jury were inconsistent with each other, indicating that the jury either did not understand -the case, or did not give it proper consideration. The court set aside th.e answer of the jury to one of the special questions, which indicates that the court was convinced that the jury had failed to give the testimony or instructions, or perhaps both, proper consideration.
In Hughes v. Vossler, 110 Kan. 279, 203 Pac. 1107, it was held:
“The rule followed that where a new trial is granted on a motion setting up all the statutory grounds therefor, and the trial court does not indicate the specific ground upon which such new trial is granted, the granting of such new trial cannot furnish a basis for reversible error.” (Syl. ¶ 2.)
Wenzel v. Milling Co. ante, p. 338, was a case where the court granted a new trial, the jury having returned a general verdict and special findings. The motion for new trial was on the statutory grounds. The court did not specify the particular ground on which the new trial was granted. This court, in refusing to reverse the lower court, said:
“Since the trial court did not specify the particular ground upon which it granted a new trial, there is no plain, conclusive, incontestible ground upon which this court can say that error was committee.”
This court cannot assume that there was an abuse of discretion by the trial court in granting the new trial. The situation would not be different had the defendant stood on its demurrer to the evidence and the trial court had granted plaintiff a new trial without stating en what particular grounds.
The judgment is affirmed.
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The opinion of the court was delivered by
Johnston, C. J.:
On February 21, 1902, Calvin S. Miller became a member of the Sons & Daughters of Justice, and a certificate was issued to him for $2,000. He paid - all assessments and dues required by that society up to the time of his death, which occurred on November 17, 1920. The society had failed to meet its financial obligations and had liabilities in excess of its assets to the extent of $16,126, and its liabilities over its receipts were increasing at the rate of $10,000 per month. In a proceeding brought in the district court, a receiver for the society was appointed on August 17, 1920, upon the ground of insolvency. Negotiations were begun by the receiver and the officers of the society with the Columbian Circle, an Illinois organization, for the reinsurance of the members of the Sons & Daughters of Justice. A contract was made, with the approval of the court, which was ratified by the members of the society, approved by the insurance .departments, and became effective on October 22, 1920. Proofs of death were made, whereupon the defendant tendered’ to the plaintiff the sum of $462.28 as payment in full for her claim as beneficiary. The amount was calculated on the basis of the American Experience Table of Mortality, as provided in the contract of reinsurance. Notices were sent of the merger and the provisions of the contract to the insured, but they did not reach his home until after his death. The jury, under instructions of the court, returned a verdict in favor of the appellee in the sum of $2,000 with interest from date of his death.
The errors assigned are based largely on the instruction of the court. The court advised the jury that under the contract of reinsurance class “A” members, including the deceased, Miller, had been reinsured, that the defendant had the right to re-rate the members on the basis of the table of mortality stated in the contract, and that class “A” members electing to pay the present assessment rates would be entitled to benefits in proportion to the assessments paid on the basis of that table, and that defendant had agreed to give all members options to transfer without medical examination to any of its rate tables on the basis mentioned. The following instruction was then given:
“You are instructed that if you find that said deceased, Calvin S. Miller, paid all dues and assessments that were due and payable up to the time of his death, that had been required by the beneficiary society, and that the said defendant, prior to the death of said Miller, did not give to said deceased any notice of any re-rating or any new rates that may have been put into effect or required and did not give him the option to transfer to rate tables based on the American Experience Table of Mortality, and that the said Miller died on the 17th day of November, 1920, without having received any notice or having any knowledge of any re-rating or new rates that may have been put into effect or required by said defendant, then the plaintiff herein would be entitled to recover the ampunt of the beneficiary certificate, together with interest on said amount at the rate of six per cent from the date of the death of said Calvin S. Miller; but if you do not so find, then plaintiff would be entitled to recover only the amount tendered by 'defendant, to wit: 3462.28.”
In answer to special questions submitted the jury found that the defendant did not, prior to the death of Miller, give him any opportunity to elect whether or not he would continue to pay the rates he had been paying prior to the merger, or whether he would pay the rates at which the defendant re-rated its members. There was a further finding that the defendant began collecting advanced rates from the members of the Sons & Daughters of Justice on January 1, 1921, and further that Miller never received any notice of an advanced assessment or change of rates prior to his death.
On the part of the plaintiff it is contended that under the contract of reinsurance the members were, automatically reinsured in the defendant society for the full amount of their policies until a re-rating was made and the member had been given an option to transfer to a different class, and that as no re-rating was made and no opportunity for an election given, the former rates as fixed under the old certificate were still in force and the defendant was liable for the full amount provided for in the certificate. The reinsurance contract is the one which was considered and interpreted in Roper v. Columbian Circle, just decided. The terms of that contract fixes the liabilty of the defendant to the reinsured members of the Sons & Daughters of Justice. The members of class “A”, the one to which Miller belonged, were entitled to benefits in proportion to the assessment which he was paying, based on the prescribed mortality tables, and when his death occurred after the merger the beneficiary had no right to the amount named in the certificate of the Sons & Daughters of Justice, nor to anything more than the defendant agreed to pay, and it appears that that amount was tendered by the defendant to the plaintiff. (Roper v. Columbian Circle, supra.) It is contended that a different rule applies where notice was not given to members that a merger had been made and where he was without opportunity to elect what rate he would pay and had no opportunity to pay an advanced rate which would entitle him to a larger benefit than he was allowed under the assessments he had been paying. The member was represented by the council of which he was a part, and had agreed to be governed by any law, rule or regulation the organization might make in the future. The contract provided a different rule and regulation as to the benefits to which reinsured members were entitled, and the validity of the contract is not attacked, but instead the plaintiff is asking a recovery under its provisions. While the reinsured members were given the option of chosing a rate upon which benefits would be gauged, and considerable time would be necessary for the exercise of. this option by members until the option was exercised and a new contract made with the member, the benefits must necessarily be determined on the basis- of the rates that had been paid. The fact that some had not exercised the option did not give them a preferred or greater right to benefits than was given to those who had made the election. It is true that Miller, if he had learned of the merger, might have elected to pay an advanced assessment, in which case his beneficiary would have been entitled to a larger benefit upon his death, but whether the option has been exercised or not the defendant is liable only to the extent stipulated in the contract, and that as we have seen is to be measured by the assessments that have been paid. It would be an illegal discrimination to allow one member a larger benefit than others of the same class who were paying like assessments. As said in the concurring opinion of Mr. Justice Dawson, in Williams v. Insurance Union, 107 Kan. 214, 191 Pac. 291;
“In such a situation no one member is equitably entitled to a preference — to an exaction of the uttermost farthing; he is equitably entitled to a pro rata division with his fellow members and no more.”
The instructions were out of harmony with the provisions of the contract, and upon the conceded facts the plaintiff was not entitled to recover more than the amount tendered by the defendant. The judgment is therefore reversed, with directions to set aside the verdict and to enter judgment for íplaintiff in the amount of $462.28, with interest thereon from the time of the death of the insured.
(Harvey, J., not sitting.)
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The opinion of the court was delivered by
Harvey, J.:
Appellant was found guilty under an information charging him in the first count with labor on Sunday, in violation of section 3661 of the General Statutes of 1915, and in the second count with exposing to sale goods, wares and merchandise, and keeping open his grocery store on Sunday, in violation of section 3664, as qualified by section 3665, of the General Statutes of 1915. A jury was waived and the case was tried to the court upon an agreed statement of facts, reciting, in substance, that appellant owned and operated a grocery store in Wilson county, about a quarter of a mile outside of the corporate limits of Neodesha, near an industrial center where there were railroad shops employing about three hundred men and an oil refinery employing about seven hundred men, and that about fifty men employed near Wayside, Kan., by a pipe-line company, were residents of Neodesha. The industries operated on eight-hour shifts and the regular shift men worked on Sunday as any other day. When pay day comes on Saturday the men do not receive their checks until after the banks in the city are closed. The men employed for the pipe-line company return to Neodesha on Saturday night after the banks and stores arq closed, and it had been their custom to provision their trucks with supplies for the coming week at appellant’s store on Sunday and drive back to their work on Monday morning. The employees of the three industries mentioned requested appellant to keep his store open for their accommodation on Sunday. Appellant kept for sale at his store, gasoline, which was sold from a pump in front of the store, and fresh meat, milk, ice cream, spices, tobacco, and other food products such as are usually kept in grocery stores; he also had large refrigerators in which perishable products were kept. Many of the workmen did not have facilities to keep milk or meat over Sunday during the hot weather. As to just what appellant did, the agreed statement of facts recites:
“That on Sunday, the 27th day of August, a. d. 1922, the said defendant opened said store at nine o’clock a. m. for business and closed same at twelve o’clock m. of said day. That the said store was opened in accordance with the defendant’s custom for a year last past. That during said time the said store was opened various persons purchased the commodities, whatever they might be, that were offered for sale. That defendant made several sales of bread, meat, milk, gasoline, and would have sold any other article in said store had said customers desired to purchase same and did sell other articles from the general stock from said grocery store. That said sale of the said other articles were only incidental to the sales of the commodities mentioned and the said store would not have been kept open had it not been for the purpose of selling meats, milk, cream and gasoline. That defendant waited on said customers in person and performed such labor and duties as were necessary to care for said customers.”
Upon the agreed statement of facts the court found appellant guilty and assessed a fine of $10 on each count.
Appellant complains, first, that the respective counts in the information do not state a cause of action. As to this, it is sufficient to say that the charge in each count is substantially in the language of the statute and this objection is not well taken.
Appellant contends that the agreed statement of facts does not show that the appellant committed any offense. It will be noted that this is a grocery store; that it was kept open for three hours ion a specified Sunday, in accordance with 'a custom for the year previous. The statement also clearly shows that all of the merchandise in the store was exposed for sale, and at least in that sense offered for sale. That appellant did sell some articles other than the necessities mentioned and would have sold any articles he had in the store if a person desired to purchase .them, which, of course, means thát all of those articles were exposed for sale and offered for sale. Hence, from the agreed statement of facts, treated as evidence, it is clear that there was a violation of the statute as alleged in count two.
As to count one, appellant contends that such labor as was performed by him was performed in doing the things which constituted the violation (if there was a violation) of count two, but it will be noted that there would be very little labor in simply opening the store and exposing and offering the goods for sale which constitute the violation of count two. In addition to that, the agreed statement of facts, treated as evidence, shows that the defendant waited on the customers in person and performed .such labor and duties as were necessary to care for the customers. This is a separate matter from simply opening the store and exposing the goods for sale, and its punishment is provided for by a separate section of our statute. Hence, this point is not well taken. Finding no error in the ease, the judgment of the court below is affirmed.
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The opinion of the court was delivered by
McFarland, J.:
The sole issue in these consolidated workers’ compensation appeals is whether the reimbursement provision of K.S.A. 1982 Supp. 44-556(á) applies when the balance due the claimant after judicial reduction of the award exceeds the amount of the overpayment.
K.S.A. 1982 Supp. 44-556(d) provides:
“(d) If compensation has been paid to the worker by the employer or the employer’s insurance carrier during the pendency of an appeal to the district court or to the appellate courts and the amount of compensation awarded by the director or the district court is reduced or totally disallowed by the decision on the appeal, the employer and the employer’s insurance carrier, except as otherwise provided in this section, shall be reimbursed from the workers’ compensation fund established in K.S.A. 44-566a and amendments thereto for all amounts of compensation so paid which are in excess of the amount of compensation that the worker is entitled to as determined by the final decision on appeal. The director shall determine the amount of compensation paid by the employer or insurance carrier which is to be reimbursed under this subsection, and the director shall certify to the commissioner of insurance the amount so determined. Upon receipt of such certification, the commissioner of insurance shall cause payment to be made to the employer or the employer’s insurance carrier in accordance therewith.”
It should be noted that K.S.A. 44-556(d) was amended by the 1982 Legislature effective after the date of certification herein. However, these amendments relate wholly to form rather than substance. Accordingly, this opinion will refer only to the statute as amended.
The issue in both appeals is as previously noted, identical. Each claimant is in a factually similar situation as far as the issue is concerned. The stipulated facts from the Johnston appeal are summarized as follows:
On February 1, 1982 the Workers’ Compensation Director found claimant had a 50% permanent partial disability to the body as a whole and fixed compensation at $77.88 per week for 400.71 weeks. Respondent and the insurance carrier appealed this award to the district court. The court found claimant had only a 30% permanent partial disability to the body as a whole. Accordingly, the award was reduced to $46.72 per week for 400.71 weeks of which $15,381.62 would be due and owing in the future.
For the ten-week period prior to the Director’s decision and for the period said award was on appeal to the district court, respondent and its insurance carrier, pursuant to K.S.A. 1982 Supp. 44-556, paid a total of 20.71 weeks of compensation at the 50% disability rate of $77.88. Deducting the 30% disability rate of $46.72 therefrom results in a $31.16 per week overpayment for 20.71 weeks for a total of $645.32.
Respondent and its insurance carrier then made request to the Director, pursuant to K.S.A. 1982 Supp. 44-556(d) to certify said $645.32 overpayment to the Commissioner of Insurance for reimbursement by the Kansas Workers’ Compensation Fund. The Director issued said order of certification, and the Fund appealed therefrom to the district court. The order of certification was affirmed by the district court and the Fund appeals from said judgment.
Obviously, resolution of the issue herein involves statutory construction and the general applicable rules need to be stated. The first rule of statutory construction is to ascertain, if possible, the intent of the legislature. Nordstrom v. City of Topeka, 228 Kan. 336, 340, 613 P.2d 1371 (1980), Brinkmeyer v. City of Wichita, 223 Kan. 393, Syl. ¶ 2, 573 P.2d 1044 (1978). Consistent with the first rule, it is fundamental the purpose and intent of the legislature governs when that intent can be ascertained from the statute. Kansas State Board of Healing Arts v. Dickerson, 229 Kan. 627, 630, 629 P.2d 187 (1981). Finally, where a statute is plain and unambiguous, Kansas courts must give effect to the intention of the legislature as expressed rather than determine what the law should or should not be. Johnson v. McArthur, 226 Kan. 128, 596 P.2d 148 (1979); Brinkmeyer v. City of Wichita, 223 Kan. at 397. All parties to this action agree K.S.A. 1982 Supp. 44-556(d) is unambiguous.
The crux of the issue is the import of the following emphasized portion of K.S.A. 1982 Supp. 44-556(d):
“[T]he employer and the employer’s insurance carrier . . . shall be reimbursed from the workers’ compensation fund . . . for all amounts of compensation so paid which are in excess of the amount of compensation that the worker is entitled to as determined bythe final decision on appeal.” (Emphasis supplied.)
The Fund contends that the emphasized language limits reimbursement from the Fund to those situations where the total amount of overpayments exceeds the total amount of compensation remaining to be paid. Future payments to claimant Johnston totalled $15,381.62, while the overpayments totalled only $645.32. The Fund then concludes that the statute does not impose liability on the Fund for the reimbursements herein and that the remedy of the employer and its insurance carrier is to make themselves whole by withholding funds from future payments to claimant.
The fallacy of this argument is pointed out by the claimant. There is no procedure or authorization which permits deducting the overpayment from future payments due the claimant. If all payments were withheld by the insurance carrier until it had reimbursed itself for its overpayment to claimant Johnston, the injured worker would go 12 consecutive weeks without any workers’ compensation being received. Claimant Donna Pruyn’s award of $77.28 a week was reduced by the district court to $12.88 per week for 387.13 weeks with the total overpayment being $1,159.20. Therefore, 81 weeks would have to elapse before Ms. Pruyn could receive another check if this method of reimbursement were utilized. Did the Legislature intend to leave it to the employer and insurance carrier to decide whether to repay themselves immediately, at the end of the payment period, or by deduction of a percentage each week? Such an intent would be highly unlikely and out of keeping with the philosophy of workers’ compensation.
The Fund has not shown us any instance in the history of the Kansas Workmen’s Compensation Act, K.S.A. 44-501 et seq., where the Legislature has required an injured worker to repay an employer or its insurance carrier when an award has been reduced on judicial appeal. In fact, our case law has indicated the opposite legislative intent. See Casebeer v. Alliance Mutual Casualty Co., 203 Kan. 425, 454 P.2d 511 (1969); and Tompkins v. Rinner Construction Co., 196 Kan. 244, 409 P.2d 1001 (1966).
The Fund cites Streff v. Goodyear Tire & Rubber Co., 211 Kan. 898, 508 P.2d 495 (1973), in support of its argument that the insurance carrier can set off the overpayments against future payments due claimant. This reliance is misplaced. Streff involved a $1,100 lump-sum payment by the insurance carrier in a nonstatutorily authorized attempt at settlement of the claim. The settlement did not occur and the claim went through to hearing and award. On appeal before this court, the question was raised as to whether credit should be allowed for this irregular voluntary predecision payment. The court held:
“To disallow the respondent and its insurance carrier a credit for the subject payment would work an obvious inequity. It must be conceded the Kansas Workmen’s Compensation Laws are to be liberally construed so as to allow payment of compensation whenever reasonably possible. This is not to say, however, that an injured workman should be allowed to receive what would amount to double payment in a situation such as here.
“. . . The allowance of a credit or set-off for the $1,100 payment would in no way affect the claimant’s statutory rights. To disallow the credit would be contrary to the principles of equity.” 211 Kan. at 903-04.
The Streff “situation such as here” is obviously wholly dissimilar to the situation before us involving overpayments pursuant to awards which were later judicially reduced. Additionally, Streff was decided prior to the enactment of 44-556(ci) and was decided on general equity principles.
Much of the Fund’s brief herein is devoted to the policy argument that the claimant should not receive a windfall to which he or she is not entitled except when he or she would have to dig into his or her own pocket to repay the overpayment. The policy argument loses considerable impact when applied to the facts before us — that is, it would be an unfair burden if Ms. Pruyn had to pay the $1,159.20 overpayment from her pocket, but only right and fair if she has 81 consecutive weeks of compensation totally withheld to repay the insurance carrier. In any event, as pointed out by the claimant, the policy argument would be better addressed to the Legislature as its implementation would entail substantial statutory modification.
We conclude that where a workers’ compensation award is reduced or totally disallowed by a district or appellate court, K.S.A. 1982 Supp. 44-556(d) provides the sole means by which the employer and its insurance carrier may be reimbursed for any excess payment of compensation. Said statute provides that such reimbursement shall be from the Workers’ Compensation Fund upon certification of the amount by the Director of Workers’ Compensation and is not limited in application to reimbursement of overpayment which exceeds the balance due claimant on the award as modified.
This result is consistent with the comments of the five Kansas law journal authors who discussed the effect of 44-556(d) shortly after its enactment — including an article written by Bryce B. Moore, Workers’ Compensation Director. Moore, Workmen s Compensation — An Introduction to Changes in the Kansas Statute, 24 Kan. L. Rev. 603, 608 (1976); Herrington, Workmen s Compensation — Major Changes in Employments Covered, Benefits, Defenses, Offsets, and Other Changes, 24 Kan. L. Rev. 611, 616 (1976); Ross, Workmen s Compensation — The Preliminary Hearing, The Workmen s Compensation Fund, and Civil Penalties for Failure to Pay Compensation When Due, 24 Kan. L. Rev. 623, 625 (1976); Wright & Rankin, Potential Federalization of State Workmen s Compensation Laws — The Kansas Response, 15 Washburn L.J. 244, 258, n. 73 (1976).
We further conclude, on the rationale hereinbefore expressed, that the trial court did not err in affirming, in both cases herein, the Workers’ Compensation Director’s orders of certification to the Commissioner of Insurance for payment from the Workers’ Compensation Fund.
The judgment in each of the consolidated cases is affirmed.
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The opinion of the court was delivered by
Holmes, J.:
This is an appeal by the defendant, Kansas State Board of Agriculture (KSBA or the Board) from an order of the district court holding the provisions of the Kansas filled dairy products act (FDPA), K.S.A. 65-725 et seq. unconstitutional as applied to a product marketed by the plaintiffs. The facts are not in dispute and will be greatly summarized herein.
The plaintiffs, Dr. Chester H. Strehlow, and his wife, Mary L. Strehlow, are co-zone directors for Meadow Fresh Farms, Inc., a foreign corporation, in the sale and distribution of the corporation’s “Imitation Lowfat Dry Milk” (Imitation) within the State of Kansas. Imitation contains, among other ingredients, partially hydrogenated coconut oil, whey (a milk by-product) and nonfat milk and is therefore a filled dairy product within the definition and meaning of the FDPA. As such, its sale in Kansas is prohibited. Imitation is a wholesome, nutritious, healthful and non- deleterious drink whose ingredients are generally recognized as safe by the United States Food and Drug Administration and which are also found in numerous other products readily available for human consumption, such as non-dairy creamers, imitation ice cream, cocoa mixes and salad dressings. The KSBA, in enforcing the provisions of K.S.A. 65-725 et seq., has ordered that Imitation not be sold in the State of Kansas. Following the issuance of the Board’s order on September 30, 1981, plaintiffs filed a petition in Shawnee District Court for a declaratory judgment that the FDPA was unconstitutional and a determination that it could not be enforced against the plaintiffs in their efforts to sell and market Imitation. As there were no controverted issues of fact, the trial court sustained plaintiffs’ motion for summary judgment, held that the FDPA, as applied to Imitation, was unconstitutional and enjoined the Board from enforcing the act against the plaintiffs and the sale and marketing of Imitation in Kansas. The Board has appealed.
The purposes of the FDPA are set forth by the Legislature in K.S.A. 65-726, which reads:
“Filled dairy products resemble genuine dairy products so closely that they lend themselves readily to substitution for or confusion with such dairy products and in many cases cannot be distinguished from genuine dairy products by the ordinary consumer. The manufacture, sale, exchange or offering for sale or exchange of filled dairy products creates a condition conducive to substitution, confusion, deception, and fraud, and one which if permitted to exist tends to interfere with the orderly and fair marketing [of] foods essential to the well-being of the people of this state. It is hereby declared to be the purpose of this act to correct and eliminate the condition above referred to; to protect the public from confusion, fraud, and deception; to prohibit practices inimical to the general welfare; and to promote the orderly and fair marketing of essential foods.”
K.S.A. 65-727(b) provides:
“(b) The term ‘filled dairy product’ means any milk, cream or skimmed milk or any combination thereof, whether or not condensed, evaporated, concentrated, frozen, powdered, dried or desiccated, or any food product made or manufactured therefrom, to which has been added, or which has been blended or compounded with, any fat or oil other than milk fat, or any solids other than milk solids, except sweeteners, stabilizers and flavorings, so that the resulting product is in imitation or semblance of any dairy product, including but not limited to, milk, sour cream, butter cream, skimmed milk, ice cream, ice milk, whipped cream, flavored milk or skim milk drink, dried or powdered milk, cheese, cream cottage cheese, ice cream mix, sherbet, condensed milk, evaporated milk, or concentrated milk: Provided, however, That this term shall not be construed to mean or include: (1) Any distinctive proprietary food compound not readily mistaken for a dairy product, when such compound is customarily used on the order of a physician and is prepared and designed for medicinal or special dietary use and prominently so labeled; (2) any dairy product flavored with chocolate or cocoa, or the vitamin content of which has been increased, or both, where the fats or oils other than milk fat contained in such product do not exceed the amount of cocoa fat naturally present in the chocolate or cocoa used and the food oil, not in excess of one-hundredth of one percent of the weight of the finished product used as a carrier of such vitamins; or (3) oleomargarine, when offered for sale and sold as and for oleomargarine.”
K.S.A. 65-728 makes it unlawful for any person to manufacture, sell, exchange, or offer for sale or exchange any filled dairy product while 65-729 provides that any violation of the FDPA may be punished by a fine not to exceed five hundred dollars ($500.00) or by imprisonment not to exceed one year or by both fine and imprisonment.
The trial court in its conclusions found that Imitation contains coconut oil, whey and nonfat dry milk among its ingredients, does not fall within any of the three exceptions set forth in K.S.A. 65-727(b), is a filled dairy product within the terms of the act and that its sale is prohibited by the statutes. The court also made the following conclusions of law:
“5. The FDPA in K.S.A. 65-727(b) lists several filled dairy products which are exempt from coverage. For example, the sale of oleomargarine, filled products used on order of a physician, and certain chocolate flavored products are allowed to be sold in Kansas. The pertinent exemption in the present case is K.S.A. 65-727(b)(2), the chocolate product exemption. Under the FDPA, Imitation is a filled product whose sale is prohibited. Yet, when chocolate flavoring is added to this product, it falls within K.S.A. 65-727(b)(2) and its sale becomes permissible. K.S.A. 65-727(b)(2) has the effect of creating two economic classes: the manufacturers and sellers of ‘white’ filled milk and the manufacturers and sellers of ‘chocolate’ filled milk. Plaintiffs in the instant case fall within the white seller and producer classification. Plaintiff contends, and this Court agrees, that this classification denies plaintiff equal protection of the law.
“7. There is no question that the interests sought to be protected by the FDPA are legitimate state interests. The only question is whether the classifications created by K.S.A. 65-727(b)(2) are based on distinguishing factors rationally related to the stated purposes of FDPA. It is this Court’s opinion the classifications, white filled milk and chocolate filled milk, are not based on differences rationally related to protecting public health or preventing deceptive sales. No facts can reasonably be conceived to support the position that Imitation becomes more nutritious merely with the addition of chocolate. Nor does the mere fact a product is chocolate flavored make it less likely a consumer will be deceived into believing he is purchasing a non-filled product. While it is possible the addition of chocolate might put a consumer on notice that the product is not 100% natural, it does nothing to warn the consumer he is purchasing a filled product.
“8. Classifications based on the presence or absence of chocolate as an ingredient are not rationally related to the stated purposes of the FDPA. Such classifications are arbitrary and violate plaintiff’s equal protection. Accordingly, the Court finds that the FDPA as applied to Imitation is unconstitutional and grants plaintiffs’ motion for an injunction prohibiting the enforcement of the FDPA by the defendant against the plaintiffs. The Court’s conclusion is supported by the following cases where it was found that similar Filled Milk Acts were violative of the equal protection clause: Milnot Company v. Douglas, 452 F. Supp. 505 (SD West Virg. 1978); Milnot Company v. Arkansas State Board of Health, 388 F. Supp. 901 (E.D. Ark. 1975); Milnot Company v. Richardson, 350 F. Supp. 221 (S.D. Ill. 1972).”
It is obvious that the trial court’s statements to the effect that the addition of chocolate flavoring to a filled dairy product would bring it within the exemptions of K.S.A. 65-727(b)(2) are erroneous. The exception only applies to the addition of chocolate flavoring to a dairy product which then results in the original product becoming a filled dairy product. The addition of chocolate flavoring to a filled dairy product such as Imitation does not bring that product within the exception and change the original prohibited filled dairy product into an excepted or legal dairy product. Imitation with chocolate flavoring added would still contain the other ingredients such as coconut oil and would continue to be prohibited under the statutes. Thus it appears that the chocolate flavoring exception is in the first instance an exception to the filled milk statute, K.S.A. 65-707(E)(2), in that it allows the addition of a substance containing fat or oil other than milk fat to a pure dairy product, which is precluded by 65-707(E)(2). As the addition of the chocolate flavoring to a pure dairy product results in a filled dairy product, the exception then precludes the operation of 65-728 which makes it illegal to create, sell, etc., a filled dairy product.
The fact that the trial court made certain erroneous conclusions of law does not necessarily require a reversal of its judgment that the FDPA as applied to Imitation is unconstitutional as a violation of the equal protection clause of the Fourteenth Amendment to the United States Constitution. If the trial court reached the correct result, but for the wrong reason, the decision should still be upheld. Farmers State Bank v. Cooper, 227 Kan. 547, Syl. ¶ 10, 608 P.2d 929 (1980).
It is obvious from the stated purposes of the legislation, K.S.A. 65-726, that the FDPA was enacted to protect the public from fraud and deception in the marketing of products which may be confused with so-called pure dairy products and to promote the general welfare by encouraging the marketing of pure dairy products. One nonstated objective may be the economic protectionist aspect of the act which many consider as legislation to promote and protect the dairy industry. The fact that the industry does have an economic interest in the preservation of the restrictions imposed by the FDPA is borne out by the filing of an amici brief by Associated Milk Producers, Inc., and Mid-America Dairymen, Inc., cooperative marketing associations formed to market the milk and milk products of their member producers.
At this point we pause to direct the reader’s attention to Appendix “A” to this opinion which is a reproduction of the actual labeling used in the packaging and marketing of Imitation. An examination of this exhibit may be helpful in understanding the arguments of the parties. As will be seen, the label clearly reflects that the product is called Imitation Lowfat Dry Milk even though it contains some dairy products.
The defendant-appellant takes the position that Imitation violates the letter of the law and therefore its sale in Kansas must be prohibited regardless of the quality of the product involved. It further argues that if there is any rational or reasonable basis for the classification contained in the FDPA then it is the duty of this court to uphold the constitutionality of the statutes as against due process and equal protection attacks. In Manhattan Buildings, Inc. v. Hurley, 231 Kan. 20, 643 P.2d 87 (1982), we reviewed at some length the application of the reasonable basis test and we need not repeat what was said there. We recognize the proper test and it merely remains for this court to determine if there is any reasonable basis, based upon the legislative purpose as set forth in the statute, to ban the sale of Imitation. The Board states in its brief “[a]t the time the FDPA was enacted, the purpose behind the legislation was to prevent consumer deception in the marketplace due to the possibility of a filled dairy product being purchased for a specific dairy product and used in place of said dairy product.” What may have been valid reasons for the adoption of the filled milk act in 1923 and the FDPA in 1953 may not be controlling in 1983. The Board also argues that if there is any debatable issue as to the reasonableness of the FDPA, then it is for the legislature and not the courts to decide that issue. It also appears to be the argument of the Board that as the original Kansas filled milk act has been previously held constitutional by this court and the United States Supreme Court, such determinations are not now open to question even as to the FDPA and that the earlier decisions are controlling under the doctrine of stare decisis. All of the arguments advanced by the Board in support of the acts are considered and discussed at length in the cases hereinafter cited.
The Board does not contest or dispute the allegations of the plaintiffs that their product is wholesome, nutritious, healthful and nondeleterious. On the other hand the plaintiffs do not dispute the fact that their product is in obvious violation of the FDPA. It is the position of the plaintiffs, however, that the exceptions for chocolate or cocoa flavored dairy products and oleomargarine and the broad ban of the FDPA itself and the filled milk act bear no reasonable relationship to the asserted purposes of the acts and therefore result in a denial of plaintiffs’ right to due process and equal protection of the laws under the Constitution even though oleomargarine and chocolate milk are not in direct competition with Imitation. To properly consider the positions of the parties, a review of the filled milk laws might be in order.
The Congress of the United States enacted the first federal filled milk act in 1923. Legislative history indicates it was then believed that the butterfat portion of milk was the only source of essential vitamins which were contained in milk and the act was designed to protect the consumer from fraud and confusion which might arise in the sale of imitation dairy products and perhaps also to aid the economic interests of milk producers. After the enactment of the federal act, many states followed suit and enacted their own version's of a filled milk law. The first Kansas enactment, similar to the federal act, was in 1923 and is virtually unchanged today. K.S.A. 65-707(E)(2) provides:
“It shall be unlawful to manufacture, sell, keep for sale, or have in possession with intent to sell or exchange, any milk, cream, skim milk, buttermilk, condensed or evaporated milk, powdered milk, condensed skim milk, or any of the fluid derivatives of any of them to which has been added any fat or oil other than milk fat, either under the name of said products, or articles or the derivatives thereof, or under any fictitious or trade name whatsoever.”
The constitutionality of the act was first challenged in Carolene Products Co. v. Mohler, 152 Kan. 2, 102 P.2d 1044 (1940). Plaintiff brought the action to enjoin the Secretary of Agriculture of Kansas and the Diary Commissioner of Kansas from enforcing the above quoted statute against plaintiff’s products, which were similar to Imitation, on the grounds the statute violated the due process and equal protection clauses of the State and Federal Constitutions. This court held that the statute was constitutional as a valid exercise of the police power of the state. Finding of fact No. 9 of the trial court, which read:
“That there is a serious disagreement among experts on nutrition as to whether coconut oil is a pure, healthful and nutritious food. That the weight of the evidence does not show that coconut oil is a pure, nutritious and healthful food and not harmful when used as food,”
was found by this court to be supported by the evidence. Plaintiff’s products Carolene and Milnut consisted of an evaporated sweet skim milk to which had been added coconut oil and vitamin concentrates. In the opinion this court stated:
“If, on the evidence in the case, there is room for a reasonable difference of opinion as to whether the products outlawed by the statute are attended with evil consequences to the public, either in the health of the people, or through fraud and deception in the purchase and use of the products, the judgment of the legislature as expressed in the statute may not be superseded by the views of this court.
“It is clear the statute before us — usually referred to as the ‘filled-milk’ statute — has a two-fold purpose: (1) Preservation of the public health, and (2) prevention of fraud and deception on the consumers of this state.” pp. 8-9.
After reviewing a number of decisions from other states, the court stated:
“The production and distribution of pure milk is a matter of universal concern. The peculiar value of milk as a food for infants and children is a matter of common knowledge. The attempt to palm off milk compounds to the consumer has received the consideration of not only the state, but the federal government. As stated in U.S. v. Carolene Products Co., supra, [304 U.S. 144, 82 L.Ed. 1234, 53 S.Ct. 778] the federal filled-milk act was adopted by congress after committee hearings, in the course of which eminent scientists and health experts testified. (A summary of the committee report is given in a note to that case.) In the Hebe case [248 U.S. 297, 63 L.Ed. 255, 39 S.Ct. 125] the United States supreme court declared that ‘if the character and effect of the article as intended to be used “be debatable the legislature is entitled to its own judgment. . . .’ ” The declaration of the police power of the state, as set forth by this court in State v. Wilson, supra, [101 Kan. 789, 168 Pac. 679], and other cases, is of the same import. But if the added ingredient is harmless in itself, the legislature may prohibit the manufacture and sale of the adulterated compound on the ground of the fraud and deception practiced in its sale. On either theory, upon the record before us, the judgment of the trial court must be affirmed. It is so ordered.” pp. 17-18.
The next test of the statute came in State, ex rel., v. Sage Stores Co., 157 Kan. 404, 141 P.2d 655 (1943), wherein the attorney general sought to oust Sage Stores Co. and Carolene Products Co. from the sale of the same two filled milk products that were the subject matter in Carolene Products Co. except that they now contained cottonseed oil instead of coconut oil. The defendants contended that their products were wholesome and nutritious and not deleterious. The filled milk statute was again attacked on constitutional grounds that there was no rational basis for the ban on the defendants’ products. The court appointed a commissioner to take evidence and make findings of fact and conclusions of law. Among the commissioner’s findings of fact which were made a part of the court’s opinion were:
“ ‘Defendant’s product is wholesome, nutritious and harmless, in the sense that it contains nothing of a toxic nature, but it is inferior to evaporated whole milk in the content of fatty acids, phospholipins, sterols and Vitamins E and K, all of which are essential in human nutrition, with the probable exception of Vitamin E in the diet of infants. In addition, evaporated whole milk contains a superior growth-promoting property, found in butterfat and not in cottonseed oil, essential to the optimum growth of infants.
“ ‘The deficiencies in defendant’s product, as compared to evaporated whole milk, are largely made up from other sources when the product is used as a substitute for whole milk or evaporated whole milk in the diet of adults who consume a varied diet. When defendant’s product is used as a substitute for whole milk or evaporated whole milk in the diet of infants and children who do not consume a varied diet, such deficiencies are not made up, and the diet is partially inadequate. Defendant’s product does “get into the channels of infant nutrition.” ’ ” pp. 449-450.
The court, in a four to three decision, again upheld the constitutionality of the filled milk act. On certiorari to the United States Supreme Court in Sage Stores Co. v. Kansas, 323 U.S. 32, 89 L.Ed. 25, 65 S.Ct. 9 (1944), the Supreme Court, after repeating the foregoing facts from our decision (323 U.S. at 35-36), went on to state:
“It was also determined by the commissioner and approved by the court that one purpose of the legislature was the prevention of fraud and deception in the sale of these compounds. State [ex rel.] v. Sage Stores Co., 157 Kan. 404, 412-13 [, 141 P.2d 655].
“As a consequence of this evidence, findings of fact and conclusions of law, the rational basis for the action of the legislature in prohibiting the sale, or keeping for sale, of the compounds is even more definite and clear than in Carolene Products Co. v. United States, ante, p. 18 [, 89 L.Ed. 15, 65 S.Ct. 1, 155 A.L.R. 1371], Since petitioners’ products had the taste, consistency, color and appearance of whole milk products, we need not consider the validity of the Kansas act as applied to compounds which are readily distinguishable from whole milk compounds.” p. 36
Thus, the U.S. Supreme Court decision, as did the Kansas decision, rested heavily on consideration of nutritional inferiority, which is not an issue in the instant case.
While the FDPA, adopted in 1953, has not previously been before this court, much of what was said in the foregoing cases can be argued in support of the present act. It is obvious that the FDPA was an attempt to broaden the provisions of the filled milk act and also a recognition of the mounting pressure to establish certain exceptions, notably for chocolate-flavored dairy products and oleomargarine which were becoming increasingly popular with the public. How these exceptions can be reconciled with the absolute prohibition contained in K.S.A. 65-707(E)(2) has not been presented to and is not an issue before this court at this time. See K.S.A. 65-732 for the limited scope and effect of the FDPA insofar as other dairy laws are concerned.
Following the early federal and state decisions interpreting and applying the various filled milk acts, many courts in recent years have altered their positions due to changed conditions in the food industry. In Milnot Company v. Richardson, 350 F. Supp. 221 (S.D. Ill. 1972), the court was faced with the ongoing question of the constitutionality of the federal filled milk act (21 U.S.C. §§ 61-64). The federal act is similar to our original act and prevented the shipment in interstate commerce of any filled milk products. The products in question were the same products which were the subject of litigation in the early Kansas cases above discussed. The court found no problem in reexamining the federal act even though its constitutionality had been previously upheld by the Supreme Court. See Carotene Products Co. v. U.S., 323 U.S. 18, 89 L.Ed. 15, 65 S.Ct. 1 (1944); U.S. v. Carotene Products Co., 304 U.S. 144, 82 L.Ed. 1234, 58 S.Ct. 778 (1938). In finding authority for its review of a statute, which had formerly been held to be constitutional, the Milnot court stated:
“Even though the parties have previously litigated the issue of the constitutionality of the Filled Milk Act as applied to an earlier and quite similar Milnot product, subsequent litigation is not precluded where facts and conditions occurring after the prior judgment furnish a new basis for claims .... This court considers that the principle announced in Chastleton Corp. v. Sinclair, 264 U.S. 543, 44 S.Ct. 405, 68 L.Ed. 841 (1924), is controlling. Writing for the Court, Mr. Justice Holmes said,
‘A law depending upon the existence of an emergency or other certain state of facts to uphold it may cease to operate if the emergency ceases or the facts change even though valid when passed.’ 264 U.S. at 547 & 548, 44 S.Ct. at 406.”
pp. 223-224.
The court went on to state:
“The existence of imitation milk or ‘non-dairy creamers’ is most certainly not irrelevant to this inquiry as the defendant contends. While Congress may select a particular evil and regulate it to the exclusion of other possible evils in the same industry, any distinction drawn must at least be rational.” p. 224.
In finding that the application of the federal filled milk act to the Milnot product deprived Milnot of its constitutional rights of due process, the court stated:
“Prevention of confusion in the market, however valid in 1944, is no longer a valid basis to sustain the Filled Milk Act ....
“. . . This court limits its decision to the conclusion, as a matter of law, that the Filled Milk Act, as applied to prohibit interstate shipment of Milnot, deprives the plaintiff of due process of law and provides no rational means for the achievement of any announced objective of the Act.” p. 225.
In its decision, the court noted:
“It is not insignificant in this regard that some eleven states which passed filled milk acts have since discarded them — five by repeal and six by court action. By far, the majority of states now permit wholesome and properly labeled filled milk products. It is worth noting, also, that when the Federal Filled Milk Act was passed by Congress and upheld by the Supreme Court, the presently accepted dangers of ‘cholesterol’ in animal fat were almost unknown.” p. 224, n. 1.
Several state acts similar to our filled milk act and our FDPA have been held unconstitutional under a variety of circumstances and for a variety of reasons. Milnot Company v. Arkansas State Board of Health, 388 F. Supp. 901 (E.D. Ark. 1975); People v. Instantwhip, 176 Colo. 396, 490 P.2d 940 (1971); Milnot Co. v. Douglas, 452 F. Supp. 505 (S.D. W. Va. 1978); State v. A.J. Bayless Markets, Inc., 86 Ariz. 193, 342 P.2d 1088 (1959); Coffee-Rich, Inc. v. Commissioner of Public Health, 348 Mass. 414, 204 N.E.2d 281 (1965); Sun Ray Drive-In Dairy, Inc. v. Trenhaile, 94 Idaho 308, 486 P.2d 1021 (1971). We also recognize that there have been decisions which continue to uphold similar statutes absent action by the legislature and that the foregoing cases can be distinguished from the case now before the court. However, the principles set forth can be applied to the present case and are highly persuasive.
The Supreme Court of Arizona, in Bayless Markets, 86 Ariz. 193, found the Arizona law.to violate the due process clause of the state constitution and the due process and equal protection requirements of the Fourteenth Amendment of the United States Constitution when applied to a properly labeled imitation ice milk. The court said at page 197:
“We are definitely of the view, however, that so long as it is sold by the local distributor in cartons describing it as an ‘Imitation Ice Milk’ which is further stipulated to be nutritious, wholesome and healthful and by the printed information on the carton advises the purchaser thereof of the ingredients used in its preparation showing the percentage of each ingredient used therein, it is not within the police power of the state to prohibit its sale. Under the circumstances above described no one could be deceived as to its nature.
“We recognize the fullness and the adequacy of the police power of the state, inherent in sovereignty, to enact legislation for the protection of the safety, health, morals and general welfare of its citizens within constitutional limitations. One of its limitations, however, is that such legislation must .bear some reasonable relationship to the object sought to be achieved. Under such circumstances courts will not substitute their judgment for that of the legislature. Edwards v. State Board of Barber Examiners, 72 Ariz. 108, 231 P.2d 450. Applying this test and bearing in mind that courts should give a sensible construction to statutes and uphold them if possible (see State v. Airesearch Mfg. Co., 68 Ariz. 342, 206 P.2d 562), we feel that A.R.S. § 3-630, supra, transcends the police powers of the state for the reason that the food products prohibited are nutritious, wholesome and healthy hence its sale and consumption by the citizens of the state does not affect the health, welfare, safety or morals of its citizens and it cannot deceive or defraud them so long as it is sold in cartons bearing the information set forth.”
The Arizona court gave full-reasoned attention to the contrary decisions and the court’s discussion of these cases is found at pages 199-200:
“There are decisions of the Supreme Court of the United States and state decisions which hold that a state may, under its police powers, prohibit the sale of a food product even though it may be wholesome and healthful if it is of such character as to be capable of being confused with other well known articles of food such as milk products as are involved in this case.
“Justice Holmes in the case of Hebe Co. v. Shaw, 248 U.S. 297, 39 S.Ct. 125, 126, 63 L.Ed. 255, 259, went so far as to hold that:
«o » o if character or effect of the article as intended to be used “be debatable, the legislature is entitled to its own judgment, and that judgment is not to be superseded by the verdict of the jury,” or, we may add, by the personal opinion of the judges, “upon the issue which the legislature has decided.” s 0 “.’
“He further stated:
‘° ° ° The purposes to secure a certain minimum of nutritive elements and to prevent fraud may be carried out in this way even though condensed skimmed milk and Hebe both should be admitted to be wholesome. The power of the legislature “is not to be denied simply because some innocent articles or transactions may be found within the proscribed class. The inquiry must be whether, considering the end in view, the statute passes the bounds of reason and assumes the character of a merely arbitrary fiat.” 0 * V
“From our analysis of the above case favoring legislation by the states, bearing some similarity to the statutes involved in this case, we believe that Justice Holmes went further than any other case we found except the Kansas Court in State ex rel. Mitchell v. Sage Stores Co., 157 Kan. 404, 141 P.2d 655, but when boiled down to its last analysis we believe that Justice Holmes would say in this case that the statute here involved passes the bounds of reason and assumes the character of an arbitrary fiat. The Kansas case, supra, if sound, would justify the legislature in passing a law prohibiting housewives from using vegetable oils in cooking food of any kind. We reject its reasoning and its conclusion.
“Other cases holding a contrary view to that which we adopt in the instant case are: United States v. Carolene Products Co., 304 U.S. 144-145, 58 S.Ct. 778, 82 L.Ed. 1234; Carolene Products Co. v. Harter, 329 Pa. 49, 197 A. 627, 119 A.L.R. 235; Carolene Products Co. v. United States, 323 U.S. 18-32, 65 S.Ct. 1, 89 L.Ed. 15. The above decisions are all based upon the proposition that such products make it possible for fraud to be perpetrated upon the consumer public. We have shown, not only that the product in the instant case is an imitation ice cream but have shown there is printed upon the carton container the ingredients contained therein.”
We now return to the undisputed facts of the instant case. Imitation has been shown to be a wholesome, nutritious, healthful and nondeleterious food whose ingredients are generally recognized as safe for human consumption. In addition, Imitation has been shown to have a further benefit of being successfully digested by certain persons who cannot tolerate or whose dietary limitations prevent the consumption of milk. Thus, as the Arizona court said in Bayless Stores, “[the statute] transcends the police powers of the state for the reason that the food products prohibited are nutritious, wholesome and healthy hence its sale and consumption by the citizens of the state does not affect the health, welfare, safety or morals of its citizens . . . .” 86 Ariz. at 197.
Can it be said that Imitation resembles genuine dairy products so closely that it lends itself readily to substitution for or confusion with such dairy products and in many cases cannot be distinguished from genuine dairy products by the ordinary consumer? Can it be said the sale, etc. of Imitation creates a condition conducive to substitution, confusion, deception, and fraud and a condition which if permitted to exist tends to interfere with the orderly and fair marketing of foods essential to the well-being of the people of this state? K.S.A. 65-726. We think both questions must be answered in the negative. To hold otherwise is to say that the Kansas consumer is unable to intelligently identify the product he is purchasing or to assess its value and make price and nutritional distinctions even when the product is clearly labeled as being an imitation of the real thing and even though the label clearly discloses the ingredients of the product and its nutritional value. The very statutes that the defendant seeks to rely upon belie any such finding. The exceptions for chocolate-flavored products and oleomargarine clearly recognize the ability of the consumer to recognize and properly identify the product. Very few products come to mind which are so designed and marketed to compete with another product as oleomargarine. It is sold in the marketplace from the same refrigerated food departments as real butter. It is colored to resemble butter. It is packaged to resemble butter, even to the extent of being sold in the traditional 14 pound sticks and one-pound bricks identical to butter. It is an obvious substitute for butter, is marketed as such and is far more likely to be confused with butter than Imitation is with whole milk or any other non-filled milk product. Yet our statutes indicate that any confusion, deception, fraud or substitution is avoided when the package is “plainly labeled as ‘oleomargarine’ or ‘margarine.’ ” K.S.A. 65-639. Again the legislature appears to have recognized the native intelligence of the Kansas consumer when it allowed the sale of ice milk (K.S.A. 65-720) and frozen dairy desserts (K.S.A. 65-720a and b) so long as properly noticed or labeled.
One of the most obvious examples that comes to any coffee drinker’s mind is the small individual serving of “cream” found in nearly every restaurant. Two of the popular brands in the Topeka area are Meyer’s Half & Half, a dairy product, and Royal Danish Coffee Creamer, a non-dairy product. Coffee Creamer is sold in obvious competition with other dairy products such as Meyer’s Half & Half and is intended as a substitute or replacement for the real dairy product. Coffee Creamer, however, is legal as it has no milk products among its ingredients, yet if the real thing, any milk product however slight, is added to the Coffee Creamer it becomes illegal under K.S.A. 65-727(b). The result is totally ridiculous and bears absolutely no reasonable relationship to the objectives set forth by the legislature in 65-726. Likewise, the ban of Imitation, which is clearly labeled and not misleading, because it contains some amount of milk by-products when presumably it would be legal if it did not, is an unreasonable classification which will not pass constitutional muster.
In State, ex rel., v. Sage Stores Co., 157 Kan. 404, Justice Hugo T. Wedell, in writing for the three-person minority, stated in his dissenting opinion many of the views which have been adopted in recent years. He stated:
“The principal issues in this lawsuit are (1) the construction of the particular statute in question with a view of determining whether it constitutes a reasonable health measure, and (2) whether courts, for all practical purposes, are powerless to prevent the complete suppression of a legitimate business in an article of food which is not injurious and which, on the contrary, is not only wholesome but nutritious and which by reason of its low cost and superior preservative qualities is in great demand, especially by people in the lower income groups.
“No progress can be made in answering these inquiries by dealing in generalities and platitudes relative to the subjects of ‘public health,’ ‘morals’ or ‘general welfare.’ Manifestly, the first inquiry requires analysis of the sweeping terms and provisions of this particular statute. Its specific terms and provisions were not analyzed and construed by this court in Carotene Products Co. v. Mohler, 152 Kan. 2, 102 P.2d 1044, with a view of determining whether it in fact constituted a reasonable health measure. Without making such analysis, which we were then, as now, asked to make, we merely announced the conclusion that the purpose of the statute was to safeguard the public health and to prevent deception upon the citizen. In my opinion that was not a sound conclusion. On the contrary, I am convinced analysis of the statute clearly discloses it is a trade-barrier law and that it was designed primarily to advance the interests of the dairy industry.
“If the statute was intended to be a health measure it must be a reasonable health measure. Does it constitute such a measure? I do not think so. I further believe courts have the ultimate responsibility and duty to determine whether an act constitutes such a measure or whether it is unreasonable, arbitrary and discriminatory.
“In the first place this is not an adulteration act. The subject of adulteration of foods is covered by other statutes. The great variance in the nutritive character of milk is clearly established by the evidence in this case and is also a matter of common knowledge. Its nutritive value depends upon the cow itself, the food and care it receives, the season of the year and probably some other factors. This law fixes no standard of minimum nutritive value for whole milk. Milk which is permitted to be sold may be wholly inferior in nutritive value to the product the statute condemns. The law in nowise prohibits the subtraction of any of the nutritive ingredients from whole milk. It only prohibits the addition of something. The addition which it condemns is any fat or oil other than a fat or oil which belongs distinctly and solely to the dairy industry. Under the clear and unambiguous provisions of this law it is wholly immaterial whether any other fat or oil which might be added is equal or highly superior in nutritive value to milk fat. Irrespective of its value it is flatly condemned by legislative fiat.
“The supreme courts of Michigan, Nebraska and Missouri, which have construed identical and substantially identical statutes, have condemned them as constituting unreasonable health measures notwithstanding the prominence of the dairy industries in those states. (Carolene Products Co. v. Thomson, 276 Mich. 172, 267 N.W. 608, Carolene Products Co. v. Banning, 131 Neb. 429, 268 N.W. 313; State, ex inf. McKittrick, v. Carolene Products Co., 346 Mo. 1049, 144 S.W.2d 153.)
“Why should such a law which completely suppresses a legitimate business and which also deprives the public, especially the citizens in the lower income brackets, of the advantages of scientific discovery and research be upheld as a sound public health measure? The answer certainly cannot be found in the character of the prohibited product. The principle that courts do not determine economic policies of legislation or its wisdom is elementary and requires no citation of authorities. Those are functions of the legislative branch of government with which courts cannot interfere. It is just as elementary, however, that in order for legislation such as this to be valid under the police power of the state, it cannot be arbitrary or discriminatory but must have a real and substantial relation to the objects sought to be attained. Courts are not powerless to determine the character of such legislation. The construction of statutes and the determination of their reasonableness or unreasonableness is the ultimate province, responsibility and duty of courts and must be exercised by them if state and federal constitutional guaranties of liberty and property rights are not to be made completely subservient to legislative pressure groups which all too frequently secure the enactment of measures advantageous to a particular industry and detrimental to another. The preservation of constitutional guaranties against such invasions and encroachments is oiie of the most sacred responsibilities courts are privileged to exercise.
“Shall this law be upheld upon the principle that the legislature has the power and authority to select for the individual citizen what food he shall eat and drink because in the judgment of that body, supported by some creditable testimony, one kind or brand of food or drink is slightly superior in some respects to another food or drink although the latter is admittedly superior in other respects? If the legislature possesses the power to determine that fact as to one food, it manifestly has the same power with respect to every food. Such power would enable the legislature to ban many common articles of commerce as, for example, syrup not all maple, shoes not all leather (Carolene Products Co. v. Thomson, supra), clothes or comfortables with shoddy in them (Weaver v. Palmer Bros. Co., 270 U.S. 402, 46 S.Ct. 320, 70 L.Ed. 654) and the like.
“The instant record concedes that milk alone is deficient as a diet but certainly that fact should not justify the complete suppression of its sale. Certainly its sale is susceptible to deception. It is common knowledge that there is probably as much, if not more, deception in the sale of milk and cream by means of dilution than in the sale of any other single food product of universal consumption. The dairy industry, however, has not been suppressed. On the contrary, it often has been regulated in the minutest details and in most instances properly so. Owing to its important relation to the public welfare it has been regulated even to the extent of fixing the price of milk. (Nebbia v. New York, 291 U.S. 502, 54 S.Ct. 505, 78 L.Ed. 940.)
“What reasonable basis is there for believing the public cannot be protected adequately by regulation of the sale of this product? The state, in substance, insists the legislature is the judge of the reasonableness of its own acts and that if there exists any basis for completely prohibiting the sale of a healthful product, which seems reasonable to that body, courts are powerless to interfere. If a mere difference of opinion as to the comparative nutritive value of foods constitutes a reasonable basis for permitting the sale of one food and prohibiting the sale of another, court have little, if any, practical function left to perform in protecting the constitutional guaranty of a citizen’s right to engage in a legitimate business. . . .
“When the rights of the citizen come in conflict with actual public welfare, the rights of the former must, of course, yield. .Manifestly that is fundamental and sound doctrine. I am, however, unwilling to see constitutional guaranties of the citizen’s right to engage in a legitimate business whittled away when there is no reasonable basis for believing that the public welfare probably could not be protected adequately by regulation of the business. It is not only important that the constitutional guaranty to the citizen to transact a legitimate business should be zealously protected by the courts. It is also most vital that the public should not be deprived of its right to purchase a desirable and healthful article of food which scientific research and discovery have made available to the public at a low cost and in a form easily preserved by the citizen in the lower income groups who is not blessed with refrigeration facilities. The sale of such an article may be in competition with another industry but, under proper regulation, it cannot reasonably be said to be in conflict with the public interest and welfare.” pp. 419-430.
We think Justice Wedell hit the nail on the head.
All that has been said in this opinion and the authorities cited and quoted about various filled milk statutes applies equally to our filled dairy products act which goes even further than the early statutes and singles out specific types of products for special treatment.
Inasmuch as the issue before us is limited to a determination of whether K.S.A. 65-727(b) is unconstitutional as to the product Imitation, we make no determination at this time as to the unconstitutionality of the Act in toto. We have no hesitancy in finding that K.S.A. 65-727(b) as applied to Imitation is an unconstitutional violation of plaintiffs’ right to due process and the equal protection of the law.
The decision of the trial court enjoining the defendant from enforcement of the FDPA as to the selling and marketing of Imitation in Kansas is affirmed.
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The opinion of the court was delivered by
Holmes, J.:
This is an appeal by the State under K.S.A. 22-3602(b)(1) from the dismissal by the trial court, on motion of the defendant at the preliminary hearing stage, of criminal charges against Bobby R. Sexton, Jr. The defendant was charged with an attempt to conspire to commit murder. The trial court found there was no such crime as attempted conspiracy and therefore dismissed the action.
There were no facts presented to the trial court and the parties have stipulated that for appeal purposes, the allegations of the information may be taken as true and are controlling. Greatly summarized, the information alleges that the defendant Bobby R. Sexton, Jr. attempted to conspire with two agents of the United States Alcohol, Tobacco and Firearms unit for the agents to murder Sexton’s wife. Several meetings were held in which a price for the murder was determined and details for carrying out the murder were furnished by Sexton, including the present whereabouts of his estranged wife.
It is undisputed that the two agents were working undercover after receiving a tip from the Olathe police department that Sexton was seeking someone to murder his wife. It is also undisputed that neither of the two agents ever had any intention of entering into an actual conspiracy to murder Sexton’s wife. Based upon the information secured by the USATF agents, the defendant was charged with an attempt to conspire to commit the murder of his wife. He was not charged with attempted murder nor conspiracy to commit murder and the State concedes that under the facts alleged, such charges would not lie. The sole question before this court is whether under the Kansas statutes, as they existed at the time, there was any such crime as attempted conspiracy. The trial court found that no such crime, essentially the crime of solicitation, was included in our statutes. We agree.
The State contends that the facts alleged in the information support a charge of attempted conspiracy to commit murder in violation of K.S.A. 21-3301, 21-3302 and 21-3401. K.S.A. 21-3401 defines first-degree murder. The pertinent portions of K.S.A. 21-3301 provide:
“Attempt. (1) An attempt is any overt act toward the perpetration of a crime done by a person who intends to commit such crime but fails in the perpetration thereof or is prevented or intercepted in executing such crime.
(2) It shall not be a defense to a charge of attempt that the circumstances under which the act was performed or the means employed or the act itself were such that the commission of the crime was not possible.”
K.S.A. 21-3302 provides in part:
“Conspiracy. (1) A conspiracy is an agreement with another person to commit a crime or to assist to commit a crime. No person may be convicted of a conspiracy unless an overt act in furtherance of such conspiracy is alleged and proved to have been committed by him or by a co-conspirator.”
It appears to be the position of the State that conspiracy, unlike the crime of attempt, is a substantive crime which can be charged even when the object crime is completed, while an attempt merges with the object crime if that crime is actually consummated. As such, an attempt to commit the crime of conspiracy is a chargeable offense if the conspiracy itself is not completed. Appellant, on the other hand, makes several arguments, as pointed out in the trial court’s opinion, to the effect there is no such crime as attempted conspiracy.
The learned trial judge in his order of dismissal stated:
“It is for this Court and all of our courts to uphold the law and protect the citizens of this State no matter who they might be. It is not the function of this Court to create new laws no matter how justified they appear. If this Court could create a good law today, there would be nothing to prevent this Court from creating a bad law tomorrow, and for this reason our founding fathers wisely created the separation [of] powers giving the legislature the power to make laws and the courts the power of interpreting those laws by filling in any gaps and clarifying ambiguities.
“This Court finds the facts stipulated to and the information to be disgusting and repulsive. However, the buck stops here and this Court must make its determination solely upon the law.
“The Court makes the following findings:
1. That for the purpose of this hearing defendant stipulates that the State could prove all of the allegations set forth in the information.
2. That there cannot be a criminal offense of attempting to commit an act which if completed was not a crime. This case is similar to State v. Crozier, 225 Kan. 120. The Supreme Court held in that case that the acts of defendant of paying money to an individual to carry out the murder of her husband, transporting the hired individual to her husband’s residence, and providing the gun and shells to shoot her husband, did not constitute the crime of conspiracy to commit murder since the person hired to commit the murder had never intended to commit murder. The Supreme Court in referring to State v. Roberts, 223 Kan. 49, stated that an agreement, by its very nature, requires a meeting of two minds; if there is no meeting of the minds, there can be no conspiracy. In the case before this Court there was no meeting of the minds and no conspiracy to commit murder was involved. The Court finds that a person cannot be convicted of attempting to commit an act which even if committed was not a crime.
“The Court further finds that the Kansas statutes categorize attempt and conspiracy under the heading of ‘Anticipatory Crimes.’ This Court finds that one anticipatory crime cannot be stacked or added to another anticipatory crime in order to arrive at a new crime.
“The Court does not find from the facts in this case that there has been an attempted crime. For there to be an attempted crime under the statute, the Supreme Court has held that an accused must have taken steps beyond mere preparation by doing something directly moving toward and bringing nearer the crime he intends to commit. The Court cited 21 Am. Jur. 2d, Criminal Law, Section 111, page 191, ‘. . . in a general way it may be said that preparation consists in devising or arranging the means for measures necessary for the commission of the offense and that the attempt is the direct movement toward the commission after the preparations are made. It has been held that even though a person intends to commit a crime, his procurement of the instrumentalities adapted to that end will not constitute an attempt to commit the crime in the absence of some further overt act . . . ’, State vs. Gobin, 216 Kan. 278.
“There is no question in the Court’s mind but that the defendant, under the facts stipulated, solicited the murder of his wife, but under Kansas vs. Bowles, 70 Kan. 821, 838, the Court held, ‘so long as the will of the person solicited is opposed to the corrupt conduct, there can be no attempt, in the legal sense. . . .’.
“It would appear to the Court that if there were a crime of solicitation in the State of Kansas, that the Court could find probable cause to believe that the defendant had committed such a crime. However, there is no such crime in Kansas and this Court can make no such finding.
“The Court, after giving full consideration to the matter pending before it, does not find probable cause to believe that a felony occurred in Johnson County, Kansas, as alleged, and the case is ordered dismissed and the defendant discharged.”
We concur with the ultimate ruling of the trial court and much of what is said in the opinion. However, in view of our opinion in State v. Logan & Cromwell, 232 Kan. 646, 656 P.2d 777 (1983), we do not concur in the suggestion that legal impossibility, if it exists, is always a defense to a charge of an attempted crime. While it is true that it is an ultimate function of the courts to determine whether a statute or a combination of statutes actually proscribes certain conduct as criminal, great weight must be given to the intent and action of the legislature when it determines to establish certain conduct as constituting a new crime. The 1982 Legislature specifically adopted the crime of criminal solicifation. L. 1982, ch. 132, § 1. The legislative history of the new enactment reveals that during hearings before the Senate Judiciary Committee on March 3, 1982, the Johnson County District Attorney advised the committee, inter alia, that:
“Kansas presently does not have a statute which makes solicitation of a criminal act a crime. I have adopted as a premise that for one person to solicit another to commit a crime, and particularly a heinous crime, (e.g., murder) is or should be illegal. If you accept that premise, presumably it was thought that either a charge of conspiracy (K.S.A. 21-3302) or attempt (K.S.A. 21-3301) would address those situations in which an individual solicited another to commit a crime. It appears that is not the case.”
Minutes of the meeting of the Judiciary Committee of the House of Representatives held March 22, 1982, reveal that representatives of the Kansas County and District Attorneys Association testified to the effect that S.B. 751 (subsequently enacted as L. 1982, ch. 132, § 1) created “a new crime known as criminal solicitation.” The positions of the Johnson County District Attorney and the Kansas County and District Attorneys Association were supported at the hearing by the Shawnee County District Attorney, who urged enactment of the new bill.
It has long been the rule in Kansas that all crimes are established by legislative act. There are no common law crimes in the state, and there can be no conviction except for such crimes as are defined by statute. State v. Young, 55 Kan. 349, 356, 40 Pac. 659 (1895).
It is also the rule in this state that a criminal statute will not be “extended by courts to embrace acts or conduct not clearly included within its prohibitions.” State v. Doyen, 224 Kan. 482, 488, 580 P.2d 1351 (1978). Our criminal statutes are to be construed strictly against the State. State v. Kearns, 229 Kan. 207, 208, 623 P.2d 507 (1981).
It is a fundamental rule of statutory construction, to which all other rules are subordinate, that the intent of the legislature governs when that intent can be ascertained. Kansas State Board of Healing Arts v. Dickerson, 229 Kan. 627, 629 P.2d 187 (1981); State v. Seymour, 5 Kan. App. 2d 95, 612 P.2d 1248 (1980). The 1982 Legislature, by the enactment of L. 1982, ch. 132, § 1, has revealed that its intent in enacting the attempt and conspiracy statutes did not include solicitation as a crime. It is also a rule of statutory construction that older statutes are subordinated to newer enactments and it is the latest expression of the legislative will which controls if there is possible conflicting construction in a case. Farmers State Bank & Trust Co. of Hays v. City of Yates Center, 229 Kan. 330, 338, 624 P.2d 971 (1981); City of Salina v. Jaggers, 228 Kan. 155, 169, 612 P.2d 618 (1980).
The legislature has now specifically made criminal solicitation a substantive crime by enactment of the following statute which became effective May 13, 1982:
“(a) Criminal solicitation is commanding, encouraging or requesting another person to commit a felony, attempt to commit a felony or aid and abet in the commission or attempted commission of a felony for the purpose of promoting or facilitating the felony.
“(b) It is immaterial under subsection (a) that the actor fails to communicate with the person solicited to commit a felony if the person’s conduct was designed to effect a communication.
“(c) It is an affirmative defense that the actor, after soliciting another person to commit a felony, persuaded that person not to do so or otherwise prevented the commission of the felony, under circumstances manifesting a complete and voluntary renunciation of the actor’s criminal purposes.
“(d) Criminal solicitation of a class A or B felony is a class D felony. Criminal solicitation of a felony other than a class A or B felony is a class E felony.” L. 1982, ch. 132, § 1.
This act appears to be a legislative recognition that prior to May 13, 1982, Kansas had no criminal statutes which covered the fact situation presented by the instant case and that the existing attempt and conspiracy statutes were inadequate to reach criminal solicitation.
The solicitation of the USATF officers by the defendant, in seeking to have his wife murdered, is not only morally reprehensible but constitutes totally unacceptable social behavior of a type ordinarily prohibited by the criminal statutes. It is unfortunate that Kansas did not have a solicitation statute which would allow this defendant’s prosecution and it was only through the alert and competent work of Olathe police officers and the USATF agents that a serious crime was prevented. Much as we might desire to do so, it is not our function to create a crime where the legislature has not done so. The members of the legislature are to be commended upon their speedy action in moving to fill an existing gap in our criminal code once it was called to their attention.
The judgment is affirmed.
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The opinion of the court was delivered by
Schroeder, C.J.:
This original mandamus action filed May 20, 1982, was heard by the court on May 21,1982, and resulted in the announcement of our decision on May 27, 1982, by the filing of our abbreviated opinion in Berst v. Chipman, 231 Kan. 369, 653 P.2d 106 (1982). This formal opinion is supplemental thereto. The mandamus action was brought by petitioners David Berst, Dale Smith and the National Collegiate Athletic Association (NCAA), with office headquarters in Johnson County, Kansas, seeking to set aside the order of the District Court of Johnson County denying petitioners’ motion for a protective order pursuant to K.S.A. 60-226(c). The precise issue presented is whether the petitioners have a legal interest in protecting information obtained in the course of confidential investigations from discovery in a libel action in the State of Alabama to which they are not parties.
As related by the facts recited in the prior opinion, documents were sought to be discovered from the petitioners by the Birmingham Post Company in connection with its defense of a libel action filed in the Circuit Court of Madison County, Alabama. The plaintiff in that action, Edward E. Seal, principal of Butler High School in Huntsville, Alabama, alleged that the Birmingham Post Company and others published defamatory statements in an article in the Birmingham Post-Herald newspaper regarding investigations by the newspaper and the NCAA into the recruitment of a high school basketball player, Bobby Lee Hurt, by the University of Alabama. Subsequently Hurt filed a libel action against the Birmingham Post in connection with alleged defamatory statements appearing in the same newspaper. The petitioners are not parties to either of the foregoing actions.
The documents in question were obtained by the NCAA in the course of its investigation into possible violations of NCAA rules which occurred during Hurt’s recruitment by the University of Alabama. As a result of an article alleging the University of Alabama had improperly recruited Hurt, appearing in the Birmingham Post-Herald prior to the article giving rise to the libel action involved here, the NCAA directed Dale Smith, a member of its staff, to investigate the University of Alabama’s conduct. Smith interviewed several people who had information relevant to the NCAA’s investigation, assuring them that the source and substance of any information he received was confidential. These sources included Hurt, Seal, co-workers of Seal, Hurt’s basketball coach, collegiate coaches from institutions other than the University of Alabama who also recruited Hurt, and other individuals in the community who had information relevant to the recruitment. The content of these interviews was later reduced to written memoranda by Smith which were placed in the NCAA’s confidential file on the investigation. Prior to the publication of the article giving rise to the libel action, the newspaper’s request for information regarding the NCAA’s investigation was denied based on the NCAA’s policy that any information obtained in the course of an investigation is confidential.
To protect the confidential nature of the file the petitioners filed a motion for a protective order in the District Court of Johnson County to quash the newspaper’s discovery request. The petitioners alleged the request was overbroad, vague and indefinite; many of the documents sought were totally irrelevant to any issue in the libel action; and disclosure of such confidential information would infringe on the rights of persons who are not parties to the libel action, either from whom the NCAA had received information, or to whom information in the file related. After a full hearing the court denied the petitioners’ motion. An in camera inspection of the NCAA’s file was not conducted. The court reasoned:
“4. The movants in this case do not come within any of the privileges created by the statutes of this state. Plaintiffs claim and the Court holds that trial courts are vested with broad discretion in supervising course and scope of discovery. Ip the proper exercise of this discretion, the Court must weigh the interests of the private litigants in obtaining the information against whatever public interest may exist in maintaining confidential relationships. . . .
“6. Plaintiff’s contention that if the information contained in its files is made public, that then the NCAA will be powerless to gain information regarding alleged violations of its rules, is outweighed by the importance of the defendants needing access to relevant information that may lead to admissible evidence to defend itself from the allegation of libel so that defendants may continue to exercise, without fear, their rights under the First Amendment to the Constitution of the United States.” (Citations omitted.)
Following the court’s decision, subpoenas were issued ordering the petitioners to appear for depositions on May 21, 1982. On May 20,1982, a petition for mandamus was filed by petitioners in this court seeking an order that a protective order be issued. Due to urgency of the matter and public interest involved, arguments were heard by this court on May 21, 1982. After conducting an in camera inspection of the NCAA’s file this court issued a protective order on May 27, 1982. This order allowed the Birmingham Post Company to discover only specified statements made to Dale Smith by the litigants, their fellow employees and other individuals, which were specifically relevant to the libel action. This decision was based on the following considerations.
At the outset we note that the trial court is vested with broad discretion in supervising the course and scope of discovery. Vickers v. City of Kansas City, 216 Kan. 84, Syl. ¶ 2, 531 P.2d 113 (1975). Though the trial court’s discretion cannot be controlled by mandamus, where an order of the trial court denies a litigant a right or privilege which exists as a matter of law, and there is no remedy by appeal, mandamus may be invoked. Hulme v. Woleslagel, 208 Kan. 385, 493 P.2d 541 (1972). In addition, where a petition for mandamus presents an issue of great public importance and concern, the court may exercise its original jurisdiction in mandamus and settle the question. See Mobil Oil Corporation v. McHenry, 200 Kan. 211, 239-43, 436 P.2d 982 (1968); A.T. & S.F. Hospital Assn v. State Commission of Revenue & Taxation, 173 Kan. 312, 316, 246 P.2d 299 (1952).
Whether the petitioners have a protectable interest in maintaining the confidentiality of their private investigation into possible infractions of NCAA rules undoubtedly presents a legal question of significant public interest. Substantially affected are the privacy interests of those persons to whom information in the file relates or who have passed on information to the NCAA under a pledge of confidentiality, as well as the NCAA’s ability to perform one of its primary functions, that of policing its own ranks to prevent corruption in collegiate athletics. The petitioners would not have a remedy by appeal as the information sought would irretrievably have been disclosed prior to the time in which an appeal could be taken. Thus, a mandamus action may properly be entertained. Muck, Administratrix v. Claflin, 197 Kan. 594, 596, 419 P.2d 1017 (1966).
To fully appreciate the NCAA’s high degree of interest in preserving the confidentiality of their investigation files and the identities of their sources, it is helpful to understand the self-policing function of the NCAA and how this system operates. Briefly, the NCAA is a voluntary organization composed of approximately 750 colleges and universities throughout the United States. One of the primary duties of the NCAA is to enforce regulations governing the recruiting, admissions, financial aid, and academic standards aspects of collegiate athletics at member institutions.
Investigations by the NCAA of possible rules infractions are conducted in the strictest of confidence pursuant to internal rules of the NCAA. It is undisputed that investigators must rely on confidential sources for much of their information. Generally, any information an investigator comes across during his inquiries is placed in the NCAA’s confidential file on that investigation. In any one of the NCAA’s investigation files there may be allegations and speculation about an individual’s sexual preferences, mental capacity, drug and alcohol use, and financial condition; academic records of students, anonymous letters and memoranda of telephone calls, and internal memoranda of interviews which contain the investigator’s mental impressions, speculations and conclusions.
Once the NCAA verifies through an investigation that a possible infraction has occurred, a notice of the allegations is sent to the institution thought to be in violation. The institution then attempts to ascertain all relevant information from the principals involved, including coaches, student-athletes and employees, with much of this information being obtained by the institution under a pledge of secrecy. The college or university then prepares a response to the NCAA inquiry, which is also submitted under promises of confidentiality. All this information is placed in the NCAA’s file on the investigation. Further action taken by the NCAA’s Committee on Infractions may also be reflected in the file. Once a determination is made on the merits of an infractions case, and the case has been completed, a press release is issued by the NCAA disclosing only the institution involved and any sanctions imposed. All other information remains confidential.
The NCAA maintains that its policy of confidentiality has been central to the success of this self-policing system in effect for the past 30 years. The NCAA strongly argues loss of this confidentiality will destroy the system, causing intercollegiate athletics to suffer. Because of the extent of national interest and involvement in intercollegiate athletics, the NCAA asserts there is a strong* public interest in preserving the means by which the NCAA can investigate and supervise the area of college level sports, which outweighs the petitioners’ interest in obtaining the information sought for their defense in the libel action. Furthermore, the NCAA is concerned about potential harm to innocent persons not parties to the Alabama lawsuit, who either disclosed information contained in the file or about whom the information relates.
The subpoena duces tecum served on the NCAA, Smith and Berst required them to make available at their depositions:
“[A]ll documents and correspondence relating to the initiation, prosecution and results of any investigation by the National Collegiate Athletic Association concerning Bobby Lee Hurt, Edward Seal, Butler High School, Huntsville, Alabama or the recruiting of Bobby Lee Hurt by the University of Alabama.”
It is uncontroverted that the file maintained by the NCAA on its investigation into the University of Alabama’s conduct contains information about persons possibly involved in the University of Alabama’s recruitment of Hurt, including information about persons in no way connected with litigants Seal or Hurt, or the newspaper’s defense of the libel action.
A key limitation on a litigant’s right to discover material held in the hands of another is that the information sought must be relevant to the issues of the lawsuit. K.S.A. 60-226(b) provides in pertinent part:
“Parties may obtain discovery regarding any matter, not privileged, which is relevantto the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party .... It is not ground for objection that the information sought will be inadmissible at trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.” (Emphasis added.)
In Gleichenhaus v. Carlyle, 226 Kan. 167, 597 P.2d 611 (1979), this court quoted from Herbert v. Lando, 441 U.S. 153, 177, 60 L.Ed.2d 115, 99 S.Ct. 1635 (1979), where the Supreme Court stated:
“The Court has more than once declared that the deposition-discovery rules are to be accorded a broad and liberal treatment to effect their purpose of adequately informing the litigants in civil trials. [Citations omitted.] But the discovery provisions, like all of the Federal Rules of Civil Procedure, are subject to the injunction of Rule 1 that they ‘be construed to secure the just, speedy, and inexpensive determination of every action.’ (Emphasis added.) To this end, the requirement of Rule 26(b)(1) that the material sought in discovery be ‘relevant’ should be firmly applied, and the district courts should not neglect their power to restrict discovery where ‘justice requires [protection for] a party or person from annoyance, embarrassment, oppression, or undue burden or expense. . . .’ Fed. Rule Civ. Proc. 26(c). With this authority at hand, judges should not hesitate to exercise appropriate control over the discovery process.”
We went on to state in Gleichenhaus, 226 Kan. at 170:
“The scope of relevancy in a discovery proceeding is broader than the scope of relevancy at trial. Relevancy includes information which may be useful in preparation for trial. A request for discovery would be considered relevant if there is any possibility that the information sought may be relevant to the subject matter of the lawsuit.”
See also Governmental Ethics Comm’n v. Cahill, 225 Kan. 772, 778, 594 P.2d 1103 (1979); In re Pennington, 224 Kan. 573, 576-77, 581 P.2d 812 (1978), cert. denied 440 U.S. 929 (1979); Fields v. Stauffer Publications, Inc., 2 Kan. App. 2d 323, 326, 578 P.2d 1138, rev. denied 225 Kan. 843 (1978).
In the libel action the respondent raised the affirmative defense that “the news story and statements complained of are true.” Thus, the truth of the statements appearing in the article giving rise to the libel action is a central issue. Information given to Smith and reduced to written memoranda by him specifically concerning the litigants and the subject matter of the article clearly were relevant to the newspaper’s primary defense and could have led to other evidence.
However, as the petitioners point out, many documents contained in the NCAA’s file are totally irrelevant to any issue in the libel action, pertaining only to the NCAA’s investigation into the University of Alabama’s conduct, and not relating in any way to the litigants or the issues involved in the action. These latter documents therefore do not fall within the ambit of discoverable evidence under 60-226(b) and should have been excluded by limiting the discovery in an order by the trial court.
For this reason the trial court erred in failing to conduct an in camera inspection of the NCAA’s file to determine which documents were not relevant and thus not discoverable. An in camera inspection is an appropriate and useful proceeding to ensure that the balance is properly struck between a petitioner’s claim of irrelevance and privilege, and a plaintiff’s need for the documents. See Kerr v. United States District Court, 426 U.S. 394, 405-06, 48 L.Ed.2d 725, 96 S.Ct. 2119 (1976), and cases cited therein; Application of Eisenberg, 654 F.2d 1107, 1112 (5th Cir. 1981). When a trial court orders production of confidential rec ords, it has a duty to limit the availability and use of documents by carefully drawn protective provisions. See Jepsen v. Florida Bd. of Regents, 610 F.2d 1379, 1384 (5th Cir. 1980). We believe when a claim of privilege, confidentiality or irrelevance is raised the court has a duty to conduct an in camera inspection to separate and permit discovery of only the relevant documents, thereby protecting against unnecessary and damaging disclosure of irrelevant confidential material.
As to the documents in the NCAA’s file which are relevant to the libel action, a determination must be made whether, as petitioners argue, the interest in maintaining the confidentiality of the NCAA’s file outweighs the interest and need of the Birmingham Post Company to discover these documents. Although the petitioners’ motion for a protective order was denied by the district court in part because the movants “do not come within any of the privileges created by the statutes of this state” we recognize the existence of a privilege is not necessary in order to limit discovery. This is done under the court’s supervisory powers over discovery pursuant to K.S.A. 60-226. Richards of Rockford, Inc. v. Pacific Gas & Elec., 71 F.R.D. 388, 389 (N.D. Cal. 1976); 23 Wright & Graham, Federal Practice and Procedure: Evidence § 5431, p. 823 (1980).
K.S.A. 60-226(c) provides in pertinent part:
“Protective orders. Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending or alternatively, on matters relating to a deposition, the court in the district where the deposition is to be taken may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:
“(4) that certain matters not be inquired into, or that the scope of the discovery be limited to certain matters.” (Emphasis added.)
Where the parties have conflicting interests in material sought to be discovered, the protective power of the court may be sought by a party under this provision, and the court must balance the litigant’s interest in obtaining the requested information with the resisting party’s interest, as well as the public interest in maintaining the confidentiality of the material. See Zerilli v. Smith, 656 F.2d 705, 712 (D.C. Cir. 1981); Keyes v. Lenoir Rhyne College, 552 F.2d 579, 581 (4th Cir. 1977); Gray v. Board of Higher Ed., City of New York, 92 F.R.D. 87, 90-91 (S.D.N.Y. 1981); Richards of Rockford, Inc. v. Pacific Gas & Elec., 71 F.R.D. at 389; Apicella v. McNeil Laboratories, Inc., 66 F.R.D. 78, 82 (E.D.N.Y. 1975). In Alseike v. Miller, 196 Kan. 547, 555, 412 P.2d 1007 (1966), while discussing the provisions of K.S.A. 60-230(h) (Corrick) which have since become 60-226(c), we stated:
“Under [60-230(6)] if significant countervailing considerations appear, such as, for example, something in the nature of a qualified privilege as mentioned therein (to be distinguished from a testimonial privilege), the protective power of the court may be brought into play to strike a fair balance of the competing interests, and such power may also be used to prevent annoyance, undue expense, embarrassment or oppression.”
In balancing the interests involved herein it must be recognized the parties involved in the lawsuit have a great interest in the revelation of all pertinent facts. It is an oft-quoted doctrine that the public has a right to every man’s evidence; there is a general duty to give what information one is capable of and any exemptions are exceptional, being in derogation of a positive general rule. 8 Wigmore on Evidence § 2192, p. 70 (McNaughton rev. 1961); United States v. Bryan, 339 U.S. 323, 331, 94 L.Ed. 884, 70 S.Ct. 724 (1950). Accordingly, this court noted in Alseike v. Miller, 196 Kan. at 554:
“The provision for the production of documents is an integral part of the discovery process. Discovery has a vital role in our code of civil procedure with its notice type pleading and its basic philosophy that mutual knowledge of all relevant facts is essential to the proper disposal of litigation and that prior to trial every party to a civil action is entitled to the disclosure of all such information in the possession of any person, unless the information is privileged (see 2A Barron and Holtzoff, Depositions, § 641). Our code of civil procedure is to be liberally construed to secure the just, speedy and inexpensive determination of every action (K.S.A. 60-102).”
Several courts have identified guidelines to determine how a balance should be struck between competing interests in a particular case. In Richards of Rockford, Inc., the court drew from cases involving the qualified First Amendment privilege of newsmen not to testify, to identify the following factors in striking a balance between discovery and nondisclosure:
“[T]he nature of the proceeding, whether the deponent is a party, whether the information sought is available from other sources, and whether the information sought goes to the heart of the claim.” 71 F.R.D. at 390.
Additional guidelines considered in balancing claims of privilege with the need for disclosure include the degree of harm that would be caused by disclosure and the type of controversy before the court. See Zerilli v. Smith, 656 F.2d at 713-14; Gray v. Board of Higher Ed., City of New York, 92 F.R.D. at 91. Also, the public interest may be a reason for not permitting inquiry into particular matters by discovery. 4 Moore’s Federal Practice ¶ 26.60(3) (1970), and cases cited therein; Bredice v. Doctors Hospital, Inc., 50 F.R.D. 249, 250 (D.D.C. 1970), aff'd 479 F.2d 920 (D.C. Cir. 1973).
Wigmore identified four fundamental conditions necessary to establish a qualified privilege against disclosure of confidential communications:
“(1) The communications must originate in a confidence that they will not be disclosed.
“(2) This element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties.
“(3) The relation must be one which in the opinion of the community ought to be sedulously fostered.
“(4) The injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation.” 8 Wigmore on Evidence § 2285, p. 527 (McNaughton rev. 1961). (Emphasis in original.)
Applying these principles, a number of recent decisions have refused to order the disclosure of confidential communications, based either on the finding of a qualified privilege or pursuant to the court’s supervisory powers under Fed. R. Civ. P. 26(c). A brief overview of these cases for the purpose of illustration is warranted.
The failure to exhaust available alternative sources of information was the determinative factor in the refusal to compel discovery of confidential material in several cases. See Zerilli v. Smith, 656 F.2d at 714-15 (nonparty reporter’s source sought in an action brought under the Privacy Act and the Fourth Amendment); Apicella v. McNeil Laboratories, Inc., 66 F.R.D. at 85 (source for article appearing in medical newsletter sought in medical malpractice action); McKillop v. Regents of University of California, 386 F. Supp. 1270, 1278 (N.D. Cal. 1975) (confidential evaluations of plaintiff’s performance by defendant university’s faculty members, administrators and committees sought by plaintiff challenging denial of tenure by defendant).
A second factor, the public interest in maintaining the confi dentiality of certain types of reports and inquiries, has been held sufficient to deny discovery in several decisions. For example, the “overwhelming public interest” in the continued improvement of hospital care has been deemed sufficient to outweigh the need for discovery of confidential hospital evaluation reports. See Bredice v. Doctors Hospital, Inc., 50 F.R.D. at 250-51 (minutes and reports of hospital medical staff review committee not discoverable); Gillman v. United States, 53 F.R.D. 316, 318-19 (S.D.N.Y. 1971) (report of hospital inquiry into patient suicide not discoverable; however, testimony of hospital personnel taken by board of inquiry regarding suicide was discoverable). See also 23 Wright & Graham, Federal Practice and Procedure: Evidence § 5431, pp. 835-40 (1980).
Similarly, self-evaluation reports prepared by businesses in the development of affirmative action programs under Title VII have been protected from discovery because such reports foster an important government interest in frank evaluations conducive to compliance with the law. See Banks v. Lockheed-Georgia Company, 53 F.R.D. 283, 285 (N.D. Ga. 1971); O’Connor v. Chrysler Corp., 86 F.R.D. 211, 218 (D. Mass. 1980); McClain v. Mack Trucks, Inc., 85 F.R.D. 53, 58-59 (E.D. Pa. 1979). See also 23 Wright & Graham, Federal Practice and Procedure: Evidence § 5431, p. 43 (1981 Supp.).
The public welfare served by nondisclosure of personnel files of public employees has also been held to outweigh the interest in discovery. See City Council v. Superior Court, 204 Cal. App. 2d 68, 76, 21 Cal. Rptr. 896 (1962); Wisher v. News-Press Publishing Co., 310 So. 2d 345, 348 (Fla. Dist. Ct. App. 1975). See also Evans v. Department of Transportation of United States, 446 F.2d 821, 824 (5th Cir. 1971) (identity of person questioning airline pilot’s mental health held not discoverable as public safety would be seriously jeopardized if people could not call attention to certain facts in confidence to Federal Aviation Administration, which is entrusted with investigating health of pilots).
The public interest in maintaining confidential relationships between academic researchers and their sources outweighed the plaintiff’s interest in satisfying its discovery request in Richards of Rockford, Inc., 71 F.R.D. at 390, where the court held a nonparty deponent in a breach of contract action could not be compelled to produce documents concerning confidential inter views with employees of the defendant. See also 23 Wright & Graham, Federal Practice and Procedure: Evidence § 5430 (1980). The societal value in academic freedom has also been found sufficient to outweigh disclosure of confidential faculty tenure evaluation reports. See Gray v. Board of Higher Ed., City of New York, 92 F.R.D. at 92-94; McKillop v. Regents of University of California, 386 F. Supp. at 1275-78. See also Keyes v. Lenoir Rhyne College, 552 F.2d at 581.
On the other hand, several courts have agreed that where the information goes to the “heart of the plaintiff’s claim” the litigant’s interest in the discovery of all relevant facts outweighs any confidentiality interests. See Carey v. Hume, 492 F.2d 631, 636-37 (D.C. Cir. 1974); Garland v. Torre, 259 F.2d 545, 550 (2nd Cir.), cert. denied 358 U.S. 910 (1958); Zerilli v. Smith, 656 F.2d at 713; Robinson v. Magovern, 83 F.R.D. 79, 89 (W.D. Pa. 1979); Wright v. Patrolmen’s Benev. Ass’n., 72 F.R.D. 161, 164 (S.D.N.Y. 1976). This is particularly true in a libel action, where information held by another may be crucial to a claim or defense raised. Carey v. Hume, 492 F.2d at 636-37; Garland v. Torre, 259 F.2d at 551. In Garland, actress Judy Garland brought an action against Columbia Broadcasting System for defamatory statements appearing in an article by respondent Torre which allegedly had been made by a CBS network executive. Torre refused to disclose her source, claiming the information was confidential and that it was protected by a First Amendment newsmen’s privilege. The information was held to be discoverable because the information sought “went to the heart of the plaintiff’s claim,” and therefore outweighed the First Amendment concerns involved. 259 F.2d at 550.
The holdings in two cases finding the confidentiality interest to be outweighed are particularly relevant to the situation involved here. In Wright v. Patrolmen’s Benev. Ass’n, 72 F.R.D. 161, information gathered by the nonparty New York City Bar Association was discoverable because it went to the central issue in the lawsuit, despite the Association’s protests that preserving the confidentiality of the information was essential to its function of investigating and reporting on matters concerning the judicial system. Similarly, although there was a “powerful interest in confidentiality” for hospital review proceedings because of the important state interest in improving health care, the court in Robinson v. Magovern, 83 F.R.D. at 89, held the plaintiff’s need for relevant evidence required the disclosure of the information sought where it went to the very essence of the issue in the case.
We recognize this case presents a conflict between highly valued interests. On the one hand there is an interest in confidentiality, both to prevent embarrassment to persons who have relied on pledges of secrecy in disclosing information to the NCAA or about whom information in the file may relate, and to promote the public interest in the supervision of intercollegiate athletics to prevent corruption in that area and retain a clear line of demarcation between college athletics and professional sports. On the other hand is the interest in disclosure of all facts relevant to the respondent’s defense in the libel action which will contribute to a full and fair determination of the issues in that case. This case presents a situation where a compromise solution must be reached which will sufficiently serve the interests of both parties.
To protect itself from liability it was necessary for the respondent Birmingham Post Company to acquire information to support its claim that the statements published by the newspaper concerning Seal and Hurt were true. Because of its investigation into the recruitment of Hurt the NCAA had obtained information about the involvement of both Hurt and Seal in various activities. While it may have been possible for the respondent to gather on its own the same information about the litigants which was obtained by the NCAA through its investigation, the newspaper may have had to go on a “fishing expedition” to discover who, if anyone, had knowledge of the events which were reported in the alleged libelous article. The respondent also had a limited amount of time in which to conduct an investigation and depose those persons with relevant information, as a trial was scheduled in the libel action for August 16, 1982, approximately three months after this motion was made in the trial court.
Of the information contained in the NCAA’s file which pertained to the litigants and the subject matter of the libel action, we required the disclosure of oral statements and comments of the litigants, their employers and fellow employees from Butler High School, made in person or by telephone to Dale Smith and reduced to written memoranda bearing the typed signature of Smith. These memoranda contain information directly relating to a central issue in the Alabama lawsuit, that of the truth or falsity of the information reported in the subject publications. The cases cited above emphasize that even a strong interest in confidentiality is outweighed when the information sought goes to the very essence, or “heart,” of the issues in the case. This is the situation presented here. Therefore, while we recognize the interest in preserving the confidential nature of these memoranda is substantial, it must give way to assure all the facts will be available for a fair determination of the issues in the libel action.
We think the result reached here is fair to the interests of both parties, affording each some degree of relief. A protective order specifically enumerating those documents we found to be discoverable was filed with the Clerk of the Supreme Court of Kansas on May 27, 1982, when our original opinion in abbreviated form was filed announcing our decision limiting discovery and entering judgment for the petitioners.
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The opinion of the court was delivered by
Horton, C. J.:
The mechanics’ liens allowed by the trial court were as follows: W. H. Sabins, $20.50, for work and labor performed April 15,16, and 17,1884; B. Smith, $31.75, for material furnished from March 22, 1884, to April 16, 1884; and J. Armstrong, $95, for material delivered between February 1, 1884, and April 17, 1884. The first lien was filed May 10, 1884; the second lien, May 13, 1884; and the third lien, May 17, 1884. Warden purchased the premises from William Murphy jr., the owner thereof, April 12,1884, for the consideration of $300, and received a warranty deed, which was duly filed for record April 29, of that year. Hence the question for our determination is, whether the sale of the premises in good faith by Murphy to Warden, before the mechanics’ liens were filed, prevented the acquisition of any lien, where Warden had no actual notice of the amount thereof.
Sec. 630, art. 27, ch. 80, Comp. Laws of 1879, reads as follows :
“Any mechanic or other person who shall, under contract with the owner of any tract or piece of land, his agent or trustee, or under contract with the husband or wife of such owner, perforin labor or furnish material for erecting, altering or repairing any building or the appurtenances of any building, or any erection or improvement, or shall furnish or perform labor in putting up any fixtures or machinery in or attachment to any such building or improvement, or plant or grow any trees, vines and plants or hedge or hedge fence, or shall build a stone fence, or shall perform labor or furnish material for erecting, altering or repairing any fence on any tract or piece of land, shall have a lien upon the whole tract or piece of land, the buildings and appurtenances, in the manner herein provided, for the amount due to him for such labor or material, fixtures or machinery. Such liens shall be preferred to all other liens and incumbrances which may attach to or upon such lands, buildings or improvements, or either of them, subsequent to the commencement of such building, the furnishing or putting up of. such fixtures or machinery, or planting or growing of such trees, vines or plants, or hedge or hedge fence or stone fence, or the making of any such repairs or improvement; and if any promissory note, bearing not exceeding twelve per cent, interest per annum, shall have been taken for any such labor or material, it shall be sufficient to file a copy of such note, with a sworn statement that said note or any part thereof was given for such labor or material used in the construction of any such building or improvement, in the office of the district clerk; and it shall be necessary to file a list of items used, and the lien shall be for the principal and interest aforesaid, as specified in said note.”
The section quoted expressly prpvides that—
“Such liens shall be preferred to all other liens and incumbrances which may attach to or upon such lands, buildings or improvement, or either of them, subsequent to the commencement of such building, the furnishing or putting up of such fixtures or machinery, ... or the making of any such repairs or improvement.”
' Therefore it is clear from the language adopted, that the lien of the contractor or material-man must be preferred to all other liens and incumbrances upon the premises subsequent to the commencement of the building, the making of the repairs, or the furnishing of the material. The time when the lien is to be considered as acquired, depends upon the provisions of the statute, as independent of the statute no such lien exists. The claims of mechanics and material-men are better protected if the commencement of the work and the furnishing of the material is the period from which the liens should date. The question arises upon the statute, whether a conveyance is included in the words “all other liens and incumbrances.” The word iucumbrance is a broader term than lien, and yet, when the statute of Indiana only provided that “the liens created shall relate to the time when the persons furnishing materials began to furnish the same, and shall have priority over all liens suffered or created thereafter,” etc., the supreme court of that state decided the lien of the mechanic related to the time when the work was commenced, or the materials began to be furnished, as to “subsequent conveyances” as well as to other liens. (Fleming v. Bumgarner, 29 Ind. 424.) The same question was before the Indiana court in Kellenberger v. Boyer, 37 Ind. 188. The court followed the decision in Fleming v. Bumgarner, and said the construction given to the statute in that case did not extend the operation of the act beyond its evident spirit and the legislative intention.
An incumbrancer is one who has a legal claim upon an estate, and the purchaser of premises under a conveyance is the holder of the legal estate. An absolute conveyance is an incumbrance in the fullest sense of that term. We do not think, therefore, that the preference given to the lien of the contractor or material-man, which operates “over all other liens and incumbrances,” is confined solely to subsequent liens or mortgages, but also embraces “conveyances.” In adopting this rule, no injustice is done to the purchaser, as the work itself, or the material furnished, is notice to all of the mechanics’ or material-men’s claims. (Phillips on Mechanics’ Liens, 2d. ed., 380, § 227; Austin v. Wohler, 5 Bradw. 300; Gault v. Deming, 3 Phila. 337; Hahn’s Appeal, 39 Pa. St. 409.)
The cases cited from New York by counsel for defendant below are not applicable, as the statute in that case makes the filing of the notice of the mechanics’ lien the time when the lien is to commence. In this state the statute is different. (Noyes v. Burton, 17 How. Pr. 449; same case, 29 Barb. 631.)
The judgment of the district court will be affirmed.
All the Justices concurring.
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The opinion of the court was delivei’ed by
Valentine, J.:
The defendant, Orr Decker, was charged, along with James Bottomly, by information filed by the county attorney in the district court of Dickinson county, with the offense of attempting to obtain certain personal property by false pretenses. A motion was made to quash the information, which was overruled by the court. The charge against Decker was then tried before the court and a jury, and he was found guilty, as charged in the information. He then moved for a new trial, and also in arrest of judgment, which motions were overruled by the court. He was then sentenced to imprisonment in the penitentiary for one year, from which sentence he appeals.
The first Question presented to this court is with regard to the sufficiency of the information. It is attempted to be charged in the information that On* Decker, in violation of § 283 of the act relating to crimes and punishments, attempted to commit the offense prohibited by § 94 of said act. Said § 283 reads as follows:
“ Sec. 283. Every person who shall attempt to commit an offense prohibited by law, and in such attempt shall do any act toward the commission of such offense, but shall fail in the perpetration thereof, or shall be prevented or intercepted in executing the same, upon conviction thereof shall, in cases where no provision is made by law for the punishment of such attempt, be punished as follows,” etc.
It is claimed that the information is not sufficient because it does not allege in express terms that the defendant failed in the perpetration of the offense, or that he was prevented or intercepted in the perpetration of the same; and this is claimed upon the ground, as we understand, that such failure or such prevention or interception is a part of the offense, and therefore that, as a part of the offense, it must be stated in the information, in compliance with §103 of the criminal code, which provides that the indictment or information must contain “a statement of the facts constituting the offense, in plain and concise language, without repetition.” Now we do not think that such failure or such prevention or interception constitutes any part of the offense. When the attempt to commit the principal or ultimate offense is made, the offense of attempting to commit such principal or ultimate offense is complete. If the attempt is carried into complete execution, then not only the offense of attempting to commit an offense is complete, but also the commission of the principal or ultimate offense is also complete. Even where an indictment or information charges the full commission of an offense, without the slighest intimation that there was any failure on the part of the defendant in the perpetration thereof, or any prevention or interception in executing the same, still he may be convicted under §121 of the criminal code of attempting only to commit the offense. Said § 121 reads as follows:
“Sec. 121. Upon an indictment for an offense consisting of different degrees, the jury may find the defendant not guilty of the degree charged in the indictment, and guilty of any degree inferior thereto, or of an attempt to commit the offense.”
Of course where it is intended to prosecute a defendant only for an attempt to commit an offense, it would be better to state in the indictment or information that the defendant had failed in the perpetration thereof, or that he had been prevented or intercepted in executing the same; and such would be in accordance with the precedents. But still, no good reason can be given why an indictment or information should be considered as insufficient if it does not make such a statement. In the present case, however, the whole tenor and effect of the information is to show, ....... . ,. . _ impliedly at least, a failure on the part of the defendant to commit the principal or ultimate offense. We think the information is sufficient, without said statement of failure, prevention, or interception.
The second question presented to this court is, whether the evidence sufficiently proves the offense charged in the information. It is claimed by the defendant that it does not; in our opinion, however, it does. It appears from the evidence that on September 11, 1886, and prior thereto, the defendant, Orr Decker, owned a farm in Dickinson county, Kansas, and also owned a livery stable in the city of Abilene, in that county. He was also at the same time indebted on four promissory notes, owned by George M. Noble, but placed in the hands of Stambaugh, Hurd & Dewey, attorneys at law, for collection. These notes were secured by mortgages on the farm and on the livery stable. James Bottomly resided at Kansas City, Missouri. Decker had also resided there, or at least had been there for some time, and was acquainted with Bottomly. On September 11 and September 14, of the year aforesaid, Decker sent telegraphic dispatches to Bottomly to come to Abilene, and also procured the telegraph operator to send a dispatch to the agent at Kansas City to purchase a railroad ticket for Bottomly’s transportation from Kansas City to Abilene. Bottomly himself was a man of but little property. On Saturday, September 18, Bottomly was in Abilene. Whether he arrived there on that day, or sooner, is not shown. On that day he appeared at the office of a land agent in that city by the name of James H. Brady, and represented himself to be from the state of Iowa, and that he was desirous of purchasing a farm in Dickinson county. Brady had several farms for sale, and among them the farm of the defendant, Decker. Brady told Bottomly to describe the kind of farm which he wanted, and then he would try to furnish him one of that kind. Bottomly did describe the kind of farm which he wanted, and Brady believed that the farm of Decker would suit him, and invited Bottomly to ride out with him the next day to see the farm, provided Bottomly had no conscientious scruples in doing so on Sunday. Bottomly said he had none, and they went out to see the farm on Sunday. Bottomly examined the farm carefully, and had much conversation concerning it. The next day was taken up in negotiations concerning the farm. Bottomly concluded that the farm would suit him, and wanted to purchase it. Brady then saw Decker, and Decker wished to sell it, but both Bottomly and Decker wished to do the business entirely through Brady, and not with each other. Finally Brady introduced Bottomly to Decker, and they showed no signs of recognizing each other, but pretended to be strangers. Finally all the arrangements were made for the purchase and sale of the farm, and it was agreed that on the next morning early they should go to the office of Stambaugh, Hurd & Dewey, and deliver to G. W. Hurd, one of the members of such firm, a draft for the sum of $3,000, drawn on the First National Bank of Clinton, Iowa, by Bottomly, in favor of Brady, and indorsed by Brady; and also to deliver to Hurd a promissory note for something over $1,000, secured by a mortgage on the livery stable, and obtain from Hurd the aforesaid four promissory notes belonging to Noble. Some kind of suit had already been commenced by Hurd with regard to these notes, or the mortgages securing them. In pursuance of the foregoing arrangement the parties did go to Hurd’s office, and did deliver to him the aforesaid draft and note and mortgage, Bottomly delivering to him the draft, and Decker delivering to him the note and mortgage, and Decker demanded the aforesaid four promissory notes. Bottomly at the time stated to Hurd that the draft was good, and that he had the amount of money which it called for in said bank. Hurd, however, declined to deliver the notes until he could ascertain whether the draft was in fact good or not, stating that it would take only a short time to telegraph to Clinton, Iowa, and ascertain that fact. Bottomly then demanded a return of the draft; but Decker still demanded the delivery to him of the four promissory notes, and continued to demand the same until Hurd left the office, which was within a few minutes -after the draft and note and mortgage were delivered to him. Hurd, being convinced that this transaction on the part of Bottomly and Decker was an attempt, by means of a false and fraudulent draft, and false and fraudulent declarations, to procure the four promissory notes aforesaid, procured the arrest of Bottomly and Decker. There was really no such bank in existence as the First National Bank of Clinton, Iowa, nor anything like it; and Bottomly had no money in any such bank, and probably none in any bank. While the foregoing facts tend to inculpate Decker, there was no evidence tending to exculpate him.
The principal ground upon which it is claimed that the evidence is not sufficient to convict Decker of the offense charged against him, is as follows: The information charges that it was George M. Noble and George ~W. Hurd that the defendants intended to cheat and defraud, and that it was by means of the false and fraudulent draft, drawn on the First National Bank, of Clinton, Iowa, coupled with the false and fraudulent assertions that the draft was good, and that Bottomly had the money in the bank with which to pay the draft, that the fraud upon Noble and Hurd was intended to be perpetrated. Now it appears from the evidence that this draft was indorsed by James H. Brady, and there was no evidence tending to show that Brady was insolvent. It is therefore claimed that there was a failure of proof with reference to the defendant’s guilt, because of this failure on the part of the prosecution to show that Brady was insolvent. And this is claimed solely upon the ground that if Brady was solvent neither Noble nor Hurd could have been defrauded. This claim is plausible, but we c^° n°t think that it is good. Even if j}ra(jy was entirely solvent, and in all probability he was, still the draft was false and fraudulent. It was not what it appeared to be, or what it was represented to be. It was not a draft drawn upon an actual bank, or for money actually belonging to the drawer, or for any money subject to the payment of the draft. In all this the draft was false and fraudulent, and -it was not worth what it otherwise would have been. Even if the draft had some value because of Brady’s indorsement upon it, still it was not as valuable as it would have been if it had been drawn on a real bank and for money actually in the bank belonging to the drawer and subject to the payment of the draft. It was an attempted fraud upon Noble and Hurd to attempt to procure the aforesaid promissory notes from Hurd by means of the delivery to him of such a false and fraudulent draft. It was a fraud upon Noble and. Hurd to attempt to procure from Hurd said notes, without delivering to him just such a paper as the parties represented the draft to be. Noble and Hurd wanted the money and nothing else, but Hurd would have accepted a draft if he had believed it to be the equivalent of money; but neither Noble nor Hurd wanted to procure a false and fraudulent draft, nor to purchase a lawsuit against Brady, however good Brady may have been financially. It is no defense to say that although the draft was not what it was represented to be, still that it was of some value. It was a fraud upon Noble and Hurd to deliver to Hurd a thing different from what it appeared to be, and different from what it was represented to be, and not as valuable as it was represented to be.
We think upon the evidence in this case the jury were justified in finding the defendant, Decker, guilty as charged in the ' information. Undoubtedly he and Bottomly formed a conspiracy to obtain the aforesaid notes from Hurd by means of the aforesaid draft, and they actually attempted to carry the conspiracy into execution.
The defendant’s counsel has presented a few other points to this court, but we do not think that they are tenable, nor do we think that they require any comment.
The judgment of the court below will be affirmed.
All the Justices concurring.
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Opinion by
Simpson, C.:
This is an appeal from the Chase county district court. The prosecution was commenced before the police judge of Cottonwood Falls, a city of the third class, for a violation of the ordinance prohibiting the discharge of fire-arms within the city limits. The defendant, being adjudged guilty, appealed to the district court, where there was a trial by the court, (a jury being waived,) a finding of guilty, and a sentence to pay a fine of one dollar and costs, and to stand committed until paid. The record recites that a motion for a new trial was overruled, and excepted to. The motion is not set out in the record, and no date of filing is given, so as to determine whether before judgment or after, and the causes assigned therefor are unknown. Attached to the record is'what purports to be a transcript of the journal of the city council, respecting the ordinance claimed to be violated, and under which the prosecution was had; but it nowhere appears that it was ever offered in evidence, or made a part of the record; nor is there anything by which the court can determine what questions arose in the district court, or how they were decided. In this state of the record, only two questions will be noticed. The power of the city council of a city of the third class to pass the ordinance in question is found in § 51 of chapter 60 of the Laws of 1871, which provides that “the city council may also restrain and prohibit riots, and prevent the discharge of fire-arms in the streets, lots, alleys, grounds, or about the vicinity of any buildings.” Here is a delegation of power by the legislature to the city council of cities of the third class, to pass an ordinance prohibiting the discharge of fire-arms within the city limits; and in the absence of the ordinance itself, the presumption is that the city council acted within the delegated power.
The complaint charges a public offense; these are the allegations constituting the charge:
“On or about the 25th day of April, 1883, J. A. Smith, within the corporate limits of the city of Cottonwood Falls, Chase county, Kansas, the same being a city of the third class, then and there being, did then and there shoot and discharge a pistol, commonly called a revolver, the said shooting not being done in any public display or in commemoration of any extraordinary event, and that the said J. A. Smith was not then and there an officer of said city or state, or United States; contrary to, and in violation of section one, ordinance No. 8, of said city.”
This disposes of the only two questions that will be con-' sidered; It is recommended that the judgment of the court below be affirmed.
By the Court: It is so ordered.
All the Justices concurring.
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought by Arthur Larkin against Howes B. Clark and Oscar A. Burton, for $461.26, for goods, wares, merchandise and chattels alleged to have been sold and delivered by the plaintiff to the defendants. The action was tried by the court and a jury, and the court instructed the jury to find for the plaintiff, and the jury so found, assessing the amount of the plaintiff’s recovery at $469.46, and the court rendered judgment accordingly. To reverse this judgment, Burton, as plaintiff in error, brings the case to this court, making Arthur Larkin the defendant in error.
It appears that Burton is, and has been for many years, a resident of the state of Vermont, and at one time owned a large amount of real estate in Ellsworth county, Kansas; that Clark .is his nephew; that Burton sold said real estate to Clark on credit, retaining the legal title in himself as a security for the purchase-money, and also at various times loaned Clark money for the purpose that Clark might cultivate the land and carry on the business of farming and stock-raising upon the same. Clark had a family, and he with his family resided upon the land. About once a year Burton and Clark had settlements of their affairs, and at each time entered into a new agreement, Burton at all times retaining the legal title to the land in himself, as a security for the payment of the purchase-money and for the money advanced by him to enable Clark to carry on the aforesaid business. On November 22, 1883, they had a settlement, and entered into a written agreement, similar to agreements previously entered into between them, whereby Clark agreed to pay Burton $30,650, in such amounts and at such times as he could, with interest thereon at the rate of seven per cent, per annum; and upon full payment Burton was to convey to Clark the aforesaid real estate. This agreement also contained some stipulations not necessary to mention. It also contained the following stipulation, which constitutes the only foundation for the present action as between Larkin and Burton, to wit :
“ It is also agreed and understood that the said party of the first part [Burton] shall furnish said party' of the second part’ [Clark] such sums of money as may be necessary to pay the current expenses of said second party, it being understood that said second party shall render a monthly account of expenses to said first party.”
After this written agreement was made, and prior to the commencement of this action, which was on December 26, 1884, the goods, wares, merchandise and chattels for which this action was brought were sold and delivered, by Larkin to Clark, and to Clark only. It is not claimed on the part of Larkin that they were in fact sold or delivered to Burton, or to anyone at his instance or request, or that Burton received any benefit from them, or that the credit for the same was given to Burton, or that he in any manner became liable for them, except by reason of the aforesaid stipulation contained in the aforesaid written contract between Burton and Clark. It is claimed, however, that by virtue of this stipulation Burton is liable.
“The rule that a third party, for whose benefit a contract was made may áue the promisor on the contract, though the promise was not made to him and the consideration did not move from him, seems to have met with approval in England at one time; but the contrary rule is now well established.
“The later English rule has been adopted by several American courts, but generally with the exception that where one receives money from another under promise to pay it to a third person, or where one owing money to another promises to pay it to a third person, such third person may sue on the contract. Yet, where any contract is made for the benefit of one, a stranger to the contract, the weight of American authority is in favor of the rule which allows such third party to maintain an action on the contract, or advantage may be taken of it by way of set-off.”
But there are limitations upon this rule; or rather, the rule is not so far extended as to give to a third person who is only indirectly and incidentally benefited by the contract a right to sue upon it. In the case of Simon v. Brown, 68 N. Y. 355, et seq., the following language is used:
“ It is not every promise made by one to another from the performance of which a benefit may inure to a third, which gives a right of action to such third person, he being neither privy to the contract nor to the consideration. The contract must be made for his benefit as its object, and he must be the party intended to be benefited.”
It is unquestionably true that in this state a person, for whose benefit a promise to another upon a sufficient consider ation, is made, may maintain an action on the contract in his own name against the promisor. (Anthony v. Herman, 14 Kas. 494; Harrison v. Simpson, 17 id. 508; Center v. McQuesten, 18 id. 476; K. P. Rly. Co. v. Hopkins, 18 id. 494; Floyd v. Ort, 20 id. 162; Life Assurance Society v. Welch, 26 id. 641, 642; Brenner v. Luth, 28 id. 581.) And this same doctrine prevails in many of the other states. It is said in a note to the case of Shamp v. Meyer, 24 Cent. L. J., 111, 112, as follows:
We think this is a correct statement of the law. (Turk v. Ridge, 41 N. Y. 201; Garnsey v. Rogers, 47 id. 233; Merrill v. Green, 55 id. 270; Vrooman v. Turner, 69 id. 280 ; L. O. S. Rld. Co. v. Curtiss, 80 id. 219; Dunning v. Leavitt, 85 id. 30; Sanders v. Filley, 29 Mass. 554; Johnson v. Foster, 53 Mass. 167; Greenwood v. Sheldon, 21 Minn. 254; Ferris v. Carson Water Co., 16 Nev. 44; Anderson v. Fitzgerald, 21 Fed. Rep. 294; National Bank v. Grand Lodge, 98 U. S. 123.) Of course ^Ie uame of the person to be benefited by the contract need not be given if he is otherwise sufficiently described or designated. Indeed, he may be one of a class of persons, if the class is sufficiently described or designated.
In any case where the person to be benefited is in any manner sufficiently described or designated, ^e may sue uPon the contract. But the present contract does not come within any of the rules authorizing a third person to sue upon it. It is substantially as follows: Burton agreed with Clark that he (Burton) would furnish to Clark such sums of money as might be necessary for Clark to pay his (Clark’s) own future current expenses: not to pay any existing debt or obligation; nor, indeed, for Burton to pay any debt or obligation, present or future, except to Clark; nor for either to pay to- any particular person or class of persons, except Burton to Clark; nor to pay for any particular article, or act, or thing; nor to pay or to do any other act or thing for the benefit of any particular person or class of persons, except Burton to Clark. Indeed, the contract is solely between Burton and Clark, and solely for the benefit of these two persons, and not for the benefit of any other person or class of persons. Of course this contract,’ if everything were to occur as was contemplated, might indirectly result to the benefit of others than Burton or Clark. But so might almost any contract result to the benefit of others than the parties thereto, and yet no cause of action in favor of third persons and against one of the parties to the contract could be founded upon any such indirect results. When the contract in the present case was entered into, no debt or other obligation existed in favor of Larkin and against either Burton or Clark; nor does is appear that it was contemplated by either Burton or Clark that any such debt should be created; or, indeed, that any debt to any person should be created. Probably, at the time when this contract was entered into, Larkin was not thought of; and probably also it was the intention of the parties that Burton should furnish the money to Clark, and that Clark should pay his current expenses as fast as he contracted them, and that he should never, under any circumstances, create any debt or debts or other obligation for such expenses to any person. But, however this may be, it cannot be said in any aspect of the case that the contract was made for the benefit of Larkin within the meaning of the rule that permits third persons to sue upon contracts. The sums of money to be furnished by Burton to Clark were to be furnished as loans to Clark, and not to purchase anything or to pay for anything for Burton’s benefit, except indirectly as follows: they were furnished to Clark to enable him to carry on Clark’s own business, and thereby incidentally to preserve Burton’s securities, for the payment of Clark’s debts to Burton. As between Burton and Clark, Clark owed Burton many thousands of dollars; and Burton should not be compelled to pay Clark’s debts. The debt sued for in the present case is ourelv Clark’s debt.
It is further claimed, by counsel for Larkin, that “ the contract between Burton and Clark reallv constituted Clark the agent of Burton, and Burton is liable as the principal debtor.” We do not think that this claim is tenable at all. All the property, real and personal, belonged to Clark, although the legal title thereto was in Burton, to secure him for the amount which Clark owed him; and Clark had full and complete possession and control of the property; and it was also expressly stipulated in a chattel mortgage given by Clark to Burton at the time when said contract was entered into, that all the personal property should be taken care of by Clark at his own cost and expense; and Clark also resided upon the land, and had a family, for which a portion of his current expenses, were incurred; and all the goods, wares, merchandise and chattels purchased by Clark from Larkin were purchased for Clark, and not for Burton; and the sums oi money to be furnished by Burton to Clark were to be furnished as loans to Clark, and not to purchase anything or to pay for anything for Burton’s benefit, except as aforesaid.
The judgment of the court below as between Burton and Larkin will be reversed, and the cause remanded for further proceedings.
All the Justices concurring.
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The opinion of the court was delivered by
Valentine, J.:
This was an action in the nature of ejectment, brought in the district court of Marion county, on December 25, 1884, by Frank Doster against Walter B. Beebe and G. L. Mastín, to recover certain real estate in said county. The action was tried by the court without a jury, and the court found generally in favor of the plaintiff and against the defendants, and rendered judgment accordingly. The defendants bring the case to this court for review.
The defendant in error, plaintiff below, claims title to the land in controversy under a quitclaim deed executed by Elias W. Tuttle, the original patentee, to the plaintiff below, on October 11,1884. The plaintiffs in error, defendants below, claim title under a tax deed executed by the county clerk of Marion county to Walter B. Beebe, on May 12,1875, in pursuance of a tax sale of the land made on May 8, 1872, for the taxes of 1871, and the payment of the subsequent taxes for the years 1872, 1873, and 1874; which tax deed was recorded on May 17, 1875. The tax deed is regular in form and valid upon its face. The defendants below have been in the actual possession of the property since May or June, 1883, and it may be for a longer period of time. Walter B. Beebe, the holder of the tax deed, is a resident of Ohio, and a nonresident of Kansas, and has not been within the state of Kansas for a period of time aggregating five years since the tax deed was recorded, although he has visited Kansas every year since that time, and has stayed in Kansas from three to eight months each time. Neither the plaintiff, Doster, nor his grantor, Tuttle, has ever been in the actual possession of the property.
The first question arising in this case is, whether the five-year statute of limitations contained in § 141 of the tax law of ' 1876, (Comp. Laws of 1885, ch. 107, §141,) has so run as to bar any action brought for the recovery of the land purporting to be conveyed by the tax deed, or to defeat or avoid the effect of such tax deed. This question has been elaborately argued by counsel on both sides. The defendants below claim that, as more than five years elapsed from the time of the recording of the tax deed to the time when this action was commenced, the statute of limitations has completely run in its favor, and therefore that all action tending to defeat or avoid its force or effect is completely barred; while the plaintiff below claims that, as the holder of the tax deed has not in the aggregate been within the state of Kansas for the period of five years from the time of the recording of the tax deed until this action was commenced, such statute of limitations has not completely run, and that the present action is not barred; and he claims this solely upon the ground that § 21 of the civil code applies to this question and modifies and limits the force and effect of the provisions of said § 141 of the tax law, and prevents such §141 from running or operating while the holder of the tax deed is absent from the state of Kansas. The question then, is really this: Does § 21 of the civil code apply to and modify or limit the force and effect of the provisions of § 141 of the tax law ? We shall now proceed to consider this question; and in doing so it will be necessary to consider many of the other sections of the statutes.
Article 3 of the civil code contains and includes all the sections of such code, from §13 to §25. Section 15 of such article reads as follows:
“Sec. 15. Civil actions can only be commenced within the periods prescribed in this article, after the cause of action shall have accrued; but where, in special cases, a different limitation is prescribed by statute, the action shall be governed by such limitation.”
Section 16 prescribes limitations for the commencement of real actions, and among other limitations upon the bringing of actions for the recovery of real property, it fixes two years after the recording of a tax deed within which to bring the action, and fifteen years as a general limitation.
Section 18 prescribes limitations for the commencement of personal actions.
Section 21 reads as follows:
“Sec. 21. If, when a cause of action accrues against a person, he be out of the state, or has absconded or concealed himself, the period limited for the commencement of the action shall not begin to run until he comes into the state, or while he is so absconded or concealed; and if, after the cause of action accrues, he depart from the state, or abscond, or conceal himself, the time of his absence or concealment shall not be computed as any part of the period within which the action must be brought.”
Section 141 of the tax law reads as follows:
“Sec. 141. Any suit or proceeding against the tax purchaser, his heirs or assigns, for the recovery of lands sold for taxes, or to defeat or avoid a sale of conveyance of land for taxes, except in cases where the taxes have been paid or the land redeemed as provided by law, shall be commenced within five years from the time of recording the tax deed, and not thereafter.”
Section 128 of the tax law reads as follows:
“Sec. 128. The lands of minors, or any interest they may have in any lands sold for taxes, may be redeemed at any time before such minor becomes of age, and during one year thereafter. And the lands of idiots and insane persons, so sold, or any interest they may have in the same, may be redeemed at any time within five years after such sale, in the manner provided in this act.”
The plaintiff below claims that § 21 of the civil code modifies and limits §141 of the tax law, for the following reasons:
1. Section 21 of the civil code is general in its terms, applying to all causes of action and to all limitations. It says: “When a cause of action accrues,” etc.; meaning when any cause of action accrues, whether the same is mentioned in the civil code or not. uThe period limited for the commencement of the action shall not begin to run,” etc.; meaning the period limited by any statute shall not begin to run, whether this statute is a part of the civil code, or is some other statute, and that the time of the absence of the holder of the cause of action from the state shall, in all cases, be excluded in computing the period within which the action may be brought. It is claimed that, notwithstanding §15 of the civil code, § 21 of the civil code includes “special cases” of limitation, prescribed by other statutes than the civil code, as well as the general cases of limitation prescribed by such code.
2. This is the construction, it is claimed, given by the supreme court of Kansas in the case of Bonifant v. Doniphan, 3 Kas. 26, to § 28 of the civil code of 1859, which § 28 corresponds to §21 of the present civil code; which decision has never been overruled, but has since been approved and followed. (Hart v. Horn, 4 Kas. 232, 237, 238; N. M. Rld. Co. v. Akers, 4 id. 453.)
3. Since the decision of the case of Bonifant v. Doniphan, which was rendered at the July term of the supreme court of Kansas in 1864, all the statutes which have any application to this case have been reenacted, and evidently with the construction already put upon them by the supreme court.
4. Section 21 of the civil code and § 141 of the tax law both relate to limitations of actions, and, being in pari materia, must be construed together, and one as limiting and modifying the other. Section 21 of the civil code must be construed as limiting and modifying §141 of the tax law.
5. Unless §141 of the tax law is thus limited and modified, and construed not to operate in favor of a tax deed while the holder thereof is a non-resident and. absent from the state, such section, it is claimed, must be held to be unconstitutional and void, for the reason that while the holder of the tax deed is a non-resident and absent from the state, no action can be brought for the recovery of the land, or to set aside the tax deed, or to defeat or avoid the same, and the original owner has no other remedy; and therefore the original owner might be deprived of his property by the operation of the statute if construed independent of § 21 of the civil code, without ever having any opportunity to have his day in court or to be heard in court, and indeed without having any remedy; and the case of Hart v. Sansom, 110 U. S. 151, is cited as authority for the claim that no remedy exists, or could exist, in Kansas, against a non-resident person absent from the state.
6. It is also claimed that any other construction than that § 21 of the civil code limits and modifies §141 of the tax law, would render § 141 of the tax law unjust and inequitable, and would be a construction “contrary to the true legislative intent.”
7. It is also claimed that tax laws must be construed liberally as toward the original owuer of the land, and strictly as toward the tax-deed holder.
8. It is also claimed that this court has already decided that absence of the tax-deed holder from the state prevents the limitation prescribed in said § 141 from operating in favor of either the tax deed or the tax-deed holder, and authorities are referred to as supporting this claim; but they do not. This court has never so decided.
On the other hand, it is claimed by the defendants below as follows:
1. Section 141 of the law is complete within itself, and in five years after the recording of any tax deed will absolutely bar any suit or proceeding having for its object the defeat or avoidance of the tax deed, except in certain cases mentioned in the law itself, as where the taxes have been paid, or the land redeemed from the taxes, or where the owner of the land is under some one of the disabilities mentioned in § 128 of the táx law; and with the further exceptions which must upon general principles be understood to exist, as where there is a want of power in the taxing officers to make a good tax title, as where the land is not taxable, and where there, is a want of power in the tax-deed holder to legally and honestly take or hold a good tax title, as where some trust relation exists between the parties, making it fraudulent on the part of the tax-deed holder for him to assert title as against the original owner; and this claim is also made particularly for the reason that this section says in positive terms that except in certain cases, not including non-residence of absence from the state, the action “shall he eommeneed within five years from the time of recording the tax deed, and not thereafter;” and it is claimed that this section means what it says.
2. This section was placed by the legislature in the tax law, and not in the civil code, and there is nothing in any of the statutes that makes the civil code, with reference to limitations, have any application to this section. Also, there is a limitation of actions with regard to tax deeds, and also modifications of this limitation placed in said article 3 of the civil code, and as the legislature evidently had the subject of limitations of actions with regard to tax deeds and modifications of such limitations under consideration when it enacted that article, it must be presumed that it placed in such article all the limitations of actions with regard to tax deeds which it intended should be modified or controlled or limited in any manner whatever by any of the provisions of said article, and that any limitation of actions with regard to tax deeds not found in that article must be free from all modification or control by any of the provisions of said article. In other words, the legislature had the question of the limitation of actions with regard to tax deeds under consideration when it enacted the civil code and the tax law, and it placed a certain two-year limitation with regard to tax deeds in the civil code because it intended that such limitation should be controlled and modified by the other provisions of the civil code; but it placed the aforesaid five-year limitation in the tax law because it intended that such limitation should not be controlled or modified by any of the provisions of the civil code.
3. The tax law itself enumerates certain exceptions to the five-year limitation contained in said § 141, as where the taxes have been paid or the land redeemed or some disability exists, and therefore in accordance with well-settled rules of statutory-construction we should not look to other statutes to find other exceptions. Expressio unius est- exalusio alterius.
4. The civil code contains general provisions .relating to limitations, as said § 21 of the civil code; the tax law contains only the special provisions found in said §§141 and 128, and it is well settled that general provisions do not control special provisions, but the reverse.
5. Section 21 of the civil code was enacted in 1868, while §141 of the tax law was enacted in 1876, eight years afterward. Hence if there is any conflict between them, § 141 of the tax law will modify and control § 21 of the code, and not be modified by it, as is claimed by the plaintiff below.
6. It has further been claimed that § 21 of the civil code applies only to personal actions, and not to real actions, as follows:
“ The evident intent of the legislature in framing said § 21 was to apply it o'nly to those actions which are mentioned in §18, and denominated as actions ‘other than for the recovery of real property,’ being actions which are usually spoken of as personal, as distinguished from real actions. The words of the section, ‘ If, when an action accrues against a person, he be out of the state,’ etc., naturally suggest such classification and application; and, on the other hand, it is quite certain that real property sought to be recovered in any action cannot £ abscond,’ or £ conceal ’ itself, nor £ remove itself out of the state.’ It is always here, and always within the jurisdiction of the court; and § 72 of the code provides, among the cases where non-resident defendants may be brought in by service by publication, for those actions ‘ which relate to or the subject of which is real or personal property in this state, where any defendant has or claims a lien or interest, actual or contingent, therein, or the relief demanded consists wholly or partly in excluding him from any interest therein, and such defendant is a non-resident of the state.’ ” (4 Kas. L, J. 349.)
It is admitted, however, that the supreme court holds adversely to this claim. (Morrell v. Ingle, 23 Kas. 32.)
7. It is also claimed that it was clearly not the intention of the legislature that § 21 should apply to limitations not pre scribed by the civil code. Said §21 is a-part of article 3 of the civil code, which article includes §§13 to 25. Section 15 of that article provides that “civil actions can only be commenced within the periods prescribed in this article, after the cause of action shall have accrued; but where in special cases a different limitation is prescribed by statute, “the action shall be governed by such limitation.” And, as §15 and § 21 of the civil code are in the same article, they must be construed together; and as §15 says that the code limitations are to be governed by “ this article,” “ but where in special cases a different limitation is prescribed by statute, the action shall be governed by such limitation,” it cannot be supposed that § 21, which is general in its terms, was intended to modify or affect any of the “special cases” of limitation which might be found in a tax law.
8. Statutes of limitations are now regarded favorably as statutes of repose, and this even where they operate in favor of tax titles. (Leffingwell v. Warren, 67 U. S. 599, 606.)
9. Upon the theory of the defendants below, as well as upon the theory of the plaintiff below, an owner of .land has ample remedies to protect the land from tax titles. Take the present case as an illustration: The owner of the land is presumed to have known the law, that the land was taxable, and that it was taxed for the year 1871. He could have paid the taxes any time from November 1, 1871, up to May 8, 1872, when the land was sold for the taxes; and if he had done so, the present tax title could not have had any existence. Or, if there were any irregularities in the tax proceedings, he had ample remedies from the beginning up to that time before the county board or in the courts to have such irregularities corrected or his rights adjusted. After the land was sold for the taxes on May 8, 1872, he had over three years, and until May 12, 1875, when the tax deed was executed, within which to redeem his land from the taxes. Or, if there were any irregularities in the tax proceedings, he still had the power to have such irregularities corrected, or his rights adjusted by proceedings in the courts. After the tax deed was executed, he had over five years, or until May 17, 1880, within which to commence an action to determine the regularity and validity of the tax deed. After May 17, 1875, when the tax deed was recorded, he had his action of ejectment specifically given for the recovery of the land by §143 of the tax law; and this without reference to whether the land was in the possession of the tax-deed holder or not. Or, he could at any time have taken possession of the land and have stopped the operation of the statute of limitations in favor of the tax deed, and have started in operation the statute of limitations against the tax deed, and in two years have barred all action against him for the recovery of the land under the tax deed. (Civil Code, §16, subdiv. 3.) In this way all his rights would have been settled and adjusted in two years. Or, he could have commenced an action to set aside the tax deed or remove the cloud created by it. And while the tax-deed holder was a non-resident of the state and absent therefrom, he could have obtained service of summons by publication. (Civil Code, §72.) And it is claimed that the decision in the case of Hart v. Sansom, 110 U. S. 151, will not prevent the maintenance of such suits upon service of summons by publication where the only object of the suit is to affect the land as a thing, and not to affect the original owner personally, or to compel him to do something personally. Besides, the owner might and could have obtained service of summons upon the tax-deed holder personally, for he visited the county in which the land is situated every year from 1872 up to 1880, and remained in the county each time for the period of from three to eight months. Also, the original owner could have commenced his action of ejectment against, and could have obtained personal service of summons upon, G. L. Mastín, who in less than five years after the recording of the tax deed took the actual possession of the land in controversy under the tax-deed holder, for Mastín resided in the county.
10. It is also claimed that the statutes would be valid and the tax deed good even if the statutes were so construed as not to give the original owner any remedy except such as the plaintiff below admits that he has; and he admits that the original owner has all the remedies above mentioned, except that he cannot sue a non-resident tax-deed holder while he is absent from the state. He admits that the original owner has the following remedies, to wit: (1) to • pay his taxes before sale; (2) to redeem his land from the taxes after the sale and before the issuance of the tax deed; (3) to show at any time prior to the complete running of the five-year statute of limitations such irregularities in the 'tax proceedings as would invalidate the sale; (4) or, to take and hold actual possession of the land, and thereby prevent the five-year statute of limitations from operating, and to start a two-year statute of limitations in operation in his own favor; (5) to show at any time, even more than five years after the recording of the tax deed, a want of power in the taxing officers to create a valid tax title; or, (6) a want of power in the tax-deed holder to take or receive a valid tax title; or, (7) that the original owner was under some legal disability.
11. It is claimed that under the statutes of Kansas all tax proceedings with reference to real estate are in their very nature proceedings in rem, merely to enforce the payment of the taxes, and to enforce the lien of the taxes upon the land; and that all the statutes with reference to the taxes, tax liens, and tax titles are equally as binding upon the tax-deed holder as upon the original owner of the land; and that they are equally binding upon both; that when the land is sold for the enforcement of the taxes or tax lien, any power given to the original owner to redeem his land from the taxes, or to defeat or avoid the sale for any reason other than that he has discharged the taxes or the tax lien, or a want of power in the taxing officers or the party receiving the tax title, is a mere privilege, not a constitutional right, and can be exercised only in the manner prescribed by the statutes; and that unless he does so redeem his land, or otherwise defeat or avoid the tax title within the manner prescribed by the statutes, the tax title becomes absolute. On the other hand, the tax-deed holder, being a party to the tax proceedings, is as much bound by the statutes relat ing to such proceedings, wherever he may be and wherever he may reside, as the original owner of the land is, and his tax deed may be defeated in the very manner prescribed by the statutes. Although he may be a non-resident of the state and not within its boundaries, and although no personal service of summons can be had upon him, but only service by publication, yet if the original owner of the land commences an action against him under § 143 of the tax law for the recovery of the land, and obtains service by publication only under § 72 of the civil code, and in such action obtains a judgment setting aside the tax deed or declaring it void, or otherwise defeating it, the tax-deed holder will nevertheless be as much bound by the judgment as though he resided within the state and upon the land, and was personally served with summons in the action. The tax-deed holder takes his tax deed subject to be defeated in the manner prescribed by statute. The statutes enter into the transaction, and form a part thereof. The case of Hart v. Sansom, 110 U. S. 151, can have no application to such a case.
12. It is further claimed by the defendants below that the supreme court has already decided that the limitation contained in § 141 of the tax law will operate in favor of all tax deeds, whether held by residents or non-residents, and by persons in the state or out of the state; and the cases of Walker v. Boh, 32 Kas. 354; Harris v. Curran, 32 id. 580; and Doyle v. Doyle, 33 id. 721, 725, are cited as authorities therefor.
The case of Bonifant v. Doniphan, 3 Kas. 26, relied on by the plaintiff below, simply decided that a limitation contained in § 2 of an act entitled “An act amendatory to an act entitled ‘An act to establish a code of civil procedure,’ passed February, 1859,” was modified by the provisions of § 28 of the code of civil procedure referred to. This amendatory act, being an amendment to the civil code referred to, was of course intended to be a part of the same, and to be construed in connection with its other provisions. This decision has been followed in two or three other cases heretofore cited. There is some dictum, however, in the opinion in that case to the extent that said § 28, which corresponds to § 21 of the present civil code, had application to “special cases” of limitation, found in other statutes than the civil code; but such dictum was unnecessary for the decision of the case, and has never since been followed nor referred to.
The case of Walker v. Boh, 32 Kas. 354, relied on by the defendants below, was decided upon the theory that the limitation contained in § 141 of the tax law is not modified, controlled or limited in any respect whatever by any of the provisions of the civil code. The case, however, would have been decided in precisely the same way in which it was decided if it had been decided upon the other theory that the provisions of the civil code, including § 21 of the civil code, do modify, control and limit the said limitation contained in § 141 of the tax law.
The other cases cited by counsel for both parties have only such a remote, if any, application to the present ease that we do not think that they require any comment.
It is our opinion that §141 of the tax law is not controlled or modified by any of the provisions of the civil code, and especially not by the provisions of § 21 of the civil code. It was placed in the tax law, and not in the civil code, although another tax-deed limitation is placed in the civil code. Its provisions are limited by other provisions of the tax law, which would indicate that it was the intention of the legislature to place all modifications of its provisions in the tax law. Its provisions are special, while the provisions of § 21 of the civil code are general, and general provisions do not, as a rule, control special provisions, but the reverse. It was enacted eight years' after § 21 of the civil code was enacted, and its provisions being special, it constitutes one of the “special cases” mentioned in §15 of the civil code. It was certainly not the intention of the legislature that it should be modified or controlled by any of the provisions of the civil code, but was intended to be a complete limitation within itself, except so far as it is modified by other provisions of the tax law. For still further reasons for holding that this limitation is not con trolled or modified by the provisions of the civil code, see the foregoing statements of the claims of the parties. We think the tax deed in controversy in this case is valid, and that the five-year statute of limitations embodied in § 141 of the tax law has completely run in its favor, and bars all action brought to defeat or avoid the same.
The judgment of the court below will be reversed, and the cause remanded for further proceedings.
All the Justices concurring.
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought by J. D. Hill against George Timmermeyer, for the recovery of certain town lots in the city of Wichita, Kansas. The plaintiff claims title through a chain of conveyances from the original patentee .down to himself; and the defendant claims title under a tax deed. Whether this tax deed is valid or not, as against the attack of the plaintiff, is the only question involved in the case. It was executed July 25, 1882, upon a tax sale of the property made September 5,1877, for the taxes of 1876; and was recorded on the same day on which it Avas executed. The final redemption notice stated, among other things, that “unless said tracts and town lots are redeemed on or before September 5, A. D. 1880, they Avill be conveyed to the purchaser.” The case Avas tried by the court without a jury, and upon the foregoing facts and others the court rendered judgment in favor of the defendant and against the plaintiff for the recovery of the property, and costs. The plaintiff bi’ings the case to this court for review.
September 5, 1880, was Sunday, and of course the plaintiff could not redeem his property on that day, from the taxes charged against it; and hence, under the final redemption notice, and within its terms, he did not have three years after the sale, as the statute provides, (Tax Law, §§127,137,138,) within which to redeem his property from such taxes; and hence, such redemption notice was ailq js insufficient, and is voidable at the election of the owner of the property. (English v. Williamson, 34 Kas. 213; Cable v. Coates, Assignee, ante, p. 191.) More than three years, hoAvever, and nearly five, elapsed after the tax sale and before the tax deed was in fact executed; and no attempt was ever made to redeem the property from the taxes; and whether under such circumstances the tax deed can be avoided or not, because of the insufficiency of the redemption notice, is a more difficult question. It has been decided, however, in at least five cases .in this court, where the redemption notice is not sufficient, and where the tax deed was executed more than three years after the day of sale, and where no attempt was made prior to the execution of the tax deed, and in four of them not at all, to redeem the land from the taxes, that the tax deed was, nevertheless, voidable at the election of the original owner of the land. (Blackistone v. Sherwood, 31 Kas. 35; Hollenback v. Ess, 31 id. 87; English v. Williamson, 34 id. 212; Stout v. Coates, 35 id. 382; Long v. Wolf, 25 id. 522.) In the Long case, the sale was made on May 7,1872, and the tax deed was executed November 30, 1876. In the Blackistone case, the sale was made on September 5, 1876, and the tax deed was executed December 19, 1879. In the Hollenback case, the sale was made on September 11, 1875, and the tax deed was executed November 14, 1879. In' the English case, the sale was made on September 4, 1878, and the tax deed was executed June 29, 1882. In the Stout case, there were two sales and two tax deeds. The first sale was made on September 6,1877, and the tax deed was executed September 18, 1880. The. other sale was made September 2, 1879, and the tax deed was executed September 26, 1882.
No question with regard to any statute of limitations is involved in this case. The Blackistoue case, the Hollenbaclt case, and the English case, and especially the last, are directly in point in this case; and we shall follow them in this case, It must therefore be held in this case that the tax deed is voidable at the instance of Hill, who holds the original title. As the judgment of the court below was in favor of the tax deed, such judgment must be reversed; but the defendant, Timmermeyer, will, be entitled, under § 142 of the tax law, to receive all the taxes paid by him and his grantors on the lots, with interest, costs, etc.
Judgment reversed.
All the Justices concurring.
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The opinion of the court was delivered by
Valentine, J.:
This is an action in the nature of quo xoaxranto, brought originally in this court March 18,1887, by the attorney general, to inquire by what authority the Hon. Stephen J. Osborn, judge of the 23d judicial district, assumes to hold a term of the district court in and for Wallace county, Kansas, and to exercise other powers which cannot be exercised except upon the theory that a lawful term of the district court can be held in that county, when in fact and in law, it is alleged, no such term of court can legally be held in that county. This is the only question intended to be presented by the parties to this court; and this question arises upon a demurrer by the defendant to the plaintiff’s petition. The plaintiff alleges, among other things, as follows:
“In truth there is no such court in existence as the district court of Wallace county, and no term thereof to be held at said time, nor, as yet, at any time; but said Wallace county is and remains attached for judicial purposes to the county of Trego, the said county of Wallace not having been declared organized by this honorable court.”
There is no allegation in this petition further than we have already stated, as to whether the county has ever been organized or not, or whether any court has ever declared it to be organized or not; and this court cannot take judicial notice of any of these matters. Courts cannot take judicial notice of even matters contained in the records of their own courts, except so far as such matters are contained in the r ecords of the immediate case under consideration. (Banks v. Burnam, 61 Mo. 76; Lake Merced Water Co. v. Cowles, 31 Cal. 215; National Bank v. Bryant, 13 Bush, 419; Baker v. Mygatt, 14 Iowa, 131.)
Everything is admitted necessary to authorize the holding of a term of the district court in Wallace county, except that it is not admitted that the county of Wallace is an organized county, and not admitted that the supreme court has declared it to be such ; and these matters are denied, the first impliedly, and the second expressly; and under the allegations of the petition and the statutes of this state, we are inclined to think that the county is not organized. Section 1 of an act relating to Wallace county, approved March 12,1879, reads as follows:
“Section 1. That the county organization of the county of Wallace, in the state of Kansas, be and the same is hereby declared null and void, and the said county organization is hereby vacated and set aside.”
It is also provided in the same act, that for the purpose of completing the dissolution of the county organization, the attorney general is authorized and directed to commence an action in the supreme court, but that no judgment shall be rendered in the action nor the county disorganized until a certain other judgment is paid.
Section 1 of an act to- create the seventeenth judicial district, approved March 5, 1881, reads as follows:
“Section 1. That the seventeenth judicial district be and the same is hereby created, comprising the organized counties of Phillips, Rooks, Ellis, Trego, Graham, Norton, Decatur, and Sheridan, and the unorganized counties of Gove, Wallace, Thomas,.Sherman, Rawlins, and Cheyenne.”
It also provides, in § 3 of the last-mentioned act, among other things, as follows:
“Section 3. That for judicial purposes the unorganized counties of Wallace and Gove are hereby attached to the county of Trego.”'
Section 1 of the act to create the twenty-third judicial district, approved February 19, 1886, reads as follows:
“ Section 1. That the twenty-third judicial district be and is hereby created, comprising the organized counties of Rush, Ness, Ellis, and Trego, and the unorganized counties of Gove, St. John, Wallace, Lane, Scott, Wichita, and Greeley.”
Section 2 of the same act provides, among other things, that terms of the district court shall be held in the organized counties at certain and particular times, and in the unorganized counties as follows:
“In the counties of Gove, St. John, Wallace, Lane, Scott, Wichita, and Greeley, after the same have been organized, at such times as the judge of the district court shall order.”
Section 1 of an act to fix times for holding court in the twenty-third judicial district, approved March 5, 1887, provides for holding terms of the district court in certain counties at certain and particular times, and in the following counties as follows:
“In the county of Wallace on the fourth Monday in April and the fourth Monday in October, after the same shall be declared organized by the supreme court; and in the county of Logan, after the same has been organized, at such time as the judge of the district shall order.” (Laws of 1887, ch. 145, §1.)
The supreme court has no power to organize counties, and no power in any direct action or proceeding to declare a county organized; for no action can be brought in the supreme court or elsewhere for the mere purpose of having the supreme court declare that a county is or has been organized. Hence the foregoing words, “after the same shall be declared organized by the supreme court,” cannot mean what their literal import would seem to signify. It is true, that we can easily conceive of actions in which the question might incidentally arise as to whether a county has been duly organized or not, and in such action the supreme court might determine and declare whether the county had been organized or not; but it can hardly be supposed that the legislature would intend in any case that no court should be held in an organized county until after the question of its organization might incidentally arise in some action and be determined by the supreme court, and the fact declared that the county had been duly organized. The constitution seems to contemplate that every organized county must have a district court. (Const., art. 3, § 7.) There fore, as the supreme court has no power to organize counties, and no power in any direct action or proceeding to declare a county organized, and as it would seem that every organized county must have a district court, it would seem that the foregoing words, “after the same shall be declared organized by the supreme court,” should be construed to mean substantially the same as ^he words, “ after the same shall be organized.” It appearing, however, in this case, that the county is not organized, the prayer of the plaintiff’s petition must be sustained. Such prayer reads as follows:
“ Wherefore, said attorney general for and on behalf of the state of Kansas, prays that the said Stephen J. Osborn, defendant, may be ousted from the exercise of the said powers and functions of sitting as and for a district court of said county of Wallace, and of acting as judge of said pretended district court.”
Judgment will be rendered in favor of the plaintiff.
All the Justices concurring.
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought by William E. Clark against S. D. Houston j r. to quiet the title to certain lots in the city of Concordia, Kansas. The case was tried before the court without a jury, and the court found generally in favor of the plaintiff and against the defendant, and rendered judgment accordingly. The defendant brings the case to this court for review.
It appears that the property in controversy belonged originally to the Concordia Town Association, and the plaintiff below claims title under a sheriff's deed purporting to convey the property from the association to Joseph S. Paradis, under whom the plaintiff claims. _ The defendant below claims title under a quitclaim deed from S. D. Houston sr., who was a member of the town association. The principal question involved in the case is, whether the above-named sheriff's deed has any validity or not. It appears that on April 25, 1876, an action was pending in the district court of Cloud county, in which action the Concordia Town Association was the plaintiff and E. H. Smith was the defendant. On that day James M. Hagaman, who was the president of the town association and the attorney for it, procured a dismissal of the action at the plaintiff's costs. The journal entry of such dismissal reads as follows:
“The C. T. Association, Plaintiff, v. E. H. Smith, Defendant.
“Now comes the plaintiff, C. T. Association, by J. M. Hagaman, the attorney, and moves the court here to dismiss this action, without prejudice to a future action, at cost of plaintiff; which is accordingly done."
This entry contains the judgment, and the only judgment, if it may be called a judgment, authorizing the execution and the sheriff’s deed under which the plaintiff below claims. After this judgment was rendered, an execution was issued thereon, and the property in controversy was sold thereunder to Joseph S. Paradis. Afterward, and in August, 1877, the Concordia Town Association, by J. M. Hagaman, its attorney, appeared in court and moved to set aside such sale, which motion was overruled, and then upon the motion of the defendant in that action, E. H. Smith, the court confirmed the sale. On August 20, 1877, J. M. Hagaman, as president of the town association, received from J. D. Wilson, the sheriff of Cloud county, $29.30, the remainder from the proceeds of the said sale, after paying the amount of the costs, and gave to the sheriff his receipt therefor. Afterward, and in November, 1877, the sheriff of Cloud county executed the aforesaid sheriff’s deed to the said Paradis, which deed was recorded on November 9, 1877, and under which deed the plaintiff below now claims title.
The plaintiff in error, defendant below, claims that the foregoing judgment is void, and indeed no judgment at all; and in order to defeat the sheriff’s deed, under which the plaintiff claims, it is necessary for him to make this claim; for a judgment merely irregular, defective, erroneous, or even voidable, may and generally will support a valid sheriff’s deed where the judgment is attacked not directly but only collaterally, as in this case. Indeed, such a judgment cannot be successfully attacked collaterally. (Rorer on Judicial Sales, §789.) Is the present judgment void ? “A judgment is the final determination of the rights of the parties in an action.” (Civil Code, § 395.) And a judgment is not merely what is entered, but it is what is ordered and adjudged by the court. (Freeman on Judgments, § 38, and cases there cited.) The dismissal of an action is, in contemplation of the civil code, a judgment. (Civil Code, art. 17, title, Judgment, and §397.) And when the dismissal is “at cost of plaintiff,” as in this case, it is a final determination with reference to the costs, as well as to the action itself, and is in effect an order and judgment that the plaintiff shall pay the costs. In the case of Rogers v. Gosnell, 51 Mo. 466, the judgment was “that the defendant go hence, and that he recover his costs.” This was held by the supreme court of Missouri'to be “not very formal or full,” but still “substantially a good final judgment.” In the case of Huntington v. Blakeney, 1 Wash. Ter. 111, the judgment was: “The court orders that plaintiff pay the costs of suit, and that execution issue therefor.” This was held to be a valid judgment. In the case of Lind v. Adams, 10 Iowa, 398, the court ordered a judgment on a promissory note, directing the clerk to compute the amount due. He made an entry, leaving a blank for the amount, which blauk remained unfilled for fourteen months, when it was filled by the clerk in vacation. In this case it was held that the judgment was valid as against any collateral attack. In the case of Linton v. Housh, 4 Kas. 536, it was held that a judgment for “costs of suit, taxed at $ — ,” (no amount being specified,) was a good and valid judgment, and regular even where it was attacked directly as on petition in error. In the case of Clay v. Hildebrand, 34 Kas. 695, it was held as follows:
“Wherever an entry of a judgment is so obscure as not to clearly express the exact determination of the court, reference may be had to the pleadings and the other proceedings; and if with the light thus thrown upon such entry its obscurity is dispelled and its intended signification made apparent, the judgment will be upheld and carried into effect in the same manner as though its meaning and intent were made clear and manifest by its own terms.”
In the present case the judgment in controversy was rendered April 25, 1876; the sheriff’s deed was recorded November 9, 1877, and the plaintiff took possession of the property conveyed under the sheriff’s deed. This action was commenced July 3, 1884; the defendant answered July 25, 1884; and the case was tried on June 8, 1885; and not until then and upon the trial was any question ever raised with regard to the validity of the judgment rendered on April 25, 1876. Of course the judgment is informal; but Ave think it is sufficiently valid to uphold the sheriff’s deed, and it cannot be set aside or held for naught in this collateral proceeding.
The judgment of the court below will be affirmed.
All the Justices concurring.
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Opinion by
Holt, C.:
The court below sustained a demurrer to the plaintiff’s petition, because the same did not state facts sufficient to constitute a cause of action. The plaintiff in error complains of such ruling. It is the only question in controversy. The petition states that plaintiff is a corporation; that in 1878 it was about to build a new school house in the school district, and at a public meeting held for the purpose of obtaining the expression of the opinion of the legal voters as to the location it was finally agreed between plaintiff and defendant that a school house should be located on the land of the defendant, upon the condition that he would allow to be opened and dedicated to the perpetual use of the public a common road or public highway in consideration of the sum of $40 to be paid as damages for opening and locating the same; that plaintiff built a school house worth eight hundred dollars, and divers persons paid defendant the sum of forty dollars; and that the road was established as a public highway by the order of the board of county commissioners of Clay county. The petition further states, that on the 5th day of May, 1884, the defendant placed a fence across said road to prevent the public from using or traveling over the same, and that it was an irreparable damage to the plaintiff and the inhabitants of said district in going to and returning from said school house; that said fence, so constructed, was and became a public nuisance, and is iutended to shut out and prevent the public from having access over said road to said school house. In the prayer to said petition it asks for the abatement of the nuisance, and an injunction inhibiting the defendant from molesting the public in the enjoyment of said road.
In ordinary actions the statement of facts constitutes the cause of action, and it is not generally required to embrace the details of damages; but in cases for losses sustained by public nuisances the rule is different. The gist of the action then is, that the plaintiff has sustained some damage peculiar to himself, differing in kind from that common to the public. The plaintiff failing to show such damage in the petition, it is so defective that a demurrer should be sustained thereto. If the loss of the plaintiff is simply greater damage of the same kind as that sustained by the rest of the community, such fact will not be sufficient to constitute a cause of action in favor of the party complaining. The loss to the public consists in the inconvenience in, or the obstruction to, the use of the highway for travel, differing in degree but not in kind, according to the frequency of use which proximity of residence or peculiarity of occupation may impose. For this no individual can sue, but must resort to such public actions as are given by law. We presume it will be admitted that this plaintiff as a corporation has no greater right in maintaining a private action than an individual. Its claim for damages is, that the inhabitants of said district are prevented in going to and returning from said school house over said road. It is not claimed in the petition that this is the only public road that could be used by the inhabitants of the district, by which access could be had to the school house. In its petition it claims that the public are prevented from using this road, and that the inhabitants of the school district are injured because they cannot use it, being damages in kind sustained by all — the plaintiff, the inhabitants of the district, and the public generally; and because there are no peculiar and special damages alleged to have been sustained by the plaintiff, differing in kind from the general public, we believe that the plaintiff’s petition does not state a cause of action. (School District v. Shadduck, 25 Kas. 467 Heller v. A. T. & S. F. Rld. Co., 28 id. 627; Farrelly & Co. v. The City of Cincinnati, 2 Disn. 516; Wood Nuis., §§ 819 and 820.)
In Holman v. Inhabitants of Townsend, 54 Mass. 297, Chief Justice Shaw says:
“That damage which a party sustains in consequence of not being able to use a highway is one which he sustains in common with all the rest of the community, . . . and can be properly redressed only by a public prosecution. Were it otherwise, every individual in the town or adjoining towns who owns a team or carriage, and would occasionally find it inconvenient to use the road, would have a separate action.”
Lord Coke, speaking of this subject in Coke Lit., 56a, says:
“For if the way be a common way, if any man be disturbed to go that way, or if a ditch be made over athwart the way so he cannot go, yet he shall not have an action upon his case; and this the law provided for avoiding of multiplicity of suits, for if any one man might have an action all men might have the like.”
Damages sustained by the inhabitants of the school district ordinarily and naturally resulting from the obstruction of a public highway do not authorize the school district itself to enjoin defendant in this action. The school district is a part of the public community, and if it w.as damaged by a public nuisance which it sought to abate, then the public should take steps to abate it through the public officers. Our legislature has made ample provision in such matters. (See §1, ch. 153, Laws of 1885.)
We are of the opinion that the agreement between the school district and defendant, had at the time of the location of the school house in said district, and the promise to allow the road in question to be opened, is not such an one that a breach thereof by defendant would authorize the issuing of an injunction against defendant.
It is recommended that the judgment of the court below be affirmed.
By the Court: It is so ordered.
All the Justices concurring;
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The opinion of the court was delivered by
Horton, C. J.:
This is an action of mandamus to command the defendants to canvass the returns of the election held in Seward county on August 5, 1886, for the permanent location of the county seat, and in making such canvass to reject the votes cast in the “Owl building” in Fargo Springs, and in their place to accept the ballots cast at the poll known as the “wagon-box” in that village.
Seward county was organized June 17,1886, by the proclamation of the governor. "Walter I. Harwood, E. M. Campbell, and E. A. Watson were appointed the temporary commissioners, and J. M. Wilson, the county clerk. These officers qualified and entered upon the discharge of their duties July 3,1886. Seward county contains sixteen congressional townships and four half congressional townships, being twenty-four miles east and west, and twenty-seven miles north and south. By.the proclamation of the governor, the town of Springfield was designated as the temporary county seat; The temporary board of county commissioners, at its meeting, July 3, 1886, divided the county into three municipal townships, as follows: Seward township, being twelve miles north and south, and twenty-four miles long east and west; Liberal township, being twelve miles wide east and west, and fifteen miles long north and south: Cimarron township, with the same extent of territory as Liberal township. The voting precincts were established in these townships as follows: In Seward township, at Fargo Springs, in the southwest room of the building known as the “Owl building”; in Liberal township, at Rogers’s store; in Cimarron township, at a building known as “Tarbox’s ranch.” The town of Fargo Springs is nearly two and one-half miles south of Springfield. At the time of the election, although Springfield was the temporary county seat, the board of county commissioners, instead of making it a voting precinct, established the precinct of Seward township at Fargo Springs; and yet the bulk of population of Seward township lies nearer Springfield than Fargo Springs. In the division of the county into commismissioner districts, each of the three municipal townships was made a district; one of the townships, namely, Cimarron, had 39 votes only, while Liberal township had 132, and Seward township 404. On July 3, 1886, the board of county commissioners ordered an election to be held on August 5, 1886, for the various county and township officers in the county, and for the permanent location of the county seat. The following table shows the votes cast in the several precincts for the permanent location of the county seat:
An alleged canvass of the votes was had early Monday morning, August 9, 1886, with the following result:
Tt is claimed by the plaintiff that the result of the canvass should have been as follows:
E. M. Campbell, one of the defendants, testified that the canvass of the votes for county officers was made at Springfield, on August 7th; that the canvass was not completed that day, because the commissioners thought it would be dangerous to do so on account of the excitement and threats of the people at Springfield; that he made a motion on August 7th, while the board was in session, to proceed to the canvassing of the votes for the county seat; that the votes were then in the hands of the board and looked at, but a motion was made to lay his motion upon the table, which was carried, and no announcement of the vote on county seat was then made; that the board then adjourned to August 9th, but no hour was fixed for the adjourned meeting, as the majority of the board did not want the Springfield people present when the canvass of the votes upon the county seat was made; that Walter I. Harr wood, J. M. Wilson and himself, met on the east part of the town site of Springfield on August 9th, at 3 o’clock in the morning, without the official poll-books, ballots or tally-sheets; that they canvassed by moonlight the votes cast upon the permanent location of the county seat of Seward county, and declared Fargo Springs had received 275 votes, and Springfield only 35; the votes cast in the wagon-box at Fargo Springs not being considered or counted. This canvass was subsequently entered upon the journal as the proceedings of the county commissioners, of the date of August 9th. No other canvass or declaration of the result was made, and E. A. Watson, one of the members of the board of county commissioners, was not notified of the time of the meeting of August 9th, and was not present at the meeting.
The official meetings of the county commissioners, whether acting as a board of canvassers or for the transaction of the county business, should be public, and in the office provided therefor. It is also evident that the notice of the hour for convening the moonlight session of the board was intentionally and fraudulently withheld by the other members of the board from the third member. Therefore we think the secret canvass of the votes for the location of the county seat by two commissioners aud the county clerk, in the absence of the official returns, and without the Presence or au7 notice to the other commissioner, by moonlight, upon the town site of Springfield, at the early hour of three o’clock A. M., was not only irregular, but wholly invalid. This pretended canvass cannot count for anything. (Comp. Laws of 1879, ch. 25, art. 15, § 211; P. & F. F. Rly. Co. v. Comm’rs of Anderson Co., 16 Kas. 302.)
Whether Fargo Springs or Springfield shall be determined to be the permanent location of the county seat of Seward county, wholly depends upon which of the returns from Seward township are to be counted. The contention is over the votes cast at Fargo Springs, and the question for us to determine is, which of the two polls is legal. It appears that there were cast at the poll known as the “Owl building,” a majority of one hundred and thirty-three for Fargo Springs, and at the poll known as the “ wagon-box,” a majority of two hundred and sixty-three for Springfield. If the “wagon-box” poll is rejected, Fargo Springs is the county seat; if the votes cast at the “wagon-box” be counted, then Springfield has a majority of all the votes cast, and must be declared the county seat.
The act relating to the organization of new counties provides :
“Voters at such elections may assemble at 9 o’clock a. m., in each election precinct; shall select from among themselves three judges and two clerks for the election, who, before they enter upon the discharge of their duties, shall take the oath required by law for judges or inspectors and clerks of election, any one of whom may administer such oath to the others. And the said election shall be governed by the laws regulating elections in force at the time.” (Comp. Laws of 1879, ch. 24, §117.)
It is claimed upon the part of the plaintiff, that a large number of persons in Fargo Springs took possession of the room in the Owl building, designated by the board as the voting-place in Seward township, the night before the election ; that they held the same until 8 o’clock the next morn ing, with the doors and windows closed, fastened and secured; that previous to that hour they selected the judges and clerks for the election, without giving the voters on the outside, who were there to participate in the election, an opportunity to assist in the selection of the election board.
An examination of the testimony convinces us that there were between forty and fifty men in the Owl building before the polls were opened; that some of them were in the building before 9 o’clock the night before the election, and that all of them were in the building or the room where the election was held by seven o’clock on the morning of August 5th; that the persons in possession of the room in the Owl building where the poll was opened, were there with the intention of preventing those favorable to Springfield as the county seat from participating in the selection of the judges and clerks of the election, and purposely and intentionally excluded the friends of Springfield from having anything whatever to do with the selection of the judges and clerks at the precinct. As to the exact time that the poll in the Owl building was organized, the testimony is conflicting. A very large number of witnesses testified that about two hundred persons arrived at Fargo Springs from six to eight o’clock on the morning of August 5th; that they understood some persons were in the Owl building; that they tried before and up to the time the polls were opened in the room, to get in where the polls were afterward opened, and also saw others try to do the same; that the door was locked, and no one from Springfield got in; that from the time they got there in the morning until the polls opened, it was quiet about the Owl building, the outside doors being locked, the windows shut, and the curtains drawn over the windows, so as to make it dark in the building; that at the time the polls opened, and for some time previous, there was a crowd of from one to two hundred persons on the outside, Avaiting to participate in the election of the judges and clerks; that most of these were legal voters; that while they were waiting the door of the room opened, and the judges and clerks AArere elected by the persons on the inside of the room in the “ Owl building,” only one or two persons upon the out- > side voting; that after the room was opened a crowd came out; that the door was then closed and immediately voting commenced on the part of the Fargo Springs people; that the friends of Springfield were then notified that the polls were opened to receive votes. Several witnesses testified that the polls in the “Owl building” were not opened until 9 o’clock, or after.
We think, however, that an examination of all the testimony shows that this poll was prematurely opened. Among the people of Seward county there were three kinds of time — “ Central,” “ Mountain,” and “ Sun.” This largely accounts for the conflicting evidence. Before and after this poll was opened, the voters in favor of Springfield attempted to secure a conference with the friends of Fargo Springs to agree upon an election board that should rep resent both sides; in this they failed. To the committee appointed in the interest of Springfield to get a representation upon the board, the friends of Fargo Springs said:
“You folks have had the temporary county seat, and we are going to have the board; we will run a square election, but you are not to have any representation on the board.”
The voters who were refused participation in the selection of judges and clerks for the election then proceeded at once to select from among themselves three judges and two clerks, and the second poll was opened soon after nine o’clock A. M., in a wagon which had been drawn up very near the room in the “Owl building,” designated by the board as the voting-place. In the box upon the wagon, 265 votes were received, while 139 were cast in the “Owl building.” Therefore a majority of the electors voted at the second poll, that is, at the wagon-box, and there was an implied recognition by the people of this poll.
Further, all electors coming, up to nine o’clock, had the right to participate in the meeting to select the judges and clerks, to offer motions, to make speeches, and cast votes. The parties who organized the second poll attempted to get into- the room where the first poll was being organized, and attempted to take part with those there present and assist in organizing that poll. At most, only one or two succeeded, although a large number of persons were on the outside of the “Owl building,” ready and eager to participate in the meeting. It is evident that the voters on the outside of the building at the time the first poll was organized constituted a majority, and if they had been permitted to participate in organizing the first poll they would have outvoted and carried their motions. The testimony also shows that the parties outside the “ Owl building,” at the time of organizing the first poll, did not attempt to organize the second poll till they had been refused participation in the meeting previously held, and the organization of the first poll, by excluding the outside voters from participating therein, was manifestly fraudulent. The judges and clerks who were elected and served at the poll in the “Owl building” participated in the organization of the first poll, and also in the exclusion of the voters on the outside of the building.
Upon these facts, we are of the opinion that the second poll, ^e poll last organized, was the legal poll, and that the votes cast in the wagon-box must be counted, , . ° and those received in the “Owl building” rejected. (Kirkpatrick v. Vickers, 24 Kas. 314.)
The excuse offered in behalf of the parties who organized the poll in the Owl building, that it was necessary to take the action they did in order to have “ a full vote and a fair count,” on account of the rumors that the friends of Springfield meant to defeat the will of the people by prematurely organizing the polls and receiving illegal votes, does not justify their conduct. The friends of Fargo Springs should have appealed to the law for protection, if they really believed that the laws of the state were about to be transgressed, rather than violate the law in excluding so many legal voters from any opportunity to organize the first poll. We have laws for the preservation of the public peace, and in the execution of that power the magistrates of the state may require persons to give security to keep the peace.
Even if it be conceded that the persons within the Owl building did not organize the polls till 9 o’clock, their conduct is to be severely condemned, because of their excluding from participation in the meeting the voters upon the outside of the building, at the time the meeting was held. Although the southwest room of the building known as the Owl building was designated as the voting-place, the persons both in and on the outside of the room, who were in attendance at the time of organizing the first poll, to participate in the selection of judges and clerks, had equally the same right to offer motions and to vote. Those assembled in the room were not the only ones entitled to vote. There was no trouble in having all participate in the election of judges and clerks, and all of the voters present ought to have been permitted so to do. The vote could have been taken at the door, in the hearing of all.
It is more than probable that all the litigation which has resulted over the legality of the polls organized in Seward township would have been avoided if a majority of the voters present at the polling-place designated had been permitted to select a single representative upon the election board; so, for the trouble which has arisen concerning the legality of the polls in Seward township, the friends of Fargo Springs are responsible.
As the voters favorable to Springfield were denied all opportunity to participate in organizing the election board in the Owl building, and as the second poll was legally organized by a majority of the voters, and as a majority of the votes of the township were cast thereat, and as it further appears that all of the persons voting at such second poll swore in their votes, we must assume, unless the evidence clearly shows to the contrary, that the votes of this poll were legal and legally cast, and therefore authorized to be canvassed. (Tarbox v. Sughrue, just decided.)
A peremptory writ of mandamus will issue, as prayed for in the petition, requiring the defendants to meet with E. A. Watson and canvass the returns of the election held August £>, 1886; for the permanent location of the county seat of Seward county; and in making such canvass the defendants are commanded to reject the returns transmitted to them from the poll known as the “Owl building,” and to canvass the returns from the “wagon-box” poll. Judgment is also rendered against the defendants for all costs.
All the Justices concurring.
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The opinion of the court was delivered by
Johnston, J.:
This proceeding is brought by the Chicago & Atchison Bridge Company to reverse the ruling of the district court of Atchison county dissolving a temporary injunction which had been allowed against The Pacific Mutual Telegraph Company, and also against Churchill J. White, E. G. Armsby, and Ed. W. Howe, who had been appointed commissioners in a condemnation proceeding. On the 21st day of May, 1886, The Pacific Mutual Telegraph Company presented a petition to the judge of the district court of Atchison county, asking the appointment of three commissioners to appraise the value of the property proposed to be taken, and to assess the damage that the bridge company might sustain by the appropriation of “so much of the railroad and highway bridge which spans the Missouri at the city of Atchison, and which extends from the west bank of said river in the state of Kansas to the east bank thereof in the state of Missouri, as may from time to time be deemed necessary for the construction, maintenance and operation of a line of magnetic telegraph, and to erect poles, piers, abutments, arms, brackets, wires, and such other necessary fixtures for a magnetic telegraph as may from time to time be deemed necessary; and after the same is erected, and when necessary to go upon said property to repair the said line of magnetic telegraph.”
The petition gave the details of the plan and materials to be used in the construction of the line, and the manner by which the wires would be attached to and supported upon the bridge. The application of the telegraph company was granted, and commissioners were appointed, who gave notice that at a stated time they would, in accordance with the prayer of the petition, proceed to make appraisement of the property to be taken, and to assess the damages of the bridge company by reason of the construction of the line on the structure of the bridge company, when the present action was begun and the temporary injunction allowed. On the motion of .the defendants, the temporary injunction was vacated and discharged, and this ruling is the subject of complaint.
The bridge to which the telegraph company proposes to attach its wires, is owned by The Chicago & Atchison Bridge Company, a consolidated company existing under the laws of Kansas and of Missouri. It was built across the Missouri river at the city of Atchison, where the river is navigable, and where it divides the states of Kansas and Missouri. It appears that under an act of congress authorizing the construction of the Pacific railroad system, there was granted to certain railroads the right and franchise to construct a bridge over the Missouri river at Atchison, Kansas, and the manner of its construction was therein provided for. (13 U. S. Stat. at Large, ch. 216, §9.) Afterward the privileges, rights and franchises granted by that act to the railroad companies for the building of the bridge were transferred to the bridge company upon the condition that the bridge should be constructed in the manner provided by congress, and the bridge company accepted the transfer, assumed the obligations of the railroad companies, and thereafter constructed and completed the bridge in accordance with the terms and conditions of the act of congress and of the assignment. The act of congress required the bridge to be built with suitable and proper draws for the passage of steamboats, and in such a manner as not to impair the usefulness of the river for navigation to any greater extent than such structures of the most approved character necessarily do. The bridge was built with a draw-span, and the telegraph company claimed that the manner in which it proposed to construct and attach its line to the bridge would not interfere with the turning of the draw-span, nor with the performauce of the duties owing by the bridge company to the general government. The bridge company denies the validity of the condemnation proceeding, and insists that for several reasons the injunction should have stood and beén made perpetual. It is claimed that the bridge is already devoted to a public purpose, and cannot be taken for another and different purpose than that contemplated by the charter and the act of con gress under which it was built. It is urged that if the bridge is burdened with the lines of the telegraph company, the use and purpose for which the bridge was built will be impaired and destroyed, and the plaintiffs will be obstructed in discharging the obligation which it owes to the federal government. It is also said that no necessity exists for the building of its line upon this bridge; and among other objections and complications, the plaintiff suggests that if the defendant acquires the right in the bridge which it seeks, and it should become necessary to remodel the entire structure, the’defendant might interfere, and prevent it from being done. Counsel for the bridge company say that—
“Such condemnation would in any event make a joint proprietorship between the bridge company and the telegraph company, with paramount right in neither. In case of necessary repairs of the bridge, how shall the necessary expense of such repairs be paid ? Who shall determine the necessity of such repairs ? If the telegraph company gets the right to appropriate so much of said bridge from time to time as it may deem necessary, this is a perpetual right, and in fact if not in law, constitutes ownership — at least proprietorship. In that event, which company shall pay the taxes ? ' If both, in what proportion ? Who shall insure the bridge ? If the telegraph company has an insurable interest, what is its proportion ?”
We need not decide in this case whether this and other telegraph and telephone companies can place their wires and fixtures upon a structure which may not have been built with reference to supporting such burdens, and which is already devoted to a specific public use. We also pass over the question of necessity, and shall not undertake to determine whether the characteristics of the country in and about Atchison require the use of the plaintiff’s bridge in order to afford the telegraph company an entrance to the state and city; .or whether the telegraph company can by the building of posts or piers in the river or upon the banks, or upon some of the islands of the river, gain an entrance into the state without interference with property in public use. These and other questions that have been presented are purposely passed over, for the reason that a preliminary and essential step which, in any event, is necessary to the validity of the condemnation proceeding, has been omitted. It is admitted that the Missouri river is a navigable one; and under the commercial clause of the federal constitution, the power of congress over such rivers and in regard to the bridging of the same is supreme. It will also be conceded that the telegraph is an instrumentality of commerce; and under the same constitutional provision it, like other commercial agencies engaged in interstate traffic, comes within the protection and regulating power of congress. (Telegraph Company v. Texas, 105 U. S. 460.) Upon the Subject of telegraphs, congress has taken affirmative action, and has given authority and provided how and upon what conditions telegraph lines may be constructed over and across the navigable streams and waters of the United States. (14 U. S. Stat. at Large, ch. 120.) Section 4 of that act provides that—
“Before any telegraph company shall exercise any of the powers or privileges conferred by this act, such company shall file their written acceptance with the postmaster general of the restrictions and obligations required by this act.”
The defendant is seeking to avail itself of the privileges of this act by constructing a telegraph line from the state of Missouri into the state of Kansas over a navigable stream, without complying with its requirements. The obligations and restrictions to be accepted are important in their character, one of which is that the telegraph line shall be so constructed and operated as not to obstruct the navigable streams and waters, or interfere with the travel on the military and post-roads. Congress has intervened, and has seen fit to make the filing of a written acceptance an essential prerequisite to the building of a telegraph line over a navigable stream, and to the enjoyment of the privileges conferred by that act, and its authority is paramount. The petition of the telegraph company in the condemnation proceeding does not show that the written acceptance was filed, and in argument counsel for the telegraph company practically concede that it was not done; and hence we must hold that the proceedings were invalid, and that the injunction should have been continued.
The ruling of the court in vacating the temporary injunction theretofore allowed will be reversed, and the cause remanded for such further proceedings as may properly be taken.
All the Justices concurring.
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The opinion of the court was delivered by
Horton, C. J.:
The sole question in this case is, whether the county of Wichita — which is unorganized — is within the sixteenth, or the twenty-third judicial district of the state.
At the regular July session of the board of county commissioners of Finney county, held in 1885, the county of Wichita was organized as a municipal township of that county. Finney county is situated within the sixteenth judicial district, and is the only organized county adjoining Wichita county. By the provisions of chapter 87, Laws of 1886, approved February 18, 1886, and which took effect February 19, 1886, Wichita county was attached to Finney county for judicial purposes. Chapter 120 of the Laws of 1886, approved February 19, 1886, and which took effect February 20, 1886, created the twenty-third judicial district, comprising the organized counties of Rush, Ness, Ellis, and Trego, and the unorganized counties of Gove, St. John, Wallace, Lane, Scott, Greeley, and Wichita. It was therein provided that the terms of the district court of that judicial district should commence in the counties of Gove, St. John, Wallace, Lane, Scott, Greeley, and Wichita, after the same had been organized, at such time as the judge of the district should order. By the provisions of chapter 81, Laws of 1886, approved February 20, 1886, and which took effect February 26, 1886, the county of Wichita was again attached to Finney county for judicial purposes.
The constitution of the state ordains that provision may be made by law for the increase of the number of judicial districts whenever two-thirds of the members of each house shall concur. Such districts shall be formed of compact territory and bounded by county lines, and such increase shall not vacate the office of any judge. (Art. 3, §14.) New or unorganized counties shall by law be attached for judicial purposes to the most convenient judicial district. (Art. 3, §19.)
As Wichita county adjoins Finney on the north, and is an unorganized county, the legislature had ample power under the constitution to attach that county to the judicial district embracing Finney county.
It will be conceded that the legislature had the authority to organize the sixteenth judicial district so as to comprise Wichita county. On the 19th of February the twenty-third judicial district was created, comprising certain organized counties, and also certain unorganized counties, including Wichita, with the provision, however, that courts should not be held in the unorganized counties until after the same had been organized, and at such time as the district judge should order. The act of February 20th, attaching the county of Wichita to Finney for judicial purposes, is the latest expression of the legislature, and as Finney county is a part of the sixteenth judicial district, the act attaching Wichita county to Finney county for judicial purposes attaches it to the sixteenth judicial district, and thereby puts Wichita county, for judicial purposes, within the sixteenth judicial district.
Such construction does not violate any provision of the constitution of the state, and certainly gives full effect to the intent and purpose of the legislature. (In re Holcomb, 21 Kas. 628; The State v. Ruth, 21 id. 583; Ex parte Crawford, 12 Neb. 379.) Such construction does not repeal ch. 120, Laws of 1886, nor destroy the twenty-third judicial district created thereby, but it determines that the county of Wichita is not a part of that district under the terms of said ch. 81, approved later than said ch. 120.
Let the peremptory writ of mandamus be issued as prayed for.
All the Justices concurring.
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The opinion of the. court was delivered by
Valentine, J.:
This was an action of replevin, brought by Martha Krueger against Charles Miller, for the recovery of goods, wares and merchandise alleged to be worth in the aggregate the sum of $10,193.12, and also for damages in the sum of $20,000. The defendant in his answer admitted that he detained the property in controversy, and that it was worth the sum of $5,153.96, but denied that he detained the same wrongfully or unlawfully; but, on the contrary, alleged that he detained it rightfully, by virtue of certain levies made by him upon the same as the sheriff of Ellis county, Kansas, under certain executions and orders of attachment issued against the property of Henry Krueger, the husband of the plaintiff, and that the property at the time of the levies belonged to Krueger. A trial was had before the court and a jury, and the jury rendered a verdict finding that the plaintiff was the owner of the property and was entitled to the immediate possession thereof, and that the same was worth $4,268.51; and upon this verdict judgment was rendered in the alternative that the plaintiff recover the property, or the said sum of $4,268.51, the value thereof, and the costs of suit. The defendant, as plaintiff in error, brings the case to this court for review.
Under the pleadings the principal questions presented to the jury for their determination were: First, to whom did the property belong? Second, wdiat was the value thereof ? But under the evidence the second question w'as so modified that it might perhaps be more properly stated as follows: What was the value of the plaintiff's interest in the property? Under the facts as shown by the pleadings and the evidence the plaintiff certainly had an interest in the property, but probably only to the extent of securing her for certain debts, a portion of which debts was due her, and the other portion she was liable for as a surety; and the defendant was entitled to all the remaining interest in the property. It is admitted by the parties that on January 24,1884, Henry Krueger owned the property, and on that day he executed a chattel mortgage for the same to the plaintiff, who was then and still is his wife> to secure the sum of $4,268.51, which sum, it is claimed by the Kruegers, was due from Krueger to his wife; but the defendant denies that Krueger owed his wife that sum, and admits that he owed her only the sum of $4,101. On January 31, 1884, Krueger also sold, or at. least gave a bill of sale for the property to his wife, the consideration therefor being the said sum of $4,268.51, and the further sum of $1,075, for which last-mentioned sum she was then his surety, and which sum she agreed to pay, making a total of $5,343.51 as the purchase-price. The executions and attachments were subsequently levied upon the property. The plaintiff claims the property under the foregoing chattel mortgage and under said sale, while the defendant claims the property under the foregoing levies. The defendant also claims that the foregoing chattel mortgage and the sale were and are fraudulent and void, and therefore that his title to the property under the aforesaid levies is paramount to that of the plaintiff under the mortgage and sale. From the testimony of Mrs. Krueger, given on the trial of the case, it is probable that this sale was intended by her to be only to secure her for the said sum of $5,343.51, and therefore that the sale and the bill of sale amount only to a chattel mortgage. Some of the evidence, however, tends to show that the sale was intended to be an absolute sale, and that Mrs. Krueger believed the property to be worth about $10,000, although in fact it was not worth more than about half that amount. The evidence also shows that Mrs. Krueger took the possession of the property, through her agents, soon after the chattel mortgage was executed, and continued in the possession of the same until the aforesaid levies were made. The evidence also tends to show that when this sale was made the above-mentioned chattel mortgage was canceled. We are also inclined to think that the evidence fairly tends to show that the entire transaction and all the transactions, so far as Mrs. Krueger is concerned, were in entire good faith, and that her husband honestly owed her the aforesaid sum of $4,268.51; and that he also owed the aforesaid sum of $1,075, for which she was surety; and as the jury found in her favor we must assume that all these things were and are established as facts in the case.
The plaintiff in error, defendant below, claims that the finding of the jury that the property was worth only $4,268.51 is erroneous under the pleadings. Now this is technically true. The j ury found the value of the property to be less than the pleadings alleged and admitted it ,2- ° ° to be; but as the jury found the property to belong to the plaintiff below, how can this finding of value prejudice any of the substantial rights of the defendant? The plaintiff below alleged that the property was worth over $10,000, and the defendant admitted it to be worth $5,153.96; and hence it would seem that the jury should have found it to be worth at least $5,153.96. The plaintiff, however, under her chattel mortgage, had an interest in the property of only $4,268.51, just the amount which the jury found the property to be worth. Under the -bill of sale, which we think was intended only as a security, the value of the plaintiff’s interest in the property was $5,343.51; and if the property had been worth that amount — but under the evidence it probably was not— the jury should have found the value of her interest in the property to be $5,343.51. In all cases of replevin where the plaintiff has an interest in the property, but not the entire interest therein, and is also entitled to the immediate possession of the property, and the defendant is entitled to the remaining interest therein, but not to the possession thereof, and wrongfully detains the property from the plaintiff, the jury, in finding for the plaintiff, should find the value of the plaintiff’s interest in the property, and not the value of the property itself. ( Wolfley v. Rising, 12 Kas. 535.)
The plaintiff in error, defendant below, further claims that the chattel mortgage and bill of sale are void for the reason that the plaintiff below when she accepted and received the same knew that her husband was financially embarrassed and believed that the property was worth $10,000. Now we do not think that this alone necessarily renders the mortgage and the bill of sale void. It is true that the plaintiff knew that her husband was financially embarrassed, and believed that the property was worth $10,000; but she also honestly believed that it was not more than a sufficient security to her for the debts of her husband due her and those for which she was liable, and had no actual intention of defrauding creditors or of hindering or delaying them in the collection of their debts, further than the honestly securing of her own debt might lead to that result. Besides, the property was not in fact worth $10,000. The defendant below does not claim that it was worth more than $5,153.96, and probably it was not worth more than that amount; while the jury found from the evidence that it was worth only $4,268.51. Taking all the cir cumstances of the case together, and the fact that p]aantiff cM not actually intend to defraud any person, we do not think that her belief that the property was worth $10,000 will render the mortgage and the sale void.
In answer to the last question propounded by the plaintiff in error, defendant below, we would state that we think it is true that dealings between husbands and wives should be carefully scrutinized, and that courts of equity — and the courts of Kansas are such — as well as courts of law, should enforce contracts between husbands and wives only so far as they' are equitable and just. (Going v. Orns, 8 Kas. 85.) But we can perceive nothing inequitable or unjust in a wife in good faith procuring an interest in her husband’s property and holding it as a security for debts due from her husband to herself, or for other debts of the husband for which she is liable. In this case, however, under the findings of the jury and the judgment of the court, the wife is permitted to hold the property only to the extent and for the amount of the debts actually due her from her husband. She is allowed nothwing for the debts of her husband for which she is surety and for which she is liable. We perceive J J-nothing inequitable or unjust in allowing the plaintiff this much.
Perceiving no material error in this case, the judgment of the court below will be affirmed.
All the Justices concurring.
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Per Curiam:
The defendant in error moves the court to dismiss the petition, in error, upon the ground that the case was settled and signed without notice to her or her attorneys; and in support of the motion, M. K. & T. Rly. Co. v. Roach, 18 Kas. 592, and Weeks v. Medler, 18 id. 425, are cited. From the record it appears that the motion for a new trial was overruled, and judgment entered on October 8, 1885, when sixty days were allowed in which to make and serve a case for the supreme court. On November 30 an order was duly made, extending the time in which to make and serve the case to the 16th day of December, 1885. On December 4,1885, the attorney for the defendant in error acknowledged service of the case-made, and afterward suggested amendments. The case was settled and signed on the 14th day of December, 1885, and in the certificate the judge certified that the case was duly presented to him for signing and settling. It does not affirmatively appear in the record that the defendant in error was present, or had notice of the time when the case would be settled and signed. It does appear, however, that amendments were suggested by the defendant in error, some of which were allowed by the judge, and others disallowed. The reason that notice is required to be given to the defendant in error is, that he may appear and have the case-made amended in accordance with his suggestions. If the amendments suggested by the defendant in error are made by the judge, he cannot complain of the want of notice. Nor is there cause for complaint if the amendments disallowed are immaterial. We find that only a few of the amendments suggested by the defendant in error were disallowed, and that they were wholly unimportant. The cases cited, therefore, do not control, and the motion must be overruled. •
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The opinion of the court was delivered by
Horton, C. J.:
When this case was called in the district court for trial, the defendant moved to dismiss the appeal, on the ground, among others, that there was no appealable judgment rendered in the court below. This motion was overruled, and is the principal error complained of. Section 120 of the justices act reads as follows:
“In all cases, not otherwise specially provided for by law, either party may appeal from the final judgment of any justice of the peace to the district court of the county where the judgment was rendered.”
A judgment is the final determination of the rights of the parties in an action. (Civil Code, §395.) Accordingly, the judgment must be final — that is, it must settle the matter which it purports to conclude. The reasons announced by the court to sustain its judgment, strictly speaking, form no part of the judgment itself. The reasons or findings upon which a -judgment is based are not res ad-. / , . -. , . , . . judicata, so as to bind the parties, unless a judgment is rendered. (Freeman on Judgments, 2d ed., §2; Burke v. Table Mountain Co., 12 Cal. 408; Davidson v. Carroll, 23 La. An. 108.)
The justice made the following findings:
“The court doth find from the evidence, that defendants A. J. Morris and O. W. Butt are not indebted unto plaintiff in any sum whatever; and doth further find that defendant Jacob M. Smith is indebted unto plaintiff in the sum of $60, and that the same is for work and labor.”
The only judgment rendered in the case was as follows:
“It is therefore considered and adjudged by me, R. B. Drury, justice of the peace, that the plaintiff,-William Herndon, do have and recover of and from defendant Jacob M. Smith the sum of $60, debt, and the costs of this action, taxed at $48.65.”
The justice made a general finding in writing in favor of Morris and Butt, but no judgment was entered upon this finding in favor of Morris and Butt, or against Herndon. The matter was left by the justice pending and undetermined as to these parties. Generally, a written finding is made prior to the rendition of a judgment, but if a justice or a court orally announces its findings and renders judgment thereon, the omission of the finding is not substantial error. (L. L. & Q. Rld. Co. v. Comm’rs of Douglas Co., 18 Kas. 169.) If the action had been dismissed, or any other final judgment rendered against Herndon, an appeal could have been taken. (Butcher v. Taylor, 18 Kas. 558; Moore v. Toennisson, 28 id. 608.) As nothing but a finding was entered as between Herndon and Morris and Butt, and as no final judgment was rendered as between these parties, there was no foundation for the appeal. (Comp. Laws of 1879, ch. 81, § 20.)
Undoubtedly the justice would have rendered a final judgment as to these parties, if the attorney of Herndon had made a formal request for him so to do. The omission perhaps was unintentional; but as no appeal can be taken except from a final judgment, the court erred upon the transcript before it in refusing to dismiss the alleged appeal, the unintentional omission of the justice to render judgment as between Herndon, Morris and Butt being fatal to an appeal.
The judgment of the district court will be reversed, and further proceedings will be had in accordance with the views herein expressed.
All the Justices concurring.
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Opinion by
Simpson, C.:
The fact of the indebtedness» of Edward Chapman to his wife Sarah W. Chapman is very clear under the evidence. The details of their transactions, the sources from which she derived the money, the amounts received and the date of their reception, are all given by depositions taken months before the trial, and, had they not been true, could so easily have been disproved, that we are compelled to conclude that as late as the year 1875, Chapman was indebted to his wife in a sum probably exceeding 4,000 dollars. He had an undoubted legal right to prefer her as a creditor, even if the effect had been that she absorbed all this property in satisfaction of her debt. (Monroe v. May, 9 Kas. 473.) The relation existing between Edward and Sarah W, Chapman, being that of husband and wife, induces the court to scrutinize very closely their dealings with each other; but when it is clearly established that there is an honest, bona fide indebtedness by the husband to the wife, then their mutual transactions may be reviewed in the light of the trust and confidence incident to the marriage relation.
This court, in the very recent case of Kennedy v. Powell, 34 Kas. 22, has passed upon almost every question that can be raised on the record of the one under consideration. Indeed, the similarity as to the facts between the cases is remarkable, and of course the law governing that case as announced by the court must control this one. Most of the material testimony was taken in the form of depositions, and read on the trial below. Edward' Chapman was examined on the trial, but we probably place the same estimate on his testimony as did the learned judge who tried the case. Mrs. Chapman, being a bona fide creditor, holds the title to the farm in Leavenworth county, not subject to the lien of the Summerfield judgment, no matter what the intention of Edward Chapman was in making the conveyance.
We recommend that the judgment of the district court be reversed.
By the Court: It is so ordered.
All the Justices concurring.
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The opinion of the court was delivei’ed by
Valentine, J.:
This was an action brought on September 18, 1884, in the district court of Anderson county, by the Abbott Buggy Company, a private corporation under the laws of the state of Illinois, against Moses B. Snavely, to recover $540 on a promissory note. An order of attachment was also •issued in the case, and levied upon certain pi'opei’ty belonging to the defendant. On January 15, 1885, the court below overruled a motion of the defendant to discharge the attachment, and the defendant, without waiting for a trial upon the merits of the action, or for a final judgment to be rendered in the action, at once made a case for the supreme court. This case was served upon the opposite counsel on January 26, 1885, and was settled by the court below on February 9, 1885, and was brought to the supreme court on June 8,1885. The only ground alleged for error is the overruling of the defendant’s motion to dissolve the attachment. In this court the defendant in error, plaintiff below, made a motion to dismiss the petition in error for the reason that an order of the district court overruling a motion to discharge an attachment is not-reviewable in the supreme court until after a final judgment has been rendered in the case. After this motion was made, the plaintiff in error, defendant below, moved the court for leave to file a transcript showing that a final judgment was rendered in the case in the court below on March 10, 1886. This transcript was a transcript of the judgment only, and of nothing else. On December 8, 1886, these motions and the ease upon its merits were all submitted to the supreme court.
The first question to be considered in this court is, whether the above-mentioned transcript may be filed as a part of the case in this court-, or not. We think not. The case has been brought to this court upon a “case-made” for the supreme court, and. such “case-made” cannot be amended Qr supplemented in this court by inserting anything therein or attaching anything thereto which “did not belong to the “ease-made” and constitute a part thereof when it was originally settled and signed by the judge and attested by the clerk of the court below. (Transportation Co. v. Palmer, 19 Kas. 471; Parker v. Sewing Machine Co., 24 id. 31.) Besides, the transcript which the plaintiff in error now desires to file is a transcript of a judgment only, which was rendered nine months after the case was brought to this court. A case can be determined in this court only upon a transcript of the proceedings of the court below, or upon a “case-made” for the supreme court. (Civil Code, §546.) And it cannot be determined partly upon one and partly upon the other. The motion of the plaintiff in error will therefore be overruled.
The next question to be considered in this case is the one arising upon the motion of the defendant in error, plaintiff below, to dismiss the action from this court, upon the ground that this court has no jurisdiction to hear and determine a case where no final judgment has been rendered in the case, and where the only alleged ground for error is the overruling of a motion to discharge an attachment. The principal statutes necessary to be considered upon this question are §§ 542 and 543 of the civil code, which read as follows:
“Sec. 542. The supreme court may reverse, vacate or modify a judgment of the district court for errors appearing on the record; and in the reversal of such judgment or order, may reverse, vacate or modify any intermediate order involving the merits of the action, or any portion thereof. The supreme court may also reverse, vacate or modify any of the following orders of the district court, or a judge thereof: First, A final order. Second, An order that grants or refuses a continuance; discharges, vacates or modifies a provisional remedy; or grants, refuses, vacates or modifies an injunction ; that grants or refuses a new trial; or that confirms or refuses to confirm the report of a referee; or that sustains or overrules a demurrer. Third, An order that involves the merits of an action, or some part thereof.
“Sec. 543. An order affecting a substantial right in an action, when such order, in effect, determines the action and prevents a judgment, and an order affecting a substantial right, made in a special proceeding, or upon a summary application in an action after judgment, is a final order, which may be vacated, modified, or reversed, as provided in this article.”
It will be seen from the foregoing statutes that the legislature has provided specifically and with great minuteness just what judgments and orders of the district court may be reversed, vacated or modified by the supreme court. These judgments and orders which may be so reversed, vacated or modified are: first, all judgments for errors appearing of record, together with all intermediate orders involving the merits of the action or some portion thereof; second, all final orders; third, various orders respecting continuances, provisional remedies, injunctions, new trials, reports of referees, demurrers, and such other orders as involve the merits of the action or some part thereof. Under the foregoing statutes an order may be reversed, vacated or modified which grants or refuses a continuance, grants or refuses an injunction, grants or refuses a new trial, confirms or refuses to confirm the report of a referee, sustains or overrules a demurrer, or involves the merits of an action or some part thereof; and the above-quoted statutes use all the foregoing italicised words, but they do not use any one of them with reference to provisional remedies, except with reference to injunctions, which provisional remedies include arrest and bail, replevin pendente lite, attachment, temporary or interlocutory injunctions, receivers, and the depositing of money, etc., under §§259 and 260 of the civil code. With reference to all provisional remedies, except injunctions, the statutes use only the words “discharges,” “vacates,” and “ modifies.” Hence, as the statutes show, it was clearly not the intention of the legislature that an order of the district court granting, refusing, confirming or sustaining a provisional remedy, except as to injunctions, should be reviewed in the supreme court prior to the final judgment in the case; nor was it the intention of the legislature that an order “involving the merits” of a provisional remedy, except as to injunctions, should be reviewed by the supreme court prior to such final judgment, unless such order discharged, vacated or modified the provisional remedy. The legislature had the whole subject of the reviewing of judgments and orders under consideration, and evidently, from the language used, it did not intend that an order granting, refusing, confirming or sustaining any provisional remedy, except an injunction, should be reexamined by the supreme court prior to the final judgment. If the legislature had intended that such orders might be reviewed in the supreme court prior to the final judgment, it' could easily have said so in plain language; for it did say so in plain language with respect to matters other than provisional remedies, and it said so even with respect to injunctions. In this present case the order sought to be reversed is one sustaining and confirming an attachment, a provisional remedy; or, in other words, the overruling a motion to discharge an attachment, and it is an interlocutory order in a provisional remedy, and is not in any sense a final order.
It has been suggested that under § 543 of the civil code, such an order may be considered a final order in a special proceeding ; but how can an interlocutory order in a provisional remedy be a final order in a special proceeding f In the first place, is a provisional remedy a special proceeding f Mr. Clemens, in his work on Appellate Jurisdiction, says it is not. On page 13 of that work he uses the following language:
“The code divides remedies into actions and special proceedings; and a special proceeding is defined to be any other mode of asserting a right or seeking the redress or prevention of an injury than by a regular, formal action. It must however be. distinguished from a provisional remedy, which is not a special, but a merely collateral proceeding, permitted only in connection with a regular action, and as one of its incidents. The test, therefore, to be applied under this provision is: Was this order made in an action? If it was, no matter whether concerning the cause of action itself or with reference to a provisional remedy, then it was not made in a special proceeding. Orders made in proceedings for condemnation of lands under the power of eminent domain; in road cases appealed from county boards; final orders made on proceedings for contempt; even when the contempt itself consisted in the disobedience of an injunction; an order disbarring an attorney; an order setting aside levies upon property and directing distribution by a receiver; an order discharging or charging a garnishee; an order made in an action brought to vacate a judgment and for a new trial for fraud and irregularity, have been held to be orders of this class; and these instances sufficiently indicate the meaning given to the term special proceeding. Final orders made in such cases are really in the nature of judgments.”
Rut whether a provisional remedy is a special proceeding or not, certainly an interlocutory order in a provisional remedy is not and cannot be a final order in a special proceeding. If it be claimed that the legislature intended that the final order mentioned in § 542 of the civil code, and the final order is a special proceeding mentioned in § 543 of the civil code should include orders generally, whether they are in their natures final or only interlocutory, and whether they are involved in the main action or proceeding or only in some provisional remedy, then it must also be claimed that the legislature was guilty of the inexcusable folly of enacting specifically and expressly that any order of the district court which discharges, vacates or modifies a provisional remedy, (including arrest and bail, replevin pendente lite, attachment, temporary or interlocutory injunctions, receivers, and the depositing of money, etc., under §§259 and 260 of the civil code,) or which grants or refuses an injunction, shall be reviewable in the supreme court, and then, at the same time and in the same section, enacting impliedly the very same thing over again. Why should the legislature enact the same thing twice in the same section? If the words “a final order” will include all orders, interlocutory as well as final, and orders in all kinds of proceedings, provisional as well as the main or principal proceeding, why again in the same section enact specifically and minutely what these general words will cover ? Also, as the legislature mentioned certain specific orders relating to many specific things which might be reviewed in the supreme court, why should it be supposed that the legislature also intended by the use of general language in the same section to include still other orders not mentioned anywhere in the statutes ? As the legislature used the words “discharges,” “vacates,” and “modifies,” with respect to provisional remedies, why should it be thought that the legislature also intended to use the words “grants,” “sustains,” and “ confirms,” with respect to such remedies, when in fact the legislature did not use them at all with respect to such remedies, except injunctions, but expressly used them with respect to other proceedings ? Expressio unius est ex-elusio alterius. And as it seems that the legislature intended to cover certain grounds with express aud specific provisions, why attempt to make certain general provisions cover the same ground by implication ? And why attempt unnaturally and by a forced construction, and against the clear intention of the legislature, to make the word “final” mean “interlocutory”?
The cases of Watson v. Sullivan, 5 Ohio St. 42, and C. S. & C. Rld. Co. v. Sloan, 31 id. 1, have been referred to: but as the statutes of Ohio prescribing what matters may be reviewed by the supreme court of Ohio are very different from the statutes of Kansas upon the same subject, those cases can have but little or no application to the present case. The following cases, however, do have application to this case, and under them it must be held that an order of the district court overruling a motion to discharge an attachment is not reviewable in the supreme court, prior to the final judgment in the action: Hottenstein v. Conrad, 5 Kas. 249; K. R. M. Co. v. A. T. & S. F. Rld. Co., 31 id. 90. See also in this connection and as having some application to this. case, the following cases: Savage v. Challiss, 4 Kas. 319; Brown v. Kimble, 5 id. 80; Edenfield v. Barnhart, 5 id. 226; Burton v. Boyd, 7 id. 17; Dolbee v. Hoover, 8 id. 124; McCulloch v. Dodge, 8 id. 476; Stebbins v. Laird, 10 id. 229; Kennedy v. Beck, 15 id. 555; Hockett v. Turner, 19 id. 527; A. T. & S. F. Rld. Co. v. Brown, 26 id. 443.
Again referring to the statutes, and considering the fact that the legislature in passing the statutes used the words grants, refuses, confirms, sustains, overrules, and involves the merits, with reference to other orders than those relating to attachments, but omitted them with reference to the only class of orders which could possibly have any reference to attachments, we might ask, why should we apply them to attachments ? Will it be claimed that when the legislature used these words with reference to certain orders and omitted them with reference to certain other orders, that the statutes should nevertheless be construed in the same manner as though these words had been used with reference to all the orders ? Such would be against all proper canons of construction.
We think the order of the district court overruling the defendant’s motion to discharge the attachment is not reviewable in this court. Entertaining these views, it follows that the case must be dismissed from this court.
It is understood that precisely the same questions are involved in the cases of Moses B. Snavely v. George K. Oyler Manufacturing Company, and Moses B. Snavely v. Kingman Co., that are involved in this case. And therefore, upon the authority of this case, and for the reasons therein given, those two cases will likewise be dismissed.
All the Justices concurring.
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Per Curiam:
This was an action in the nature of ejectment, to recover lot No. 22 of the public square in the city of Blue Rapids. The defendant set up title under two tax deeds, one under a sale made in 1875 for the tax of 1874, and one under a sale made in 1876 for the tax of 1875. The court found that certain sums were included in the tax levies, not authorized by law, and that legal notice was not given as to the place of the tax sales by the county treasurer, and therefore that the tax sales were illegal and the tax deeds invalid. The lot, however, was subject to taxation for the years 1874-5. The court rendered judgment in favor of the plaintiff for possession, but adjudged that the defendant was entitled to recover the amount of taxes legally levied and actually paid at the tax sales, with the penalties, interest and costs allowed by law, aggregating $143. This sum was also decreed to be a lien upon the lot, and an order of sale was directed to issue therefor, if the same was not paid. The plaintiff claims that the defendant is not entitled to recover any sum whatever for taxes, penalties, interest and costs, and if entitled to any sum that it should not exceed the taxes legally levied, with seven per cent, interest thereon; this upon the claim that the tax sales were not legal, and that the tax deeds were wholly void. Within the frequent decisions of this court, the judgment of the trial court cannot be disturbed.
In Smith v. Smith, 15 Kas. 290, the tax deed was void upon its face, yet the holder of the tax deed was entitled to recover the taxes paid, together with the penalties, interest and costs. In that case it was said the statute “ was enacted for void tax deeds, and not for valid tax deeds. A person holding under a valid tax deed has no need of such a statute; only persons holding under void tax deeds need such a statute.”
In Belz v. Bird, 31 Kas. 139, this court said:
“It would seem that in all cases of void tax deeds, whatever may be the ground upon which the deeds áre held to be void, the holder of the tax deed, when defeated in an action of ejectment, whether he is plaintiff or defendant, may recover the taxes which he has paid.”
(See also Stebbins v. Guthrie, 4 Kas. 353; Jeffries v. Clark, 23 id. 448; Fairbanks v. Williams, 24 id. 16; Harris v. Curran, 32 id. 580.)
The taxes adjudged to be a lien by the court were those which the law allowed to be levied. The illegal sums included in the levies of taxes were deducted from the amount of taxes paid by the purchaser at the tax sales.
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The opinion of the court was delivered by
Horton, C. J.:
This was an action on a certain promissory note, which reads as follows:
“May 17,1879.— On or before the first day of September next, I promise to pay to Henry Eaymond, or bearer, the sum of two hundred dollars, for value received; to draw ten per cent, after date. Joseph Longley.
Henry Eaymond.”
In this form the note was received by J. P. McNeal, who was the owner and holder of the same at the commencement of this action. When the note became due it was not paid, and McNeal gave no notice at the time to Eaymond of its non-payment. Eaymond now claims that he was an indorser only upon the note, and that as no proper demand of payment was ever made of him, and as no proper notice of non-payment was ever given to him, he is discharged from all liability. It is contended that the judgment rendered against Eaymond is against the evidence; and further, that the court erred in refusing to permit Eaymond to show by Longley that he signed the note as indorser only.
These claims we cannot sustain. The note in the hands of Eaymond was a note against Joseph Longley only; it was payable to Henry Eaymond, or bearer; it was negotiable by delivery; Eaymond signed the note when he transferred it to McNeal, at the request of McNeal, under the name of Longley. Upon the face of the note Eaymond made himself jointly and severally liable, as maker with Longley, to the bearer.
In a letter dated July 30, 1879, Eaymond wrote, concerning this note, to McNeal:
“ I think we will be able to pay our note when due, but Mrs. Longley has not been able to get her money yet; but she tells me she has $900 that have been due over a year. She thinks she will get it by the time the note is due. I cannot let my name run as security, and will give my reasons for it; if they should lose one of those horses I sold him, I would have a fuss to get the matter fixed up; she is the one to sign the note, if she cannot get the money; and I will get it changed for you, if you write to me and say you want it done. Those horses are all right and have been all summer, only they are poor, and now is the time for me to have it fixed up. You can see that if I should let it run until spring and they should lose one of those horses, they would want me to stand part or all of the note, and I am not able to do so.”
Upon the trial Eaymond testified, among other things, that the note was given him by Longley, who owed him $200; that he then released Longley and turned the note over to pay McNeal for a debt that Houston, his brother-in-law, owed McNeal; that McNeal agreed to take Longley’s note, if he would go security; that before the note became due, he wrote to McNeal he would not be security on the note longer than when it became due, and gave him his reasons. The letter of Eaymond and his own evidence all tended to show that he signed the note as maker and not as indorser; hence the court in rejecting the evidence offered, committed no material error. Eaymond evidently did not want the note renewed, and was undoubtedly eager for McNeal to press Longley for the payment thereof as soon as it became due.
Upon the evidence introduced, Eaymond is liable upon the note as maker, and he is not entitled to be discharged for want of demand of payment, or want of notice of protest. (Partridge v. Colby, 19 Barb. 248; Cook v. Brown, 29 N. W. Rep. 46.)
The judgment of the district court will be affirmed.
All the Justices concurring.
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Opinion by
Simpson, C.:
In the year 1876, Joseph Bertseh, with his family, consisting of his wife and two small children, Mary and Rosillia, were residing on certain real estate owned by him in Cowley county. During that year the wife died, and he removed to Wyandotte county. On the 25th day of December, 1877, Bertseh married one Antonia Daleschal, and had by her one child, the defendant in error, Frank Bertseh, who was born on the 10th day of November, 1878, and who has ever since his birth resided in Wyandotte county with his mother. At the July term, 1878, of the district court of Wyandotte county, a divorce was granted to Antonia from Joseph, for the fault of the latter, and alimony was awarded her in money, and paid. In the decree of separation on reference was had or made to the real estate, situated in Cowley county, still owned by Joseph Bertsch. After the divorce was granted, Joseph, with the two children of the first marriage, Mary and Rosillia, removed to Jackson county, Missouri, locating near Westport, where Joseph died on the 6th day of November, 1879. At the time of his death he was the owner in fee simple of the Cowley county real estate, consisting of one hundred and seventy-three acres of valuable farming land, and left as his heirs-at-law the two children by his first marriage, Mary and Rosillia, and his child Frank by his divorced wife. On the 14th day of August, 1882, Antonia Daleschal commenced an action in the district court of Cowley county against the three children, to cause partition of said real estate to be made among the heirs of Joseph Bertsch, including herself as widow. Her petition was verified as follows, (After the title of the cause:)
“Antonia Daleschal, being first duly sworn, deposes and says that she is the plaintiff in the above-entitled suit; that she is the widow of Joseph Bertsch, deceased, who was the father of defendants in this suit;'that Joseph Bertsch died leaving as surviving him the three defendants above named, and that they are the only surviving children and heirs-at-law of the said deceased, and that he died seized of the land described in the plaintiff’s petition in this suit.”
A guardian ad litem was appointed for the minor defendants, who filed a general denial on their behalf.
At the trial of this action, by agreement of parties the affidavit to the petition was read as the deposition of Antonia Daleschal. On this showing the order was made. Commissioners were appointed to make partition, who reported what appeared to be an equitable division, and confirmation followed on the 22d day of November, 1882. On the 17th day of January, 1883, the said Antonia Daleschal, in consideration of the sum of one thousand one hundred ánd twenty-five dollars, sold and conveyed to the plaintiff in error, Henry Hansen, the portion of the real estate allotted to her in the partition proceeding. Hansen subsequently borrowed of the plaintiff in error, E. Coleman, the sum of five hundred dollars, and secured its payment by a mortgage on this land.
On the 7th day of April, 1883, Bernard Geiser was appointed guardian of the persons and estates of Mary and Rosillia by the probate court of Cowley county, and on the 26th day of April, 1883, he commenced this action on behalf of his wards and Frank Bertsch, to set aside the partition proceedings, charging they were fraudulent and the result of a conspiracy entered into between Antonia Daleschal, Henry Hansen and others, to wrong and defraud the minor heirs of Joseph Bertsch, to set aside the conveyance from Antonia Daleschal to Henry Hansen of the portion of the realty allotted to Antonia in the partition proceedings, and for other relief. To this action Antonia Daleschal, Henry Hansen and E. Coleman were made parties, and appeared and made defense.
There was a trial by the court, on full proof by both sides. The court adjudged and decreed, that the judgment and proceeding of the partition suit begun by Antonia Daleschal against the minor heirs of Joseph Bertsch, deceased —
“Is and are fraudulent and void, and the same is and are hereby vacated, set aside, and held for naught, and the cloud thereby created upon the title of said minors in and to the real estate therein described is hereby removed.
“And it is further decreed that the deed of Antonia Daleschal, of date January 17, 1883, to Henry Hansen, for said lands, be and the same is hereby canceled, annulled and set aside; and that the cloud thereby created upon the lands in said deed described is removed.
“And it is further decreed that the mortgage made by the said defendant Henry Hansen to the said defendant E. Coleman, upon the lands therein described, be and the same is hereby declared a valid lien upon the undivided two-thirds thereof, the same having been accepted by the said Coleman without any knowledge or notice of the fraudulent character of the decree and judgment of this court made in the partiiton case; but as to the interest of Frank Bertsch therein, the same being an undivided one-third thereof, said mortgage is hereby decreed canceled, and the cloud thereby created thereon removed, no service of summons ever having been made upon said Frank Bertsch, defendant, in said fraudulent pro ceedings of November 21, 1882, and subsequent proceedings thereto.”
Antonia Daleschal, Henry Hansen and E. Coleman bring the case here. The principal error relied on, and discussed in the briefs, is that the court below erred in not holding Hausen to be a purchaser in good faith and protected by the record of the partition action. At the commencement of the partition proceedings it seemed to have been the belief of the attorney of Antonia Daleschal that, notwithstanding the divorce granted her, she was entitled to a portion of the real estate of which Joseph Bertseh died possessed, either as an heir at law, or a dower interest; that if the deeree of separation did not, in express terms, bar her right of inheritance or dower, she would still have her share of the realty, the same as if such a decree had never been rendered; that a divorce affected personal relations, but did not property rights, unless so expressed in the judgment. This was a misconception of the law. (Crane v. Fipps, 29 Kas. 585.) And the fact that a divorce had been granted more than a year before the death of Joseph Bertseh, having been considered of no importance, or having escaped the attention of counsel, or being purposely concealed by Antonia Daleschal, or having been fraudulently withheld from the attention of the court in the pleadings, on the trial of the partition action, none of the parties thereto, under such circumstances, are concluded by such proceedings. The partition action was instituted by Antonia Daleschal, who fraudulently concealed or suppressed facts, that if brought to the attention of the court, would have defeated her action; and she cannot thus be permitted to take advantage of her own wrong.
The fiudiug of the court below on this branch of the case is, in effect, that she fraudulently concealed the divorce; and where an order of partition is procured by a party who fraudulently concealed such material facts as would have defeated her right to a share of the realty sought to be divided, it is properly vacated on the application of the real parties in interest. Henry Hansen, the purchaser of the portion of the realty allotted to Antonia Daleschal, claims that he is protected by §§ 77, 467, of the code of civil procedure. As to § 467, it is a matter of great doubt whether it has any application whatever, either to the conveyance to Henry Hansen or the mortgage to Coleman. Its operation seems to be confined solely to titles acquired through judicial sales, intermediate the rendition of a judgment, and its reversal by a superior tribunal. Whether he is protected by § 77 or not depends on the question of his good faith as a purchaser. The letter of the statute, the construction given it in this court, by the case of Howard, Adm’r, v. Entreken, Adm’r, 24 Kas. 428, and the rule of the common law that is expressed by it, all alike require that he must have bought on the faith of the partition decree alone, and without knowledge of the divorce, in order to invoke the protection offered by this section.
The court below finds that he had knowledge of the divorce, and finds in effect that pe gg^gj^ apj Antonia Daleschal in a fraudulent scheme to defraud the minor heirs out of a part of their inheritance. It does appear as if there was ample justification in the evidence for the finding that Hansen knew of the divorce, and knowing this at the time of the purchase it was not in good faith.
It is recommended that the judgment of the court below be affirmed.
By the Court: It is so ordered.
All the Justices concurring.
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Opinion by
Clogston, C.:
Plaintiff claims title and right of possession to the land in controversy by virtue of a tax de^d executed by Wabaunsee county to one Kenderdine, and a deed from Kenderdine to him. This tax deed was placed on record on the 26th day of September, 1878. The defendant claims by chain of title from the government to one Newton, and by deed from Newton to defendant, as administrator of the estate of George Wells, deceased. The land was vacant and unoccupied up to May 8, 1882, when the defendant, under and by virtue of the deed from Newton to him, went into possession, and has ever since been in actual possession of the same. The deed under which plaintiff claims is good on its face, but is void for the reason that the land was sold for more than the taxes, penalties and costs.
Plaintiff complains of the court below for that the court permitted the defendant, over his objection, to introduce in evidence the deed from Newton to defendant as administrator. In determining this question it will be unnecessary to examine this deed and the objection of plaintiff to its introduction, further than to see if it conveyed title to the defendant sufficient to give him the right of possession to the laud in controversy; for if it did, then being lawfully in possession such possession would start the statute of limitations to run against the plaintiff, or any person claiming title or right thereto.' But whether it would be good if attacked by Newton or the heirs of Wells need not be determined, as that question does not come up in The plaintiff, to recover in this action, must do so this case. on the strength of his own title, and not upon the weakness of that of the defendant. The record clearly shows that under whatsoever claim of right the defendant held the possession, it is through and by virtue of this deed; and if this deed gave defendant no right, then the objection of the plaintiff ought to have been sustained, and if sustained would have entitled him to possession. We think that defendant’s possession under this deed gave him all the right possessed by his grantor. The defendant’s title under it may be defective, yet with the color of and claim of title it was sufficient to protect him against all the world, except it be a person who holds the paramount title and right of possession, and no one but such a party could question the defendant’s possession under that color and claim of title. (See Foster v. Bowman, 55 Iowa, 243; Stephenson v. Wilson, 50 Wis. 95; Hollenback v. Ess, 31 Kas. 87; Byington v. Rider, 9 Iowa, 566.) Mr. Blackwell, in his work on Tax Titles, says:
“ It may therefore be laid down as a general rule, that any right whatsoever, at law or at equity, whether perfect or inchoate, whether in possession or in action, amounts to an ownership of land, and that a charge or lien upon it constitutes the person claiming it as owner,- so far as is necessary to give him the right to redeem.” (Blackwell on Tax Titles, 2d ed., 496.)
And a right to redeem would be a sufficient right to take possession under.
The plaintiff also insists that the court erred in permitting the defendant to attack and go behind his tax deed, for the reason that more than five years had elapsed since putting said deed on record before the commencement of this action, and that his deed being good on its face gave him a perfect title. This claim might be tenable, did the facts show this alone; but counsel for plaintiff have forgotten that to make his claim good, the premises at the expiration of the five years must have been either in the actual possession of the plaintiff, or unoccupied; but in this case, before the five years had run in favor of the tax deed, defendant was in the actual possession. This possession being under color of title, at once stopped the five-years statute from running in favor of the plaintiff’s deed, and this time is not counted up to the time of the commencement of the action, but only up to the adverse actual possession. In Stephenson v. Wilson, 37 Wis. 482, the court said:
“That any intervention or actual occupancy during the three years by the former owner, or of any person for him, disengages the bar of the statute, and relieves the former owner from the conclusive effect which would otherwise be given to the tax deed.”
And so in this case the defendant’s actual adverse possession disengages the statute of five years from running in favor of the plaintiff’s deed; therefore the court committed no error in allowing this attack on plaintiff’s tax deed. But suppose this was error, or that the court had sustained the plaintiff’s objection: how would it have helped him? The defendant was at the commencement of this action, and had been for more than two years, in the actual possession, claiming title thereto; this possession at once started the two-years statute of limitation to run against the tax deed, and barred him from recovering possession, not alone against a defective deed, but against a perfect tax title; so the inquiry as to the validity of the tax proceedings is immaterial. This disposes of all the errors assigned by plaintiff, except that plaintiff'also claimed possession of the premises during the two years claimed by the defendant; but on this question the court found that the defendant had the actual possession from May 8, 1882, until the commencement of this action; and from a careful examination of the record we find an abundance of evidence to sustain that finding; therefore this objection cannot be considered.
The defendant in his cross-petition raises but one question, and that is, did the court err in finding the amount of taxes due to the plaintiff on his tax deed, and in declaring the same a lien upon the land? We think this was error. The plaintiff, to recover possession when the actual possession was in another, must within two years alter putting a deed upon record, or within two years after the possession is held adverse to him, bring his action; and if he neglects so to bring his action, his right to recover is barred; and § 142, chapter 107, Compiled Laws of 1879, cannot help him. That section is to help a person who is defeated in an action by reason of a defective deed, or proceedings up to the deed, and was not made to help those who refuse or neglect to commence their action for the recovery of the possession of the premises until the statute had run against them. The court in rendering judgment seems to have acted upon the theory that because the plaintiff’s title is bad, that he was entitled to recover his taxes, yet finding that defendant is in the actual possession, claiming title for more than two years prior to the bringing of this action. This finding alone is sufficient to defeat plaintiff’s title and right of possession, and with it defeat his right to recover his taxes; (following Corbin v. Bronson, 28 Kas. 532.)
It is recommended that the judgment of the court below as against the plaintiff in error be affirmed; and that the judgment be reversed upon the cross-petition of the defendant in error, and that the cause be remanded for further proceedings, in accordance with the views herein expressed.
By the Court: It is so ordered.
All the Justices concurring.
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Opinion by
Holt, C.:
The defendant in error, plaintiff below, brought his action against plaintiff in error, defendant below, before a justice of the peace. He alleged in his bill of particulars that the plaintiff and defendant were joint makers of a note for $500, and that he had paid the same in full with interest, and prayed for contribution. The defendant made application for and obtained a continuance in the justice’s court, but neither filed any pleadings nor appeared at the trial therein. Judgment was rendered for plaintiff, and defendant appealed to the district court. In the district court defendant set forth that plaintiff and defendant were partners, and that the note sued on was given for money that was used in the partnership affairs; that as such partners they had never had a final settlement, and there had never been an accounting between them; that plaintiff kept the accounts of the firm, and had neglected and refused to account with him; and also that upon a proper and final adjustment the defendant did not owe plaintiff. A jury being waived, the cause was tried by the court, and it made findings of fact substantially as follows:
Plaintiff and defendant entered into a copartnership for dealing in sheep, and bought two flocks, paying $4,600 for one flock and $600 for the other; $3,400 was borrowed of the bank to pay for the first flock, both partners signing a note for the same, which was renewed from time to time and partly paid, until finally the note named in plaintiff’s bill of particulars was the last one given for the residue of the money originally borrowed. They sold from said flocks at different times as follows: $2,300 at one time, $980.75 at another time, again $192, and still again $1,240; and they received $1,000 for wool. Plaintiff was business manager, and kept whatever accounts were kept of the partnership affairs, and defendant had care of the sheep.
The court further made an approximate -accounting, showing that in the aggregate the firm owed plaintiff $573.14, and that defendant owed the firm $215. The court also found that there had never been any settlement or accounting between said partners, and that at the commencement of this action all the partnership property had been disposed of, and there were no outstanding accounts against and no credits in favor of said firm, and no unsettled accounts, except only the accounts between the partners.
Plaintiff in error contends that the justice’s court had no jurisdiction of the subject-matter of this action, and the jurisdiction of the district court being wholly appellate' it could not try this case. The plaintiff’s bill of particulars is in the usual form for the recovery of money only, and if we have reference to it alone, it comes clearly within the provisions of § 2, chapter 81, Compiled Laws of 1879. It is claimed, however, because there had been no accounting between partners, the parties herein, no action would lie until such accounting was had. The findings of fact show that the defendant and plaintiff were copartners, and that all the business matters of the firm had been disposed of, excepting only the accounts between them. There were no debts to be paid, no money to be collected, no property to be disposed of, and under the findings of fact in this case it was a . ° purely pecuniary demand, involving no complications that could not properly be determined in the justice’s court.
The defendant complains because the court rendered judgment against him upon the bill of particulars and the specific findings of fact. The bill of particulars stated that plaintiff had paid in full a joint note of plaintiff and defendant, and asked for contribution. Defendant answered that the action ought not to be maintained, for the reason that they were partners, and there had been no accounting between them; and also that upon a final adjustment of the partnership affairs he did not owe plaintiff.
The record shows that a jury was waived, the issues were submitted, and the court requested to make specific findings of fact. No objection was made by defendant to the introduction of evidence under the bill of particulars; no objection to the form of the findings, or because they were not within the issues tried by the court. The only motion made in the district court was for a judgment for defendant upon the findings. The objection to the judgment against defendant upon the bill of particulars and under the findings of fact, is made in this court for the first time. Under an issue raised by the parties, the defendant submitted his evidence, and an examination was had of the mutual dealings in the partnership business. He took his chauces for a judgment in his favor. After the decision of the court was against him, it was too late for him to complain under the circumstances presented.
Another alleged error is, that the specific findings of fact did not authorize the judgment rendered. The court found there had been no settlement or accounting between the partners; also there were no claims against and no credits in favor of the firm, and that all partnership property had been disposed of. The controversy was between only two parties, and concerning a limited number of transactions. The question to be decided was simply whether Mills had put into the partnership business more money than Clarke. There was no receiver to be appointed, no claims to be collected, no actions to be brought against debtors of the firm, no debts to be paid, no property to be disposed of, no relief was sought, except an ordinary money judgment. The find- . ings of fact were sufficient to authorize such a judgment in favor of Mills.
The plaintiff in error cites a large number of cases to support his theory that no judgment could be rendered in favor of one partner against another based upon partnership dealings, where there had been no accounting between them.
The authorities cited fully sustain his theory that an accounting must be first had between partners before an action for the recovery of money only can be maintained: Lawrence v. Clark, 9 Dana, 258; Course v. Prince, 1 Mill, S. C. 416; Graham v. Holt, 3 Ired. 300; Harris v. Harris, 39 N. H. 45; Smith v. Smith, 33 Mo. 557; Tolford v. Tolford, 44 Wis. 547; Ivy v. Walker, 58 Miss. 253; Crossley v. Taylor, Adm’r, 83 Ind. 337; Bowzer v. Stoughton, (Ill. Sup. Ct.) 9 N. E. Rep. 208.
The practice in actions between partners for the settlement of their partnership matters has not been uniform in the different states; in fact, the conflict of authorities appears to be irreconcilable. The courts in Massachusetts early laid down the rule, that in case of copartners neither a settlement of the accounts nor an express promise to pay need be proved where the suit is assumpsit for the balance, and they have adhered strictly to that practice: Williams v. Henshaw, 11 Pick. 79; Brigham v. Everleth, 9 Mass. 538; Bond v. Hays, 12 id. 34; Wheeler v. Wheeler, 111 id. 247; also, Wright v. Cumpsty, 41 Pa. 102.
This court, in Pettingill v. Jones, 28 Kas. 751, cited with approval, Wheeler v. Arnold, 30 Mich. 304. We now believe the rule there laid down is reasonable, and applicable to the facts in this ease, and is in consonance with the liberal provisions of our code. In that case the court said:
“ There was no occasion for an accounting in equity, unless there had been such dealing with assets as well as such private relations with the firm as to make a settlement otherwise difficult ; and there being only two partners concerned, (and discovery being now obtainable as well at law as in equity,) there would seem to be no very good reason why the remedy at law would not be entirely adequate.”
It is recommended that the judgment of the court below be affirmed.
By the Court: It is so ordered.
All the Justices concurring.
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The opinion of the court was delivered by
Valentine, J.:
On July 8, 1885, a complaint was filed before a justice of the peace, charging in four separate counts Joseph E. McNaught with violations of the prohibitory liquor law. On July 17 to 20, 1885, a trial was had upon this complaint before the justice of the peace and a jury, and the jury rendered the following verdict, to wit:
“We, the jury, find the defendant guilty as charged in the second count in the complaint.”
Upon this verdict the justice of the peace rendered judgment, imposing upon the defendant a fine and imprisonment. On July 20, 1885, the defendant appealed “from said judgment” to the district court, where, on August 28 to September 1, 1885, the case was again tried before the court and a jury, upon all the counts — the defendant, however, objecting to being tried upon any count except the second; and on September 1,1885, the jury rendered the following verdict, to wit:
“We, the jury, find the defendant, Joseph E. McNaught, guilty as charged in the fourth count in the complaint in this action, in, the form and manner therein charged, under the election of the county attorney therein.”
On September 11,1885, the court granted a new trial, and continued the case till the next term. At the next term, and on January 11 to 13, 1886, the defendant was again tried before the court and a jury, on all the counts — the defendant objecting and claiming that he had already been acquitted upon all the counts, and the jury found the following verdict, to wit:
“We, the jury, find the defendant, Joseph E. McNaught, guilty as charged in the first, second, third and fourth counts in the complaint in this case, in the form and manner therein charged.”
On January 14,1886, the defendant moved for a new trial, which motion was heard on January 21, 1886, and was overruled with respect to the first and second counts, and sustained with respect to the third and fourth counts. On the same day a motion in arrest of judgment was made and overruled; and then the court rendered judgment against the defendant upon the first and second counts, sentencing him to pay a fine and to be imprisoned in the county jail, and requiring him to pay the costs of the prosecution. From this judgment the defendant appeals to this court.
The defendant claims that, as he was tiled in the justice’s court upon the entire charge and found guilty only upon the second count of the complaint, he was in effect acquitted as to the other counts; and that he could never lawfully be again tried except upon the second count, upon which count and that only he obtained a new trial by appealing to the district court. And he further claims that, as he was put upon his trial in the district court, and there tried against his will upon all the counts and found guilty only as charged in the fourth count, he was virtually acquitted as to all the other counts. In other words, he claims that in legal effect he was acquitted in the justice’s court upon the first, third and fourth counts, and that he was acquitted in the district court upon the first, second and third counts; and therefore that in the two courts and upon the first two trials he was in legal effect acquitted upon all the counts of the complaint, and could not again be legally tried upon any of such counts. He raised this question in the district court in various ways — by a plea in bar, by objecting to any trial, by objecting to any evidence being introduced, and by a motion in arrest of judgment; but the court below held that he could be tried again upon all the counts; and he was so tried and sentenced upon two of them, and a new trial was granted as to the other two. We think the court below erred in holding that the defendant could be tried again. Mr. Wharton, in his work on Criminal Pleading and Practice, uses the following language:
“A verdict of guilty on one count, saying nothing as to the other counts, is equivalent to a verdict of not guilty as to such other counts.” (Whar. Cr. PL, 8th ed., §740.)
See also upon this subject the following cases: Weinzorpflin v. The State, 7 Blackf. 186; Bonnell v. The State, 64 Ind. 498; Dawson v. The State, 65 id. 442; Bittings v. The State, 66 id. 101; Nabors v. The State, 6 Ala. 200; Bell v. The State, 48 id. 684; Guenther v. The People, 24 N. Y. 100; The State v. Phinney, 42 Me. 384; The State v. Watson, 63 id. 128; The State v. Kattlemann, 35 Mo. 105; The State v. Cofer, 68 id. 120; O’Brian v. Commonwealth, 9 Bush, 333; The Commonwealth v. Bennet, 2 Va. Cases, 235; Kirk v. Commonwealth, 9 Leigh, 627; Girts v. Commonwealth, 22 Pa. St. 351.
Of course the jury ought to make a finding with respect to each separate count, for in all cases like this each separate count charges a separate and distinct offense. (The State v. Chandler, 31 Kas. 201, 203, 204. Also, see the. reasoning in the case of In re Donnelly, 30 Kas. 427, et seq.) But when the verdict of the jury is silent as to some one or more of the counts and contains a finding of guilty as to the other counts, it must be presumed that the jury intended to find as to the counts concerning which the verdict is silent, that the defendant was not guilty. Such, we think, is the universal belief in practice. But whatever may have been the actual intention of the two juries that tried this case at the first two trials, it necessarily follows from § 10 of the bill of rights of the constitution that the defendant could not again be tried after such two trials. That section provides among other things as follows: “No person shall . . . be twice put in jeopardy for the same offense.” The case of The State v. McCord, 8 Kas. 232, is however cited as authority for the ruling of thS court below. Now that case has no application to this case. In that case there was only one count in the information, and only one offense was charged, that of felonious homicide, including its various degrees, as murder in two degrees and manslaughter in four degrees; and the entire charge in that case was founded upon one single set of facts. In that case the whole case and everything in it had to be tried at one and the same time. And upon conviction only one judgment could be rendered, and only one sentence could be pronounced. It could not have been separated into parts and one part tried at ODe time and another part at another, and after the trial was had, and a conviction by the jury, 'there could not have been a new trial granted as to one part and a sentence pronounced as to the other parts. In all this, the present case differs from that. In the present case there are four separate counts, and each count charges a separate and distinct offense. The offense stated in one count has no connection with any offense stated in any one of the other counts. Each offense is founded upon a wholly different state of facts, and each could be prosecuted in a separate action. And even when they are all combined in one prosecution they must be prosecuted as separate offenses, and a separate judgment must be rendered upon each count and for each separate offense. (The State v. Chandler, 31 Kas. 201; In re Donnelly, 30 id. 429.)
Counsel for the defendant urge many other grounds for a reversal of the judgment of the court below, but as such judgment must be reversed for the reasons already stated, we do not think that it is necessary to comment upon any of such other grounds.
Judgment reversed.
All the Justices concurring.
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The opinion of the court was delivered by
Johnston, J.:
This is an original proceeding in the nature of quo warranto, to try the title of R. W. Tarbox and P. F. Sughrue to the office of sheriff of Ford county. Both of them were candidates, and both claimed to have been duly elected at the general election held in November, 1885. At' that election there were three tickets in the field, known as “people’s,” “democratic,” and “independent.” The plaintiff, Tarbox, was the candidate for sheriff on the independent ticket, and the defendant, Sughrue, was the candidate on the people’s ticket, while one T. J. Tate was the democratic candidate. The result of the election, according to the canvass made by the county commissioners at the time appointed by law, was, that Sughrue received 1,052 votes, Tarbox 926 votes, and Tate 189 votes. Sughrue was thereupon declared elected by a plurality of 126 votes, and a certificate of election was accordingly issued to him.
The correctness of this result is challenged by the plaintiff, who claims to have received the greatest number of legal votes cast at that election. It is conceded that the election was held and conducted in a lawful manner throughout the county, except in Dodge precinct. In regard to that precinct, the plaintiff alleges and attempts to prove that a number of lawless persons, with the knowledge and consent of the candidates on the people’s ticket, took possession of and surrounded the voting-place on the morning of the election, and by their threats and conduct intimidated and kept away from the voting-place legal voters who desired and intended to vote for the plaintiff; and that they fraudulently and illegally procured and had cast illegal votes by persons not electors of the precinct; and that repeating and illegal voting were carried on to such an extent, that in the precinct where there are not to exceed six hundred legal votes, ten hundred and eighty-two were recorded as having been east. It is alleged that the judges of the election of that precinct were knowing to and connived at the fraudulent and illegal voting, and that those who desired to prevent the illegal voting and to challenge the voters and repeaters, were threatened and driven away from the voting-place. It appears that prior proceedings of injunction and mandamus were begun with a view of inquiring into the validity of this election; but these have been passed over, and instead, the present direct proceeding has been brought.
The defendant presents as a preliminary question, an objection to the jurisdiction of this court. The objection is that a proceeding in the nature of quo warranto cannot be maintained where there is another plain and adequate remedy. That principle has received the approval of this court. (The State, ex rel., v. Wilson, 30 Kas. 661.) But is the remedy suggested by the defendant an adequate one ? He contends that such a remedy is furnished in the statute providing that an election of a person who has been declared elected to a county office may be contested. (Gen. Stat. of 1868, ch. 36, §§85-105 inclusive.) It is true that under that act there may be a full inquiry into the validity of the election, and the rights of the claimant under the election may be adjudicated; but the ouster of the defendant from the office, which is a part of the remedy sought in this proceeding, cannot be obtained. The judgment rendered by the contest court under that statute is stated in §101,as follows:
“The court shall pronounce judgment, whether the contestee or any other person was duly elected; and the person so declared elected shall be entitled to his certificate upon qualification. If the judgment be against the contestee, and he has received his certificate, the judgment annuls it. If the court finds that no' person was duly elected, the judgment shall be that the election be set aside.”
Thus it will be seen that the judgment does not go to the extent of removing the incumbent of the office, but only settles the validity of the election, who, if anyone, is entitled to the office, and to the certificate of election, and may annul the certificate that has been granted to any successful contestee. it still remains to obtain the possession of the office; and unless voluntarily surrendered by the incumbent, a direct proceeding like the present one would be required to effectuate that purpose. To oust the defendant, the remedy proposed is inadequate; and therefore the present proceeding which to a great extent is within the discretion of the court, will lie.
The case must therefore be examined on its merits; and the first matter we will consider is the claim that the voters were deterred from voting by violence, threats, and intimidation. More than one thousand pages of closely-written testimony have been taken in the ease, a great portion of which was directed to this question; but we are of the opinion that it falls far short of supporting the charge. The poll was opened and the election board organized without contention or disturbance. Zealous champions of the respective tickets were on the ground advocating the claims of their candidates, and it is true that some loud talk and boisterous conduct were indulged in. The most serious disturbance referred to is the testimony of several, that one Masterson, a challenger for the people’s ticket, struck another named Jones, who was challenging for the opposite party, a blow in the face. It appears that the blow was given by a backward movement of the arm, and that Masterson was not looking in the direction of the one who was struck, and the explanation of the circumstance given by Masterson is, that he was pushed off his balance by persons who were crowding up to the window where the votes were received, and that the blow was wholly accidental. There was testimony of other slight disturbances and threatening talk dui’ing the day, but we think nothing occurred there which showed a preconceived purpose to intimidate the voters, or which materially affected the result or freedom of the election. If the election board continues to honestly discharge its duty, and a fair opportunity is given to vote, a slight disturbance and casual fray such as frequently occur at elections will not vitiate an election, or justify voters in abandoning the polls. In respect to violence and intimidation, Judge McCrary, in his work on Elections, §416, says:
“The violence and intimidation should be shown to have been sufficient either to change the result, or that by reason of it the true result cannot be ascertained with certainty from the returns. To vacate an election on this ground, if the election were not in fact arrested, it must clearly appear that there was such a display of force as ought to have intimidated men of ordinary firmness.”
The principal question is, whether the great body of electors had an opportunity to freely cast their ballots. Many witnesses, some of whom were adherents of the plaintiff, have testified that the election was conducted in an orderly and peaceable manner, and that those who were entitled to vote could and did vote without difficulty. Then there is the fact that a full vote was cast. Besides, it appears that friends of the ticket headed by the plaintiff remained at the polls throughout the day, and that 238 votes were cast in favor of the plaintiff, and 70 votes for the democratic candidate. There is a claim that Masterson, who is said by some of the witnesses to be a dangerous man, threatened violence to four citizens of Dodge in case they appeared at the polls on election day. It is denied that any such threat was made. It does appear that the men spoken of by Masterson were personal enemies, and that something which was said by them derogatory of himself provoked the making of the threat. Whatever was said by him at that time related only to those four persons; and if a threat was made as is claimed, and those persons were thereby deterred from voting, it would be insufficient to affect the election. The mass of voters, as we have seen, had a fair opportunity to vote; and unless a number of voters had been prevented from voting, sufficient to have varied the result, the election must stand. (McCrary on Elections, §§416, 425; The State v. Mason, 14 La. An. 510; Augustin v. Eggleston, 12 id. 366; Cooley’s Const. Lim., 5th ed., 781.)
It is next claimed that illegal votes were received at the Dodge precinct sufficient to destroy the integrity of the poll, or at least sufficient to change the result of the election. From the testimony, it appears that at that time Dodge City was an outpost of civilization, and that in it there was a con siclerable number of the transitory and rough element which is to be found in most of the frontier towns. It is probably true, too, that the greater number, though not all, of that class favored the people’s ticket. That there were some illegal votes cast and some repeating done at that poll, is shown in the testimony; but that any of these illegal votes were cast with the connivance or knowledge of the election board, is not sustained by the evidence. A reading of all the testimony convinces us that the judges carefully and conscientiously performed their duty. Neither dishonesty nor incompetency can be imputed to any of them. They were before the court .and gave oral testimony, and we were impressed with the candor and truthfulness of their statements. If there were grounds for the belief that they had knowingly permitted illegal votes to be cast, or by their negligence and inefficiency allowed illegal voting, thus rendering the result uncertain, we would not hesitate to strike out the entire poll, of that precinct. It appears, however, that there were numerous challenges made during the day by the friends of the several candidates, and these were properly investigated and disposed of by the board. They rejected those challenged who were not qualified electors; and in one case they detected a man whom they thought was attempting to vote a second time, and on their own motion ordered his arrest. In no part of the evidence do we find anything which leads to the belief that they were guilty of either intentional neglect or wrong-doing.
The plaintiff sought to show a sufficient number of illegal votes to change the declared result. We are satisfied from the ■evidence, as has been said, that some men voted who were not entitled to vote, and probably some voted more than once, but it does not satisfactorily appear for whom or at whose instance the illegal votes were cast. Indeed, a great deal of what is termed direct evidence of illegal voting, taken by the commissioner, is incompetent. Much of it is in regard -to what the witnesses stated that others had said about illegal voting, and the number of times that they had voted. It has been declared that testimony of this character is hearsay, and cannot be considered. (Gilleland v. Schuyler, 9 Kas. 582.) Some of those who stated that they had been offered or given money to vote were prevented by the challengers and election officers from so doing, and in but few instances does it appear for whom the illegal votes were cast.
“ It has always been held, and is not disputed, that illegal votes do not avoid an election unless it can be shown that their reception affects the result; and where the illegality consists in the casting of votes by persons unqualified, unless it is shown for whom they voted it cannot be allowed to change the result.”
(The People v. Cicott, 16 Mich. 283; Sudbury v. Stearnes, 21 Pick. 148; Trustees v. Gibbs, 2 Cush. 39; Ex parte Murphy, 7 Cow. 153; The People v. Tuthill, 31 N. Y. 550; Brightly’s Leading Cases on Elections, 454; Deloatch v. Rogers, 86 N. C. 357; Judkins v. Hill, 50 N. H. 140; Cooley’s Const. Lim., 5th ed., 780.)
If all the illegal votes shown by legal proof to have been cast were subtracted from the vote of the defendant, they would be insufficient to overcome the plurality which he received, and there is no contention by plaintiff, as we understand him, that he has shown by direct evidence specific cases, of illegal voting sufficient to change the result. He however claims to have shown by another species of evidence, that enough illegal votes were cast to overcome the plurality of one hundred and twenty-six, which were credited to the defendant on the returns. He offers in evidence the vote of that precinct on former elections, as well as the registration lists and subsequent votes of Dodge City and other portions of the territory which constituted Dodge City precinct at the time of the election in 1885. He produces citizens, who attempt to identify the voters whose names appear upon the poll-list of the election of 1885, and when this is done, three hundred and forty-eight of the names appearing upon the poll-list of the election of 1885 are unaccounted for, and he claims that he has thereby shown that that number of illegal votes were east. Testimony of this character is admissible, and may be received for what it is worth, but it is far from being satisfactory or reliable. It is entitled to much less force and weight in a new country containing a shifting and unsettled population, and where a large immigration is pouring in, than in an older portion of the country where the population is more settled and stable. The weakness of such testimony is well illustrated in the present case. This contested precinct was a very large one, being eighteen miles in length and eighteen miles in width, and the city of Dodge was included within its limits. It appears that there was a large influx of population into western Kansas in the year 1885, and that Ford county received its proportion of the same. We refer to the following facts as showing something of that increase. In Eyansville precinct of the same county, fourteen votes were cast in 1884, and in 1885 there were one hundred and thirty-seven polled; in Howell precinct twenty-nine votes were cast in 1884, and in 1885 there were fifty-nine cast; the vote in Speareville precinct in 1884 was one hundred and thirty-nine, and in 1885 it was two hundred and forty-eight. The vote of Dodge precinct in 1884 was about five hundred and twenty-five, and in 1885 there were cast for the office of sheriff ten hundred and seventy-six votes. It will thus be seen that the ratio of increase in Dodge precinct was no greater than in other precincts of Ford county. Then, again, it appears that in Dodge precinct, and outside of the corporate limits of Dodge City, there were between six aud seven hundred heads of families that had located upon public lands; and from the certificate furnished by the United States laud office, it appears that there were nine hundred and two final entries of public lands in Ford county between the first of March, 1885, and the first of March, 1886. One witness testified that he had between forty and sixty thousand acres of the public lands within that precinct fenced, and until the first of March, 1885, there were but two settlers inside the inclosure; but the land was ordered to be thrown open, and within thirty days after March 1, 1885, there were nearly two hundred settlers upon that tract of land. In regard to the registration list, which has been compared with the poll-list of 1885, it seems that Dodge City was organized as a city of the second class in March, 1886, and the registration books were opened preparatory to the city election on the 23d day of March, and remained open only seven days. It is in testimony that a doubt existed among the voters of the city with regard to the necessity of registration, some believing that no registration was required. As a result of the shortness of time, and the doubt and prejudice which existed concerning registration, many failed to register. That the registration was then regarded as incomplete, is shown by the fact that the books were again opened for the bond election held the latter part of the same month. T*he census rolls referred to are shown to be equally incomplete. . In regard to the identification by witnesses of the names found upon the poll list of 1885, it may be remarked, that the attempt was made several months after the election occurred. One witness, the county clerk, was able to identify nearly one-half of the voters as’Shown by the returns. Another witness Avas called, and he Avas able to identify tAvo hundred and five of the names \yhich the first Avitness failed to identify. Other witnesses Avere called Avho Avere able to identify a few of those not before identified, but these again were unable to identify many of those Avhich had been previously identified. Possibly if other Avitnesses had been called many others of those found on the list might have been identified. The discrepancies in the identifications in the different AAÚtnesses make manifest of how little value such testimony is. The Avitness Avho identified the greatest number stated that the population of the precinct had almost doubled from 1884 to 1885; that there were many new-comers that he recognized by sight without knoAving their names. Other witnesses stated that the great rush of immigration began in the spring of 1885, and continued during the summer of that year. That no more of the names Avere recognized or identified by these older citizens is not to be wondered at when the marvelous increase of pop ulation, the great scope of territory over which it was distributed, and its transitory character, are considered. As against the inference deducible from the identifications made, there is the fact that the election was in the main orderly and peaceable ; the fact that the friends of the several candidates were on guard challenging those that were not deemed to be legal electors; the fact that the one who was challenging in behalf of the plaintiff as well as himself challenged as many as one hundred persons during the day; the fact that none of the challenges were disregarded, and that the officers caused the arrest of illegal voters; and the further fact that the votes were received by election officers whose conduct is unimpeached, who saw the voters in person, and in receiving their votes, acted publicly in the presence of the candidates and their friends. The votes were received and counted by the judges in the performance of a sworn duty, and the presumption arises that every ballot which was received and deposited in the ballot-box is a legal vote until there is evidence to the contrary. It has been said that—
“An election honestly conducted under the forms of law ought generally to stand, notwithstanding individual electors may have been deprived of their votes, or unqualified voters been allowed to participate. Individuals may suffer wrong in such cases, and a candidate who was the real choice of the people may sometimes be deprived of his election; but as it is generally impossible to arrive at any greater certainty of result by a resort to oral evidence, public policy is best sub-served by allowing the election to stand, and trusting to a strict enforcement of the criminal laws for greater security against the like irregularities and wrongs in the future.” (Cooley’s Const. Lim. 782.)
The plaintiff questions the validity of the election, and charges that illegal votes were cast, and it devolves upon him to Prove the charge. In this we think he has faile<^ and judgment must therefore be given in favor of the defendant.
The cases of L. W. Cherrington v. J. G. Jerningan; R. Gaede v. S. Gallagher jr.; E. J. Beard v. Charles Van Tromp, are similar in character to the one we have been considering. They have been brought to try the title of the parties thereto to other county offices that were voted upon at the same election, and under an agreement all of the cases were submitted together, and are to be determined and disposed of upon the testimony taken in the case of Tarbox v. Sughrue. It follows that judgment must go in favor of the defendant in each case.
Valentine, J., concurring.
Horton, C. J.:
I do not agree with the conclusions of fact of the majority of the court concerning the illegal votes cast at the Dodge City election precinct.
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The opinion of the court was delivered by
Horton, C. J.:
This was an action for the recovery of real property. Lee M. Clark was the patentee of the land, and both parties to the action claim title from him. The plaintiff claims under a deed executed by Clark, August 28,1884, and recorded August 30,1884. The defendant claims title under the foreclosure of a mortgage executed by Clark to John W. Brown, and assigned by Brown to N. P. Case. At the sale of the land under the foreclosure of the mortgage, A. H. Case and N. P. Case purchased the same. On February 26, 1863, N. P. Case and wife and A. H. Case and wife executed warranty deeds of the land to the defendant. Lee M. Clark paid all the taxes assessed on the land prior to and including those for 1865. The defendant paid all the taxes on the land from 1866 to 1883, inclusive. This action was commenced November 15, 1884. At the time of the sale of the land under the decree of foreclosure on May 22,1862, the land was worth $125. At the time of the commencement of this action the land was worth $10 per acre. Clark never took actual possession of the land, but in September, 1884, plaintiff claimed to have obtained possession thereof. In October, 1884, the defendant built a post-and-barbed-wire fence around the land, and took actual possession thereof. The principal question presented is, as to the jurisdiction of Clark by the court rendering the judgment of foreclosure and sale. The service of the summons, in the action for the foreclosure of the mortgage, was by publication in a newspaper. The defendant, Lee M. Clark, was never personally served and never made any appearance. The plaintiff, in his case, claims that the service by publication in the foreclosure case was void, and therefore that the court rendering the judgment never obtained any jurisdiction of Clark, and that the judgment in the case, and all proceedings under it, including the sheriff’s deed to N. P. Case and A. H. Case, the creditors of the defendant, are void.
The affidavit for publication was filed June 5, 1861, but omitted to state “that the case is one of those mentioned in the preceding section.” (Civil Code, §§ 72, 73.) Within the authority of Shields v. Miller, 9 Kas. 390, the affidavit is fatally defective, and therefore the attempted service by publication a nullity. Without a valid service in such a case, every subsequent proceeding, including the judgment, the execution or order of sale, the sale and the deed must necessarily be void. The rule is: If there is a total want of evidence upon a vital point in the affidavit, the court acquires no jurisdiction by publication of the summons; but where there is not an entire omission to state some material fact, but it is inferentially or insufficiently set forth, the proceedings are merely voidable. (Pierce v. Butters, 21 Kas. 124; Atkins v. Atkins, 9 Neb. 191; Ogden v. Walters, 12 Kas. 282; Claypoole v. Houston, 12 id. 324; Frazier v. Miles, 10 Neb. 109; McGavock v. Pollack, 13 id. 538; Holmes v. Holmes, 15 id. 615.)
The defendant cites the case of Pierce v. Butters, supra, in support of his claim, that even if the affidavit for publication is not sufficient to give the court jurisdiction, the court may examine the whole record; and if all the other proceedings are regular, then the court had jurisdiction. In Pierce v. Butters the affidavit was defective, but not void; and all the defects in the affidavit were cured by the filing of a new and amended affidavit. The amended affidavit was amply sufficient. That case is not in conflict with Shields v. Miller. The case of Deitrich v. Lang, 11 Kas. 643, is referred to under a misapprehension. The affidavit in that case states that—
“A petition had been filed against said Andrew B. Miller, defendant, praying that certain lands, situated in the city of Leavenworth, Leavenworth county, state of Kansas, may be decreed to be sold to satisfy a mortgage given by said Andrew B. Miller to the said Wm. H. Russel to secure the payment of a certain sum of money therein named; and that the said plaintiffs are now the legal owners of said note referred to.”
Only a portion of the affidavit for publication is recited in the opinion, but the affidavit is set forth at length in the record of the case.
Upon the findings of the trial court the judgment must be reversed, and the cause will be remanded, with direction that judgment be entered for the plaintiff.
Valentine, J., concurring.
Johnston, J., dissenting.
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The opinion of the court was delivered by
Horton, C. J.:
The defendant below, (plaintiff in error,) claimed upon the trial the land in controversy, under a tax deed issued to him September 5, 1881. The date of the tax sale was September 4, 1878. The redemption notice and list, which were published, stated the land was to be redeemed on or before September 5, 1881.
It was decided in English v. Williamson, 34 Kas. 212, that where real estate has been sold for taxes, the owner has, under any circumstances, at least three years’ time from the day of sale, and any time before the execution of the tax deed, within which to redeem his land from the taxes; and it was further decided that the day on which the land is sold must be excluded from the computation of the three years’ time; therefore, plaintiff below, (defendant in error,) had all of September 5, 1881, within which to redeem his land. No moment of time can be said to be after a given day until that day has expired. But the tax deed in this case was issued on September 5, 1881, and filed for record at 2 o’clock p. m. of that day; the deed, therefore, was prematurely issued.
This action was commenced on January 29, 1884; so no question of limitation is involved. (Comp. Laws of 1879, ch. 107, § 141.) The tax deed, having been prematurely is sued, is clearly voidable, and was properly held by the trial court insufficient to vest in the grantee thereof an absolute estate in fee simple to the land therein described.
Before the plaintiff below can obtain possession he must pay the taxes, interest, and penalties — that is, redeem the land. The judgment of the district court will be affirmed.
All the Justices concurring.
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Opinion by
Clogston, C.:
The principal complaint made by the defendant, plaintiff in error, is as to the instructions the court gave to the jury. The record in this case discloses but two issues over which there was any controversy at the trial: First, was the injury caused by the negligence of the defendant ? Second, was the plaintiff guilty of contributory negligence, directly causing the injury? The findings of fact by the jury being in favor of the plaintiff and against the defendant on both of these propositions, and the evidence tending to support all of the findiogs, and the findings being consistent with the general verdict, we shall therefore not examine the evidence further than to ascertain whether the instructions complained of are correct under the evidence given. Plaintiff complains of the first instruction given by the court, which is as follows:
“ This is an action brought by the plaintiff to recover damages from the defendant for injuries to the property of plaintiff sustained in a collision between the omnibus and horses of the plaintiff and the railway train of the defendant. There is no controversy as to the fact that the collision occurred; that it occurred in the city of Clay Center, at and upon the crossing of Fifth street and the railway track of the defendant; and no controversy as to the amount of damages sustained by the property of the plaintiff; the only question in the case for the determination of the jury being as to the negligence or want of due care of the respective parties or their employés, and the amount, if any, that the plaintiff is entitled to recover as shown by his undisputed testimony.”
Counsel particularly complain of these words in the instruction : “And the amount, if any, that the plaintiff is entitled to recover as shown by his undisputed testimony;” insisting Par^ ^ie iusti’uction is not supported by the evidence. We see no error in this charge, The evj¿[ence ag £0 extent 0f the damages sustained was not disputed, and the attention of counsel was called to this fact at the trial; plaintiff’s attorneys announced that they had a number of witnesses to establish the damages by, if the defendant expected to controvert this question; and counsel for the defendant stated in reply that they would not offer testimony on that question. In the face of this, can counsel say that the jury had a right to disregard the testimony of the plaintiff and his employé Watrous upon this question of damages ? If counsel desired to insist upon this proposition, they ought to have made no admissions that kept plaintiff from introducing the remainder of the evidence tending to show the damages claimed; but having done so, we think the question of damages was admitted, and that the court gave the proper instructions.
Counsel also complain of the second instruction given by the court, which is as follows:
“ 2. In considering this case you will first determine whether the defendant or its employés were guilty of negligence in the operation and management of its road and train which resulted in the injuries complained of. If you determine this question in the negative you need not inquire further, but return a verdict for defendant. If you determine that' there was such negligence, you will then inquire further whether there was contributory negligence on the part of plaintiff or his employé, such that under other instructions given in this case he ought not to recover. If you find there was such contributory negligence on the part of the plaintiff or his employé, you will return a verdict for the defendant. If, however, you find that the defendant was guilty of either ordinary or gross negligence, and that the plaintiff was not guilty of contributory negligence, or if negligent, that his negligence was slight and did not contribute directly to cause the injuries complained of, you will then find for the plaintiff, and assess his damages at such sum as you believe from the evidence he has sustained.”
Counsel insist that this instruction in relation to the negligence of the plaintiff or his employó was misleading and erroneous. Plaintiff in error does not contend that this instruction, as an abstract proposition of law, is not correct, but that under the facts of this case it was misleading; that if the driver of the team was negligent at all it did contribute directly to the injury. This would be true, taken as shown by the testimony offered by the defendant alone. Taking it for ■granted that the train never stopped backing until after the accident, and that the driver drove his team on the crossing in front of a moving train, this instruction might be misleading; but the testimony offered by plaintiff, that the train was standing still; that the driver had no notice that the train would move further backward, and without warning of danger he drove on the crossing — and this crossing a public one, as free to the plaintiff as to defendant; when not occupied by the defendant’s train the plaintiff might cross — and when his team became unmanageable on the crossing, it then became the duty of the defendant to use more than ordinary care ' ^ prevent the injury. Slight negligence on the par£ 0f driver, under such circumstances, would not relieve the defendant from liability. (L. L. & G. Rly. Co. v. Rice, 10 Kas. 426; Sawyer v. Sauer, 10 id. 466; U. P. Rly. Co. v. Rollins, 5 id. 167; K. P. Rly. Co. v. Peavey, 29 id. 169.)
Plaintiff also complains of the third instruction given by the court, which is as follows:
“3. The triple distinctions of slight, ordinary and gross negligence are recognized by the law, and apply to this case. Negligence is a want of due diligence. Slight negligence is merely the failure to exercise great or extraordinary care. Ordinary or common negligence is a want of that degree of care which an ordinary prudent man would ordinarily exercise under like circumstances. Cross negligence is the want of slight diligence. If you find therefore from the evidence that defendant company has done wrong and caused an injury thereby, a prima facie case for compensation is made out, unless you further find that the negligence of the plaintiff or his employó contributed directly to the injury complained of, when in such case the law declines to apportion the damages, and leaves the injured party without compensation. The degree of diligence required of plaintiff and his employé in this case was such as a man of ordinary prudence would have exercised under similar circumstances. And as to the question of negligence on the part of either plaintiff or defendant, it is a question of fact for the jury to determine from all the evidence in the case.”
In this instruction the word “wrong,” complained of, is entitled to a construction different from that given to it by counsel. These instructions must be taken together. While this word “wrong” in its broad sense includes every injury to another, independent of the motives causing the injury, yet taken as used in this instruction it means and could mean nothing but that kind of wrong the court was defining to the jury in defining negligence; that « .1 / . . , it was the failure to exercise great or extraordinary care, or a want of that care which an ordinary prudent man would ordinarily exercise, or it is the want of slight diligence; and that the failure to take this kind of care where others are liable to injury, was the wrong the court was charging the jury that an injury caused thereby was a prima faoie case of compensation made out. The jury had already been instructed that the only question for them to consider was the negligence or want of care by the respective parties. This instruction could not mislead the jury. Judge Brewer, in K. P. Rly. Co. v. Pointer, 14 Kas. 50, said:
“But if it is shown that a party has done wrong, and caused injury thereby, is not a prima faoie case for compensation made? Logically, the wrongdoer should always compensate, and the wrong and the injury always entitle to relief. When the wrong of both parties contributes to the injury, the law declines to apportion the damages, and so leaves the injured party without any compensation.”
That case is conclusive of this.
Objections are also made to the following instruction:
“4. The jury are instructed that in considering the circumstances of this case it is proper for them to take into consideration the fact that at the time of the accident the night was dark, defendant company had no flagman at the crossing at the time of the accident complained of, and the further fact that the defendant’s train was moving backward at the time..”
Counsel for plaintiff in their brief speculate as to the duty of a flagman at a crossing, and insist that as the driver of the team knew as much of the movements of the train as a flagman would have known, the fact that there was no flagman at the crossing was immaterial. The evidence in this case does not disclose what a flagman’s duty is. The authorities cited by counsel define some of the duties of a flagman, but we think they have omitted some of the duties which, if discharged, would in this case have prevented the injury. If a flagman had been at the crossing he would have known, or it would have doubtless been a part of his employment to know, that the purpose of backing this train was to take cars out from the side track, and to do this that the train must back up beyond Fifth-street crossing; and he would not have permitted teams to cross in front of the train that would immediately back up to accomplish the purpose for which it was backing. The evidence shows that the night was dark and no one was stationed at the crossing to warn persons that the train would still move further backward, and we cannot presume that the driver of the omnibus, whose duty it was to convey passengers from the depot to the hotel, to have that knowledge of the moving train. Upon this state of facts we see no error in the instructions. (K. P. Rly. Co. v. Richardson, 25 Kas. 409; K. P. Rly. Co. v. Pointer, 14 id. 49.)
There are other objections to the charge of the court, but no specific objections are urged to them. On the whole, we are of the opinion that the learned court has very fairly and intelligently instructed the jury on the law applicable to the facts in this case; and while the evidence is not clear as to the negligence of the defendant, yet taken together we do not feel warranted in saying the court committed any error in submitting the question of negligence to the jury.
We therefore recommend that the judgment of the court below be affirmed.
By the Court: It is so ordered.
All the Justices concurring.
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought by T. C. Hartley and E. P. Mendenhall, before a justice of the peace of Cherokee county, against James Chidester, to recover $116.25, with interest and costs, for an alleged balance due on two certain promissory notes and a chattel mortgage, executed by the defendant to the plaintiffs. After judgment in favor of the plaintiffs, the defendant appealed to the district court, where three separate trials were had, each resulting in a verdiet for the defendant. The last trial was had before the court and a jury on the said claim of the plaintiffs and on an alleged counterclaim, of the defendant, and on the last verdict a judgment was rendered in favor of the defendant and against the plaintiffs for the sum of $281.21 as damages, and $723.55 as costs. To reverse this judgment the plaintiffs, as plaintiffs in error, bring the case to this court for review.
The defendant, as a preliminary question, claims that no motion for a new trial was made or filed in the court below. The only motion filed in the court below, which can at all be called a motion for a new trial, reads (omitting the caption) as follows:
“ Come now the plaintiffs in the above-entitled action and move the court to set aside and vacate the verdict of the jury in this action for the following reasons:
“1. Said verdict is not supported by sufficient evidence, but is contrary to the evidence.
“ 2. The verdict is contrary to law.
“ 3. Errors of law occurring at the trial, and excepted to by the plaintiffs.”
This motion was treated in the court below by both the parties and the court as a motion for a new trial, although it will be seen that in terms it does not purport to be a motion for a new trial, but only a motion “ to set aside and vacate the verdict of the jury.” But it might well be treated as a motion for a new trial, for if the verdict of the jury in this case were set aside and vacated, a new trial would necessarily and inevitably follow. In several places in the recoi-d, and in at least three different journal entries, the motion in the present case is called a motion for a new trial; and it is not anywhere designated as anything but a motion for a new trial. Under such ciroumstances we think this court should treat the mo£jon as a motion for a new trial. It is, perhaps, immaterial in this case, however, whether the motion be considered as a motion for a new trial, or not; for one of the material errors alleged by the plaintiffs is the overruling, before the trial commenced, of exceptions to certain depositions, as well as the permitting of such depositions to be read in evidence during the trial.
The next question to be considered, and the first one raised by the plaintiffs in error, is whether the court below erred, before the trial commenced, in overruling the plaintiff’s exceptions to certain depositions, and erred after the trial commenced in permitting such depositions to be read in evidence. One of the principal objections to the depositions is, that the notice given by the defendant to the plaintiffs of the time and place of taking the depositions did not give the requisite time, as prescribed by law, before taking the same. There were two sets of depositions, and the notice for each set was given in Cherokee county, Kansas, and the depositions were to be taken at the city of Alkali, in Wasco county, Oregon. The first notice was given on November 30, 1883, and the depositions were to be taken on December 10,1883, between the hours of eight o’clock in the forenoon and six o’clock in the afternoon. The other notice was given on March 29, 1884, and the depositions were to be taken on April 8, 1884, commencing at eight o’clock in the forenoon. The statute provides as follows:
“ The notice shall be served so as to allow the adverse party sufficient time, by the usual route of travel, to attend, and one day for preparation, exclusive of Sunday and the day of service.” (Civil Code, §352.)
Two Sundays intervened in each case between the day of the service of the notice and the time fixed for the taking of the depositions; and under the evidence it would take seven days’ continuous travel to go from Cherokee county, Kansas, to Alkali, Oregon. Now under the statute, the day of service is to be excluded; also, the two intervening Sundays are to be excluded, and also one day for preparation; which leaves in ^Ie Present case only six days for travel prior to ¿|ay 0JQ the depositions were to be taken. This was not sufficient. The defendant desires that the statute shall be so construed that Sunday shall be excluded only from the day for preparation, and not in any case from the days of travel; but in our opinion the statute means that all Sundays shall be excluded, wherever they may come. Of course the service is never made on 'Sunday, and therefore Sunday could not be excluded from the day of service, and unless the service were made on Saturday, Sunday could not be excluded from the day given for preparation; for the day given for preparation must of course always be the next day after the day on which the service is made, unless such next day is Sunday. The legislature certainly did not intend to legislate for only such services as were made on Saturday, and it did not intend that parties should travel on Sunday against their will. The word “exclusive,” used in the foregoing quotation, is evidently intended to apply to all that portion of the quotation which precedes it, and to all that portion which succeeds it, and to exclude the day of service and every Sunday intervening from the day of service to the day when the depositions are to be taken. In other words, all Sundays are to be excluded from all the time required from the beginning down to the time of the taking of the depositions, including the one day for preparation and the time given for traveling to the place where the depositions are to be taken. In the present case, the plaintiffs did not make any appearance, either in person or by counsel, at the time and place when and where the depositions were to be taken; and if all the days which the statute provides may be excluded, are excluded, they could not have done so if they had so desired.
We think the court below should have sustained the plaintiffs’ exceptions to the ... • n, i depositions; and in not doing so, and m alter ward permitting the depositions to be read in evidence, the court committed material error. The depositions were read on the trial, and it is admitted that they were material evidence in the case.
It is unnecessary to consider any of the other questions presented in this case.
The judgment of the court below will be reversed, and the cause remanded for further proceedings.
All the Justices concurring.
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Opinion by
Clogston, C.:
C. H. Carlyle commenced this action before a justice of the peace in Wyandotte county, to recover $43.50 for professional services rendered as a physician, and caused a garnishee summons to issue to the Atchison, Topeka & Santa Fé Railroad Company, which was indebted to the defendant. It answered, acknowledging such indebtedness, and paid into court $34.50. February 15,1884, trial and judgment for the plaintiff for $23.50 and costs. Afterward defendant Smith gave plaintiff notice, and filed his motion to discharge the garnishee and release the money paid into court, for the reason that the money due him was for his personal earnings as a laborer, earned within three months next preceding the issuing of the garnishee process, and that the same was necessary for the support of his family. February 27th the motion was heard on the evidence of both parties, and the justice overruled it; to which ruling the defendant excepted, and filed his bill of exceptions, which was duly allowed by the court. Afterward he filed his petition in error in the district court to reverse the order of the justice of the peace. At the September, 1884, term, said petition in error was duly heard, and the order of the justice reversed, the garnishee discharged, and the money so paid into court ordered paid to the defendant Smith. The plaintiff excepted to the order and judgment, and brings the proceedings here for review.
But one question is presented: Did the district court have authority to review the order of the justice overruling defendant’s motion ? Plaintiff contends that the order made by the justice was not a final order, and therefore cannot be reviewed; and in support of these views cites Miller v. Noyes, 34 Kas. 13; but after a careful review of that case we think the plaintiff is mistaken. In that case the application was made to dis charge the garnishment proceedings before the final judgment, and for this reason the court doubtless held that the order was not final. Many things might happen after that before final judgment. The garnishee might refuse to obey the order, as he well might do, and wait until after judgment, and until he was sued on his answer; or, at the final hearing, no judgment might be rendered against the defendant, and thereby all proceedings would have ended; but in this case the motion was made after final judgment, and after the money had been actually paid into court. Nothing more was left for defendant to do. He must either submit and have his earnings applied to the discharge of this judgment, or move to set aside the order and release the money paid by the garnishee. The legislature had provided that his personal earnings, when necessary for the support of his family, should be reserved to him and them, free from any claim. Here they were being appropriated, and as a last resort he applied to the court for relief. To deny him this relief is to destroy and set aside the exemption provisions for that class of persons who require its provisions the most. The public policy of our laws and the decisions of our courts have favored a liberal construction, not only of the exemption laws, but of the provisions for carrying them into effect. But we think the statutes have in direct-terms defined what a final order is. Section 543 of ch. 80, Comp. Laws of 1885, is as follows:
“Sec. 543. An order affecting a’ substantial right in an action, when such order, in effect, determines the action and prevents a judgment; and an order affecting a substantial right, made in a special proceeding, or upon a summary application in an action after judgment, is a final order, which may be vacated, modified, or reversed, as provided in this article.”
“Upon a summary application in an action after judgment,” surely covers this class of orders, although made upon motion. Justice Brewer said, in Comm’rs of Wilson Co. v. McIntosh:
“The only reason given is, as heretofore stated, that one litigation was carried on by motion and the other by action. But why should not a decision upon a motion be as conclusive as that upon a trial ? The reasons given are, that motions are often made in the hurry of a trial, and decided with comparatively little examination and consideration; that the decision cannot be taken up for review; and that they are tried upon affidavits, rather than oral testimony. None of these reasons exist in the case at bar. The motion was not made until after judgment. It could not have been regarded as in any sense interlocutory, or one whose subject-matter could thereafter be more carefully examined, but must have been considered as a final determination as to the rights of the sheriff. It could have been taken up for review to this court.” (30 Kas. 234; and see cases therein cited.)
A motion in this case was made after judgment to re-tax costs — notice and hearing as in the case at bar — and this court held that a decision on such a motion was a final order, subject to be reviewed. We are clearly of the opinion that the order complained of was a final order, subject to be reviewed by the district court. It is therefore recommended that the judgment of the court below be affirmed.
By the Court: It is so ordered.
All the Justices concurring.
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Opinion by
Holt, C.:
Defendant in error, 8. A. Morrow, brought her action against plaintiff in error, defendant below, claiming damages for injuries to a cow run over by the locomotive and cars of the defendant, and also judgment for attorney’s fees. Defendant did not appear at the trial in justice’s court, but took an appeal to the district court. It made no appearance in that court.
Defendant claims that the bill of particulars is not sufficient in law to uphold a judgment. Plaintiff’s bill of particulars avers that her cow, without fault or negligence on her part, strayed in and upon the track and grounds of defendant, and that defendant, by its agents and servants, so carelessly and negligently managed its locomotive and cars, that they ran against and into said cow, thereby injuring and damaging her. This is a sufficient statement of plaintiff’s cause of action, without reference to the railroad stock law of 1874.
The defendant contends that the facts set forth in plaintiff’s bill of particulars are not sufficient to authorize a judgment for attorney’s fees, under art. 2, ch. 84, Comp. Laws of 1879. The bill of particulars states that “ at the point where said railroad might properly have been securely fenced, but where it was not so fenced, said plaintiff’s cow strayed in and upon the track,” etc. The statute provides that the road must be inclosed with a good and lawful fence. We believe that a good and lawful fence must be a secure fence, so far as fencing against a cow is concerned, especially when it is alleged that the cow strayed upon the track and ground of said defendant without fault on the part of plaintiff
Plaintiff in error further complains that the bill of particulars is insufficient in this, that the notice which the statute requires to be served upon the agent of a railway company was not pleaded. The statute provides that a demand for damages may be made upon any ticket agent or station agent of such railway company. The allegations in the bill of particulars are, that such demand was made by plaintiff upon John Williams, agent of defendant, without any allegation that he was a station or ticket agent, or any general agent of the company. The question to be decided now is, whether such an allegation is sufficient, when attacked after judgment, to sustain a judgment based thereon. We think it is. The defendant was duly summoned. No motion was made to make the bill of particulars more definite and certain. The language used in the bill of particulars may mean that he was the agent of the defendant upon whom such demand should be made. Such liberality of construction ought to be allowed when objection is first made to the pleading after judgment. There could not have been a judgment for attorney’s fees without proof of the fact thus implied, and as the evidence is not in the record, it is only fair to assume that this was fully established by evidence. (I. P. & C. Rld. Co. v. Petty, 30 Ind. 261; Peak v. Martin, 17 id. 115; Bliss Code Pl., §442.)
This action was tried both in the justice and district courts, and a judgment was rendered for $25 attorney-fees, the amount claimed by plaintiff as an attorney-fee in justice’s court. Of this defendant complains. We see no error in this judgment-. The sum of $25 may have been a reasonable fee for the trial in the justice’s court, without regard to such services in the district court. In the absence of any evidence in the record, it will be presumed it was.
It is recommended that the judgment of the court below be affirmed.
By the Court: It is so ordered.
All the Justices concurring.
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought in the district court of Bourbon county by Ellis Briggs against Lafayette D. Latham, to recover $1,690 and interest thereon, on an alleged guaranty of a mortgage, which reads as follows: “ I hereby guarantee the payment of the within mortgage. — L. D. Latham.”
Among the undisputed facts of the case are the following: The above-mentioned mortgage was executed on July 14,1876, in Minnesota, by Cornelius Quirk, of Oconto county, Wisconsin, to Dellen N. Latham and her husband, Lafayette D. Latham, of Cook county, Illinois, for laud situated in Minnesota, and was executed to secure four promissory notes, each dated July 14, 1876, each for $422.50, each executed by Cornelius Quirk to Dellen N. Latham, and due respectively as follows: October 1, 1877, October 1, 1878, October 1, 1879, and October 1, 1880, and each made payable at the First National Bank of Austin, probably in Cook county, Illinois. Mrs. Latham owned the notes and mortgage, and she indorsed the notes in blank and authorized her husband, Lafayette D. Latham, as her agent, to sell the notes and mortgage to any person who might choose to purchase the same, and he sold and delivered them to Peter Dunbar. Afterward he indorsed upon the mortgage the above-mentioned written guaranty. This guaranty was made and these last-mentioned transactions were had in the city of St. Louis, Missouri, although the parties at the time resided in Illinois. Latham, however, owned property in St. Louis, and spent a considerable portion of his time at that place, and Dunbar was also very frequently there on business. Afterward Dunbar assigned the notes to the Noodhouse Bank, of Noodhouse, Illinois, as collateral security. Afterward Mrs. Latham and her husband made a formal assignment of the notes and mortgage to the Noodhouse Bank. Dunbar also owed L. C. Barrett and Ellis Briggs, and in pursuance of certain transactions and understandings had between Barrett, Briggs, and the Noodhouse Bank, the Noodhouse Bank assigned the notes to Briggs, the plaintiff in this action. This action was commenced on July 8, 1882. Nothing has been paid on the notes or the mortgage except the interest up to October 1, 1877. The case was tried before the court without a jury, and the court made the following special findings of fact:
“ 1st. There was no consideration for the guaranty written by the defendant upon the back of the Quirk mortgage set out in plaintiff’s petition.
“2d. During all the time of the existence of the alleged guaranty, Mrs. Dellen N. Latham was solvent, and no demand was ever made upon'hef for the payment of said notes, or any one of them after their maturity, and no notice of non-payment was ever given to her.
“3d. A true copy of the Quirk mortgage is as set up in plaintiff’s petition.
“4th. The court finds all other facts, allegations and issues involved in the pleadings and case in favor of the plaintiff.”
Upon these findings the court rendered judgment in favor of the defendant and against the plaintiff for costs. Afterward the plaintiff moved to set aside the first and second findings, and also moved for a new trial; which motions were overruled, and the plaintiff excepted, and, as plaintiff in error, brings the case to this court for review. The plaintiff, however, in bringing the case to this court, has not brought any of the evidence. (Pritchard v. Madren, 31 Kas. 38; Ort v. Patrick, 18 id. 382; Turner v. Hale, 8 id. 38.) Nor has he brought any of the pleadings to this court, except the third amended petition and the answer thereto, and the reply to such answer. (Brookover v. Esterly, 12 Kas. 149, 152, 153; Moore v. Cutler, 18 id. 607.) Hence our decision in this case must be founded solely upon such of the pleadings as have been brought to this court, and the above special findings. Presumptively, the findings are sustained by the evidence; presumptively, they are proper findings in the case; anc^ presumptively, the case was tried by both parties in such a manner as to indicate to the court that such findings would be at least responsive to the issues made by the pleadings in the case; and if any of these presumptions are ill-founded or not true, to the prejudice of the plaintiff, it devolves upon him to show the same affirmatively to this court. Defective pleadings, or a want of pleadings, may sometimes be waived or cured by the subsequent proceedings in the case. (Walker v. Armstrong, 2 Kas. 199; Meagher v. Morgan, 3 id. 372; Smith v. Burnes, 8 id. 197; Mitchell v. Milhoan, 11 id. 617, 626; Holden v. Clark, 16 id. 346; Netcott v. Porter, 19 id. 131; Grandstaff v. Brown, 23 id. 176; Conaway v.Gore, 24 id. 389; Bierer v. Fretz, 32 id. 330, 337, 338.) And may not any supposed defects in the pleadings in this case, or any supposed want of issues, have been waived or cured by the subsequent proceedings in the ease? But may not even the pleadings themselves have been amply sufficient ? From anything appearing in the case, the findings may have been sustained by ample evidence; and the evidence may have been introduced without the slightest objection on the part of either party, and upon the theory that it was competent and proper to sustain the issues in the case. The plaintiff admits that the first finding is within the issues made by the pleadings, and that it is sustained by sufficient evidence; and this is probably also true with respect to the other findings, though as to the second finding the plaintiff does not admit that it is true.
The first question which we shall consider is, whether it was necessary that there should have been some consideration for the written guaranty indorsed upon the mortgage. "\ye think this question must be answered in the affirmative. Mr. Daniel, in his work on Negotiable Instruments, §1759, says: “It is necessary to the validity of a guaranty that it should be upon a valuable consideration.” Mr. Randolph, in his work on Commercial Paper, §856, says: “ Every guaranty, like other contracts of parties to commercial paper, requires a consideration.” Mr. Parsons, in his work on Notes and Bills,vol. 2, p. 125, says: “Asaguaranty is an independent contract, it must be made upon a sufficient consideration.” And, indeed, upon this subject all the authorities concur. “A guaranty is a collateral engagement to answer for the debt, default or miscarriage of another person.” (De Golyar on Guaranties, etc., 1; Chitty on Contracts, 10th Am. ed., from 3d Eng. ed,, 546.) In other words, a guaranty is a contract in and of itself; but it also has relation to some other contract or some obligation with reference to which it is collateral; and it always requires a consideration. It is true, that where the guaranty is executed at or about the time of the execution of the main contract, and both contracts form parts of the same transaction, one consideration .may support both contracts. It is also true, where a contract is sold and assigned, and the guaranty is executed in contemplation or in pursuance of such sale and assignment, one consideration may support both the sale and the guaranty. But in all cases where the guaranty is executed after the execution of the original contract, or after a sale thereof, and not in pursuance of any understanding had at the time of the execution of the original contract or at the time of the sale, that such guaranty should be executed, neither the consideration for the original contract nor the consideration for the sale can support the guaranty. But the guaranty in all such cases must have a separate and an independent consideration; and unless it has, it is void.
In the present case “there was no consideration for the guaranty; ” none whatever. The guaranty was a mere voluntary engagement, written upon the mortgage by one who did not execute either the note or the mortgage, who was never liable on either the notes or the mortgage, and who never owned either the notes or the mortgage, without consideration, and after the notes and the mortgage had been executed and sold and assigned. Plence the guaranty was at the time of its execution void. But the notes in this case were negotiable instruments payable to order, and the guaranty was indorsed upon the mortgage before the notes, or some of them, became due, and the same were transferred to the Roodhouse Bank possibly before the notes or some of them became due, though this is questionable; and therefore it is claimed by the plaintiff that the Roodhouse Bank was an innocent and bona fide purchaser of the notes and mortgage, and consequently that the guarantor Latham cannot interpose any equitable or other defenses in his favor. Of course Dunbar knew that there was no consideration for the guaranty, and from anything appearing in the case the Roodhouse Bank may also have known it. Besides, these notes were transferred to the bank in terms , only by assignment — the words ox the assign-t # ment being as follows: “Assign this note to the Roodhouse Bank as collateral security. — P. Dunbar.” Also, Dunbar was himself, in terms, only assignee. Now commercial paper, in Kansas, if payable to order, is negotiable only by indorsement. (Comp. Laws of 1879, ch. 14, §1; McCrum v. Corby, 11 Kas. 464.) And can it be said that the transfer of the notes to the bank in the present case was by indorsement f (See Hatch v. Barrett, 34 Kas. 223, 230, 231; Williams v. Osbon, 75 Ind. 281; Keller v. Williams, 49 id. 504; Franklin v. Twogood, 17 Iowa, 515; 2 Parsons on Notes and Bills, 52, 53; Randolph on Commercial Paper, § 786.) But passing over this question, certainly the writing of a guaranty for the payment of the mortgage only, upon the mortgage only, and not upon the notes, was not an indorsement of the notes; and a guaranty not in terms negotiable and not written upon the notes is not a negotiable guaranty. Indeed, the great weight of authority is that even if such a guaranty were written upon the notes themselves, the guaranty would not be negotiable. (Edwards on Bills, § 314; 2 Parsons on Notes and Bills, 132, 133; Randolph on Negotiable Paper, §861; 2 Daniel on Negotiable Instruments, §1774; Chitty on Bills, 250; Byles on Bills, 466; 1 Jones on Mortgages, § 830. See also Tinker v. McCauley, 3 Mich. 188; Springer v. Hutchinson, 19 Me. 359; Myrick v. Hasey, 27 id. 9; Snevily v. Ekel, 1 Watts & S. 203; McDoal v. Yeomans, 8 Watts, 361; Canfield v. Vaughan, 8 Martin, 682; True v. Fuller, 38 Mass. 140; Taylor v. Binney, 7 id. 479; Lamourieux v. Hewit, 5 Wend. 307; Watson v. McLaren, 19 id. 557.)
Mr. Randolph, in his work on Commercial Paper, § 861, says:
“As a general principle, a guaranty is not, strictly speaking, negotiable, and only the rights of the original party to the guaranty pass to subsequent holders.”
This we think is a correct statement of the law. It cannot be said that the guaranty of an instrument by a person who did not execute the instrument, who was never liable on it, and who never owned it or held it in legal contemplation, is a negotiable indorsement of the instrument, or a negotiable guaranty of the same; and therefore, when the instrument so guaranteed is afterward transferred to another person, whether by an indorsement of the instrument or otherwise, only the rights of the guarantee as against the guarantor are transferred by the guarantee to such other person. A guaranty might, perhaps, be made negotiable by placing it upon a negotiable instrument and making the guaranty in its terms negotiable, — that is, guaranteeing the payment of the instrument in terms “to order,” or “to bearer.” (Story on Promissory Notes, § 481.) But nothing of this kind was done in the present ease. The guaranty the present case is not in its terms negotiable; nor was it placed upon an instrument which is in and of itself negotiable. A mortgage is never in and of itself negotiable; nor ever negotiable except as an incident of the notes which it secures; nor was the guaranty executed by a maker, payee or owner of the instrument guaranteed; nor was it, in commercial language, an indorsement. Only the holder of commercial paper can in legal contemplation “indorse” the same.
From what we have already said, it follows that the judgment of the court below must be affirmed, without reference to what our views might be upon the other questions discussed by counsel, or involved in the case. But a decision of these other questions would probably lead to the same result, independent of the questions which we have already discussed and decided.
The judgment of the court below will be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Johnston, J.:
The Chicago, Iowa & Kansas Railroad Company instituted proceedings to condemn a right-of-way through Washington county upon which to construct and operate its road. The commissioners appointed for that purpose laid out a right-of-way through the city of Hanover, and condemned a strip of land one hundred feet wide over a lot situated in that city owned by John Knuffke, upon which certain buildings were attached and standing. In the report filed by the commissioners it is stated that the lot was taken for the right-of-way of the railroad, and they add: “And we do appraise the value of said lot so taken, and the buildings and appurtenances thereto belonging, and assess the damages to the owner thereof at the sum of $2,100.” The defendant, Knuffke, appealed from the award of the commissioners, but afterward he accepted the amount awarded, which had been placed on deposit with the county treasurer, and at a later time he dismissed his appeal. After the defendant had accepted the condemnation-money and had given a receipt to the county treasurer therefor, he tore down and removed the buildings which were upon the lot appropriated by the railroad company, claiming that they were not included with the land condemned, and the present action was brought to recover the possession of the buildings and material. In addition to the facts stated, it was shown at the trial that the commissioners, in making their award, considered the whole lot together with the buildings and improvements thereon. They valued the ground at $1,400, and the buildings and improvements at $700; and these two items together constituted the award of $2,100, which was made and accepted. There was testimony in regard to the permanent character of the buildings and their value, and also of the demand made by the plaintiff for the return of the property. A demurrer to the plaintiff’s evidence was sustained, which was followed by a judgment for the defendant. The plaintiff has brought'the case here for review.
The question presented for decision is, whether the buildings which were situate on the lot passed from the defendant to the plaintiff by the condemnation award, and its acceptance by the defendant while the buildings were standing thereon. The statute under which the commissioners were appointed delegates to them power to lay off a right-of-way for a proposed railroad, and to condemn so much land as may be deemed necessary for the purposes of the road. The condemnation proceedings give the railroad company a right to occupy the land condemned for the purposes necessary to its construction and use, and when the road is constructed, the perpetual use of the land is vested in the company. ' Authority is given to appropriate land, and that term is sufficiently broad to include buildings of a permanent and fixed character, such as those in question here. (Mills on Eminent Domain, §§49, 223.) We have no statute, such as some of the states have, exempting houses and other structures from being appropriated for public use, or permitting the owner to remove them from land that has been condemned. On the other hand, our statute proceeds upon the theory that the railroad company appropriating the land acquires a right to the buildings thereon, and becomes liable to the owner for the value of the same. In the statute relating to corporations it is provided that an appeal shall be had from the determination of the commissioners, not only as to the value of the land, but also as to the value of the buildings and improvements on the land. (Gen. Stat., ch. 23, § 86.) This provision presupposes that the buildings are to be appraised by the commissioners. They are to award the owner not the damage done to the buildings by their removal, but are to allow him the full value of such buildings. The determination of the commissioners includes the value of the buildings as well as of the ground upon which they stand; and until compensation for both is made or secured by a deposit of money, the company cannot take possession of the land or acquire any right therein without the consent of the owner. While the buildings and material in question are not an absolute necessity in the construction and nse of the road, they are of such a character that they may and can well be used by the company in building and operating its road. By agreement of the parties, the buildings and other improvements on the land taken might have been excepted from the award and retained by the land-owner. Instead of making such an exception, the conduct of the defendant was such as to conclude him from asserting any claim to the possession of the buildings. They were specifically mentioned in the report of the commissioners; and by the terms of the report the value of the buildings was included in the amount awarded to the defendant. In taking an appeal from the award he waived any question as to the regularity of the proceedings; and by accepting the award, which upon its face included the value of the buildings, he is now stopped from setting up any claim or right, of possession to them, (Challiss v. A. T. & S. F. Rld. Co., 16 Kas. 117; A. T. & S. F. Rld. Co. v. Patch, 28 id. 470; Dodge v. Burns, 6 Wis. 514; Mills Em. D., §329.) He is entitled to just compensation for what is taken, but he cannot take the full value of the buildings and retain them too. The railroad company was entitled to the property appropriated and for which it had paid. The buildings were subject to condemnation, were condemned, and since the defendant has accepted full and just compensation for the buildings, he cannot now be permitted to claim or remove them. It follows that the court erred in sustaining the demurrer to the evidence, and the judgment will therefore be reversed, and the cause remanded for another trial.
All the Justices concurring.
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Opinion by
Holt, C.:
Defendant in error, plaintiff below, brought his action against plaintiff in error, defendant below, to recover the sum of $600. Plaintiff Reid lived in Missouri, and defendant Rucker in Elk county, Kansas. In 1884, Reid and John B. Rucker, brother of defendant, came to Elk county to look at land, with a view of purchasing, and Reid and John B. Rucker both had some talk about buying a certain tract of land near the home of the defendant. They both returned to Missouri without purchasing, and defendant went to St. Joseph, where the owner of the land resided, and he bought it, paying therefor $1,000. The consideration named in the deed was $1,600. He afterward sold it to plaintiff. So far both parties agree substantially as to the facts.
Further, plaintiff claims that -when he was upon his visit to Elk county, he entered into an agreement with the defendant, whereby the defendant was to buy this land for him of the owner at St. Joseph; that he gave him authority to pur chase the same for not more than $1,600; and that defendant proceeded to St. Joseph, Mo., and bought this land as his agent. He states further, that long afterward he paid defendant $100 for expenses of his trip and his services in buying the land, and also paid him $1,600 for the land, the amount that he, defendant, said he was compelled to pay the owner-in St. Joseph for the same. Defendant alleges that there was no contract of agency made between himself and plaintiff, but that he went to St. Joseph to buy the land for himself, and not as an agent of plaintiff; that he paid therefor the sum of $1,000, and afterward sold the same as his own land to the plaintiff for the sum of $1,700. The deed to the land was given to the defendant by the owner, at St. Joseph.
On the hearing of the case the defendant offered to read the deposition of John B. Rucker, his brother, which had been duly taken by the plaintiff, and the court refused to-allow said deposition to be read. Judgment for plaintiff for $600; motion for a new trial overruled; judgment upon the verdict; defendant seeks a reversal in this court.
The first question that presents itself, is the exclusion of the deposition of John B. Rucker. It was taken by the plaintiff; was not read by him in the opening of his case; the defendant, in the introduction of the testimony in his behalf, offered this deposition in evidence; plaintiff objected to the reading of the same, because it was the evidence of plaintiff taken for the purpose of rebuttal; it was not read by plaintiff. If the testimony sought to be introduced by the deposition was material, we believe it ought to have been admitted and read in evidence. Sec. 357, ch. 80, Comp. Laws of 1879, reads as follows:
“ When a deposition has been once taken, it may be read in any stage of the same action or proceeding, or in any other action or proceeding upon the same matter between the same parties, subject, however, to all such exceptions as may be taken thereto under the provisions of this article.”
We believe that this statute authorizes the reading of a deposition taken at the instance of a party to an action and not used by him, to be read in evidence by the opposite party against the objection of the party , , at whose instance it was taken. When it is once filed it becomes the property of the court, and if it is competent and material testimony it should be used in the presentation of the. facts in the case. Some courts go as far as to say, under a statute no stronger than ours, that it is as competent for one party to read in his own behalf a deposition regularly taken and filed by the other party as it would be to introduce a witness summoned on behalf of the other party. Whether that is the correct rule, it is not necessary to decide iu this case. We believe our statute has prescribed the rule that should govern. (See also §356, ch. 80, Comp. Laws of 1879.)
Plaintiff contends now that the testimony in the deposition is immaterial. If such claim is true, then the error in excluding the deposition of Rucker could not have prejudiced the defendant. The question to be tried in this case is whether the defendant, Rucker, was the ~ - . . - . agent ot Reid at the time he purchased this land of the owner in St. Joseph. Plaintiff contends that he was — defendant denies; and the testimony of each is positive and explicit, each to sustain his own theory of the case. The agreement that the plaintiff claims was made with the defendant was not in writing and was not before witnesses. Under such circumstances any statement amounting to an admission would be material evidence against the party making such statement, and important in deciding whether the relation of principal and agent was established between Reid and defendant Rucker.
There was testimony introduced of the admissions of Rucker that he was the agent of Reid. The deposition of John B. Rucker shows that Reid, after the time that he said he had employed Rucker, the defendant, as his agent, said that he intended to buy the land in question if John B. Rucker did not want it. Such admission of Reid was in the conversation between John B. Rucker and himself, in Missouri, and Reid himself testified to that conversation. It was a version of the conversation, however, different from the one given in the deposition of Rucker. It also appeared in the deposition of John B. Rucker that Rucker, the defendant, and a son of Reid, had a conversation at Elk Falls, at the time that Reid first came to Kansas to look after land, in which young Reid testified to certain admissions made by defendant Rucker to him. In his deposition, John B. Rucker says that he was present at the time that such conversation between defendant Rucker and young Reid took place, and heard all of it, and that he did not recollect of hearing anything whatever of the matter concerning which young Reid testified.
There is objection made that the questions asked in the deposition of Reid, being the cross-examination of John B.
Rucker by defendant, were not admissible because they were leading. No such objection was made in the lower court. It will not be considered here.
There are other errors complained of, but none of them require attention. For the error of l’efusing to allow the deposition of Rucker to be read in evidence, we recommend that this case be reversed.
By the Court: It is so ordered.
All the Justices concurring.
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Opinion by
Simpson, C.:
Suit upon two promissory notes executed by Lowe, payable to the Jacksonville Sulky Plow Works Company, and sold by it to William P. Higginbotham before maturity, one for $175, one for $150, Avith ten per cent, interest from date, the first payable the 1st of May, the second the 1st of September, 1884, and both dated 27th September, 1883; actions originally commenced before a justice of the peace, appealed to the district court and tried by a jury; separate action on each note before the justice, but both actions Avere consolidated for trial by order of the district court. The court found that the burden of the issues rested on the defendant Lowe, and gave him the opening and close. His evidence consisted of the testimony of himself and of his attorney, and the depositions of William E. 'Veitch, the treasurer, William D. Matthews, the secretary, and James H. Hackett, the manager of the plow Avorks company. The plaintiff below demurred to the evidence for the reason that the facts proven do not constitute any defense to the action of the plaintiff. The demurrer Avas sustained, the jury discharged, and a judgment rendered for the plaintiff for the amount of the notes with interest. A motion for a new trial was overruled. The error complained of here, and principally discussed in the brief of the plaintiff in error, is, the ruling of the court in sustaining the demurrer to the evidence of Lowe. The defendant filed no answer in writing, reciting his defenses, but the evidence Avas alleged to be directed to these two defenses set up by oral ansAver: first, fraud in the inception of the notes; and second, no consideration. This case Avas submitted at the April assignment of the January term, 1887, and an opinion was filed in May; but subsequent reflection having satisfied us that there had been a misapprehension as to the facts in the case, a rehearing was ordered, and was had in June.
I have carefully reexamined the original record of the evidence, and find that, in the copy of the record heretofore used, the remarks of the counsel are so blended with the statements of a witness as to be misleading, and to create the impression that there was evidence of fraud in the inception of the notes sued ou, when in fact there was no such evidence presented. The members of this court have also submitted the record to a rigid examination, and do not find any such evidence. There arose a misconception of the facts in the former opinion, which is now corrected. The same disposition is to be made of the case, but for a very different and a much better reason. The plaintiff iu error had signed a contract, wherein it was stipulated that he was appointed agent of the Jacksonville Sulky Plow Company in the townships of Hayes and Sherman, in Dickinson county, to sell its light-draft plow attachments; and at the same time he executed the notes sued on. The consideration alleged for the notes was a royalty of five dollars on each machine to the owner of the patent, including the price of the plow at twenty-five dollars. The notes were received in payment of the royalty on sixty machines, and the balance due on each machine, being the sum of twenty dollars, was to be paid when it was ordered. The plaintiff in error acted in the belief that he was the agent of the company; that it would send machines to him on his order without reference to the time of payment by him to the company ; that under the contract it was the duty of the company to await payment by him until he sold and made collections; that it had agreed to receive good notes from farmers in payment for its plow attachments, and that these notes could not be had until he had made sales. The company insisted on payment for machines when ordered, and that the agent must take all the chances of collection on sales made by him; that it would receive good notes in payment of his orders, but the notes must be forthcoming at the time the order was filled. This dispute about the construction of the contract seems to have been the cause of the litigation. There is no evidence tending to show that there was fraud in the inception of the notes.
The plaintiff in error made a very foolish contract: he paid for a machine in advance; he paid the royalty on thirty machines in advance, and while he testified that he made some efforts to sell machines to his neighbors, the record does not disclose that he has ever completed the sale of a single machine. There is nothing in the record to show a want of consideration for the notes. While evidence tending to show fraud in the inception of the notes would have cast upon the holder of the notes the burden of showing innocence in the purchase, and want of notice of the equities of the maker, evidence,of a want of consideration would not shift the burden of proof. There being no evidence of fraud in the inception of the notes, the legal principle relied on by counsel for the plaintiff in error has no application to the facts as recited in the record.
There was no attempt to show that the defendant in error had any knowledge or notice of the facts and circumstances attending the execution of the notes and contract. The construction of the contract adhered to by the plow company seems to be the natural import of the words used, and its invariable practice had been under such contracts to require payment for machines when ordered.
It seems there was no error in sustaining the demurrer to the evidence of the plaintiff in error on the trial below, and we therefore recommend the affirmance of the judgment of the district court.
By the Court: It is so ordered.
All the Justices concurring.
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Opinion by
Holt, C.:
This action was brought by plaintiffs in error against defendant in error, to recover on five notes given by the defendant for a harvester and binder. It has been in the supreme court once before, and was reversed. (32 Kas. 69.) Ee-trial in the district court, and verdict for defendant; verdict set aside by the court, and still another trial had, at the May term, 1885; verdict for defendant; questions of fact submitted by plaintiffs answered; motions for judgment for plaintiffs on the findings, and for a new trial, overruled; judgment for defendant. Plaintiffs bring the case here for review.
The plaintiffs make several assignments of error. Among others, they allege that the facts set forth in the answer of defendant are not sufficient to constitute a defense to plaintiffs’ petition. This objection is not tenable. The answer contains a general denial, and also sets up a valid and legal defense to the plaintiffs’ petition. It states that as consideration for the notes set forth in plaintiffs’ petition, the plaintiffs sold the defendant a binding harvester, warranted to be made of good material, well constructed and to do good work, and avers that it was not made of good material, that it was not well constructed and would not do good work, was wholly unfit to be used as a binding harvester, and that it did not, after trial by the defendant, do the work it was warranted to do.
Plaintiffs complain of the instructions given, and also of the refusal of instructions asked for by them. The instructions refused were given in substance in the general instructions of the court, excepting those that were obviously erroneous. The instructions given very fairly presented the law applicable to the evidence introduced in this case. The plaintiffs complain that the court stated in its general instructions that notice to Duncan, plaintiffs’ agent who sold the machine in question to Roberts, that it would not work, was notice to the plaintiffs. This is a correct enunciation of the law under the contract entered into between plaintiffs and defendant at the time of the purchase of the machine.
It is claimed that the court erred in admitting the evidence of the defendant over the objection of the plaintiffs, and also erred in excluding the evidence of plaintiffs offered during the trial. The plaintiffs sought to introduce in evidence a note given by defendant for wire and repairs on the 6th day of January, 1879. Plaintiffs claim that the giving of such note at that time, after defendant must have known of the defects, if any, of the machine, was a waiver of such defects and an acceptance of the machine. There was testimony in troduced tending to show that, at the time of the giving of this nóte, plaintiffs agreed that they could and would make the machine work. It further appears by the evidence that both plaintiffs and defendant treated the machine in question as on trial, in the months of June and July, 1879. If it then did good work, it was to be taken by the defendant and paid for; and if it failed, it was to be turned over to the plaintiffs. Under this testimony, we do not believe_that the exclusion of that note in evidence was substantial error.
The defendant, Roberts, was allowed to testify, over the objection of the plaintiffs, to the acts and statements of one Williams, who claimed to him to be an agent of plaintiffs, and who came to repair this machine in the early harvest of 1879; afterward, Mr. Adams, who was selling machines under Duncan, the agent of plaintiffs, testified in regard to the parties who came to Mr. Roberts to fix the machine: “ In the year 1879, my recollection is that Mr. Reed was then state agent, and I know that Mr. Reed told me that Williams was his assistant.”
We believe that this testimony sufficiently establishes the agency of Williams to admit as evidence the statements made by him to Roberts concerning the machine. We concede the law to be, that an agency cannot be proved by the mere statement of the agent himself against his principal; but in this case, Adams, who had been connected with plaintiffs, although perhaps indirectly, in the sale of their machines, testified to the agency of Williams. He does not state from what source he derived his knowledge that Reed was the state agent of the plaintiffs, nor do the plaintiffs seek to contradict the fact, either of the agency of Reed or of Williams. Williams came to Roberts on business that was properly the business of an agent of plaintiffs. He came because the agents of plaintiffs had been notified by Roberts that the machine did not do good work, and they wished him (Williams) to visit Roberts and fix up the machine in question. We think the error of the court below in allowing Roberts to testify to the acts and statements of Williams as the agent of plaintiffs becomes immaterial under the further testimony introduced in this case.
We believe this disposes of all the questions raised by the plaintiffs in error, and therefore we recommend that the decision of the court below be affirmed.
By the Court: It is so ordered.
All the Justices concurring.
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The opinion of the court was delivered by
Johnston, J.:
The Pacific Mutual Telegraph Company presented an application to the judge of the district court of Atchison county for the appointment of commissioners to condemn the right to construct and maintain a telegraph line along and over the north side of the bridge of the Chicago & Atchison Bridge Company, which spans the Missouri river at Atchison, Kansas, and to appraise the value and assess the damages to the bridge property taken for such purpose. On this application commissioners were appointed. Afterward the bridge company began an action, and obtained a temporary injunction enjoining the telegraph company and the commissioners from proceeding with the condemnation. Issues were joined and a trial had before the court, which resulted in a decree enjoining the telegraph company from proceeding farther under the condemnation proceeding that had been instituted, to reverse which this proceeding is brought.
The district court found and placed its decision upon the fact that the plans of the telegraph company, for the construction and operation of its line across the bridge, as stated in its petition to the judge of the district court, and upon which the commissioners were appointed, was impracticable, and would interfere with the opening of the draw-span of the bridge and with the navigation of the river. This fact cannot well be questioned by the plaintiffs in error, as the testimony upon which it was found has not been brought here; and that the company cannot in any way interfere with the turning of the draw-span or obstruct the navigation of the river, is conceded. In its answer filed in the injunction proceeding, the telegraph company outlined and proposed another plan for the construction of its line, which it claimed would not interfere with the operation of the draw-span or with the navigation of the river; but this plan was a substantial departure from the one upon which the commissioner’s were appointed to condemn the right-of-way across the bridge. It is now contended that it was unnecessary to state in the petition what property was intended to be appropriated, or how the wires of the telegraph company were to be attached to the bridge, and therefore the company was at liberty to disregard the plans stated in the petition, and to have the commissioners that were appointed proceed upon another and a different ¿no. The petition or application is the initiatory step or basis of the condemnation proceeding. It is required to be in writing, and from it the judge determines whether a case is presented for the exercise of the right of eminent domain. In this case, the condemning party stated particularly what use it proposed to make of the bridge, and detailed the manner in which it proposed to attach its wires and other fixtures to the same. The commissioners were appointed to appraise the damages which the bridge company would suffer if the property was so taken. They gave notice that they would proceed under the plan named in the petition, and from that notice the bridge company received information of how it and its property Avere to be affected. It may be, as the telegraph company contends, that only a general allegation of its purpose Avas necessary in the petition, and that a detailed statement of the manner of construction was not required under the statute; but that is not this case.' There is no complaint that the petition Avas too general or too meager in its statement, but rather that it contained too much. The company has chosen to specifically state its purpose and plans, and has thereby made out its own case. That which it proposed and threatened to do is confessedly impracticable and unauthorized by la\Ar, and afforded the bridge company sufficient grounds to maintain injunction. It is said- that the new plan is practicable and proper, but it Avas not suggested until the action to enjoin had been begun, and only then in the answer filed in the injunction proceeding; and the extent of the decree in the present case is to restrain the telegraph company from carrying out the first plan, or in other words, from proceeding farther under the petition, order and notice, Avhich proposed to do that which the law does not permit to be done. The decree rendered does not prevent the company from presenting another application and instituting another condemnation proceeding, providing that what is asked for is within the law. It appears from the records of this court that the telegraph company has abandoned the first application and is now prosecuting another one, wherein it attempts to obviate the objections raised in the first.
We think there was no error in the ruling of the district court, and its judgment must be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Horton, C. J.:
In May, 1876, Henry Moeser, the owner of lots 104, 106 and 108, on Harrison street, died, intestate, in the city of Topeka. A short time after his death, Eliza Moeser, his widow, was appointed administratrix of his estate. In April, 1877, Eliza Moeser left the city of Topeka and moved to Chicago, 111. Prior to her going away she executed a mortgage upon said lots for $1,100 to Philip Moeser. On April 1, 1879, she sold said lots, through her brother-in-law, Ed. Moeser, to Margaret J. Norton, for $3,000, and received in payment therefor $500 cash, and five notes, of $500 each, executed by Margaret J. Norton and L. Norton, and due in six months, and one, two, three and four years, respectively, secured by a mortgage upon said premises, with interest at ten per cent., payable annually. These notes were numbered 1, 2, 3, 4 and 5, in the order in which they became due. On May 29, 1879, note number 3 was indorsed to Durein and Kreipe. On August 30, 1879, note number 4 was indorsed to Durein and Kreipe. In May, 1879, note number 5 was left with Judge Carey, then probate judge, by an arrangement between Eliza Moeser and Philip Moeser. On or about the 8th of January, 1880, note number 5 was turned over by Judge Carey to Fred. Fritsche. Durein and Kreipe claim to have purchased this note, and were in possession of the same in March, 1884, and collected interest thereon from the makers thereof.
The controversy in this case is over the note No. 5, or rather the proceeds of the note, as the Nortons have paid the amount thereof into the court, and by the agreement of the parties to this action the money is to abide the result of this litigation. Mrs. Eliza Moeser, as administratrix and the payee, claims the proceeds of the note and all the interest collected by Durein and Kreipe. Durein and Kreipe claim the proceeds of the note and the interest collected by them, as owners of the note through a purchase, which they allege they made from Fred. Fritsche, who, they claim, was the authorized agent of Mrs. Moeser. Note No. 5 was payable to the order of Eliza Moeser, administratrix, but was never indorsed by Mrs. Moeser, the payee, or by any one for her.
The jury made the following findings of fact:
“1. Did Eliza Moeser, administratrix of the estate of Henry Moeser, deceased, plaintiff, sell or deliver to Kreipe and Durein, or either of them, the promissory note No. 5 ? A. No.
“2. Was this note No. 5 sold and delivered to the defendants, Kreipe and Durein, or either of them, by a duly-authorized agent of the plaintiff? A. No.
“3. How much money was paid into the court arising from the foreclosure suit in the case of Kreipe and Durein v. Nor-tons on this note No. 5, to abide the result of this action ? A. $583.35.
“4. How much interest did the defendants, Kreipe and Durein, collect on this note No. 5 from the Nortons? A. $175.”
Upon the findings of the jury, the only material question in the case is over the instruction of the trial court that—
“The mere possession of this note, unindorsed in the hands of Kreipe and Dureiu, is not of itself sufficient evidence of the ownership of the note, but there must be other evidence, tending to show that they purchased the note from the plaintiff or her duly-authorized agent.”
The contention on the part of Kreipe and Durein is, that the possession of the promissory note is prima facie evidence of ownership, and therefore that the instruction given is erroneous and prejudicial to them. The-case of Eggan v. Briggs, 23 Kas. 710, cited, is very different from .the case now under consideration. In that case the note was payable to the order of Briggs and Watson, and was indorsed before maturity by Briggs and Watson. The syllabus is: “Possession of a note (where it does not appear upon the note who the owner thereof is) is prima fade evidence of ownership; but it may be shown by evidence that the person in possession is not the owner of the note.” All that was said in Eggan v. Briggs we fully approve, but as betweeu the payee of a promissory note, payable to order and not indorsed, and a stranger having possession, the payee is prima fade the owner; so the mere possession' of a note payable to Order and not indorsed cannot avail the holder thereof in an action against him by a payee who is the legal owner. (Daniel Neg. Inst., § 812; Tuttle v. Becker, 47 Iowa, 486; Robertson v. Dunn, 87 N. C. 191; Dorn v. Parsons, 56 Mo. 601; Price v. Brown, 98 N. Y. 388; Gano v. McCarthy, 79 Ky. 409.) Upon the evidence presented the instruction was pertinent and proper, and therefore not erroneous or misleading.
It is claimed that there is nothing in the petition showing that Mrs. Moeser sued as administratrix, or that she is seeking to recover as administratrix. The point is not well taken, because no objection was made to the proof of her official relation in the introduction of evidence, as in the cases of City of Atchison v. Twine, 9 Kas. 350; and C. B. U. P. Rld. Co. v. Andrews, 34 id. 563. The action w'as entitled in the court below, “Eliza Moeser, administratrix of the estate of Henry Moeser, deceased, v. Conrad Kreipe and Frank Durein,” and Mrs. Moeser was permitted to testify without objection, “that she was the widow of Henry Moeser; that he died in May, 1876, in Topeka, in this state, and left property situated in Topeka, and that she was made the administratrix of his estate.” She also testified without objection, “that she was appointed administratrix, and that the note in suit was made payable to her as administratrix.”
We have considered the other objections presented, but in view of the special' findings it is unnecessary to make comments thereon.
Upon the special findings of the jury, the verdict and judgment must be sustained. The judgment will therefore be affirmed.
All the Justices concurring.
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Opinion by
Simpson, C.:
It is suggested by counsel for defendants in error that the plaintiff in error does not come within Long Brothers v. Murphy, 27 Kas. 375, because his interest in the property attached was acquired subsequently to the lien of the attachment; but as this is, in another aspect, the vital question in the case, we prefer not now to pass upon that proposition. There can be no question but that the attachment lien was prior to the execution and delivery of the deed of Briscoe to the plaintiff in error, if the attachment proceeding, or rather the manner of its service by the sheriff, was of any validity. It is urged that as the lots were separate and distinct tracts of real estate, it was the duty of the sheriff to post a copy of the order of attachment on each lot, instead of but one, and that in consequence of his neglect so to do the attachment is void. We think this question fairly determined by the case of Wilkins v. Tourtellott, 28 Kas. 825. The facts are much stronger here than in that case, because in the reported case, the return of the officer did not show that any attempt had been made to leave on the land a copy of the order of attachment, and that at most it was an irregularity rather than a fatal defect. As it was claimed that as a matter of fact the sheriff did leave a copy of the order on the place, but failed to so state in the return, he was permitted to amend the return in that respect. Plere the return of the sheriff as embodied in the record recites:
“And I took possession of, and now hold subject to the order of the court, the following-described property as the property of the said defendant, at the suit of the within-named plaintiffs, [here follows a description of the real estate,] and finding no person occupying and in possession of said tracts of real estate, I posted, in a conspicuous place thereon, a copy of the within order.”
Now the main object of the requirement that a copy of the order should be placed in some conspicuous place on the land, where the attachment is levied on unoccupied real estate, is in aid of service on the defendant in the attachment proceedings. It is another effort to inform the defendant that he has been sued. It is invariably the fact that a non-resident owner of unimproved land has some resident agent in the neighborhood, and the law attempts to utilize it in bringing home to the defendant knowledge of the pendency of the action. We have no doubt but that in many cases persons whose real estate has been made the object of an attachment lien derive their first knowledge of the suit from such a fact. But in this ease, within a few hours after the levy a personal service of the summons was served on the defendant in the attachment suit, so that it is not in fact a practical question in this case as to whether the notice was posted on all, instead of but one, of the town lots. All we do hold is, that the failure to post or leave a copy of the order on all the lots does not render the attachment proceedings void.
The purpose for which this motion to discharge the attachment lien on these town lots is used in this action is virtually to try the title to the lots. It is disposing of the title to real estate in a very summary manner, and we do not want to be understood as expressing any opinion except as to the effect of the requirement to leave a copy of the order on the real estate attached.
We see no error in the ruling of the court below, and therefore recommend that it be affirmed.
By the Court: It is so ordered.
All the Justices concurring.
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The opinion of the court was delivered by
Johnston, J.:
The appellant contends that the court erred in its charge to the jury, and also in refusing to permit his counsel to address the jury upon the questions of law involved in the case, unless the argument coincided strictly with the law as stated by the court in its instructions. The rules governing the trial for criminal libel differ materially in some respects from those applicable to other prosecutions. In the trial of an offense other than libel, the jury are the exclusive judges of the facts; but not so with the questions of law that are involved. In those cases it is the duty of the court to instruct the jury and decide for them all questions of law that properly arise in the case; and it is incumbent upon the jury to apply the law so given to the facts of the case, and conform their verdict and decision to the instructions. For some reason the legislature deemed it wise to make an exception in prosecutions for libel, and in §275 of the crimes act it was provided that “in all indictments or prosecutions for libel, the jury, after having received the direction of the court, shall have the right to determine at their discretion, the law and the fact.” In some of the states the power of the legislature to confer this authority upon the jury is denied, but neither the validity of this provision nor the right of the jury thereunder to determine the law and the fact is here questioned. Indeed, the court submitted the whole issue to the jury, and directed them that they were at liberty to determine the law as well as the fact. But after submitting the whole issue, the court refused to allow the defendant’s counsel to present or argue to the jury a contrary view of the law from that taken and stated by the court in its instructions. This was error. It being conceded that the jury had a right to determine ^ jaw ^íe case as well as the fact, the right of the defendant by himself or his counsel to fairly and fully argue to the jury his theory and view of the law ruling the case must also be conceded. The argument is an important branch of the trial, and is intended to enlighten the jury and aid them in determining all questions submitted to them. The defendant has a right to make a full defense before the jury, and his counsel have a right to discuss every question, whether of law or of fact, that the jury have a right to decide. The jury being at liberty to decide the law in accordance with or contrary to the opinion of the court, the same freedom and scope must necessarily be given to the defendant’s counsel in argument. The argument of counsel is as much a part of the trial as the hearing .of the evidence or the instructions of the court. It is a substantial and constitutional right, which cannot be taken away. (Bill of Bights, § 10.) Of course the court is not to abdicate its power and duty of instructing the jury upon the law of the case. The charge should be as full and complete as in cases where the jury are to implicitly take and follow the law laid down by the court. By reason of the learning and experience of the judge who presides, as well as the authority with which he is invested, the jury will doubtless heed and highly regard his opinion, as they should do, and will incline to adopt it rather than a contrary view presented by counsel; but the instructions which he gives are only advisory, and the jury are not in duty bound to accept and follow his views; and hence the defendant by himself or counsel has a right to present and press upon the jury views and interpretations of the law inconsistent with those stated by the court. The argument must of course be confined to the issues of the case, and must be presented in a respectful manner; and the court may also restrict the time to be occupied in argument within reasonable bounds, but it is error to restrict the argument of the defendant to the theory of law presented by the court in its instructions. (Lynch v. The State, 9 Ind. 541; White v. The People, 90 Ill. 118; Commonwealth v. Porter, 10 Met. [Mass.] 263.) The importance of the right denied is well demonstrated in this case. Over the objection of the defendant the court directed the jury that if they fouud that the defendant published the alleged libel, then unless they found that the matter charged as libelous was true and was published with good motives and for justifiable ends, they must find the defendant guilty. The objection is in making the publication of the alleged libel with good motives essential to the justification. In giving this instruction the court but followed the language of the statute. (Crimes Act, §272.)
This section, however, is broader than the provisions of the constitution, and so far as it differs it cannot be upheld. In §11 of the bill of rights it is provided that—
“ In all civil or criminal cases for libel the truth may be given in evidence to the jury, and if it shall appear that the alleged libelous matter was published for justifiable ends, the accused party shall be acquitted.”
The legislature had no power to place upon the defendant, in making out a justification, the additional burden of showing that the publication was made with good motives. When he has given the truth in evidence, and has made it appear that the alleged libelous matter was published for justifiable-ends, he is entitled to an acquittal. So far, then, as the statute differs from the constitution, it must be held invalid, and the instruction of the court making good motives in the publication a prerequisite to a justification must be held erroneous. The defendant not only asked the court to give the law of justification in accordance with the provisions of the constitution, but his counsel proposed to argue to the jury that good motives in making the publication were not essential to an acquittal, and this the court refused.
We have examined the other objections, and find none of them to be well taken. We regard the information to be sufficient. The request of the defendant for an instruction that a charge of theft and robbery would be sustained by proof that the prosecuting witness and another had swindled the defendant out of the sums of money named, by deceit and fraud, was properly refused. It is not necessary to the acquittal of the defendant that the truth of the charge should be proved in absolutely the same language as laid in the alleged libelous article, but, as the defendant claims, it will be sufficient if the charge as made be proved to be substantially true. But evidence that one had obtained money # ^ ^ from another by deceit and fraud is not substantial proof of a charge of larceny or robbery. There are no other exceptions which deserve attention. But for the errors referred to, the judgment of the district court will be reversed, and the cause remanded for a new trial.
All the Justices concurring.
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The opinion of the court was delivered by
Johnston, J.:
The only contention of the plaintiff in error is, that the twenty-five thousand plants purchased by Holmquist were not separated from the whole number delivered, in such a way as to transfer the title to him, and enable him to maintain an action for conversion. The hedge plants were tied up in bundles of two hundred and fifty plants each, which, so far as the record shows, were the same in quality and value.' Holmquist purchased and paid for the plants, and the vendor agreed to deliver them at Kingman’s place of business at Salina. He did deliver them there in accordance with his agreement, and at the same time and place he delivered fifty-seven thousand for Kingman, in part payment of an indebtedness which he owed to Kingman. The whole eighty-two thousand were delivered together to Kingman, and at that time he was informed that one hundred bundles, or twenty-five thousand, were for Holmquist, and that the remaining two hundred and twenty-eight bundles, containing fifty-seven thousand, were for himself. Kingman appropriated all of the plants to his own use, and hence this action.
We think the sale to Holmquist was complete, although the twenty-five thousand plants sold were not separated from the whole number delivered, and that the action for conversion can be maintained. It will be observed that the controversy is not with the vendor. He had received full payment, had tied the plants up in bundles, and had delivered them at the place agreed upon. By this action he intended to transfer the title to Holmquist, and he has ever since regarded and treated it as a complete sale. Nothing remained to be done by him to ascertain the quantity, quality, or price of the plants sold. It is argued that because the bundles intended for Holmquist were not set apart or designated by some mark, the title did not pass. But separation could not make more certain the quantity, quality or price of the plants purchased by Holmquist. They were a part of a specific and ascertained quantity. There were three hundred and twenty-eight bundles of plants, which were uniform in the number contained in each, as well as in the quality and value. It was therefore immaterial from what part of the whole the one hundred bundles of Holmquist were taken. No possible advantage could have been gained by either party if the privilege of selection had been conferred upon him, and it is idle to dispute about the identity of articles that are equal in kind and value. Each had a right to a certain number of the whole, and either had a right to take possession of the number that belonged to him; and indeed, the circumstances under which Kingman received the plants are such that he might properly be regarded as the bailee of Holmquist. He held for Holmquist a specified number of bundles which were a portion of a quantity that was ascertained and certain, and with which the seller had nothing further to do. While the English and some of the American courts hold that in all cases the goods sold must be separated and specifically identified before the title will pass, the weight of authority in this country is that where the property sold is a part of an ascertained mass of uniform quality and value, separation is not essential, and the title to the part sold will pass to the vendee, if such appears to be the intention of the parties. This principle has been recognized by this court in a recent decision, and the authorities sustaining that view were there approved. (Piazzek v. White, 23 Kas. 621.)
The supreme court of Connecticut, in an action involving the title to three hundred and eighty bags of meal which had been purchased from a larger number of similar bags, considered this question, and while holding that where the articles sold from a larger number differed in quality, quantity, or value, a separation was essential to transfer the title, stated that—
“Where the subject-matter of a sale is part of an ascertained mass of uniform quality and value, no selection is required ; and in this class of cases it is affirmed by authorities of the highest character that severance is not, as a matter of law, necessary in order to vest the legal title in the vendee to the part sold. The title may and will pass if such is the clear intention of the contracting parties, and if there is no other reason than want of separation to prevent the transfer of the title.” (Chapman v. Shepard, 39 Conn. 413.)
See also Kimberly v. Patchin, 19 N. Y. 330; Pleasants v. Pendleton, 6 Rand. 473; Hurff v. Hires, 40 N. J. L. 581; Carpenter v. Graham, 42 Mich. 191; Waldron v. Chase, 37 Me. 414; Horr v. Barker, 8 Cal. 603; Same case, 11 id. 393; Phillips v. Ocmulgee Mills, 55 Ga. 633; Young v. Miles, 20 Wis. 646; Clark v. Griffith, 24 N. Y. 595; Lobdell v. Stowell, 51 id. 70; Groat v. Gile, 51 id. 431; Gardner v. Dutch, 9 Mass. 426.
A further citation of cases, or an extended examination of the conflicting decisions upon this question, is unnecessary here. A very elaborate and careful review of the authorities is made by Mr. Benjamin in his treatise on Sales, in which he reaches the conclusion that when the property sold is part of a mass made up of units of unequal quality, such as cattle out of a herd, their selection being material, the decisions all hold that the title will not pass until a selection has been made; but that the weight of recent American authority sustains the proposition that when property is sold to be taken out of a specific mass of uniform quality, the title will pass at once upon the making of the contract, if that appears to be the intention of the parties. (1 Benj. Sales, §§469-487.) The present case falls within this authority, which we deem to be controlling, and hence there must be an affirmance of the judgment of the distinct court.
All the Justices concurring.
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Opinion by
Clogston, C.:
The respondent insists that because the petitioners have once waived preliminary examinations for the offense of murder in the first degree, they are not now entitled to have the charges against them investigated, orbe let to bail. We shall first consider this question: A defendant -who is charged with murder in the first degree, and who has waived a preliminary examination for such offense, not only waives his right to be let to bail, but also to have the facts and circumstances of the alleged offense examined into on a writ of habeas corpus. But to this rule there are exceptions; as where at the time of such waiver of examination there are good grounds to believe that if an examination is gone into, personal violence will be used against defendant, and under such apprehension an examination is waived, he will not be estopped by reason of such waiver. To be es-topped, he must have waived his right to an examination from a free choice, after a fair opportunity to have an impartial examination. No mere imaginary danger will be enough to justify it; but a well-grounded belief, founded upon such information or observation as would be calculated to excite fear of bodily harm in the mind of a reasonable person under like circumstances, will justify it.
After a careful examination of the vast amount of testi mony in this case, we are of the opinion that the defendants waived their preliminary examination from fear of personal violence. It must be remembered that at the time of their arrest great excitement prevailed in Wichita county, and great animosity and bad feeling existed between Leoti and Coronado,- two rival towns situated within three miles of each other. This feud and animosity had grown up over a county-seat contest and quarrel; and after defendants were arrested they were taken from Coronado to Leoti and confined in the second story of a frame building. Large bodies of armed men wer’e in the town, and many threats of violence were made by the friends of the men who had been killed. Under the fear of further bloodshed, the adjutant general went from Topeka to that county to prevent, if possible, additional trouble, and he, together with other citizens, counseled and advised the defendants to waive their examination. Under these circumstances we can readily see how they might waive their examination without losing their right afterward to have the charges against them investigated; and in doing so they are not es-topped from this inquiry.
The second question to be considered is, are the defendants entitled to be discharged or let to bail ? The constitution, as well as the criminal code of this state, provides that persons charged with capital offenses shall not be admitted to bail where the proof is evident, or the presumption great. The evidence in this case is voluminous, and conflicting on many questions. On one question, however, there is no dispute: three persons were killed, under such circumstances as to constitute murder, if unexplained, and some others were wounded. As far as defendants are concerned, no explanation has been given; but in view of the fact that the question of the guilt or innocence of the petitioners must be submitted to a jury for their determination, we express no opinion in the case further than to say that on the evidence submitted t-o us the petitioners must be held for trial; and under all the circumstances, as we now understand them, (necessarily submitted iu an unsatisfactory way,) they are entitled to be let to bail. It is therefore recommended that the petitioners be remanded into the custody of the officers having them in charge, that they be let to bail, and be required to give bonds each in the sum of three thousand dollars for their appearance at the next term of the district court of Wichita county.
By the Court: It is so ordered.
All the Justices concurring.
|
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