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The opinion of the court was delivered by
Porter, J.:
On June 3, 1909, plaintiff brought her action against the defendant to recover for personal injuries which she claimed she sustained on the 9th day of "October, 1905, while a passenger of the defendant. The answer set up three defenses: first, the statute of limitations; second, that the defendant did not own the road over which the plaintiff was riding, nor did it own or operate the car, nor did it employ the men who operated the car upon which the plaintiff was a. passenger at the. time of the alleged injury; that in fact the car belonged to the Kansas City-Leavenworth Railroad Company, an interurban line extending from Kansas City to Leavenworth; that the motorman wa3 in the employ of that company; that the Kansas City Elevated Railway Company owned the road, employed the conductor and reimbursed the Leavenworth line for the time the motorman spent within the city limits; third, that the car had not stopped for passengers to get off or for any purpose up to the time the plaintiff stepped from the car, that it had not yet reached its stopping place, and that plaintiff’s injuries were occasioned by her stepping from the car while it was in motion. There was a trial to a jury and a verdict and judgment in favor of the plaintiff for $810, and from this judgment the defendant appeals.
The court sustained a demurrer to the first count of the answer. It is claimed that this was error and that by the ruling the court deprived the defendant of the benefit of the statute of limitations. The cause of action accrued on the 9th day of October, 1905. It appéars from the answer that the plaintiff brought suit in the district court of Wyandotte county on the 8th day of March, 1907. The suit was thereafter removed to the federal court at the instance of the defendant and continued pending there until the 5th day of June, 1908, when it was dismissed by the plaintiff by leave of the court without prejudice, and on the 3d day of June, 1909, within one year from the dismissal, this action was brought in the state court.
The question to be determined is whether under these •circumstances section 22 of the code of civil procedure applies. That section permits a plaintiff who has failed in an action otherwise than upon the merits to commence a new action within one year after such failure, notwithstanding the time limited for the action shall “have expired. It is the contention of the defendant that this section of the code has no application to an action which has been pending or been dismissed in any court except a court of this state. True, the provisions of the code relate generally to steps taken and to be taken in the courts of this state, and the statute does not attempt to govern the procedure of the courts of other states nor that of the federal courts; but it by mo meams follows, as the defendant argues, that in order to toll the statute the action must be commenced and dismissed in one of the courts of this state. It was the evident purpose of the statute to extend the time within which an action might be brought where for any reason the plaintiff had failed in a previous action otherwise than upon merits. It is true there is a conflict of authority on the question. (See authorities cited, in 25 Cyc. 1315.)
The leading cases in support of the defendant’s contention are Cox v. The East Tennessee, Virginia & Georgia Railroad, 68 Ga. 446, cited and relied upon by the defendants, and Railway Co. v. Fulton, Adm’r, 59 Ohio St. 575, 53 N. E. 265, 44 L. R. A. 520. The supreme court of Georgia held that the jurisdiction of the federal court upon removal is exclusive and continuous, and that although the cause so removed is dismissed without any trial of the merits no suit can thereafter be brought and maintained upon the same cause of action in the state courts. Commenting upon the reasoning of these cases the court in Gassman v. Jarvis, 100 Fed. 146, used this language:
“The decision of the supreme court of Ohio rests-upon the authority of the Georgia case, and that case, as we have seen, finds no support in the case cited and relied upon by it. The reasoning of these cases is not convincing or satisfactory. The confusion, as it seems-to me, grows out of the failure to discriminate between a suit and the plaintiff’s right of action. The plaintiff’s suit is a ¡statement of the facts constituting his right of action. If that suit is dismissed, no court has jurisdiction over it, except the court which dismissed it. That, court alone has jurisdiction of the particular ¡suit, and it alone possesses the power to reinstate it upon its docket, and to try. or otherwise dispose of it. But, if a new suit is brought on the -same right of action, it is not the same suit as the former one. A person having a right of action may bring more than one suit upon it, and he can only be prevented from prosecuting it to judgment-either by a plea in bar or a plea in abatement interposed by the defendant. No-rule of law permits the mere dismissal of a case untried and undetermined to be interposed either in bar or in abatement of a pending suit.” (p. 148.)
The plaintiff chose her forum and brought her first suit in the state court. At the instance of the defendant the suit was removed to the federal court and there dismissed by the plaintiff without prejudice. If the authorities relied upon by the defendant are sound she could not thereafter begin a suit in the state court upon the same cause of action even though the two-year period of limitations had not expired, which is in direct conflict with what was decided in Swift v. Hoblawetz, 10 Kan. App. 48, 61 Pac. 969, where the effect of the removal of a cause to the federal court was passed upon and it was held:
“The removal of a case from the state to the federal court does not so invest the federal court with jurisdiction of the subject matter as to preclude the plaintiff from again suing upon the same cause of action in the state court.” (Syl. ¶ 2.) '
(A petition for an order to certify the cause to this court was denied August 14, 1900. [10 Kan. App. 48.])
The same question was under consideration in Rodman v. Railway Co., 65 Kan. 645, 70 Pac. 642, where the authority of the Georgia case relied upon here by the defendant was denied. In the opinion it was said:
“Upon the first question raised the authorities are divided. Decisions from courts of high standing and undoubted authority are not wanting in support of this contention of defendant in error, notably, the decision of the supreme court of Ohio in Railway Co. v. Fulton, Adm’r, 59 Ohio St. 575, 53 N. E. 265, 44 L. R. A. 520, and that of the supreme court of Georgia in Cox v. The East Tennessee, Virginia & Georgia Railroad, 68 Ga. 446. We think, however, both the weight of authority and the better reasoning are against the conclusion reached in these decisions.” (p. 648.)
In the opinion in the Rodman case, supra, the authority of Swift v. Hoblawetz, supra, was in general terms denied, but it is apparent from an examination of the two cases that the court intended to overrule the decision of the court of appeals only upon one point, which is not involved in the question under consideration here, and upon which both of the cases are in harmony.
To the same effect is Hooper v. Railroad, 106 Tenn. 28, 60 S. W. 607, 53 L. R. A. 931, expressly disapproving the decision in Railway Co. v. Fulton, Adm’r, supra.
Following these cases we hold, therefore, that the removal of a case from the state to the federal court does not so invest the federal court with jurisdiction of the subject matter as to preclude the plaintiff from again suing upon the same cause of action in the state court, and that the provisions of section 22 of the code apply to an action which has been commenced in a state court, been removed to a federal court, and has there failed otherwise than upon the merits.
One of the principal contentions. is that the demurrer to the plaintiff’s evidence should have been sustained on the ground of a failure of proof showing that the Metropolitan Street Railway Company' was operating the car upon which plaintiff was a passenger at the time she was injured. As before stated, the car was owned by the Kansas City-Leavenworth company, which operated a suburban line from Leavenworth to Kansas City, Kan. From the western limits of Kansas City, Kan., the Leavenworth cars were run over one of the lines of the Kansas City Elevated Railway to a connection in Kansas City, Mo., with the tracks of the Metropolitan company. For the purpose of showing that the car was in fact operated by the Metropolitan company the plaintiff introduced in evidence the contract between the Leavenworth company, described as the party of the first part, and the Metropolitan, Central Electric and Kansas City Elevated companies, described as parties of the second part. For convenience the names of the companies will be thus abbreviated. It may be observed here that one claim of error is that the court submitted to the jury the construction of the terms of this contract and that it should have been construed by the court, and the jury properly instructed as to its effect.
There is a sufficient reason why there could have been no reversible error in submitting the construction of the contract to the jury. We have carefully examined the provisions of the contract and, in our opinión, giving to its language the usual and ordinary meaning, but one construction as to the effect of its terms can be reached, which is, that the Metropolitan company was the controlling factor in the operation of all cars run over the line of railway from the city limits of Kansas City, Kan., into and through that city and Kansas City, Mo. The jury having given to the writing the correct interpretation there could have been no error in submitting it to them. (Cosper v. Nesbit, 45 Kan. 457, 25 Pac. 866.) The contract is long and space will permit reference to but a few of its provisions which lead to the foregoing conclusion. The Metropolitan company and the two other companies comprising the parties of the second part expressly agree to take and operate all cars which may be furnished to them at the point where the Leavenworth line intersects their lines and to assume and pay all expenses of operating such cars over, through or upon any of the tracks belonging to the Metropolitan company or the other two parties of the second part. In case the Metropolitan company should be required to pay any damages on account of the negligence of the Leavenworth company the latter agrees to reimburse the Metropolitan company for all sums so paid. In the event the Leavenworth company shall at any time be granted a franchise to operate cars upon any public streets of Kansas City it will at the election of the Metropolitan company immediately assign and transfer such rights to the Metropolitan company; and the lat ter agrees that in the event the Metropolitan or either the Central Electric or the Elevated company shall at any time thereafter be granted a franchise to operate a suburban line of railway between the city of Leavenworth and either of the two Kansas Citys, the Metropolitan shall .assign such franchise at once to the Leavenworth company. The Metropolitan company is to be paid for mail, express or freight carried on the cars of the Leavenworth company over the tracks of the parties of the second part such proportion of all sums which the Leavenworth company receives for transporting the same as the distance which the same is carried over the tracks of the Metropolitan bears to the whole distance. No provision seems to be made for paying any proportion of these receipts to the Elevated or to the Central Electric company. The contract is signed by Bernard Corrigan as president of the Metropolitan company, and as president of the Central Electric company and as president of the Kansas City Elevated company. Other evidence was oifered showing that passes issued by the Metropolitan Street Railway Company were honored for transportation over the Grandview branch of the Kansas City Elevated Railway.
After the demurrer had been overruled the defendant oifered evidence showing that the Metropolitan company some years before had acquired a controlling interest in the capital stock of the Kansas City Elevated Railway Company, but that in the operation of the roads books of accounts were kept showing the receipts and operating expenses of the Elevated road separately from those of the Metropolitan. It was also shown that the Metropolitan made good any deficit in the receipts of the Elevated road. A witness who- had served for several years as assistant general manager of the Elevated road identified a transfer check as being of the form in use upon that road, which read as follows: “Metropolitan Street Railway Company, Grandview Sheffield Division, Transfer check for continuous passage. Bernard Corrigan, Pres.” Sheffield is a station on the Metropolitan railway in the eastern suburbs of Kansas City, Mo., and Grandview is a station on the line of the Elevated road in Kansas City, Kan. The demurrer was rightly overruled. If there remained any uncertainty upon the issue of fact the testimonybr,ought upon the record by the defendant removed it.'
The answer set up the following as a separate de-. fense: “For a second and further answer and defense, this defendant alleges that the plaintiff stepped from the car upon which she was riding whilst said car was. still in motion and before said car had reached its usual and ordinary stopping place for passengers to get off, and thereby caused the injury which she received, and this is the transaction complained of by plaintiff in her petition.” It is now insisted that this is not a plea, of contributory negligence because neither the word “negligence” nor the expression “contributory negligence” is used, and in this connection there is a claim of error in an instruction in respect to contributory negligence. If the defendant had pleaded in general terms that the accident was caused by contributory negligence of the plaintiff and a motion had been filed to require it to state definitely in what respect it claimed that plaintiff was negligent the answer would have satisfied the motion. The facts alleged could avail the defendant as a separate defense only because if true they barred plaintiff’s right to recover by reason of the law of contributory negligence. It is clear that this part of the answer amounted to a plea of contributory negligence.
We are unable to see how the defendant could have been prejudiced by instruction No. 6. It is said that plaintiff’s cause of action was not based upon the proposition that she was induced or tempted to step from a moving car. She claims, it is true, that the car came to a full stop, which, under the other circumstances. testified to by her, was an invitation for her to alight. She claims further that while in the act of stepping from the car it suddenly started and caused her to fall. The defendant’s testimony tended strongly to show that ■the car was in motion when she started to get off, and the court gave the defendant the benefit of the instruction and charged that if the jury found from the evidence that she did step from the car while it was in motion and that such act was the proximate cause of her injury she could not recover. In view of the special defense of contributory negligence and proof in support thereof the instruction can not be regarded as prejudicial error.
It is claimed that the verdict is contrary to the evidence. If we were called upon to weigh the testimony we would perhaps incline to say that the verdict is ■against the weight of it. There was a sharp conflict as to whether the car had stopped at the time the plaintiff attempted to alight, and whether it was the usual place for passengers to get off the car. Several disinterested witnesses testified that the car had slowed down at a switch, that the conductor had stepped off '■the rear end and had run ahead to throw the switch, -when the plaintiff came to the rear of the car and stepped off while it was in motion. The plaintiff’s testimony was to the contrary and she was supported to some extent by other testimony to the effect that the place where she claimed to have been injured was ■a regular stopping place for passengers. The jury determined the issue in her favor and the trial court has approved the verdict. We can not disturb the finding ■and the judgment is affirmed.
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Per Curiam:
It is perfectly plain from the record that, had the situation been apprehended by the court and the parties as it is now understood, the plea would not have been entered, or, if entered, would have been suffered to be withdrawn as a matter of course. Hence the case should not be regarded as one in which a parole has been granted and revoked, but as one in which an impossible parole was attempted. Under these circumstances the defendant should be allowed to withdraw his plea, and the district court will take action accordingly.
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The opinion of the court was delivered by
Burch, J.:
At a former hearing of this appeal the judgment of the district court was affirmed on the ground that prejudicial error was not made to appear. (Jones v. Insurance Co., 83 Kan. 682.) A rehearing was allowed, and it is now urged that the method by which the former conclusion was reached amounted to a trial of the cause de novo in this court, and that the court is vested with no such power.
In the case of In re Burnette, 73 Kan. 609, it was expressly held that the court does not possess the power which it is claimed was exercised, and no such power has been exercised. The question whether an error occurring in a judicial proceeding has materially and prejudicially affected the rights of a complaining party is one of law and its determination does not in any sense involve a retrial of the issues involved in the proceeding.
It is further urged that the disqualification of a district judge to sit in the trial of a case because of his interest in the result is equivalent to want of jurisdiction and deprives him of all power to act except to change the venue. Some authorities are cited to this effect and the language of some opinions of this court is susceptible of such an interpretation. Thus in the case of Tootle v. Berkley, 60 Kan. 446, referring to an order of revivor made by a disqualified judge, it was said:
“No litigant should be compelled to submit the de termination of his rights to a judge who has a direct and pecuniary interest in the controversy, and as the order of revivor was made without authority, it is without force or validity.” (p. 450.)
As pointed out in the former opinion (Jones v. Insurance Co., 83 Kan. 682), an order wrongfully denying a change of venue is not one from which an appeal can be taken at once. The trial must go on and the order can be reviewed only after final judgment has been rendered. If no appeal be taken the judgment is not void, and if judgment be rendered in favor of the party against whom the error was committed the judgment is not void, as it would be if the judge lost all power to proceed further the moment the erroneous ruling was made.
The members of the court who are qualified to participate in the decision being divided in their views upon the principal question, no further opinon will be expressed.
The judgment of the district court is reaffirmed, and the judgments in the five other cases submitted with this one are reaffirmed.
Benson, J., not sitting.
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The opinion of the court was delivered by
Johnston, C. J.:
This is an action to quiet the title to a tract of land and was begun by George J. Downer against John M. Schmidt, Florence D. Whitney, and others. Florence D. Whitney filed an answer and cross-petition alleging that she held the patent title to the land and asking that her title be established and quieted as against the plaintiff and her codefendants. The interest of Downer was acquired by W. H. Tuller and Mary I. Leaverton and they were substituted for him, and in answer to the cross-petition of Florence D. Whitney they alleged, inter alia, that they were the owners of the land by virtue of a tax deed executed and recorded on August 16, 1894, to B. C. Nields and which had been of record inore than five years before the commencement of this action. This deed was held to be valid on its face, and that being the determining question in the case judgment was given against Florence D. Whitney, who appeals.
The only question here is the validity of the tax deed. Appellant insists that it is void on its face because of the recital that the land was subject to taxation for the year 1890 and that it was sold by the county treasurer in September of the same year for the taxes then due. The original tax deed was not introduced in evidence but a copy of the instrument, as it was recorded, was offered and it showed the defect mentioned. A recital of a sale for taxes not yet due is a serious defect and one which must be held fatal if it is not cured by other recitals in the deed. It was held in Haynes v. Heller, 12 Kan. 381, that “a tax deed, like any other instrument, is to be construed as a whole; and if any uncertainty in one part is made certain by another, the deed as a whole is sufficient.” (p. 390; Dodge v. Emmons, 34 Kan. 732, 9 Pac. 951; Baughman v. Harvey, 76 Kan. 767, 93 Pac. 146.) Reading all parts of the deed together, as we must, and construing it as we would an ordinary conveyance between individuals, it is reasonably clear that the sale made in September, 1890, was not for the taxes of 1890 but for the taxes of 1889. The taxes for 1890 were not delinquent or even due in September, 1890. The recital as to the sale is that it was made “for the payment of the taxes, interest and costs then due and remaining unpaid.” The taxes of 1889 were then delinquent but those of 1890 were not. This, of itself, shows that it was not sold for the taxes of 1890. In the recital as to the bid made by the purchaser it is stated that it was for “the whole amount of taxes, interest and costs then due and remaining unpaid on said property.” In another clause of the deed was a recital that the purchaser paid $18.41 as subsequent taxes for the year 1890, again showing that the land was not sold for the taxes of 1890 but for a preceding year. Another evidence of this is that the taxes for the year for which the sale was made amounted to $20.64 while the amount of subsequent taxes for 1890 was $18.41. It is manifest from these recitals that the land was sold for the taxes of a year preceding 1890 and the granting clause of the deed satisfactorily shows that the sale was for the taxes of 1889. It is stated that “in consideration of the sum of sixty-seven dollars and fifteen cents, taxes, costs and interest due on said land for the years 1889, 1890, 1891, 1892 to the treasurer paid as aforesaid,” etc., the transfer was made. It is obvious that the year 1890, in the first recital of the deed, was a clerical error, and the other recitals are such as to enable the court to say that the error was clerical and that the year 1889 was intended.
In Gow v. Blackman, 78 Kan. 489, 96 Pac. 799, there was a tax deed which failed to show the year the taxes accrued for which the sale was made. The court regarded the defect as an important one but held that the omission might be supplied and the ambiguity cured by reasonable inferences drawn from other recitals in the deed. The consideration clause stated that the amount for which the grant was made was for taxes, costs and interest due on the land for certain years from 1894 to 1898, inclusive, substantially as was done in this case. The sale was made in 1895 and, in view of the fact that the deed had been of record more than five years, and of the presumptions to be indulged as to deeds of that age, it was inferred that the land was sold for the taxes of 1894 and that the deed was valid. The ruling in that case is an authority for holding the tax deed in this one to be valid on its face.
The original tax deed, which was not available when the case was tried, has since been found and appellees ask to have it considered in order to prove that the sale was actually made in 1889 and that the date, 1890, in the recorded copy, is an error, but, having determined that the deed is valid on the record presented, it is unnecessary to consider the question whether the original instrument may be received and considered on appeal.
The judgment of the district court is. affirmed.
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Per Curiam:
The court properly charged the jury to take into consideration all the facts and circumstances proven and it was not necessary to direct their attention particularly to the circumstances surrounding one transaction. Besides, the jury were only called in an advisory capacity to answer certain questions of fact and the court approved and adopted their findings, so that the question of erroneous instructions becomes of no importance unless it appear that the court proceeded upon an erroneous theory of the law; and this is not claimed.
Agency may be shown by circumstantial evidence, and there was some evidence which tended to show that Sidney Linscott was the agent of George S. Linscott in taking up the chattel-mortgage note. At the request of the plaintiff the court charged that where a conveyance of real estate is silent respecting incumbrances and it is sought to show by parol evidence that the grantee' assumed to pay a mortgage, the proof must be clear and convincing. Whether or not this is the correct rule it became the law of the case. The appellant insists that the evidence to prove such an agreement is not clear and convincing. It is sufficient to say that there was evidence which tended to prove the fact; it was clear in the sense that one of the parties to the contract so testified in positive terms; there were some corroborating circumstances shown, and the proof convinced the jury as well as the court. It therefore fully answered the test.
No error appearing in the record the judgment is affirmed.
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The opinion of the court was delivered by
Johnston, J.:
The facts of this case can be ascertained only from the findings of the referee, and the findings appear to be fairly within the issues of the case. Involved in this case is the question of liability of the defendants for the unauthorized acts of their agent. John Eldridge was the agent of the defendants, and the extent of his authority was to purchase hides, wool, furs, and tallow, and to pay for the same with the funds furnished by the defendants. The power conferred did not authorize him to loan or advance the moneys of the defendants to their customers and others, nor to gep tjie pr0perty and accounts that he received in satisfaction of the unauthorized advances which he had made, much less to guarantee the payment of such accounts.
His Power was special and limited, and one to be g^otly pursued, and the plaintiffs were bound at their peril to know the extent of his authority. Speaking generally, it may be said that the power given to an agent in such cases includes with it the authority to do whatever is usual and necessary to carry, into effect the principal power conferred, but bartering in the property and fixtures of a meat market, and in the unsettled accounts of its former proprietor, was not incidental to the power conferred on Eldridge, nor necessary for its execution. It was outside of the apparent scope of his agency, and the facts in the case fairly justify the finding that the plaintiffs Avere chargeable Avith notice that Eldridge acted in excess of his authority.
It is claimed, hoAvever, that the defendants have rendered themselves liable in this action by the ratification of the unauthorized acts of their agent. The claim of ratification rests mainly upon the folloAving facts: The unauthorized advances of the defendants’ money made to Withrow & Deo by Eldridge, and the book-keeper, Plosick, amounted to about $1,300, and the property and accounts sold and guaranteed to the plaintiffs Avere received from Withrow & Deo in part payment of these advances. Bills of sale were executed purporting to convey the property and accounts to the defendants. Eldridge sold and transferred the property and accounts in the name of the defendants, and in payment the defendants were credited Avith $45, which they Avere owing to the plaintiffs, and the residue of the payment Avas made by means of the plaintiffs’ check payable to the defendants’ order. This check Avas indorsed by the book-keeper in the name of the defendants, and the amount of the check was placed to the defendants’ credit in the bank.
It is argued that the accepting of the proceeds of the sale and guaranty, by defendants, Avas a ratification of the contract of sale made by their agent, and that they are liable to the plaintiffs for any breach of that contract, Avhether authorized by them or not. The general rule contended for, that by the receipt and retention of the benefits of the unauthorized act of an agent the principal thereby ratifies such act, may be conceded; but there can be no ratification without full knowledge of all the material facts. The defendants were wholly uninformed in regard to the transaction. They remained in ignorance of the fact that the purchase and sale had been made in their names or in their behalf until after this action was begun. They never knew until that time that the cheek and the indorsement had been made or paid to them, or on their account. They had been informed of the unauthorized advances of their agent to Withrow & Deo, but they regarded and held the agents personally liable for such advances. When they were informed of the failure of Withrow & Deo, and that they had transferred their property and accounts to defendants’ agents, they were told that Eldridge and Hosick had converted the property into cash, and had themselves made up and paid $300, which was the remaining portion of the indebtedness arising from the unauthorized advances. And until this suit was brought, the defendants understood that Eldridge and Hosick had acted for themselves and on their own account, and that the money received for the property and accounts purchased by plaintiffs was paid to and received by the defendants in satisfaction of the personal liability existing against the agents. It will thus be seen that the fruits of the transaction were received and retained by the defendants without any knowledge of what the transaction was. They were not received as the fruits of a contract made for them or in their behalf, but upon an independent liability existing between themselves and their agents. If the defendants had known of the material facts in the case, and that Eldridge and Hosick had acted for them and in their names, and then, with this knowledge, had retained and enjoyed the benefits of the transaction, they would be bound as fully as if they had given their agents authority in the first instance. The money which was placed to their credit was innocently held by them. The defendants could not disavow the acts of Eldridge, nor repudiate the transaction because they did not know that it had been made on their account until after the commencement of the present action.
The receipt and retention of the fruits of the contract, x > J under these circumstances, do not amount to a ratification of such contract, nor render the defendants liable in this action. (Baldwin v. Burrows, 47 N. Y. 199; The Penn. Co. v. Dandridge, 8 Gill & Johns. 323; Roberts v. Rumley, 58 Iowa, 301; same case, 12 N. W. Rep. 323; Reynolds v. Ferree, 86 Ill. 576; Smith v. Tracy, 36 N. Y. 79.)
We find no error in the rulings of the district court, and its judgment will therefore be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Horton, C. J.:
This action was originally brought by Nelson T. Stephens to vacate an order made by the board of county commissioners of Leavenworth county, laying out a road through certain land owned by him in that county, and also to prevent the road from being opened. The petition alleged, among other things, “that the land is well fenced,” and that “said Nelson T. Stephens is the owner in fee simple and in possession thereof, and has, by himself, his tenants and agents, been in the possession and actual occupancy of the same during all of the time of the happening of the grievances complained of.” The petition also alleged that no notice was given him or his agents, of the time and place of meeting of the viewers as prescribed by § 4, chapter 89, Comp. Laws of 1885.
After the commencement of this action Nelson T. Stephens died, and on January 26, 1885, such proceedings were had in the district court that the cause was revived in the names of the heirs of said Stephens. Upon the trial the plaintiffs offered to introduce evidence tending to support the allegations of the petition. The defendants objected upon the ground that the petition did not state facts sufficient to constitute a-cause of action. This objection was sustained by the court, and judgment rendered for the defendants. Plaintiffs excepted, and bring the case here.
In support of a reversal of the judgment of the district court, The State v. Farry, 23 Kas. 731, and Comm'rs of Chase Co. v. Cartter, 30 id. 581, are cited. These cases decided that before a public road can be laid out, the land-owner or his agent, if residing in the county, must be notified of the time and place of the meeting of the road viewers, unless notice thereof is waived.
Passing over the question whether it appears from the allegations of the petition that Nelson T. Stephens, or any of his agents resided in the county at the time the road proceedings were instituted and carried on, we think it decisive of this case that the petition shows that Stephens waived the notice prescribed in §4 of said chapter 89. (Ogden v. Stokes, 25 Kas. 517; Comm’rs of Woodson Co. v. Heed, 33 id. 34.) The petition alleges that Stephens “asked the said board of county commissioners to reconsider their said act in ordering the laying out of and opening said road, which they refused to do, and he asked them to pay him the damages which would be caused by said act, but so far they have utterly failed, and neglected to do so, or give the same consideration.” The allegations of a pleading are to be taken most strongly against the pleader, and under this construction, the petition clearly shows that Stephens made a general appearance before the board of county commissioners for the purpose stated in the petition, and that such appearance was in no way special or limited. By his action, the defect in the proceedings on account of the want of notice upon him was fully cured.
Therefore the judgment of the district court must be affirmed.
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 Shawnee county on August 21, 1882, by John A. Beal and William P. Douthitt against Samuel C. Sarver, Isabel A. Sarver, John D. Knox, and David Eckart, to recover the possession of certain real estate. The case was tried on August 5, 1884, by the court, without a jury, and the court, after making separate and special findings of fact and conclusions of law, rendered judgment in favor of the plaintiffs and against the defendants for the recovery of the property. On August 4, 1885,- the death of John A. Beal was suggested, and the action was revived in the names of C. N. Beal, J. A. Beal, L. G. Beal, M. S. Beal, and Mary J. Beal, heirs and survivors in interest of said John A. Beal; and afterward, but on the same day, the case was brought to the supreme court for review by Samuel C. Sarver, Isabel A. Sarver, and David Eckart, as plaintiffs in error, and all the other parties, except John D. Knox, were made defendants in error.
It is admitted by the parties that William M. Eice, a Pottawatomie Indian, once owned the land in controversy; and all the parties, except Eckart, claim under him. Eckart claims only a portion of the land, and his claim is founded upon the actual possession of the land, with a claim of title thereto under a tax deed, executed September 22, 1880, and recorded on the same day. This tax deed, however, is void upon its face. The other parties claim title as follows: In 1864, Eice died, without ever having been married, and leaving no relatives or heirs, except a stepfather, one Cleghorn, who was at the time of his (Eice’s) mother’s death her second husband, and an uncle, Na-mah-sh-kuk, a brother to his mother, and one cousin, Mary Slevin, his mother’s other brother’s daughter. All his other relatives had previously died; his father having died at a time previous to 1850 and previous to his mother’s death, and his mother having died previous to 1858. Samuel C. Sarver and Isabel A. Sarver are husband and wife, and claim under the same title. They claim only a portion of the land in controversy, and not that portion occupied by Eckart; nor does Eckart claim any portion of the land which they, the Sarvers, occupy. They are in the actual possession of the land claimed by them, and they claim title thereto under an administrator’s deed executed March 1,1870, by Julius Her man, the administrator of the estate of said William M. Rice, deceased, to Martha J. Colcher, and by subsequent conveyances and other proceedings transferring Mrs. Colcher’s title to them. The Beals and Douthitt claim title to the whole of the land in controversy, under a quitclaim deed executed September 28, 1875, by Na-mah-sh-kuk and Mary Slevin to John A. Beal and William P. Douthitt.
The first question to be considered in this case is, whether under the statutes Cleghorn on the one side, or Na-mah-sh-kuk and Mary Slevin on the other side, inherited the property from the said William M. Rice. Sections 18, 19, 20 aud 29 of the act of the legislature approved February 8, 1859, relating to descents and distributions, (Comp. Laws of 1862, ch. 80, §§18, 19, 20, 29,) which act was in force at the date of the death of William M. Rice, read as follows:
“Sec. 18. If the intestate leaves no issue, the whole of his estate shall go to his wife, and if he leaves no wife nor issue, the whole shall go to his father.
“Sec. 19. If his father be previously dead, the portion which would have falleu to his share by the above rules shall be disposed of in the same manner as though he had outlived the intestate and died in the possession and ownership of the portion thus falling to his share, and so on through each ascending ancestor and his issue, unless heirs are sooner found.
“Sec. 20. If heirs are not found in the male line, the portion thus uninherited shall go to the mother of the intestate and to her heirs, following the same rules as above prescribed.”
“Sec. 29. All the provisions hereinbefore made in relation to the widow of a deceased husband shall be applicable to the husband of a deceased wife. Each is entitled to the same rights or portion in the estate of the other, and like interests shall in the same manner descend to their respective heirs. The estate of dower and by courtesy are hereby abolished.”
It appears that at the date of the death of William M. Rice no heirs of his in the father’s line were living; hence, it is necessary to look to the mother’s line; and the question then arises, who would be the mother’s heirs, provided she “had outlived the intestate and had died in the possession and ownership of the” property in controversy? — for under the statutes above quoted it is admitted that the property would thus descend. Eckart and the Sarvers claim that in such a case Cleghorn, the mother’s surviving husband, would be the mother’s heir; while the Beals and Douthitt claim that Namah-sh-kuk and Mary Slevin, the mother’s brother and niece, would be her heirs. It would seem to us that under the statutes and the circumstances of this case, Cleghorn would undoubtedly be the mother’s heir, and that really there could not be much room for doubt upon the subject. Of course the property could not pass from the son until after his death, and then only to some living person or persons, and to him or them directly and immediately. It could not pass to any deceased person or through any deceased person. It could not pass to or through the mother, for she was dead. The mother never had, and could not have, any title to the property in controversy, either before or after her death, or before or after her son’s death, for she died before the son’s death; and she is mentioned only for the purpose of indicating or of fixing a rule for determining to whom the property of the son directly went when he died; and the statutes in force at the time of the son’s death must govern; or, in other words, if she had lived until after her son’s death, and had then died, the statutes then in force must govern. Statutes that may have been in force at some time during her lifetime, but not in force when the son died, cannot have any application to this case. The statutes above quoted are the ones which were in force when the son died, and are therefore the ones which must govern in this case. Under § 29 of said statutes, all the provisions of law having relation to the widow of a deceased husband have application to the husband of a deceased wife; and as §18 provides that when a husband dies leaving no issue, the whole of his estate shall go to his wife, it necessarily follows that when a wife dies leaving no issue, the whole of her estate must go to her husband; and under §19 the heirs of Cleghorn’s wife, Rice’s mother, would inherit the property of Rice in the same manner as though she had outlived her son and had then died in the possession and ownership of the property. Now unquestionably if Cleghorn’s wife, Rice’s mother, had outlived Rice, and been in the possession and ownership of the property after Rice’s death, and had then died, Cleghorn would have taken all the property.
This, we think, is just what the statutes in effect provide. We also think that the foregoing views are sustained and supported, if they do not necessarily follow from the decisions made in the cases of McKinney v. Stewart, 5 Kas. 384, 391, 392, and Fletcher v. Wormington, 24 id. 259, 263, 264. will therefore follow that as between Eckart on the one side, and the Beals and Douthitt on 0^61,^ ^pg ja(jgment 0f the court below must be reversed, and judgment rendered in favor of Eckart; for as between these parties the Beals and Douthitt have no right, title or interest in or to the property claimed by Eckart, as they have no possession thereof, and only a quitclaim deed thereto from Na-mah-sh-kuk and Mary Slevin, who themselves never had any interest in the property.
We shall now proceed to consider what the rights of the other parties are. As the Sarvers have the actual possession of the property which they claim, claiming title thereto and having color of title thereto, it would seem that the same result would follow as between them on the one side and the Beals and Douthitt on the other as follows with reference to Eckart’s claim; and it would, except for certain matters which the Beals and Douthitt interpose as an estoppel. The administrator’s deed under which the Sarvers claim was executed March 1, 1870, by the administrator of Rice’s estate, and was recorded March 2, 1870. This deed was executed to Martha J. Colcher for the consideration of $575.80, which sum she paid to the administrator. She took actual possession of the property. On November 17,1871, Mrs. Colcher mortgaged the property to Catharine W. Healea to secure a debt of $500, which mortgage was recorded on the same day. On June 13, 1872, Na-mah-sh-kuk and Mary Slevin commenced an action of ejectment against Mrs. Colcher to recover the land. Neither Mrs. Healea nor the Sarvers were made parties to that action, nor had they any notice thereof. On November 5, 1872, a new mortgage was executed by Mrs. Colcher to Mrs. Healea, including among other lands the lands contained in the old mortgage, and the old mortgage was released. This new mortgage was executed to secure the same debt for which the old mortgage was given, that debt still being due and unpaid. On September 7, 1874, Mrs. Healea commenced an action against Mrs. Colcher and husband to recover said mortgage debt and to foreclose the mortgage, and by consent of parties judgment was rendered on the same day in favor of the plaintiff and against the defendants for $745.10, and to foreclose the mortgage. Neither Na-mah-sh-kuk nor Mary Slevin was a party to that action. On September 3, 1875, judgment was rendered in the ejectment action in favor of Na-mah-sh-kuk and Mary Slevin and against Mrs. Colcher for the recovery of the land then in controversy; but neither Mrs. Healea nor the Sarvers had any knowledge of the pend-ency of that action. On September 28,1875, Na-mah-sh-kuk and Mary Slevin executed a quitclaim deed for all the land now in controversy to John A. Beal and 'William P. Douthitt, which deed was recorded on the same day. On April 22, 1876, in pursuance of the said foreclosure judgment in the case of Healea v. Colcher and husband, and inj pursuance of other proper and necessary proceedings, the sheriff executed a sheriff’s deed to Mrs. Healea for the mortgaged property now claimed by the Sarvers, which deed was recorded on the same day. On August 18, 1876, Mrs. HealeaYnd husband1 conveyed the said land by warranty deed to Samuel C. Sarver, the Sarvers having no actual knowledge of any adverse title to the land, and paying to Mrs. Healea therefor the sum of $573.80. The deed was recorded on September 25,1876. Immediately afterward the Sarvers took actualjpossession of the land under their deed from Mrs. Healea, and have remained in the possession thereof ever since. On August 21, 1882, more than five years after the Sarvers took actual possession of the property, this action was commenced. Under these facts, which have the paramount right to the property-in controversy — the Sarvers, or the Beals and Douthitt ? We shall now proceed to consider this question.
The Beals and Douthitt, as before stated, claim title under a quitclaim deed from Na-mah-sh-kuk and Mary Slevin to John A. Beal and William P. Douthitt, and they claim that Na-mah-sh-kuk and Mary Slevin had two separate and distinct titles, one as the heirs of William M. Rice, deceased, and the other as the successors in interest to Mrs. Colcher, by virtue of the ejectment proceedings hereinbefore mentioned. Now as before stated, the title of Na-mah-sh-kuk and Mary Slevin as the heirs- of William M. Rice, deceased, is utterly worthless, and can give the parties claiming under it no standing in court. Hence it becomes necessary to consider their other claim of title, through Mrs. Colcher and by virtue of said ejectment suit. Both parties claim under Mrs. Colcher, and hence both must admit and virtually do admit that her title under her administrator’s deed is good. The Beals and Douthitt claim by virtue of the recovery in the aforesaid ejectment suit and their quitclaim deed from the successful parties, Na-mah-sh-kuk and Mary Slevin; while the Sarvers claim under the aforesaid mortgages from Mrs. Colcher to Mrs. Healea, the foreclosure of the second mortgage, the sheriff’s deed to Mrs. Healea, the warranty deed from Mrs. Healea to Sarver, and their actual occupancy and possession of the property. The first mortgage above mentioned was executed prior to the commencement of the ejectment action, but as a mortgage in this state gives no title to the mortgaged property nor any right of possession, but only a lien thereon, and as this mortgage was never foreclosed but was surrendered and released without any proceedings ever being had thereon, and as it is not mentioned in any of the pleadings in the ease, it would seem that no rights can be maintained under it in this present action of ejectment. As to what might be the rights of the parties if different pleadings had been filed, or what might be their rights in some other action, it is not necessary now to consider. Whether the Sarvers might under other pleadings or in some other action be subrogated .to the rights of Mrs. Healea under her first mortgage, is a question which we need not consider in this case. Mrs. Healea was never the owner of the property by virtue of either of her mortgages as mortgages; nor had she any right to the possession by virtue of such mortgages. From the time when Mrs. Colcher received her administrator’s deed down to the time when the judgment was rendered against her in the ejectment action, she alone was the owner and the entire and absolute owner of the property, and Mrs. Healea had nothing but a lien thereon, with no right of possession, and the lien of the first mortgage was wholly released. But passing from the question as to what the rights of the Sarvers are under the first mortgage, what are their rights under the second mortgage, or under the two taken together ? But in passing, we might here say that the authorities cited by counsel for the Sarvers have no application to this case. In these authorities the questions were raised in proper cases, by proper pleadings, and the facts were different from the facts in this case. The principal cases cited are the following: Hutchinson v. Swartsweller, 31 N. J. Eq. 205; Bruse v. Nelson, 35 Iowa, 157; Stimpson v. Pease, 53 id. 572; Cobb v. Dyer, 69 Me. 494; Shaver v. Williams, 87 Ill. 469.
The second mortgage was executed by the defendant in the ejectment suit while that suit was pending, and was also foreclosed against the mortgagor while that suit was pending; and therefore, under the doctrine of lis pendens, the parties taking that mortgage and afterward foreclosing it could, as against the other parties and their privies, procure no more or greater rights than their mortgagor, Mrs. Colcher, might in that ejectment action be adjudged to have. After the execution of said mortgage, and after its foreclosure, it was determined in the ejectment action that Mrs. Colcher, the mortgagor, had no interest in the mortgaged property; and therefore, although that determination was in all probability wrong, yet it was made, and by it the plaintiffs in that action, Na-mah-sh-kuk and Mary Slevin, took, as against Mrs. Colcher and all persons in privity with her, all the right, title and interest in and to the property which the defendant in that action and the mortgagor, Mrs. Colcher, had at the time of the comm encement of that action. (See Utley v. Fee, 33 Kas. 683; Belz v. Bird, 31 id. 139, 140.) Afterward, Beal and Douthitt by their quitclaim deed obtained all the interest in and to the property which Na-mah-sh-kuk and Mary Slevin had, and which they obtained from Mrs. Colcher by virtue of the ejectment action, which was all the interest which Mrs. Colcher had in and to the property at the time when the ejectment action was commenced. Afterward, when the sheriff’s deed was executed to Mrs. Healea, she took only the interest in the property which Mrs. Colcher then had, which was in fact no interest at all; and therefore Mrs. Helea had no interest to convey to Sarver. Hence the Sarvers have procured no interest in or to the premises. They hold under and in privity with Mrs. Colcher, whose interest was taken away from her by the ejectment action. As before stated, both parties claim under Mrs. Colcher, the Beals and Douthitt through Na-mah-sh-kuk and Mary Slevin, and the Sarvers through Mrs. Healea. The title of Na-mah-sh-kuk and Mary Slevin was completed, and indeed created, on September 3,1875, when the judgment in the ejectment action was rendered; but it relates back to June 13, 1872, when the ejectment action was commenced. Mrs. Healea’s title was completed, and in fact created, on April 22,1876, when the sheriff’s deed to her was executed; but it relates back to December 5, 1872, when the second mortgage from Mrs. Colcher to her was executed. Hence it will be seen that the title of Na-mah-sh-kuk and Mary Slevin, under which the Beals and Douthitt claim is earlier in its origin and earlier in its completion than the title of Mrs. Healea, under which the Sarvers claim. And here again we might say that Mrs. Healea got no title by any of the proceedings until her sheriff’s deed was executed, although by a fiction of law her title relates back to the time of the execution of the second mortgage for the purpose of antedating and cutting out any intervening rights of others. It follows, therefore, that the title of the Beals and'Douthitt is prior and superior to the title of the Sarvers: and hence, as between the Beals and Douthitt on the one side and the Sarvers on the other, the judgment of the court below must be affirmed.
We have assumed in the decision of this case that both the administrator’s deed to Mrs. Colcher and the sheriff’s deed to Mrs. Healea are absolutely valid, and not open to any serious attack; and we think both are good and valid; but the same result would follow whether we should consider them good or Iwl
The judgment of the court below as against the Sarvers will be affirmed, but as against Eckart it will be reversed.
All the Justices concurring.
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The opinion of the court was delivered by
Horton, C. ,J.:
This is an action to compel the defendants, as the board of county commissioners of Stafford county, to issue seventy-two bonds of that county, of the denomination of one thousand dollars each, with interest coupons attached, upon an alleged subscriirtion .in writing, to the capital stock of the Arkansas River & Western Railroad Company. This railroad company was duly incorporated under the laws of the state, and empowered to construct, operate and maintain a railroad commencing at or near the city of Hutchinson, in the county of Reno, and extending southerly through the counties of Reno, Stafford, Pawnee, and Hodgeman. On October 13, 1885, a proposition was submitted to the voters of Stafford county to subscribe to the capital stock of the railroad company in the. sum of one hundred and twenty-eight thousand dollars, upon the conditions that as soon as the proposition should be determined in the affirmative by a canvass of the votes cast at the election, the board of county commissioners, for and on behalf of the county, should order the county clerk to make, and the county clerk should make, a subscription in the name of the county, for twelve hundred and eighty shares of the capital stock of said company, and upon the completion of the road, and its operation by lease or otherwise, from a connection witli the Atchison, Topeka <& Santa Eé Railroad Company at or near Hutchinson, by way of the city of Stafford, in Stafford county, to the city of St. John, in Stafford county, the company should receive seventy-two thousand dollars of the bonds, and issue therefor seven hundred and twenty shares of stock; and upon the completion of the road, and its operation to the west line of Stafford county, the company should receive an additional fifty-six thousand dollars of bonds, and issue therefor fifty-six thousand dollars of shares of its stock; that the board of county commissioners-should cause the bonds when earned to be issued in the name of the county, and should deliver the same to the company on delivery or tender to the board of county commissioners by the railroad company of certificates of shares of fully paid up capital stock of said company equal in amount with the bonds. After the election upon the proposition and a canvass of the returns thereof, it was duly ascertained and declared that the proposition to subscribe to the capital stock of said railroad company had been legally carried.
On October 31, 1885, T. A. Hays, the county clerk of Stafford county, subscribed for twelve hundred and eighty shares of the capital stock of said railroad company, of the par value of one hundred dollars per share, in the name of the county; the same to be paid for in bonds of the county issued to the railroad company, in accordance with the terms and conditions of said proposition above referred to. Afterward the Arkansas River & Western Railroad Company entered into a contract with another company, by which it sold all of its stock and bonds in order to obtain the necessary funds to construct its road, and with these funds the road was constructed, in compliance with the terms of the proposition. On May 31, 1886, the Arkansas River & Western Railroad Company was merged by consolidation in the Chicago, Kansas & Western Railroad Company, which was a consolidation of several constituent companies. On October 9, 1886, the charter of the consolidated company was so amended as to authorize the construction of additional lines of road. On July 6, 1886, the plaintiff tendered to the county treasurer of Stafford county certificates of its capital stock, fully paid up, in amount of seventy-two thousand dollars, and demanded the issuance of bonds therefor, as required by the terms of the proposition submitted on October 13, 1885.
The principal question presented for our determination is, whether there was a valid subscription. There was no written order or resolution of the board of county commissioners, ordering the county clerk to make any subscription. It is claimed, however, that an order was actually made, and, as the record of the proceedings of the board is silent in this respect, that the order may be proved by parol evidence. While the statute requires that the county clerk shall record all the acts and proceedings of the county board, yet there is no statute that renders such acts or proceedings void, if not recorded, and no statute that makes the records of the county board the only evidence of its acts and proceedings. (Gillett v. Comm’rs of Lyon Co., 18 Kas. 410.) Therefore, if any order was made by the board to the clerk to make the subscription, and the same was not properly recorded, the order may be established by parol evidence. This has been decided in Butler v. Comm’rs of Neosho Co., 15 Kas. 178, and Gillett v. Comm’rs of Lyon Co., supra; City of Troy v. Railroad Co., 11 Kas. 519. See also Town of Solon v. Bank, 35 Hun, 1.
An examination of the detailed facts as proved shows that on the day that the votes upon the proposition to subscribe the stock were canvassed, the board of commissioners of Stafford county consisted of Messrs. Dewey,Wilbur, and McCoomb. After the proposition had been declared by the board as having been carried, the county clerk asked Wilbur while the board was in session “ If it was his duty now to subscribe for the stock at the proper time,” who answered “That it was.” No objection was made by any of the other members of the board, and the clerk understood the answer to be an order from the board for him to go ahead and subscribe the stock. Wilbur testified among other things as follows:
“ Q,. Were you present at the time the vote was canvassed for the election to vote bonds to the Arkansas Biver & Western Bailroad Company? A. Yes, sir.
“Q,. State whether there vras any order, either verbal or otherwise, given to the clerk at that meeting authorizing him to subscribe to the capital stock of that railroad company. A. The matter was talked over, and Mr. Hays was instructed to make the subscription of stock.
“ Q. Was that done by written instruction, or verbal? A. It was done by verbal instruction.
“Q,. Was it done in the usual and customary manner of doing business where there was no dispute between the members of the board? A. As preliminary, I want to state how we were in the habit of doing in all matters that came up. When there was no difference of opinion between members of the board, it was customary for one member to speak up and ask if that meets with the concurrence of the others. It was not customary until within the last three or four months, since we got into this railroad muddle, to differ from that custom by making motions and putting matters to a vote, for, as I said before, that wre did not put any motions except there was a controversy or difference of opinion between members of the board.
“ Q,. And this order -was made in the same manner ? A. Yes, sir.”
E. W. Dewey, the chairman of the board, testified as follows :
“Q,. You may state if you were present at the time the vote was canvassed for voting bonds to the Arkansas River & Western Railroad Company ? A. I was.
“Q,. And took part in the proceedings ? A. Yes, sir.
“Q. You may state now whether at that time any order or instruction, verbally or otherwise, was given to the county clerk to make the subscription to the capital stock of that company. A. My recollection is, that there was. It was this way: We got together for the purpose of canvassing the votes which had been cast at that election. After we canvassed the vote, Mr. Hays asked the question, if it was right for him to subscribe the stock, and Mr. Wilbur told him that it would be all right; to go ahead and subscribe the stock.
“Q,. The board was in session at that time? A. Yes, sir.
“Q,. What was the custom of doing business by the board at that time ? A. The usual custom was to talk over matters together, and if there was no difference of opinion existing among the members of the board, there was no vote taken; the county clerk simply took down the minutes of the proceeding, and made up his journal that way.
“Q,. And when one of the commissioners told the clerk what to do, and the others said nothing, it was usually done ? A. Usually so; sometimes we all told him what to do.
“Q,. And if nobody demurred, it would be considered it would be the order of the board ? A. Yes, sir.”
Robert M. Blair testified that he was a member of the board of county commissioners prior to September, 1885, and was present at the canvass of the vote; that he heard the clerk speak to Mr. Dewey, the chairman, and ask him if he was satisfied; that Dewey said, “Yes, and that as the result is the wish of the people, it satisfies me;” that Wilbur said to the clerk, “The next thing to do was to subscribe for the stock.”
T. F. Halverson testified that he was the county attorney of Stafford county at the time of the canvass of the vote; that he was before the board in the afternoon of the day of the canvass; that in the presence of the members of the board, while in session, the clei’k told him the board had directed him to make the subscription of the stock.
The only evidence of importance conflicting with the foregoing is the testimony of McCoomb, one of the members of the board, and C. S'. Mace, sheriff of Stafford county at the time of the canvass. McCoomb testified he did not hear any order or direction given to the clerk to subscribe any stock, and to his knowledge nothing was said or done at the time of the canvass, by the board or any of the members, concerning the subscribing of stock. Mace testified he was present at the meeting of the board at the time of the canvass, and did not hear of any action being taken by the board regarding the subscription.
Under the statute, which differs from the one cited in Land Grant Railway v. Comm’rs of Davis Co., 6 Kas. 256, it was the duty of the board upon the canvass of the election returns, after ascertaining that the proposition voted on had been carried, to order the county clerk to make the subscription. (Comp. Laws of 1879, ch. 84, § 72.) The clerk, acting as a public officer, did make the subscription. The evidence largely preponderates that he made this subscription under the order of the board of commissioners. The board was in legal session at the time of the direction to the county clerk, and the mere inattention or forgetfulness of one of its members as to what was actually done, ought not to defeat the subscription. “ Whenever there is a legal sessiou, unquestionably a majority of the commissioners can act and bind the county.” (P. & F. R. Rly. Co. v. Comm’rs of Anderson Co., 16 Kas. 302.) The evidence of both McCoomb and Mace is of a negative character, and is largely overthrown by other witnesses who testified positively. The law esteems the latter class of evidence more highly, and of more value than the former. (Railroad Co. v. Lane, 33 Kas. 702.)
Upon the evidence presented, our conclusion is, that the subscription for twelve hundred and eighty shares of the capital stock of the Arkansas River & Western Railroad Company, made by the clerk of Stafford county on October 31, 1885, in the name of that county, is valid.
It is next insisted that the plaintiff is not entitled to the bonds sued for, upon the ground that there has been no legal consolidation of the Arkansas River & Western Railroad Company with the Chicago, Kansas & Western Railroad Company. The objections alleged to the consolidation are numerous. This is not the time, however, to consider these objections. The law authorizes railroad companies to consolidate. This law was in force at the dates of the election and subscription to the stock of the Arkansas River & Western Railroad Company, and such subscription was made under the express provision of the law that the company might consolidate with other companies at the instance and approval of stockholders representing two-thirds of all the stock held in each company or road so consolidated. (Laws of 1870, ch. 92, §1.) The mere consolidation of one railroad company with another company since the taking effect of the act of 1870 will not discharge or release a non-assenting subscriber of stock. (Railroad Co. v. Comm’rs of Phillips Co., 25 Kas. 261.) Subsequently the legislature authorized any corporation organized or existing under the general statutes of the state to amend its charter in any of its parts when authorized by a two-thirds vote of the stockholders of the corporation. (Laws of 1886, ch. 62, § 1.)
As the plaintiff is a defacto corporation, under the decisions of this court its existence as such corporation can only be attacked in a direct proceeding brought for that purpose; such a matter will not be inquired into collaterally. (Reisner v. Strong, 24 Kas. 410; Railroad Co. v. Wilson, 33 id. 223; Pacific Railroad Removal Cases, 115 U. S. 1—15.) In this connection, however, it is best to say that the provisions of the statute by unavoidable implication show it is not prerequisite that all the capital stock of a corporation be subscribed before it is organized; for instance, all corporations are organized in this state under general laws; the existence of a corporation dates from the time of filing its charter.
If the full amount of the cap^a¡ stock is not subscribed at the time the charter is filed, the directors within three months thereafter are required to open books for receiving subscriptions to the stock of the corporation; the capital stock unsubscribed may be disposed of by the directors in such manner as the by-laws prescribe. ( Comp. Laws of 1879, ch. 23, art. 2, §10; id., art. 3, §§16, 23; Hunt v. Bridge Co., 11 Kas. 412.)
The case of The State ex rel., v. Comm’rs of Nemaha Co., 10 Kas. 569, cited to show that consolidation of railroad companies is a good defense for a county to refuse to issue bonds in payment of its subscription to one of the old companies, is inapplicable, for the statute at that time authorizing consolidation, expressly reserved to each stockholder of the original companies the right to determine whether he would become a stockholder in the new corporation.
The peremptory writ of mandamus will issue as prayed for.
All the Justices concurring.
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The opinion of the court was delivered by
Horton, C. J.:
Action of replevin. The plaintiff claims that he is the owner of and entitled to the possession of the property in controversy, under the following instrument of writing:
“Know all men by these presents, that, in consideration of the sum of six hundred dollars, the receipt of which I do hereby acknowledge, I do grant, sell, transfer, and deliver unto Samuel J. Butts, his heirs, executors, administrators and assigns, the following goods and chattels, viz.: One span of mules, one gray and one bay, 24 head of stock cattle, one standard mower, one horse-rake, and all farm implements belonging to John Meyer, and on the farm this day purchased by said Samuel J. Butts from said John Meyer, being the S.E.-¡- Sec. 35, T. 32 S., R. 9 W., and N.E.Sec. 2, T.32 S., R. 9 W., and all the hay in stack on said above-described land, and all the corn on said land, corn to be put in crib: to have and to hold, all and singular, the said goods and chattels, forever. And the said grantor hereby covenants with the said grantee that he is the lawful owner of the said goods and chattels; that they are free from all incumbrance; that he has good right to sell the same as aforesaid ; and that he will war rant and defend the same against the lawful claims and demands of all persons whomsoever.
“In witness whereof, the said grantor has hereunto set his hand, this 30th day of October, 1883.
John M. Meyer.
“November 3, 1883. — I have this day sold J. D. Butts the within-described property. Samuel J. Butts.”
Plaintiff claims that his brother, Samuel J. Butts, paid Meyer §1,150, and assumed the payment of mortgages on real estate to the amount of of §550, in consideration of the sale and transfer to him of the real and personal property described in the foregoing instrument of writing, and that he purchased the property in controversy of Samuel J. Butts on November 3d, 1883. John Meyer denies that Samuel J. Butts ever bought any of said property of him, but alleges that the bill of sale was intended to operate only as a chattel mortgage to secure four hundred dollars which he loaned from Samuel J. Butts, and which as yet has not been returned or paid; and he further claims that there was a verbal arrangement between himself and Samuel J. Butts whereby he was to retain possession and control of the property described in the written instrument until the money loaned should become due. It is urged, however, that as Meyer admits he received of Samuel J. Butts four hundred dollars, and that as he has never paid back the same, the plaintiff, standing in the shoes of his brother Samuel J. Butts by the sale and transfer to him of his interest in the property described in the written instrument, has the right of possession of the property under §15, ch. 68, Comp. Laws 1879, which provides:
“In the absence of stipulations to the contrary, the mortgagee of personal property shall have the legal title thereto, and the right of possession.”
A bill of sale of personal property, absolute upon its face, if taken as security, is only a chattel mortgage, and it has always been sufficient in a court of equity to show a state of facts outside of the written instrument which would render the same a mortgage. The question in this case to be determined by the jury, was, whether the transaction between Samuel J. Butts and John Meyer was in substance a mortgage, notwithstanding the form the parties had given to it; and this question the jury had the right to determine upon the evidence, independently of the form of the instrument itself. The parties had also the legal right to contract that the possession and control of the personal property should remain with the mortgagor; and this arrangement could be proved by parol. (Moore v. Wade, 8 Kas. 381; McDonald v. Kellogg, 30 id. 170; Jones Ch. Mort. §§23-25; Pierce v. Stevens, 30 Me. 184.) This also disposes of the demurrer which was presented to the answer of Meyer.
It is urged that the jury trying the case did not follow the instruction of the court which directed them to find in favor of the plaintiff, if the property described in the bill of sale had been attached in legal proceedings against Meyer, and was about to be or had been taken from him, although the time for the payment of the money had not then expired. We would be inclined to agree with counsel and grant a new trial for the failure of the jury to act in obedience to this instruction, if it were not conceded that after the commencement of this action the legal proceedings referred to in the instruction terminated favorably to Meyer, and therefore there were no legal proceedings pending at the time of the trial under which the property was likely to, or could be taken away from the possession of Meyer. The district court approved the verdict, and virtually withdrew such instruction from the case; therefore the error in this particular matter was wholly immaterial, and upon the finding that the bill of sale was merely executed as security, the judgment of the court was properly rendered.
The judgment must therefore be affirmed.
All the Justices concurring1.
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The opinion of thg court was delivered by
Valentine, J.:
The facts of this case, stated briefly, are substantially as follows: On February 6, 1883, the plaintiff, Mrs. Johns, who was then about sixty-three years of age, went to the railroad station at Severy, Greenwood county, along with certain of her friends who were then about to start for Washington territory to make it their permanent home. She went along with her friends to assist them in getting to the railroad train and upon it, and to bid them good-bye. These friends were Mrs. Pitzer, who was also an old lady about the plaintiff’s age, and Mrs. Pitzer’s daughter and son-in-law? and their several children. This station is a union station or depot belonging to the Atchison, Topeka & Santa Fé Railroad Company, and the St. Louis & San Francisco Railroad Company. These two railroads cross each other at that place, at right angles, the Atchison, Topeka & Santa Fé railroad running north and south, and the other railroad running east and west; and the station is situated in the southwest angle formed by this crossing, immediately west of the Atchison, Topeka & Santa Fé railroad, and immediately south of the other railroad. A platform, about 16 feet wide and 195 feet in length, is situated between the station-house and the defendant’s railroad track. This platform at that time was covered with ice, and had been in that condition for several days. The railroad train upon which the plaintiff’s friends expected to travel, and which consisted of an engine, a baggage-car and a passenger-car, was then standing on the defendant’s railroad track, east of the station platform, and headed to the north. The plaintiff bade good-bye to those of her friends who were about to leave, and they, with other friends who did not intend to leave, went into the passenger-car. The plaintiff then stepped back about ten feet from the east edge of the platform, and opposite the coupling between the baggage-car and the passenger-car, and stood there on the platform for the purpose of waiting till the train should start, and to bid her friends a last farewell. There was a waiting-room in the station-house or depot, to which she might have retired if she had so chosen. There were also at that time two or three large trunks, belonging to “drummers,” situated on the platform several feet south and slightly to the east of where the plaintiff was standing, which were to be removed and placed in the baggage-car, which was north and east of where the plaintiff was standing. This platform was slightly inclined downward from the west side to the east side. Three of the company’s servants undertook to remove these trunks. They did not use trucks or any other vehicle or instrument of conveyance, but slid the trunks on the ice. In removing the first trunk, they struck the plaintiff and knocked her down, and in this manner inflicted the injury of which she now complains. The trunk itself was propelled against her. This occurred within five minutes after the time when the plaintiff had bid her friends good-bye. She saw the men removing the trunk, and watched them, not thinking, however, that they would run against her or molest her in any manner; but when they came within about six feet of her, she attempted to move out of their way, but did not succeed in doing so. The evidence did not show whether the men saw her or not until after she fell; but there was nothing to prevent their seeing her if they had looked in that direction. There was plenty of room on the platform, east of where the plaintiff stood, within which the trunk might have been moved without touching her. The only persons near her at the time, except the three men who wei’e moving the trunk, were a friend of the plaintiff, Mrs. Miller, and Mrs. Miller’s little boy.
The case was tried before the court and a jury, and after the plaintiff had introduced her evidence, which tended to prove all the foregoing facts, the defendant demurred to the evidence upon the ground that it did not prove or tend to prove any cause of action; which demurrer the court overruled. No other evidence was introduced. The defendant then presented to the court 41 special instructions for the jury, and asked the court to give them to the jury, all of which the court refused, and gave only its own instructions. The defendant then presented 63 special questions of fact for the jury, and asked the court to submit them to the jury, all of which, except four, to wit, the 2d, 23d, 24th, and 63d, the court did submit to the jury, as requested. The jury found a general verdict in favor of the plaintiff and against the defendant, and assessed the plaintiff’s damages at $4,000, and also gave answers to the foregoing special questions of fact. The defendant then moved for a judgment in its favor upon the special findings of fact, notwithstanding the general verdict; which motion the court overruled. The defendent then moved for a new trial upon various grounds; which motion the court also overruled. The court then rendered judgment upon the verdict and findings of the jury in accordance with the general verdict. Afterward the defendant made a case for the supreme court, and has brought such case to this court and asks for a reversal of the judgment below.
The first question to be considered in this court is, whether the plaintiff below introduced sufficient evidence to authorize the jury to find in her favor with reference to every essential fact Constituting her cause of action. This question -was raised in the court below by the demurrer to the evidence, by the motion for judgment on the special findings, and also by the motion for a new trial. The plaintiff in error, defendant below, claims that the evidence is insufficient, for the following reasons : (1) There was no evidence tending to prove any culpable negligence on the part of the defendant; (2) there was no evidence tending to prove that the three servants of the defendant who moved the trunk were acting within the scope of their employment; (3) the evidence discloses culpable contributory negligence on the part of the plaintiff below. The first two points we think should be discussed together. Of course the plaintiff below knew the exact condition of the platform and its surroundings, and that the defendant’s servants were moving the trunk toward her, for all these things were in plain view, and she had eyes; but so also did the defendant’s servants know all these things, for they also had eyes, and probably fully as good ones as the old lady had; but if they did not know these things, then they were guilty of culpable negligence in not knowing the same. Presumably they knew that the plaintiff was standiúg on the platform where she stood, and that unless she hurriedly got out of their way they would run against her in moving the trunk in the direction in which they were moving it, and as rapidly as they were moving it on the smooth ice of that platform; but, as before stated, if they did not know the same, they were equally as guilty of negligence in running against the plaintiff, and in knocking her down, as though they had in fact known all about these matters. It was their duty to know these things. The three men who undertook to remove the trunk were a brakeman belonging to that train and two section-foremen at that place, all in the employment of the defendant. They had also all done similar work on several prior occasions; and being on the company’s premises, performing this duty ■ of removing trunks for the defendant in the presence of other employés of the defendant, and having done similar work on prior occasions, it must be 1 ; presumed that they were acting for the defendant, and within the scope of the authority given to them by the defendant.
The defendant, then, is responsible for their negligence, and they were clearly guilty of culpable negligence. The question as to whether the plaintiff was guilty of contributory negligence was fairly submitted to the jury, and they found that she was not guilty of any such negligence; and upon the evidence introduced, we think their verdict is correct.
As the train upon which the plaintiff’s friends were expecting to depart was soon to start, we do not ;' think that the plaintiff was guilty of any con-tributary negligence in remaining on the platform, where she stood until the train started. She was not necessarily in any person’s way, and such a thing is common at all stations on all railroads. The plaintiff certainly could not be considered as a trespasser upon the company’s premises; and if not, then the defendant and its servants owed her the duty of exercising reasonable and ordinary care and diligence to avoid injury to her. We do not think they exercised any such care or diligence, but really they were guilty of gross negligence. The plaintiff was not standing in a straight line between the place where the trunks lay on the platform and the place on the platform from which they were to be taken into the baggage-car, and the men moving the trunk had to move the same out of a straight line, and up a slightly inclined plane, in order to strike the plaintiff. There was plenty of room on the platform, and in a straight line, within which the trunks might have been moved from where they lay to the baggage-car, without molesting the plaintiff.
The plaintiff in error, defendant below, also claims that the court below committed material error in permitting the following evidence to be introduced, to wit: Mrs. M. D. Thatcher was permitted to testify, over the objections of the defendant, among other things, as follows:
“Well, I only know what Mrs. Johns has told me of her suffering, and I have been called in there as a neighbor. She complained of the misery in her side, and she told me that she suffered a great deal with a numbness and a tingling sensation in her left side, I believe it was; and the other evening I was called over there, and she told me that she was suffering now a great deal with that feeling, and also a depression about her heart, she said, in her left side, and she had sent for the physician, I believe, that evening; and that was some of the symptoms, I believe, that she had; of some kind of depression about her heart, a smothering, I think. . . . Mrs. Johns has complained of her limb and her foot to me.”
Joseph H. Pitzer was permitted to testify, over the objec- - tion of the defendant, among other things, as follows:
“Q,. Now, Mr. Pitzer, state to the jury what facts you may know with reference to her condition, with reference to her suffering and bodily pain and mental distress. A. I don’t know anything, only what she has told me herself.
“ Q,. What have you heard her say about it ? of what has she complained ? A. She has told me frequently that she has suffered. She complained of her head and leg, having a great misery in it. She complained of misery in her side and hip.”
On cross-examination he testified, among other things, as follows:
“Q. All you know about her suffering and pains since the iniury, is what she has told you, is it not, Mr. Pitzer? A. That is all, sir.”
We think it is well settled that it is incompetent to prove the declarations of an injured party, or of a party suffering from some cause, made after the injury has happened or after the cause of his suffering has occurred, with regard to the facts of the injury or the cause of his suffering. (Roosa v. Boston Loan Co., 132 Mass. 439; Morrissey v. Ingham, 111 id. 63; I. C. Rld. Co. v. Sutton, 42 Ill. 438; Collins v. Waters, 54 id. 485; Benton v. The State, 1 Swan, [Tenn.] 279; Spatz v. Lyons, 55 Barb. 476.) And even proof of the declarations of a party, with regard to past suffering or pain, or past conditions of body or mind, is not competent. (G. R. & I. Rld. Co. v. Huntley, 38 Mich. 537; Lush v. McDaniel, 13 Ired. 485; Reed v. N. Y. C. Rld. Co., 45 N.Y. 574; Rogers v. Crain, 30 Tex. 284; Chapin v. Inhabitants of Marlb., 75 Mass. 244; Rowell v. City of Lowell, 77 id. 420; Emerson v. Lowell Gas Light Co., 88 id. 146; Inhab. of Ashland v. Inhab. of Marlb., 99 id. 48; Ins. Co. v. Mosley, 75 U. S. 397, 405.)
There are probably no authorities opposed to these propositions, and yet there are authorities which seem almost to oppose the last one, especially where the declarations are made to a physician or surgeon while he is examining the party as a patient. (Quaife v. C. & N. W. Rly. Co., 48 Wis. 513; same case, 33 Am. Rep. 821; Barber v. Merriam, 93 Mass. 322; Fay v. Harlan, 128 id. 244; Gray v. McLaughlin, 26 Iowa, 279; Matteson v. N. Y. C. Rld. Co., 35 N. Y. 487; L. N. A. & C. Rly. Co. v. Falvey, 104 Ind. 409; same case, 23 Am. & Eng. Rid. Cases, 522; same case, 22 Cent. L. J. 322.) Declarations, however, of a party with regard to a present and existing pain or suffering, or with regard to the present condition of the body or mind, may generally be shown by any person who has heard them. (Ins. Co. v. Mosley, 75 U. S. 397; Hatch v. Fuller, 131 Mass. 574; Denton v. The State, 1 Swan, [Tenn.] 279; I. C. Rld. Co. v. Sutton, 42 Ill. 438; Collins v. Waters, 54 id. 485; L. N. A. & C. Rld. Co. v. Falvey, 104 Ind. 409; same case, 23 Am. & Eng. Rld. Cases, 522; same case, 22 Cent. L. J. 322; 1 Greenl. Ev., § 102, and cases there cited; 1 Whar. Ev., § 268, and cases there cited.) There are authorities seemingly opposed to this last proposition: Reed v. N. Y. C. Rld. Co., 45 N. Y. 574; G. R. & I. Rld. Co. v. Huntley, 38 Mich. 537.
We think, however, that whenever evidence is introduced tending to show a real injury or a real cause for suffering or pain, as in this case, the declarations of the party concerning such suffering or pain while it exists and as simply making known an existing fact, should be allowed to go to the jury for what they are worth, and the jury in such a case should be allowed to weigh them and to determine their value. If they were made to a physician or surgeon while he was examining the party as a patient, for the purpose of medical or professional treatment, and for that purpose only, the declarations would be of great value. If, however, they were made at any other time or under any other circumstances, they might not be of such great value. If made casually to some person not a physician, and with whom the party had no particular relations, they might possibly in some cases be of but very little or no value. (Reed v. N. Y. C. Rld. Co., 45 N. Y. 574.) Yet generally they should be permitted to go to the jury for what they are worth. (Ins. Co. v. Mosley, 75 U. S. 397; Hatch v. Fuller, 131 Mass. 574; Rogers v. Crain, 30 Tex. 284; Matteson v. N. Y. C. Rld. Co., 35 N. Y. 487; Gray v. McLaughlin, 26 Iowa, 279; Kennard v. Burton, 25 Me. 39; The State v. Howard, 32 Vt. 380; Lush v. McDaniel, 13 Ired. 485.)
Also, if the declarations are made to a physician or other person merely for the purpose of obtaining testimony in the party’s own case, they might be of very little value, and possibly might in some cases be wholly excluded. (G. R. & L. Rld. Co. v. Huntley, 38 Mich. 537.) But the mere fact that the declarations are made after suit has been commenced and while it is pending will not be sufficient to exclude the declarations, and generally they should be allowed to go to the jury. (Barber v. Merriam, 93 Mass. 322; Hatch v. Fuller, 131 id. 574.)
In the present case we cannot say that the court below committed any material error in admitting the evidence objected to. Everything; that the witnesses, Mrs. Thatcher J ° ' an<^ -M-r- Ifitzer, testified to was proved by the competent testimony of other witnesses. The injury, the impaired health, the suffering, the pain, and the entire condition of the plaintiff’s body were fairly shown by evidence that cannot be questioned, and very nearly all the declarations of the plaintiff', as testified to by Mrs. Thatcher and Mr. Pitzer, were in substance declarations of present and existing pain, suffering, and conditions of the body, and not narratives of past pain, or suffering, or conditions of the body; and to this extent they were unquestionably competent. Those declarations, if any, which were not concerning present and existing pain, suffering, and conditions of the body, were so small in amount and so trifling and insignificant in their influence, and were concerning matters which were so thoroughly and incontestably proved by other competent evidence, that their admission by the court could not be material error.
There are a few other questions presented by counsel, which we hardly think it is necessary to discuss. The special question of fact No. 63, which the defendant asked the court to submit to the jury, and which was refused, was sufficiently covered by other more specific questions. Besides, that question might perhaps be objectionable under the rule stated in the case of Foster v. Turner, 31 Kas. 58, 60, et seq. The instructions refused, so far as they stated the law of the case, were sufficiently covered by other instructions given by the court.
The judgment of the court below will be affirmed.
All th'e Justices concurring.
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Opinion by
Clogston, C.:
John Lightbody brought this action originally before a justice of the peace of Barton county. The items of his bill of particulars are as follows:
To work and labor, 1883, from September 19 to November 19, at $60 per month....................................... $120.00
November 19, 1883, to January 19, 1885, at $69 per month____ 966.00
Total...............................................$1,086.00
Credit by book account.................................... 787.26
Balance............................................. $298.74
The defendant filed a general denial, and alleged that the work and labor performed by the plaintiff were performed under a contract at $40 per month, and also filed a counterclaim of $828.54 for goods sold and delivered. Trial and judgment for the plaintiff for $136.69, and defendant appealed to the district court. Trial by jury; verdict and special findings for the plaintiff, and judgment on the verdict and findings for $29.53. Of this judgment the defendant complains. The plaintiff in error presents and complains of a good many errors committed on the trial below, many of which are not material, and others were cured by the findings of fact by the jury. The jury found the following facts in answer to questions submitted to them by the plaintiff in error:
“ 1st. Did plaintiff and defendant have an agreement that plaintiff was to have half of the profits of the defendant’s business for plaintiff’s services as a clerk, after deducting 12 per cent, interest on the business ? If so, when was the contract made, and by whom ? A. No.
“2d. Was there a contract entered into by the plaintiff and the defendant whereby plaintiff was to work for defendant for $40 per month, or any other specified sum per month? If so, when was the contract made and what was the plaintiff to receive per month ? A. No.
“3d. If Lightbody was in the employ of Herman Smith, how long was he to work under such employment, and who was to pay him ? A. One month; to be paid by Herman Smith.
“4th. For how many months’ work did the plaintiff agree to look to Herman Smith, and in whose employ was he for the first month or two ? A. One month for Herman Smith.”
After a careful examination of this record, we are compelled to say that we do not know upon what theory this case was tried; and taken upon any theory, there seems to have been an entire disregard of the ordinary rules of construction of pleadngs, the introduction of testimony, and conduct of the trial generally. The plaintiff’s bill of particulars indicates either that the plaintiff claimed compensation for his labor at a stipulated price per month, or that he had performed services for the defendant and that such services were reasonably worth the amount charged in his bill of particulars. Under this bill of particulars he could have proven either; but the court permitted proof that by a contract with the defendant he was to receive one-half of the profits of the plaintiff’s business after'deducting 12 per cent, interest upon the money defendant had invested in his business. Now under what rule of construction could this evidence be admitted ? It neither tended to prove what plaintiff’s services were worth, nor that he had a contract for a stipulated sum per month, as indicated by his bill of particulars. Section 71 of the procedure before justices of the peace provides: “ The evidence on the trial shall be confined to the items set forth in the bill of particulars,” and surely this evidence, admitted by the court, did not tend to prove in the slightest degree the items contained in plaintiff’s bill of particulars; but as the jury found that there was no such contract, this evidence could not prejudice the defendant. This disposes of all the questions raised by the plaintiff in error in relation'to the evidence seeking to establish a partnership in the profits of the business, and the question of the jurisdiction of the court to inquire therein on appeal from the justice of the peace to the district court.
The court admitted, over the objection of the defendant, the following evidence given by the plaintiff on his own behalf:
“Q. You may state to the jury if you had an offer for better wages; and if so, what were the circumstances connected with it? A. Yes, sii-.
“Q,. State whether or not you had a better offer; and if so, when did you have it? A. Yes, sir, I did; I had that in the month of July.
“Q,. What year was that in ? A. 1884.
“ Q,. Who made you that offer ? A. John Rader.
“Q,. What was it for? A. It was for $65 per month.”
Also the following testimony, by witness Rader, over the objection of the defendant^
“Q. Do you remember Mr. Lightbody’s testimony concerning the offer that yon made him of $60 or $65 per month? A. Yes, sir.
“Q,. You may state, Mr. Rader, if you made Mr. Light-body an offer of that kind in July, 1884, to go to work for you. A. Yes, sir;' I made him that offer.
“ Q. What was the offer ? A. I offered him $60 per month to go to work for me.”
This evidence was offered by the plaintiff evidently to show what his services were reasonably worth during the time he was working for the defendant — the offer, being July, 1884. was during the time he was working for the defendant — and also to rebut the testimony offered by the defendant that plaintiff was working under a contract for $40 per month. This testimony was incompetent for any purpose. It was testimony given by the plaintiff of his own declarations on his own behalf, and the declarations of Rader in response thereto. This evidence being permitted to go to the jury over the objection of the defendant, was a violation of a rule of evidence; and being so admitted, was evidence upon which a jury might well find that the services of the plaintiff were worth at least what he might have received from others during the same period of time; and also tending to rebut the testimony of the defendant as to the contract for $40 per month under which the plaintiff was working for the defendant. Now while the amount involved in this case is small, yet we do not feel willing to affirm a judgment for that reason alone, when the record shows that the case was tried upon a false theory and submitted to the jury on incompetent testimony.
Plaintiff in error also complains of the instructions of the court, but we fiud no error in the charge given to the jury under the evidence as admitted by the court.
We therefore recommend that the judgment of the court below be reversed.
By the Court: It is so ordered.
All the Justices concurring.
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Motion for Rehearing.
The facts of this case are stated in 34 Kas. 509, et seq. January 12, 1886, the defendants in error filed a motion for a rehearing. This motion the court overruled at its session in December, 1886.
Per Curiam:
This case was decided by this court at its January term, 1886. (Mikesell v. Durkee, 34 Kas. 509.) The defendants in error have now submitted a motion for a rehearing. They seem to admit that no city has any authority to permit a private railroad or a railroad for merely private purposes to be constructed or operated upon the public streets of such city, and that if any attempt were made to construct or operate any such railroad on the public streets of a city, any abutting lot-owner, whose property would be injured thereby, could maintain an action to perpetually enjoin the sanie. ' And they seem further to admit that the railroad in the present case is a private railroad and a railroad for merely private purposes, unless it is public by virtue of its being used in connection with the defendants’ grain elevator. They claim, however, that this use of the railroad makes it a public railroad and a railroad for public purposes. The only authority, however, which they cite as furnishing any support to this claim, is the case of Munn v. Illinois, 94 U. S. 113. Now the only thing contained in this Munn case which can furnish any support to the defendants’ claim, is that portion of the decision which holds that a grain elevator is so far a public purpose that the state may regulate the charges made in connection with its use, and fix maximum charges. The right of . the state to regulate charges or to fix maximum charges, is not only true with regard to grain elevators, but it is also true with regard to ferries, and to the business of hackmen, draymen, bakers, millers, wharfingers, inn-keepers, and various other kinds of business. But it does not follow from the fact that a grain elevator is public to the extent that the charges made in connection with its use may be regulated by law, that everything which may have any connection with it must also and for all purposes be public. It does not follow from the fact that a grain elevator is public to the extent that its charges may be regulated by law, that a private railroad, operated only for the purpose of carrying grain to and from the elevator, is a public or common carrier; and only railroads of that character are entitled by law to be operated upon the public streets of a city; and the present railroad is not a railroad of that character. A railroad which carries only grain for only the proprietors of a grain elevator, and only to and from the elevator, lacks many of the essential elements of a public or common carrier. Indeed, it is no more a public or common carrier than the farmer who transports his own grain by his own wagon from his own farm to the elevator. It is only such railroads as are operated by public or common carriers, and such only as are required by law to carry all Icinds of carriable goods, and for all persons "or corporations who may desire to have goods carried, that can be permitted by a city under the statutes to be operated upon the public streets of the city; and it is not claimed that the railroad now in question is that kind of railroad.
The motion for a rehearing will be overruled.
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The opinion of the court was delivered by
Horton, C. J.:
The issues in this case were submitted to the trial court with the request that it find the facts specifically, and state its conclusions of law thereon. This was done. An exception was properly taken to the conclusions of law, and error is assigned thereon.
The question is, whether upon the findings of fact the case of Frankhouser v. Ellett, 22 Kas. 127, or Leser v. Glaser, 32 id. 546, controls. In the former case it was decided that —
“The statute authorizes a stipulation in a chattel mortgage for a retention of possession by the mortgagor, and that a possession retained in accordance with the terms of such mortgage is not, when the mortgage is duly filed, per se fraudulent, or even prima facie evidence of fraud as against creditors or subsequent purchasers.”
And it was further decided in that case, that —
“Where a mortgage is given upon a stock of goods, and by agreement outside the mortgage the mortgagor is permitted to continue the business and dispose of the goods in the ordinary way, and use some portion of the proceeds in the support of his family, the transaction will be upheld or condemned according as it is entered into and carried out in good faith, or not. The mortgagor, if he may keep the possession, may as well make the sales as a stranger. He acts, in that respect, as a quasi agent at least of the mortgagee, and as such agent and salesman is entitled to compensation for his services.”
In the latter case it was held that—
“In the case of a chattel mortgage, where the mortgagor is permitted to have the entire possession of the property with the power to sell the same and dispose of the proceeds thereof as he may choose, the mortgage should generally be held to be void as against the mortgagor’s creditors.”
This case comes fully within the principle declared in Frank-Houser v. Ellett. By the terms of the mortgage and the oral agreement entered into between the mortgagor and mortgagees at the time ot the execution ot the mortgage, the mortgagor was to remain in possession of the mortgaged property until the maturity of the note, and sell the goods, wares and merchandise in the ordinary manner; but he was to apply the proceeds thereof toward the payment of the note secured by the mortgage.
In the case of Leser v. Glaser the mortgagors were not only permitted to continue in possession of the mortgaged property, and to sell and dispose of the same in the ordinary course of trade, at retail, but they were permitted to do this without accounting for the proceeds or applying the same in liquidation of the mortgage debts or any other debts.
It is apparent from the findings, that at the time of the execution of the chattel mortgage in controversy, the parties entered into the same in good faith. Subsequently the mortgagor failed to account for the proceeds from his sales, as he ought to have done; but this does not' 7 ° . render the mortgage void. It may be possible that the mortgagees will be chargeable as against other creditors with the amount sold by the mortgagor, whether applied on their debt or not. (Herman on Chattel Mortgages, 247; Jones on Chattel Mortgages, § 425.)
It is unnecessary, perhaps, to say that the writer of this adheres fully to his views expressed in his dissenting opinion in Frankhouser v. Ellett, on the ground that mortgages of this kind open á wide door for fraud, and therefore should not be favored or upheld; but a majority of the court differ from him in these matters.
The other questions presented are not impoi'tant, and in no event afford any reason for vacating the findings or judgment. The mortgagor was not authorized by the mortgagees to turn over any of the goods to other creditors, or to sell the same in bulk.
The judgment of the district court will be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Johnston, J.:
The first objection taken to the conviction and sentence by the appellant is, that the information is insufficient to charge murder in the first degree, the offense of which he was found and adjudged guilty. The alleged omission or defect is, that it does not contain either the words “ malice aforethought,” or “ with intent to kill.” The charging part of the count in the information upon which the conviction rests is, that “Thomas McGaffin did then and there unlawfully, feloniously, willfully, deliberately and premeditatedly kill and murder one Harrison Sherman, then and there beiug, by shooting him,” etc. Malice aforethought, or a wicked intention to kill, previously and deliberately formed, is an essential ingredient of the offense, and this element must be plainly charged in the information, or indictment. It is not important or necessary, however, that these identical words, or any particular form of words, should be used. The equivalent of these, or any words clearly expressing this element, is all that is required. The particularity of the common-law system or rules of pleading does not prevail here. As a general rule, it is sufficient if the offense is charged in the language of the statute, aud even the statutory words de- , fining the oftense need not be strictly pursued, but others conveying the same meaning may be used. (Crim. Code, § 108.) The language of the statute employed in defining the offense is, “ every murder which shall be committed by means of poison, or by lying in wait, or by any other kind of willful, deliberate, and premeditated killing, . . . shall be deemed murder iu.the first degree.” (Comp. Laws of 1879, ch. 31, § 6.) The information uses not only the statutory terms, but the Avords “unlawfully” and “feloniously” are added. The charge which it contains is brief, but Ave think it states in plain and concise language every element of the crime of Avhich the appellant was convicted. It avers that the killing was done Avith premeditation, Avhich means that there Avas design or intent before the act; that is, that the accused planned, contrived and schemed beforehand to kill Sherman. (Craft v. The State, 3 Kas. 483; Ernest v. The State, 20 Fla. 383.) It is also charged that the accused deliberately killed Sherman, Avhich means that the act was determined upon after reflection, and that “ the consequences, chances and means were Aveighed, carefully considered and estimated” by him. (Craft v. The State, supra.) It is further averred that the accused willfully killed the deceased, and he is thus charged Avith having killed the deceased purposely. The charge that the killing was done unlawfully and feloniously excludes the idea advanced by the appellant, that it could have been excusable or justifiable. The accused is therefore charged with having formed a Avrongful and unlawful purpose to kill the deceased, and that in pursuance of this purpose and plan, determined upon after reflection, and after Aveighing the consequences, the homicide Avas committed by him.
The terms employed by. the county attorney in charging the offense are the full equivalent of a statement that the killing was J- . . ° done intentionally and with malice aforethought, and therefore the omission of those identical terms from the charge does not render it subject to the objection that has been urged. (The State v. Fooks, 29 Kas. 425; The State v. Bridges, 29 id. 138; The State v. White, 14 id. 538.)
Another objection made by the appellant is based upon the rulings of the court in excluding testimony. A witness for the state named Simeon Reeves gave his version of what occurred between the accused and the deceased at the time of the homicide, and his testimony tended to show that the appellant was the aggressor, and that he shot and killed the deceased without excuse or justification. With a view of showing that his testimony was unworthy of credit, he v*as asked on cross-examination if he did not take part in a conversation on the day following the homicide wherein he gave a wholly different account of the transaction. It seems that on the next day after the homicide the witness went to Burlingame with one Smith, and after their arrival there they met another person, named Carr. The inquiry on the cross-examination of the witness was, if at that time, when all three were present, the witness did not make a statement regarding the homicide in response to a question from Carr, when Smith interrupted with the remark: “ Oh, hell! that is not the -way you told me about it,” or, “ That is not the way you told it to me,” or words to that effect. This was followed by another inquiry of the witness as follows: “And then did not Smith proceed, and say in substance that Reeves told him that he and Sherman were sitting in the shanty when the witness saw McGaffln coming, and Sherman said, CI intend to take my whip and drive that old scoundrel off the farm/ and went out and got on his horse — went out and struck at McGaffln with his whip, and McGaffln shot at him, and he struck the second time, and McGaffln shot the second time, and he struck the third time, and then rode to the house?” The witness ■was then asked if immediately following that statement he did not say, “I guess that is the way of it.” The inquiries .were refused, and the testimony was excluded by the court; and this ruling is assigned for error. These questions should have been allowed and answered. The purpose of the ciefenge wag £0 impeach the witness by showing that he had made statements out of court and soon after the occurrence contradictory to those made by him on the witness stand. This is a proper and effective mode of impeachment, and under the circumstances of this case the denial of the right is material error. The time, place, and the attendant circumstances, as well as the persons to whom the contradictory statements were made, were called to the attention of the witness, as the law requires. It is claimed in behalf of the state that as the statements were a portion of a conversation, and were partly made by Smith, they do not afford a sufficient foundation for the introduction of testimony contradicting Reeves. In other words, that the witness could not be impeached by testimony of what some one else had said. It should be remembered, however, that the defendant proposed to show that the witness not only assented to what Smith stated that the witness had previously told him, but he adopted and made the language of Smith’ his own by saying, “I guess that is the way of it.” The witness could have admitted or denied the statements said to have been made and adopted by him, or he was at liberty to explain any inconsistency between the statements imputed to him and those given in testimony, just the same as though there had been a single and complete statement independent of any conversation. The testimony excluded was relevant to the issue and very important in the case. Reeves was the only person who witnessed the difficulty between the accused and the deceased, and the conviction for murder in the first degree rests almost entirely upon his testimony. The former contradictory version of the difficulty proposed to be shown harmonized with the theory and testimony of the defense. It tended to show that the accused was dangerously assailed by the deceased, and that, the shooting was done by the appellant in self-defense. At least it went strongly toward reducing the homicide to a lower degree than that with which the appellant has been charged, and of which he has been convicted. If the witness made the statements claimed by the defense, and which, are radically different from his testimony, it may well be argued that he is unworthy of belief; and if his testimony were successfully impeached, or eliminated from the record, the conviction would certainly fail for lack of support; and therefore the importance of the testimony and the materiality of the error in its exclusion are readily seen. It may be that the testimony excluded would not have changed the result that was reached by the jury; but this we cannot know.
It is enough that it was relevant, competent, and material, and being so it should have gone to the jury to aid them in determining whether the defendant had committed the offense charged, or any degree thereof.
There is no other question in the case which we need to notice; but the view which we have taken renders a new trial necessary, and for this purpose the judgment of the district court will be reversed, and the cause remanded.
All the Justices concurring.
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The opinion of the court was delivered by
Valentine, J.:
No brief has been filed of oral argument made in this case on the part of the defendant in error; hence we must rely principally upon the brief and oral argument made by the counsel for the plaintiff in error. It seems that the only question involved in this case is, whether a certain piece of land situated in the city of Abilene, Kansas, is a public street, or is the private property of the plaintiff in error, John M. Fisher; and that it is either the one or the other, is admitted. That it is not a public street by prescription or limitation, is clear beyond all question, under the' authority of the following cases: The State v. Horn, 35 Kas. 717; Smith v. Smith, 34 id. 293, 301. The only question then for us to further consider is, whether the laud is a public street by dedication, or not. Now it is not such unless it is such by reason of the filing of a certain map or plat and the surveyor’s notes and the proprietor’s acknowledgment, in the office of the register of deeds, on July 22, 1870. Sections 1, 2 and 6 of the act relating to plats of towns and cities, (Comp. Laws of 1879, ch. 78,) read as follows:
“Section 1. Whenever any city or town, or an addition to any city or town, shall be laid out, the proprietor or proprietors of such city or town or addition, shall cause to be made out an. accurate map or plat thereof, particularly setting forth and describing: First, all the parcels of ground within such city or town or addition, reserved for public purposes, by their boundaries, course and extent, whether they be intended for avenues, streets, lanes, alleys, commons, or other public uses; and second, all lots intended for sale, by numbers, and their precise length and width.
“Sec. 2. Such map or plat shall be acknowledged by the proprietor, or, if an incorporated company, by the chief officer thereof, before some court or other officer authorized by law to take the acknowledgment or conveyances of real estate.”
“Sec. 6. Such maps and plats of such cities and towns and additions, made, acknowledged, certified, filed and recorded with the register, shall be a sufficient conveyance to vest the fee of such parcels of land as are therein expressed, named or intended for public uses in the county in which such city or town or addition is situate, in trust and for the uses therein named; expressed or intended, and for no other use or purpose.”
The piece of land in controversy is a part of Fisher’s addition to the town or city of Abilene. It is about 250 feet in length, and 34 feet wide at the west end and 89 feet wide at the east end. It is designated by boundary lines in the map or plat filed in the register’s office; but there is nothing in the map or plat, or in the surveyor’s notes, or in the proprietor’s acknowledgment, that would indicate for what purpose it was intended to be used. The surveyor, in his notes, states that “the dimensions of lots, streets and alleys are given on the plat;” and on the plat the lots are numbered, and two out of three of the streets are named, and figures are used to show the width of the streets and alleys and the length and width of the lots; but that part of the map or plat representing the piece of ground in controversy is left blank. Under such circumstances, we do not think that the land in controversy can be considered as a public street. (Cook v. Hillsdale, 7 Mich. 115; Mayor v. Stuyvesant, 17 N. Y. 34; Robinson v. Coffin, 6 Pac. Rep. 41.) Indeed, under the statute, it could not have been intended for an avenue, street, lane, alley, common, or other public use, nor could it have been intended as one of the “lots intended for sale.” Therefore it must have been a piece of ground intended to be reserved for the use of the proprietor and such persons as might succeed to his right.
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
Horton, C. J.:
On March 10,1886, Margaret S. Deeds fell upon a sidewalk in the city of Fort Scott, and was injured, and on May 5, 1886, she presented her claim to the city council of Fort Scott for $1,000, damages therefor. The city of Fort Scott settled and compromised her claim, and she executed the following writing:
“June 28, 1885. — Deceived of W. W. Martin, city attorney, twenty-five dollars, payment in full for all damages caused by my falling on a sidewalk in said city of Fort Scott, Kansas, and breaking my arm, and otherwise injuring myself, on or about March 10, 1885.
Hor Margaret S. X Deeds. “$25. Witness: F. J. Nutz.” mark-
Subsequently she brought her action against the city of Fort Scott to recover the sum of one thousand dollars damages, on account of her injury. She alleged in her reply, and attempted to prove, that the settlement and compromise were procured through fraud, misrepresentation, and undue influence. The jury returned a verdict in her favor for $975, being the amount she claimed, less the $25 already paid her. The city of Fort Scott attempts to bring the case here for review.
The proceedings in error are prosecuted in this court upon a case-made. No certified transcript of the record and proceedings has been filed. There is omitted from the case-made the order overruling the motion for a new trial, and the entry of the judgment. Upon the record a preliminary question is presented: this is, that as the record does not show that the motion for a new trial was overruled, or any judgment rendered, the grounds for the petition in error are untenable, and ought not be considered. The city of Fort Scott attempts to cure the omissions in the case-made, by presenting to this court a certified copy of the journal of the district court containing the order overruling the motion for a new trial, and the entry of the judgment. It appears that after the case-made was settled, signed and filed, an application was made to the trial judge for permission to amend the case-made by incorporating therein a copy of the journal. The district court denied the application.
Of course, in the absence of any judgment, or order overruling the motion for a new trial, and in the absence of any statement or showing in the case-made that the motion for a new trial was overruled, or that any judgment was rendered, there is nothing before us to present the errors complained of. It has always been decided by this court that a case-made cannot be supplemented or completed by having added or attached to it certified copies of the record of the district court, not embodied therein as a part of the same. ( Transportation Co. v. Palmer, 19 Kas. 471; Parker v. Machine Co., 24 id. 31; Building Association v. Beebe, 24 id. 363.) Within these authorities, the district judge committed no error in refusing the application to amend the case-made, and we cannot consider as a part thereof the copy of the journal not incorporated therein at the time it was settled and signed.
Upon the record presented to us, the judgment of the district court must be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Johnston, J.:
This was an action to recover a debt evidenced by five promissory notes executed in favor of Horace Moore by the defendants, John S. Jordan and Helen J. Jordan, and to foreclose a mortgage which had been given by these defendants on lands in Shawnee county, Kansas. The action was brought by Harriet Moore, as administratrix of the estate of Horace Moore, deceased, and she alleged that she was duly appointed and qualified under the laws of the state of Colorado. It was alleged that subsequent to the execution of the mortgage, John S. and Helen J. Jordan had conveyed their interest in the premises to the defendant, M. Gr. Coughlin. The defendants answered that they were residents of the state of Kansas, and have been domiciled in Kansas since and long prior to the death of Horace Moore. Among other defenses they allege that at the time of his decease Horace Moore was a resident of, and had his home and domicile in the state of Illinois, and was only temporarily sojourning in Colorado at the time of his death; that the notes and mortgage which came into the possession of the plaintiff are not, and never have been, assets in her hands; that according to law she has no interest in nor title to the notes and mortgage, nor to the proceeds thereof; no power to collector receive anything on account of them, or to release or acknowledge satisfaction thereof, and no right or authority to bring or maintain an action thereon in this state against the defendants.
It is further alleged that soon after the decease of Horace Moore, administration of his estate was duly granted to Newell II. Moore, in the county of Kendall in the state of Illinois, where the intestate resided at the time of his decease; and that Newell H. Moore qualified as administrator, and continues in the discharge of his duties as such; and that the defendants have fully settled with him all matters between said defendants and the estate, including the notes and mortgage. The written receipt of Newell H. Moore is set out in the answer.
The controverted question of fact to which the greater part of the evidence was directed, relates to the domicile of Horace Moore at the time of his death. Upon this question the jury - found specially that at and immediately prior to the time of his death, his residence and domicile were in Illinois, and not in Colorado. He had resided in Illinois for a great many years, but shortly before his death he made several visits to Colorado with his son, and for the benefit'of his son’s health. In company with his son he went to Colorado in February, 1879, and remained there until October of the same year, when he died intestate. He had acquired considerable property, the greater part of which was left in Illinois, but he took with him to Colorado the notes and mortgage in controversy, where they were found at the time of his death. The testimony regarding his domicile- was conflicting, and its sufficiency is challenged by the plaintiff in error; but the finding is not without support, and as the question was fairly submitted to the jury, we must regard the finding as conclusive here. Letters of administration were issued by the county court of Arapahoe county, Colorado, to the plaintiff soon after the death of the intestate, authorizing her to administer upon the estate found in Colorado. Soon afterward letters of administration were granted to Newell H. Moore, in Illinois, and it appears that both of these administrators, the one in Colorado and the other in Illinois, qualified as required by the laws of these states respectively, and entered upon the discharge of their official duties. The notes and mortgage came into the possession of the plaintiff as administratrix in Denver, Colorado, and were never in the possession of the opposing administration. What then, is the legal effect of these facts? The court in its charge ruled, and we think correctly, that the notes and mortgage were not assets in the hands the plaintiff, and that she could not -maintain an ac^on there0n. under the authority conferred by the laws of Colorado. The right of the defendants to avail themselves of this defense, though questioned by the plaintiff, cannot be doubted. In an action brought by a foreign administrator in Wisconsin, upon a bond secured by mortgage on real estate situate there, the defendants set up as a defense that the plaintiff had no right to maintain the action, but that an administrator had been appointed under the laws of Wisconsin, which appointment vested in the latter all rights of action upon the bond. The supreme court of the United States held that the defense was good, saying:
“The bond in suit was bona notabilia in Wisconsin, and a plea that the subject of the action constituting such bona notabilia was, on the death of the decedent, in another jurisdiction than the one which appointed the administrator suing as plaintiff', has always been a good answer to the action. It is an averment of facts which in law excludes all right to or control over the property in that state by the foreign administrator." (Noonan v. Bradley, 9 Wall. 405; Ins. Co. v. Lewis, 97 U. S. 682.)
The mere fact that the notes and mortgage chanced to be in Colorado does not give plaintiff title to them, nor make them assets in her hands. Prior to the death of the intestate, the notes had no fixed situs, but followed the domicile of the owner, wherever that might. be. After his death they lost their transitory character and became local. The principa administration to which all others are subordinate is at the domicile of the intestate, and the universally recognized rule of law is that the succession to and distribution of personal estate is governed by the law of the place where the intestate was domiciled at the time of his death.
“The original administrator, therefore, with letters taken out at the place of the domicile, is invested with the title to all the personal property of the deceased, for the purpose of collecting the effects of the estate, paying the debts, and making distribution of the residue according to the law of the place or directions of the will, as the case may be.” ( Wilkins v. Ellett, 9 Wall. 740; Story on Conflict of Laws, §379.)
However, the letters of administration confer no authority beyond the limits of the state granting them. The title acquired by the administrator of the domicile is but a fiduciary one, and can only be enforced in another state by permission of its laws. No state is required under any rule to surrender the effects or debts due to an intestate domiciled elsewhere to the prejudice and injury of its own citizens. Although the title and right of the domiciliary administrator may be recognized ex comitate, it is subject to the rights of the creditors of the estate where the assets exist, or the debtor of the deceased resides. It would be very unjust to require creditors in this state to seek their remedy in another jurisdiction when there were assets here; and it is well settled that the creditors of each state are entitled to payment before the assets of the estate are withdrawn to another jurisdiction. (Story on Conflict of Laws, § 512.) So the rule has become established that debts, such as are evidenced by promissory notes, are bona notabilia at the domicile of the debtor. The supreme court of the United States epitomized the law on this question where it is said:
“ The general rule of law is well settled, that for the purpose of founding administration, all simple contract debts are assets at the domicile of the debtor, and that the locality of such a debt for this purpose is not affected by a bill of exchange or promissory note having been given for it, because the bill or note does not alter the nature of the debt, but is merely evidence of it, and therefore the debt is assets where the debtor lives without regard to the place where the instrument is found or payable.” (Wyman v. Halstead, 109 U. S. 654; Chapman v. Fish, 6 Hill, 554; Attorney General v. Bouwens, 4 M. & W. 171-191; Owen v. Miller, 10 Ohio St. 136; Thompson v. Wilson, 2 Conn. 291; McCarty v. Hall, 13 Mo. 480; Willard v. Hammond, 1 Foster, 382; Shakespeare v. Fidelity Ins. Co., 97 Pa. St. 173; Dial v. Gary, 14 S. C. 573; Life Ins. Co. v. Woodworth, 111 U. S. 138; 1 Williams on Executors, 426.)
The courts, however, are not entirely uniform in their holding upon this question. Some of the authorities hold that the title to these evidences of debt is not only in the domiciliary administrator, but that they are assets in his hands instead of at the domicile of the debtor. (Eells v. Holder, 2 McCr. C. C. 622; Speed v. Kelly, 59 Miss. 47.) The only conflict, however, is in regard to whether they are assets at the domicile of the intestate, or at the domicile of the debtor. No authority to which our attention has been called holds that the mere fact that the evidences of debt happen to fall into the hands of an ancillary administrator appointed at a place other thau the domicile of the intestate or of the debtor, vests the title to the debt in him. The case mainly relied on by the plaintiff is St. John v. Hodges, 9 Baxter, 334. In that case the court uses some language tending to sustain the plaintiff’s theory that the administrator in the jurisdiction where negotiable notes are left at the time of the death of the decedent has title to them, although the debtor resides elsewhere. It appears, however, that the notes were left at the domicile of the intestate, and they came into the possession of the administrator appointed in that jurisdiction, and the case therefore only sustains the title of the administrator at the domicile. In a later case, the same court, referring to the decision in St. John v. Hodges, say that the question decided was that —
“Notes are bona notabilia at the domicile of the intestate when left there at the time of his death, and that administration taken out in another state where the debtor resides does not draw thereto the title or the right to the notes unless they actually came to the hands of such administrator.” (Goodlett v. Anderson, 7 Lea, 289.)
Stevens v. Gaylord, 11 Mass. 267, is cited by the plaintiff, but it does not support her theory. It is there said that—
“If a foreigner or a citizen of any other of the United States dies leaving debts and effects in this state, these can never be collected by an administrator appointed in the place of his domicile, and we uniformly grant administration to some person here for that purpose. This is the rule of the common law, and it is adopted as we understand in most of th'e United States.”
By the authority of Wyman v. Halstead, supra, it is settled that neither the place of payment of simple contract debts like promissory notes, nor the place where they happen to be found, is important or controlling. It has been decided that payment to an administrator appointed in the state in which the intestate had his domicile at the time of his death is good against any administrator appointed elsewhere. (Wilkins v. Ellett, 9 Wall. 740; Wyman v. Halstead, 109 U. S. 656.) And it has been held in this state that in the absence of any opposing administration, the courts in this state, ex eomitate, will recognize the title and possession of personal property in this state in an administrator appointed in the domicile of the decedent, and that payment to such an administrator of a debt due to the decedent will be good. (Denny v. Faulkner, 22 Kas. 96.) If there are no creditors outside of the domicile of the intestate, debtors of the estate elsewhere might make settlement with the principal administrator and secure a full discharge of the debt, but they cannot obtain a valid release from an ancillary administrator appointed in a jurisdiction other than where the debtor resides. The only authority possessed by the plaintiff was derived from the law of Colorado, and her administration was subsidiary to the administration in Illinois. It does not appear that there were any debts due from the estate in Colorado, but the extent of her authority was to administer upon the assets of the estate locally situated there, and after paying the creditors in that jurisdiction, to remit the residue to the principal administra tor in Illinois. We have a statute permitting a foreign administrator to sue in this state, but this statute only removes his disability to sue upon any cause of action he may have. It does not enlarge his rights, nor confer upon him a title to the debts which he would not otherwise own. As we have seen, the notes were not bona notabilia in Colorado, and the plaintiff, being an ancillary administratrix, cannot be allowed to draw into her jurisdiction debts due the estate from persons outside of Colorado; and if there are creditors in that state, they must share with others in the residue remitted to the administrator at the domicile. (3 Redfield on Wills, p. 28; Baldwin’s Appeal, 81 Pa. St. 441.) Under our statute an administrator of this estate may be appointed in Kansas who can maintain an action to recover any debts due to the estate from persons resident here, and after the local creditors are paid, if any exist, the surplus, if any, should be paid to the administrator in Illinois. (Gen. Stat., ch. 37, §174.) But in no view of the case has the plaintiff under her appointment any authority to maintain this action.
Some other questions were raised and discussed by the plaintiff in error, but in view of the conclusion that we have reached, it is not necessary to consider them. The judgment of the district court must be affirmed.
All the Justices concurring.
|
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Opinion by
Clogston, C.:
Scruggs brought an action against the Hart Pioneer Nursery Company, to recover for services claimed to have been rendered by him as salesman for the defendant. At the trial before the justice he obtained a judgment for the amount claimed, being $79.45 and costs. The cause was taken to the district court on error, where the judgment of the justice was affirmed. The defendant company has brought the case to this court.
Plaintiff in error complains of the ruling of the justice on the trial in admitting in evidence certain parts of a deposition and a letter written by the plaintiff in error, over the objections of the plaintiff, for the reason that the same was incompetent; and upon examination of the evidence admitted and objected to in the deposition, we are of the opinion that the same was incompetent and improperly admitted. But if this be correct, can it avail the plaintiff? Defendant in error insists that the plaintiff in error had no remedy by petition in error. This we think correct, and has been so held by this court in Rice v. Harvey, 19 Kas. 144, and cases therein cited. Again, this court has since that case" repeatedly held that the erroneous admission or exclusion of evidence cannot be reviewed by petition in error. (Thompson v. Brooks, 29 Kas. 504; and Theilen v. Harm, 27 id. 778.) Therefore, within these .authorities, it is immaterial even if the justice did err in the admission of evidence: the remedy is not by error, but by appeal.
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 January 30, 1884, by Martha Hoeburg against John Cole, for the recovery of $5,000 damages for an alleged breach of a promise of marriage, and for seduction. No cost-bond was filed in the case, but in lieu thereof the plaintiff made a poverty-affidavit, which was defective in not stating that her cause of action was just; and for this reason the original summons was set aside, upon the ground that it had been improvidently issued. Afterward, and on October 23, 1884, the plaintiff filed another poverty-affidavit, which seems to be in proper form and sufficient in every particular, unless it is insufficient because it was sworn to before a justice of the peace and not before the clerk of the district court. On the same day the plaintiff also filed an affidavit for service by publication, which reads as follows:
“The plaintiff in the above-entitled action makes oath that on the 30th day of January, 1884, she filed her petition in the above-entitled action and had summons issued, but the service of summons was set aside by the court, and at the time the same was issued said defendant was a resident of Clay county, Kansas, and ever since that date the defendant has not been a resident of the state of Kansas, and is not now a resident of the state of Kansas, and that he departed therefrom and the county of Clay in said state with the intent to avoid the service of summons in said action, and that service of summons cannot be had on him in said state of Kansas; and that this action is one embraced within the true intent and meaning of § 72 of article 6, of the code of civil procedure, owing to the defendant, who was a resident of the state at the time this suit was commenced, having departed therefrom to avoid the service of summons in this case.”
Thereupon, service of summons by publication was made, and the defendant at the next term of court appeared specially, and moved to set aside such service for the following reasons:
“1. The said service by publication was improvidently made, and without any authority whatever.
“2. No security for costs has been given by the plaintiff herein.
“ 3. The poverty-affidavit made by plaintiff in lieu of security for costs, is not verified according to law, and was not made or filed in this court.
“4. The affidavit for service by publication does not show that this action is one of those specified in § 72 of the civil code in which service may be made by publication, and said affidavit is not sufficient to entitle plaintiff to make service by publication upon defendant.”
This motion was overruled on January 17, 1885, and the defendant excepted, and the court at the same time “further ordered that said defendant have leave to renew said motion unless a sufficient affidavit of poverty is filed by plaintiff herein on or before January 21,1885.” The defendant made no further appearance in the case. On January 19,1885, the plaintiff verified her second poverty-affidavit by her own oath, taken before the clerk of the district court; and also on the same day filed another poverty-affidavit in form sufficient and sworn to before the clerk of the district court. On January 22, 1885, judgment was rendered in favor of the plaintiff and against the defendant for $5,000, as upon a default and without the introduction of any evidence; and to reverse this judgment the defendant, as plaintiff in error, brings the case to this court.
It is claimed that the court below erred in refusing to set aside the service of summons by publication, upon the ground that the poverty-affidavit was not “ made before the clerk ” of the district court, as provided by § 1, ch. 121 of the Laws of 1875; (Comp. Laws of 1879, ¶4113, page 681;) it was sworn to before a justice of the peace, but was filed with the clerk of the district court. Now there is no statute that in terms requires that security for costs shall be given before service of summons by publication is made. The statute simply provides that “before the clerk shall issue siommons there shall be filed in his office” the cost-bond; and it does not say that before service of summons by publication can be made the cost-bond shall be filed. And if no cost-bond is necessary where service by publication is had, of course an affidavit of poverty is unnecessary. And further, is not an affidavit filed with the clerk of the district court, but sworn to before some other officer, just as good as an affidavit filed with such clerk and sworn to before him ? The statute does not in terms say that the affidavit shall be sworn to before the clerk. It simply says, “that in any case where the plaintiff or plaintiffs have a just cause of action against the defendant or defendants, by reason of his, her or their poverty, is or are unable to give such security for costs, on affidavit of the plaintiff or plaintiffs made before the clerk that such is the fact no bond shall be required.” Now may not an affidavit sworn to before some proper officer, and filed with the clerk, be considered as an affidavit made before the clerk ? But even if either a cost-bond or a poverty-affidavit $ioom to before the clerk is required, and no cost-bond is given, and if the poverty-affidavit is not sworn to before the clerk, but is sworn to before some other officer authorized to administer oaths, and service by publication is then made, the service would not be void. It would at most be only voidable, and it would be valid until set aside; and whether it should ever be set aside or not, would depend upon the question whether justice would be best subserved by setting it aside or not. In the present case, the service by publication was never set aside: and as the plain- ^ tiff properly amended her poverty-affidavit, and }eave 0f t]ie C0U1q made and filed another poverty-affidavit, in all particulars sufficient, we think that in justice the service should not have been and should not be set aside for want of a cost-bond or of a poverty-affidavit.
It is further claimed that the service by publication is fatally defective in not stating facts sufficient to show that the action is one of those mentioned in § 72 of the civil code, and the cases of Claypoole v. Houston, 12 Kas. 324, and Shields v. Miller, 9 id. 390, 398, are cited as authority for this claim. These cases, however, are not in point. The affidavit in the present case is very dissimilar to the affidavits made in those cases. That portion of § 72 which applies to this case reads as follows:
“Section 72. Service may be made by publication in either of the following cases: . . In all actions where the defendant, being a resident of the state, has departed therefrom or from the county of his residence with intent . . to avoid the service of summons.”
Now the affidavit and the record in the present case show that when this action was commenced the defendant was a resident of Clay county, Kansas, where the action ivas commenced; that service of summons was made upon him in that county, but that such service was set aside for an irregularity, and that after the commencement of the action the defendant departed from the county of his residence and from the state, with the intent to avoid the service of summons. This brings the case at least within the spirit, if not within letter of § 72 of the civil code. The defendau£ wag a resident of the state. The action was commenced. Service was made upon him. It was irregular. It was set aside. He left the state to avoid the service of summons. And should he by such a wrong accomplish such a result? We do not think that his becoming a non-resident of the state prior to the service of summons by publication can make any material difference. He was a resident when the suit was commenced, and left the state to avoid service of summons; and that gave the plaintiff a right to procure service by publication. And as he left the state for the puz’pose of avoiding the service of summons, we do not think that the statute should be so liberally construed in his favor as to give him the benefit of his own wrong. We think this case in terms and in spirit comes within the provisions of said § 72.
The third and last question presented by the plaintiff in error is, whether in an action for a breach of promise of marriage, and for seduction, a judgment can be rendered upon a default for more than nominal damages, or indeed for any damages, where no evidence has been introduced in the case. Counsel for plaintiff in error, defendant below, use the following language:
“The petition seems to contain two distinct causes of action, although they are not separately stated and numbered: 1. For a breach of promise of marriage. 2. For seduction under said promise of marriage. Damages for '$5,000 generally ai'e claimed. We therefore contend that it was error to render judgment by default without evidence of value or damages. Allegations of value or amount of damages are not admitted by failure to controvert them. Even upon default they must be proved. Code of Civil Procedure, § 128, also § 401; U. P. Rly. Co. v. Pillsbury, 29 Kas. 652.”
■ In reply to this, we would say that only one cause of action is stated in the plaintiff’s petition, to wit: A cause of action for a breach of promise of marriage. It is true, the petition also alleges seduction under such promise, but the allegations with regard to seduction do not constitute a cause of action. In Kansas, a woman has no cause of action for her own seduction; neither by statute nor at common law. And evidently the plaintiff did not intend to state more than one cause of action; for if she did, she would have stated them separately, in separate counts, and would have numbered each as required by §188 of the civil code. The allegations with regard to seduction under the promise of marriage were evidently inserted in the petition merely for the purpose of enhancing the plaintiff's damages. Whether they could rightfully accomplish any such purpose or not, it is unnecessary now to decide; but evidently that was the sole object for which they were inserted. It is our opinion that only one cause of action was set forth in the plaintiff's petition, and that was a cause of action for a breach of promise of marriage, and a cause of action on contract, and the action itself is an action on contract for the recovery of money only. That portion of § 128 of the civil code- having application to the question now under consideration, reads as follows:
“ Every material allegation of the petition not controverted by the answer . . shall, for the purposes of the action, be taken as true. . . Allegations of value or of amount of damages shall not be considered as true, by failure to controvert them; but this shall not apply to the amount claimed in actions on contract, express or implied, for the recovery of money only.”
In the present action the plaintiff has alleged in her petition among other things that she is damaged in the sum of $5,000, and she asks merely to recover that amount, and nothing else. This allegation is a material allegation, and neither it nor any other allegation of the petition has ever been controverted by any answer. The action is an action on contract, an action on an express contract, and . . . . an actlon i°r the recovery ot money only, iherefore it would seem that the allegation with regard ^ atnount of the plaintiff's damages should be taken as true, and therefore that no evidence was necessary with regard thereto. Under the express provisions of the last clause of the foregoing section, the words “Allegations of value, or of amount of damages, shall not be considered as true by failure to controvert them,” can have no application to cases like this. This construction of the above statute seems to be in conflict with a portion of what is said in the case of the U. P. Rly. Co. v. Pillsbury, above cited. But all that was said in that case in any manner conflicting with the views herein expressed is pure dictum, and need not have been said in that case at all. It is true that in that case the action was for damages, as it is in this; and it was for the recovery of money only, as this case is; but, unlike this case, it was not commenced in the district court, nor was it tried in the district court, and, in legal contemplation, it was not commenced anywhere. It was attempted to be commenced before a justice of the peace, but no valid service of summons was ever obtained upon, nor any kind of appearance made by, the defendant. Judgment, however, was rendered by the justice of the peace against the defendant for $133.85. This judgment was of course void. The defendant, however, took the case on petition in error to the district court, where the- judgment of the justice of the peace was affirmed. The defendant then brought the case to the supreme court, where the judgment of the district court was reversed, and the case remanded with instructions to set aside the judgment of the justice of the peace. Now when it was decided by the supreme court that the judgment of the justice of the peace was rendered without jurisdiction and was void, that in effect ended the case. It was not necessary then to construe § 128 of the civil code, or to say anything about defaults or want of evidence. Also, as the action was commenced in a justice’s court, and as the judgment was rendered there, § 128 of the civil code could not have any application to the case. The proceedings in the justice’s court were governed by the provisions of the justices code. In a justice’s court the plaintiff files as a pleading only a bill of particulars; “and the defendant, if required by the plaintiff, his agent or attorney, shall file a like bill of particulars he may claim as a set-off.” (Justices Code, § 71.) The defendant never files an answer nor even a bill of particulars in a justice’s court, unless required by the plaintiff;. and not then, unless he claims a set-off. The allegations of the plaintiff’s bill of particulars are never taken as true upon a failure on the part of the defendant to file a pleadiug deuying them; for, as before stated, the defendant need not in any case file any such pleading. It will therefore be seen that all that was said in the case of the U. P. Rly. Co. v. Pillsbury, 29 Kas. 652, with reference to §128 of the civil code, was unnecessary to be said, and therefore should not be considered binding as a precedent. How it came to be said, or why it was said, we do not now know. What was said, however, would have been good law in Kansas up to October 31, 1868, when the revised statutes of Kansas of that year took effect. Prior to that time there was no such provision in the statutes of Kansas as the concluding clause of §128 of the civil code, which reads as follows: “but this shall not apply to the amount claimed in actions on contract, express or implied, for the recovery of money only.” That clause was’ not contained in the civil code of 1859. (See §137 of that code, which corresponds with §128 of the present civil code.) We think the statute is wrong as it is, and that- it ought to be as it was when the civil code of 1859 was in force.
Perceiving no material error in this case, 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
Valentine, J.:
This was a criminal prosecution upon an indictment, wherein the defendant, William Shenkle, was charged in three counts with selling intoxicating liquor in violation of law, and in keeping and maintaining a nuisance. He was convicted under the first and second counts for selling intoxicating liquors, but was not convicted under the third count for keeping and maintaining a nuisance; and he was sentenced to pay a fine of $100 and to be imprisoned in the county jail for the period of thirty days. From this sentence he now appeals to this court.'
I. It appears from an inspection of the indictment that the name of no witness by the name of Franklin was indorsed on the indictment; and yet the court in its instructions stated that the state had elected to rely upon an alleged sale of beer delivered by the witness Franklin to the witness Albert Hoover. The defendant now claims that error was committed by the court below in permitting the witness Franklin to testify. There is nothing further in the record that tends to show that any person by the name of Franklin testified on the trial, or what his testimony was, or that any objection was made to his testimony, or for whom he testified, if he did testify; and from anything appearing in the record he may have testified on behalf of the defendant. Such a record certainly does not affirmatively show error; and error is never presumed.
II. The court instructed the jury, among other things, that if'they found that “the defendant sold, bartered or gave any beer to the said Albert Hoover, delivered to him by the witness Franklin, without having a permit to sell intoxicating liquors as required by law, you [they] must find the defendant guilty,” etc. The objection to this instruction is, that it directs the jury to find the defendant guilty if he merely “gave any beer” to Hoover. Now what the evidence in the case Avas, is not shown; nor was any objection made or exception taken to this instruction-. In all probability no material error was committed by the giving of this instruction. Certainly no material error is shown; and therefore the judgment of the court below will not be reversed because of this instruction.
III. The instructions of the court to the jury seem to be sufficient. Besides, the court was not asked to give any further or additional instructions, and therefore it did not err in failing to do so.
IY. The court below instructed the jury, among other things, as follows: “ Any one who counsels, aids or abets in the commission of any offense may be charged, tried and convicted in the same manner as if he were the principal.” The defendant took no exception to this instruction at the time it was given, but he now complains that it is erroneous. We however think it correctly states the law. The statute provides as follows:
“Sec. 115. Any person who counsels, aids or abets in the commission of any offense, may be charged, tried and convicted in the same manner as if he were a principal.” (Comp. Laws of 1879, ch. 82, § 115.)
See also The State v. Cassady, 12 Kas. 550; The State v. Brown, 21 id. 50; The State v. Mosley, 31 id. 355.
No material error having been shown in this case, the judgment of the court below will be affirmed.
All the Justices concurring.
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Opinion by
Simpson, C.:
Action for a balance of $350.75, claimed to be due on a corn deal, the plaintiffs in error being commission merchants in Chicago, and defendant in error a resident of Lyon county. On March 15th, 1882, the plaintiffs in error sold for the defendant in error, as per telegraph instructions, ten thousand bushels of No. 2 corn, to be delivered during the month of July of that year, for 67|- cents per bushel. On the 21st day of March the defendant in error paid the plaintiffs in error, by draft, the sum of two hundred dollars. On .the 5th day of April following, Culver & Co. purchased for Warren ten thousand bushels of corn, to be delivered in the month of July following, to the party to whom they had sold on the 15th day of March. For this corn they paid 73 cents per bushel, and subsequently, Culver & Co. paid the difference between the price of the corn sold on the 15th of March and that bought on the 5th day of April, amounting to the sum of five hundred and twenty-five dollars. This amount, less the net proceeds of the draft, they sought to recover. There was a jury trial. The plaintiffs in error read the deposition of George N. Culver, one of the Chicago firm, to the jury, detailing the transaction, parts of which were admitted by the court, under the objections by the defendant in error. They also produced the agent of the Western Union Telegraph Company, at Emporia, who testified “that all the originals of messages received by said company at Emporia for transmissions over its lines from that point during the year 1882 had been destroyed, and are not now in existence.” This was all the evidence on the part of the plaintiffs in error. The defendant in error offered no proof. Under the direction of the court, the jury returned a verdict for the full amount for {he plaintiffs in error. Motion for a new trial was filed, and sustained, for error occurring at the trial, principally because the copies of the telegrams sent by Warren to Culver & Co., at Chicago, ordering the sale and purchase of the corn, were admitted without proof that Warren had authorized the telegraph company to transmit them.
The main cause of error assigned and discussed by counsel for the plaintiffs in error in this court is the action of the court in setting aside the verdict and granting a new trial, for the reason above stated. Numerous cases are cited by counsel on both sides as to this ruling. “It is undoubtedly the law that when a message is left at a telegraph office for transmission the company becomes the agent of the person authorizing it sent,” and before such a message can be admitted in evidence there must be some preliminary proof of the agency of the company transmitting it; and if this was the only question in the case, it would have to be solved in accordance with the above declarations of the law.
The evidence discloses the fact, and that too by proper proof, uncontradicted, that the defendant in error had made part payment of this demand; and hence there is no necessity for the enforcement of the strict rule of evidence concerning the messages,'for part payment of the demand is not only an acknowledgment of liability, but is also a ratification of the ageucy of the telegraph company in the transmission of the messages.
It is recommended that the judgment of the court below be reversed.
By the Court: It is so ordered.
All the Justices concurring.
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Opinion by
Simpson, C.:
The counsel for plaintiff in error rely on these two assignments for reversal:
1. The payment of $30 on the note on the 29th of January, 1882, and the promise of defendant in error, in consideration of that payment, to wait six months or one year, or as soon between six months and one year after that date as Ingels could pay the balance due on- the note.
2. The delay of the defendant in error to bring suit on said note when requested by Becker, the surety, to do so, who communicated to Sutliff the fact that Ingels was disposing of all his property.
As to the first proposition discussed in the brief of counsel for plaintiff in error, it has been decided by this court in the cases of Jenness v. Cutler, 12 Kas. 500, and Prather v. Gammon, 25 id. 379. The payment of $30 on this note on the 29th day of January, 1882, when the note had been due ever since the 4th day of August, 1881, and the sum paid was not half of the amount then due, was no consideration for a new and valid agreement.
The second question raised is covered by the case of Turner & Jelly v. Hale, 8 Kas. 38. Holding strictly to the rule in that case, this surety does not bring himself within it.
We recommend an affirmance of the judgment.
By the Court: It is so ordered.
All the Justices concurring.
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Opinion by
Holt, C.:
Plaintiff in error, defendant below, makes several assignments of error. The first one that we wish to consider is, that the court erred in admitting testimony, over the objection of the defendant, tending to show the condition of the entire fiock of sheep kept by Ramage, including the two hundred purchased by Ovelman in February, 1883. He claims that unless the sheep of the plaintiff were distinguished from those of Ovelman, there could be no testimony introduced showing that they were diseased. "We think that this objection is not well taken. The testimony of the witnesses was that they were all of the same quality of sheep purchased from Broquet, and came from the same flock owned by him, and that it was impossible to tell which sheep belonged to either purchaser, except the two hundred that were marked by Ramage; If the claim of the defendant is correct, neither Ovelman nor the plaintiff could have recovered any damages arising from the breach of the defendant's warranty of the sheep bought in February. There was no confusion or com mingling of the sheep by the plaintiff or his agent for the purpose of concealing the facts from or manufacturing evidence against Broquet, or in any manner defrauding him. The flocks were put together simply for the reason that they could be more easily cared for in one flock than in separate flocks. The court moreover, in its instructions to the jury, cautioned them against allowing to plaintiff in this case damages which Ovehnan may have sustained because his sheep were diseased, in language so strong that the defendant, at least, can have no grounds for complaint.
Defendant further complains that there was testimony introduced, over his objection, tending to show that the lambs were diseased; and claims that the damage to the lambs was not a proper item to be considered under the warranty of the defendant. The sheep purchased by the plaintiff were almost entirely ewes, and were bought for the purpose of breeding. If the lambs had died when they were dropped, by reason of the disease of the ewes, that would certainly be ao item ox damages; or if the ewes at the time of ^ . parturition had died by reason of weakness occasioned by the disease, that also would be a matter to be investigated and allowed in the claim for damages. If the lambs naturally and necessarily became diseased by running with the flock of diseased sheep, as it appears from the evidence in this case they did, we believe that fact could properly be considered in ascertaining the amount of damages to be recovered.
Another assignment of error is, that the court permitted one Hill to testify as an expert. There was no substantial error in the admission of his evidence. He said that the sheep were diseased, and described how they appeared, a description that any person who had examined the sheep, whether he was an expert or had any skill at all, could have easily seen and described. The testimony he gave, claimed by defendant to be expert testimony, was that the sheep were diseased. The testimony of other witnesses, showing that they were diseased, was overwhelming, and we presume that a witness, not an ex pert, could say that an animal was diseased if he did not attempt to describe the nature and effects of such disease.
Defendant further claims that a witness which he sought to introduce, Witt by name, should have been allowed to testify as an expert. But his examination shows that he was unskilled, so far at least as the use of the English language is concerned. He testified that the disease called “scab” was caused by an insect, which was not visible to the naked eye, but which he had examined often through the telescope; and then he corrected himself by saying that he had looked at it through the telephone. Other parts of his testimony indicate about the same degree of general intelligence. The ability or disability of a witness to testify under the legal requirements for the admission of opinion evidence a ma^ei, 0ften most conveniently and satisfactorily determined by a personal examination of the witness, and we presume that the court, having this witness before it, and perceiving his mental caliber, was justified in excluding his testimony. The questions propounded to him were allowed to be answered fully by other witnesses produced by the defendant, whom the court thought were qualified as experts. Therefore the defendant could not have been materially prejudiced by the court’s refusal to allow him to testify.
The defendant complains further, that the court erred in refusing number sixteen of the instructions asked. The record does not show that there was any exception to the refusal to give such instruction. The defendant still further complains that the court, as a condition for overruling his motion for a new trial, remitted three hundred and fifty dollars of the verdict. We think it had ample authority to do so. If the plaintiff consented thereto, the defendant ought not to complain, as the reduction was in his favor. It seems to be well settled that, in actions for damages of this kind, an excess in the verdict, above what the evidence might justify or satisfactorily establish, may, with the consent of the party in whose favor the verdict was given, be remitted, and judgment entered for the residue. The exercise of such power is sanctioned on the theory that the excess arises either from error of law, misapprehension of the facts, or error in computation by the jury, and that such error does not permeate the entire verdict, and therefore it is competent to correct it. When the assent of the party is obtained, whom alone the correction would prejudice, the other party has nothing of which to complain, such order of the court being in his favor. (Pendleton St. Rld. Co. v. Raham, 22 Ohio St. 446; Brockman v. Berryhill, 16 Iowa, 183; Dawson v. Wisner, 11 id. 6; Craig v. Cook, 23 Minn. 232; Corcoran v. Harran, 55 Wis. 121.)
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
Johnston, J.:
William Baldwin was informed against, tried and convicted of the crime of murdering his sister, Mary Baldwin. The information consists of two counts, in the first of which it is charged that the defendant, on or about the 8th day of July, 1885, administered to Mary Baldwin an anaesthetic, to wit, chloroform, which is alleged to be a deadly poison, with the felonious intent to kill and murder her. In the second count the charge is, that the death of Mary Baldwin was occasioned by the defendant pressing a pillow on, over and against her mouth, nose and face, thereby preventing respiration and causing death. The jury found him guilty of murder in the first degree under the first count of the information, and he was thereupon sentenced and adjudged to suffer death. From that sentence and judgment he appeals to this court. In the elaborate brief filed by his counsel there are forty-seven assignments of error, many of which were not referred to in the oral argument, and some of which .re unimportant. The alleged error-s have all been exami- A, and such of them as are deemed worthy of notice will be considered and disposed of in their order of presentation here.
I. The first assignment is that the jury were not duly sworn. In the journal entry of the proceedings at the opening of the trial, it is stated that the parties appeared, and issue being joined upon a plea of not guilty, a jury came, naming them, “twelve good and lawful men, having the qualifications of jurors, who, being duly elected, tried and sworn well and truly to try the issue joined herein, pending the introduction of testimony, the court adjourned until to-morrow morning,” etc. The exact form of the oath to be taken by the jury is not laid down in the statute, but with respect to administering the oath, it is provided that “the jury shall be sworn to well and truly try the matters submitted to them in the case in hearing, and a true verdict give according to the law and the evidence.” (Crim. Code, §208; Civil Code, §274.) The contention of the defendant is, that the record undertakes to set out the oath actually administered to the jury, and that as it omitted the essential part of requiring that they should a true verdict give according to the law and the evidence, the judgment should be reversed. It is highly important and necessary that the oath should be administered with due solemnity, in the presence of the prisoner and before the court substantially in the manner prescribed by law. It may also be conceded -that the record should show that the jury were sworn, and when the record does purport to set out in full the form of the oath upon which the verdict is based, it must be in substantial compliance with law; otherwise the conviction cannot stand. The assumption by counsel that the oath as actually administered is set out in full in the record, it seems to us is unwarranted. What is stated in the record is but a recital by the clerk of the fact that the jury were sworn. The swearing was of course done orally in open court, and it is no part of the duty of the clerk to place on the record the exact formulary of words in which the oath was couched. He has performed his duty in that respect when he enters the fact that the jury were duly sworn, and when that is done the presumption will be that the oath was correctly administered. The method of examining the jurors as to their qualifications, or whether the oath was taken by them while standing with uplifted hands, according to t'he universal practice in the state, or otherwise, is not stated. In making mention of the impaneling and swearing of the jury, there is no description of the parties between whom the jury are to decide; nor indeed are there any of the formal parts of an oath stated. The statement made is .only a recital of a past occurrence; and it is manifest that there was no intention or attempt of the clerk to give a detailed account of the manner of impaneling the jury, or to set out the oatli in lime verba.
It may be observed that in the form of the verdict returned, and which was prepared and presented to the jury by the trial judge, it was stated that the jury were duly impaneled and sioorn. Counsel for defendant have called our attention to the case of Johnson v. The State, 47 Ala. 62, where the record entry of the swearing of the jury is substantially what it is in the present case. The court thei’e treated the recital as stating the form and substance of the oath administered, and held that the omission of the injunction to render a true verdict according to the law and the testimony was fatal. The question was before the same court in a later case, and the ruling in Johnson v. The State, supra, which had been followed in some other cases, was expressly overruled. (Mitchell v. The State, 58 Ala. 417.) In the latter case the court held that recitals iu the record relative to the swearing of the jury, like the one found in the record before us, are not to be regarded as an attempt to set out the oath actually administered, but should rather be considered as a statement of the fact that the jury had been sworn and acted under oath. This view seems to us to be reasonable and right; and it is one which has been generally adopted. (Boose v. The State, 10 Ohio St. 575; Dyson v. The State, 26 Miss. 362; Bartlett v. The State, 28 Ohio St. 669; Atkins v. The State, 60 Ala. 45; Thompson and Merriam on Juries, §299, and note.) A still more conclusive answer on this point is, that no objection was made to the form of the oath when it was administered, or at any other time prior to its presentation iu this court. If there was any irregularity in this respect it should, and probably would, have been objected to at the time it occurred. It is quite unlikely that there was any departure from the form of the oath so well understood, and which is in universal use in all of the courts of the state; but if the form of the oath was defective the attention of the court should have been called to it at the time the oath was taken, so that it might have been corrected. A party cannot sit silently by and take the chances of acquittal, and subsequently, when convicted, make objections to an irregularity in the form of the oath. Not only must the objection be made when the irregularity is committed, but the form in which the oath was taken, as well as the objection, should be incorporated into the bill of exceptions, in order that this court may see whether or not it is sufficient. This was not done.
II. The assignments of error from the third to the twentieth inclusive are based on the ruling of the court in the admission of testimony. The first six of these objections relate to the testimony of Albert H. Lewis. This witness was an intimate acquaintance of the Baldwin family, which consisted of the deceased, the appellant, and their mother, M. A. Baldwin. J. W. Baldwin, the father of Mary and William Baldwin, died in November, 1884, leaving an estate of considerable value, and the widow, M. A. Baldwin, was appointed administratrix of the • estate. Lewis was a frequent visitor at the Baldwin homestead, was engaged to be married to Mary, and he was the confidential adviser of her mother in the management of the estate, and assisted in investing the money of the estate. In the course of the trial, Lewis was asked to state whether he had been frequently called on by Mrs. Baldwin, after the death of her husband, to counsel about the estate, and also whether the appellant was ever called on at these times to counsel with them. These questions, although not very material, w'ere competent for the purpose of eliciting the relations existing among the members of the Baldwin family. The objection especially urged against the admission of the testimony is, that the defendant had no knowledge that his mother counseled with Lewis about the estate, and that no such consultation was had with Lewis in the presence of the defendant. This claim is not borne out by the evidence in the record. In the answer to the question objected to it is stated that in one instance the defendant was called in to confer with Lewis and his mother in regard to the investment of funds belonging to the estate. On another occasion the appellant accompanied Lewis to inspect security that was offered upon a loan negotiated by Lewis for the estate; and indeed the conduct of the appellant in frequently applying for money from his mother through Lewis, leaves no doubt about the question. The further evidence relating to Lewis transacting business at the banks for Mrs. Baldwin in reference to deposits, as well as that showing that money was drawn from the banks upon checks signed by Mary and her mother, is unobjectionable, and cannot in any way be considered prejudicial to the defendant.
III. About two weeks prior to Mary’s death, her mother, who was in ill-health, went to an infirmary in Iowa for medical treatment, where she remained until notice was received of her daughter’s death. The only occupants of the house during her absence were Mary and a male lodger. Occasionally some of her lady friends would stay over night with her, but on the night of her death she was alone. The evening prior to her death she spent in the company of Lewis, who remained with her until about ten o’clock. On the next evening her dead body was discovered in her bed-room. She was found lying in bed, robed in a night dress, with a pillow lying upon her face, and a small chloroform bottle was found near by her in the bed, upon which there was a poison label. With the evident purpose of repelling the theory of suicide, Lewis was asked by the state whether, on the evening prior to Mary’s death, there was anything in her appearance that made him believe she was in grief or was dissatisfied. He stated that there was not, but that she was in good spii’its, and when he left her she seemed to be happy. It is claimed that this testixxiony is incoxnpetent, because it is but an opinion formed from her appearance. It is a well-known general rule that witnesses are xiot to give their individual opinions, but are to state the facts, from which the jury are to form their opinions. There are, however, exceptions to this rule, which are as well defined as the rule itself. Whenever the question at issue is outside of the knowledge and experience of ordinary jurors, or where it so far partakes of the nature of science or trade as to require special and peculiar knowledge or skill in order to arrive at a correct conclusion, the opinions of experts are admissible. There is another equally well recognized exception, founded in necessity, under which the opinions of ordinary witnesses are received. Facts which are made up of a great variety of circumstances and a combination of appearances, which, from the infirmity of language, cannot be properly described, may be shown by witnesses who observed them; and where their observation is such as to justify it, they may state the conclusions of their own minds. In this category may be placed matters involving magnitude or quantities, portions of time, space, motion, gravitation, value, and such as relate to the condition or appearance of persons and things. (City of Parsons v. Lindsay, 26 Kas. 426; The State v. Folwell, 14 id. 105.) On the same principle, the emotions or feelings of persons, such as grief, joy, hope, despondency, anger, fear, and excitement, may be likewise shown; and hence the testimony objected to was properly admitted. (Lawson’s Expert and Opinion Evidence, rule 64; 2 Best on Ev., §517.) Lewis was intimately acquainted with the deceased. He had visited her almost daily for many months, and was with her a few hours before her death. The relation in which he stood to her, and his opportunity to observe her, certainly enabled him to read her conduct, gesture, tone, and expression of e)rc and face, and to form an intelligent opinion with respect to whether she Avas depressed or in grief. By her appearance he could determine her condition of mind Avith almost unerring accuracy, and yet Iioav futile it Avould have been for him to attempt to portray to the jury the facial expression, the looks of the eye, or the inflection of the Aroice, Avhich led him to belieAm that she AAras in a happy frame of mind. This species of evidence is admitted because it is the best which, in the nature of things, can be obtained, the value of which depends of course upon the capability of the witnesses, and the means that they had of forming an opinion, which may be ascertained and thoroughly tested upon cross-examination. What has been said here disposes of the objection urged against the testimony of Frank Price, the city marshal, who was present at the Baldwin residence on the evening that Mary’s death was discovered, and who attended upon the coroner’s jury that was impaneled to inquire into the cause of her death. He stated, in response to inquiries made by the state, that the defendant “was very nervous and showed a great deal of fear” when he was subpenaed and taken as a witness before the coroner’s jury. The conduct of one charged with crime about the time of its commission, or at the time of his arrest, may always be shown; and under the rule which we have been considering, the opinion of the witness that the defendant appeared to be in fear at that time was admissible. (Brownell v. People, 38 Mich. 732.)
IV. Objection is also made to the testimony of John Donahue, the jailer who had charge of the defendant from the time of his arrest, which was made about ten days after the crime was discovered. He was asked what was the general demeanor and conduct of the prisoner during the time he had him in charge, as to grief and sorrow, or whether the defendant manifested any evidence of grief or sorrow. He answered that the defendant was unruly and quarrelsome, and that at times he was wrestling, scuffling and boxing, and at other times tvas fussing and fighting and making threats. This inquiry was evidently not made with a view to initiate an inquiry into the general character of the defendant, nor to show that he had committed other offenses, and therefore many of the authorities cited by counsel are inapplicable. The manifest purpose of the testimony was to show that he was apathetic regarding his sister’s death, and did not evince that feeling and sensibility to be expected of a brother. As has been said, the conduct and demeanor of the prisoner at * the time of his arrest, or soon after the commission of the crime, may go to the jury as evidence of a guilty mind, and so far as the testimony was confiued to a reasonable time after the discovery of the crime and his arrest, it was certainly admissible. (Greenfield v. The People, 85 N. Y. 75.) We are inclined to the opinion that the inquiry was too general, and extended over too great a period, as the defendant was in charge of the witness from the time of the arrest to the time of the trial, a period of about four months, aud for this reason as well as that the testimony was somewhat unresponsive and irrelevant, we think the motion to strike it out ought to have been sustained. However, the testimony shows that the defendant did not manifest evidence of grief at the loss of his sister at anytime while he was in jail, and-was not much affected by her unnatural death; and hence the fact that the inquiry concerning his demeanor covered too much time, could not have injured him. And when we consider that the charge against which he was defending, and of which he was convicted, was that of poisoning his sister, the somewhat irrelevant statement of the witness that, he was fussing and fighting while confined in jail did not operate, we think, to prejudice him in the minds of the jury.
V. There was no error, we think, in admitting the testimony of James and Warstall. They were carpenters, with large experience as pattern makers and workers in wood. It seems that the parties who discovered the dead body of Mary Baldwin, at,the same time found that a panel of an outside door of the Baldwin house had been cut and taken out-. It appeared that the defendant was a carpenter also, and a knife was found on his person, which, with the door and panel, were brought into court. These witnesses stated that the panel, which was one-sixteenth of an inch in thickness, had been cut out with a knife, and could have been cut by the defendant’s knife; that the blade of the knife exactly fitted the place where the panel had been pierced; that the cutting was done by a person skilled in the use of tools, and after explaining the peculiar manner in which the door was constructed, stated that the panel was evidently taken out by one who understood the construction of a door, and also that it was cut from the outside. The evidence offered to sustain the conviction in this case is wholly circumstantial, and the testimony of experts was more than ordinarily important. These men were skilled workers in wood, and their experience enabled them to judge from the marks and impressions left upon the door by the tool used, whether it had been cut with a knife, chisel, or saw; whether it had been cut by a thick or a thin-bladed knife; whether it had been cut by one accustomed to the use of tools; and the marks or traces made upon the wood by the knife would indicate to the trained eye whether it had been cut from the outside or the inside. The manner in which the cutting was done, and the effect of the tools upon the wood, involve skill and experience to judge of, and are not within common experience; and it was therefore proper that the jury should be aided by the experience of these experts. (Commonwealth v. Choate, 105 Mass. 451.)
VI. A check drawn by Mrs. Baldwin in favor of the deceased was offered in evidence, of which the following is a copy:
“Atchison, July 7, 1885. — The Atchison Savings Bank pay to Mary Baldwin or order five hundred and fifty dollars ($550). Mrs. M. A. Baldwin.”
This was admitted for the purpose of showing the dealings among the members of the Baldwin family. The consideration of the check, or the purpose of Mrs. Baldwin in making it, is not disclosed in the testimony. It is not shown that the defendant had any knowledge of its existence prior to the time it was offered in evidence, or ivas in any way concerned with it. It was written on the blank check of a bank at Bloomfield, Iowa, where Mrs. Baldwin was staying, was written by her, and these facts, together with the date of the check, show that it could not have even reached Atchison prior to Mary’s death. The check was not referred to in the letters of the defendant or of the deceased, nor was it identified by any of the other testimony; and as it was not shown to have been in any way connected with the defendant, it was' incompetent. But although erroneously admitted, it had no bearing upon the defendant directly or remotely, and we fail to see how its admission could have affected him injuriously. It was therefore an unimportant and harmless error; and the legislature has stated that errors and defects that are unimportant, and which do not affect the substantial rights of the appellant in criminal cases, furnish no grounds for a reversal. (Crim. Code, 293.)
"VII. A letter of the deceased to her mother, written just before her death, and postmarked afterward, clearly showed that she was then in a healthful condition of body and mind. She described the occurrences in the town and the affairs at home, spoke hopefully of the future, and referred with evident pleasure to the constant attention and devotion of him to whom she was betrothed. The letter indicates cheerfulness and contentment, and contains nothing prejudicial to the defendant. It disclosed her condition of health and mind, which were wholly inconsistent with the theory of suicide, and for this reason and purpose it was admissible. (Rose. Crim. Ev. 30; 3 Greenl. Ev., §135, and note.) Her letter written in 1882, long prior to her father’s death, was too remote. It was not claimed by the state that other than friendly relations existed between the deceased and the defendant before his father’s death, and therefore it was not error to exclude the letter.
VIII. The objections urged to the question asked the clergyman Mulford on cross-examination are not good. After stating in his examination in chief what the conduct and appearance of the defendant were soon after the death of his sister, with a view of showing the conscious innocence of the defendant, it was proper to inquire if the witness had not stated before the coroner’s jury that the defendant impressed him at once as being guilty of the murder. It was allowable on cross-examination, and besides, if denied, it afforded a foundation for impeaching the witness. He gave a qualified answer, saying that he would not deny or affirm that he had so stated, but did deny stating that he had a thorough im pression of Ins guilt, and he added that the appearance of the defendant was that of painful surprise that anyone should suspect him of the offense. We cannot agree that the ruling was erroneous.
IX. Complaint is made of the ruling of the court in sustaining objections to the testimony of R. B. Spitler. He is a stenographer, who was in the employ of the defendant’s attorneys at the time of the preliminary examination, and took a stenographic report of the evidence then given. He transcribed the report and then destroyed his original notes. At the trial he was placed on the stand with his transcript in hand, and, with a view of impeaching the witnesses Price, James, and Warstall, he was requested to refresh his recollection from the transcript, and give the testimony of those witnesses on certain matters, when the objection of the state was sustained. That a witness may be permitted to refresh his memory from a writing or memorandum made by himself shortly after the occurrence of the fact to which it relates, is unquestioned. The writing and memorandum are used, not as evidence, but to aid the memory. As the facts must finally be stated by the witness from personal knowledge and recollection, if the witness has an independent recollection of the facts inquired about there is no necessity or propriety in inspecting any notes or writing. It is only when the memory needs assistance that resort may be had to these aids. Now Spitler had an independent recollection of what was said by James and Warstall, and repeated it before the jury, and therefore there can be no objection to the ruling of the court so far as it related to the testimony of those witnesses. So far as it related to the testimony of Price, Spitler was not asked whether he had an independent recollection of what was said by him, and hence the necessity of resorting to the transcript was not .apparent. It appears, however, that there was another sufficient reason for excluding the testimony. It was intended as impeaching evidence, which can only be used where a proper foundation has been laid. Spitler svas asked to refresh his memory, and see if Price did not state on the preliminary ex- animation that when The defendant was told that his sister was dead, “he seemed to be considerably broke up over it.” Looking back at the testimony of Price, we observe that the question was: “Did you not say in answer to a question of Mr. Gilbert, that he seemed to be considerably broke up over it?” The answer of Price was: “I think it amounts to about the same thing.” Having admitted the making of the statement, the impeaching question was wholly immaterial, and had no foundation on which to rest.
X. It is contended that the testimony of John M. Crowell was erroneously admitted. The point of objection is that he testified as an expert, as one skilled and experienced in detecting crime from the appearance of those charged with it. It is true, the prosecution seemed from the questions to have attempted to use the witness as an expert, but without success. He stated that for fifteen years he had been a post-office inspector, had had considerable to do with criminals; that he saw the defendant at the Baldwin house while his sister was lying dead there, and observed and conversed with him; and the witness was then asked if in his experience in dealing with criminals it was his opinion that the defendant had the appearance of being a guilty man. This was very properly excluded by the court; and in another part of the examination, where the witness volunteered the opinion that the defendant looked guilty, the court promptly admonished the jury that the statement was not evidence, and should not be considered by them. It is true that the witness was permitted to state that the defendant did not appear to be grieved. This testimony, as we have already seen, is allowable, and the fact that the witness was an intelligent and observing man, with a knowledge of physiognomy, certainly could not make his testimony that the defendant showed no signs of grief, incompetent, or any the less valuable. It seems to us that the judge was careful and alert in guarding the interests of the defendant, in excluding the illegal testimony of this witness, and by allowing him to speak only as an ordinary witness.
XI. The only remaining objection to the rulings upon the evidence, is to the testimony of Dr. Campbell, who was a practicing physician of more than twelve years’ experience. He testified as an expert, and, after showing some of the effects of chloroform upon the human system, was asked : “How is it regarded by medical authority upon that subject, and by medical men who are authority upon that subject?” He answered:
“It is regarded by writers on that subject, and by all men who have used it to any great extent, and by all universally, so far as I know, as a very dangerous agent, and an agent if pushed beyond a certain point, which will produce death; that is, in danger always of producing death. To be sure a great many men have used it a great deal, and have had no bad results from it.”
Although the courts are not uniform in their holdings upon the admissibility in evidence of medical and scientific books, the great weight of authority is that they cannot be admitted to prove the declarations or opinions which they contain: this upon the theory that the authors did not write under oath, and that their grounds of belief and processes of reasoning cannot be tested by cross-examination. But while the books are not admissible, an expert witness is not confined wholly to his personal experience in the treatment of men, but his opinions formed in part from the reading of treatises prepared by persons of acknowledged ability may be given in evidence. So also may a witness refresh his recollection by reference to standard authorities; but the judgment or opinion which he gives must be his own and not merely that of the author. In an early case it was proposed to show what the received opinion of the medical profession was in a certain matter, by introducing medical books. The ruling was that they were not admissible, but that the witness might state what he had found laid down in the books in the course of his reading. The witness, who was Sir Henry ifalford, president of a college of physicians, stated that he considered the medicine in question proper, and that it was sanctioned by the books and authorities, and also stated that the writings of certain authors were considered authority by the medical profession. It was then objected that the medical books could not be cited, but the authors themselves should be called. Chief Justice Tyndall responded:
“ I do not think the books themselves can be read, but I do not see any objection to your asking Sir Henry Halford his judgment and the ground of it which may be in some degree founded upon books as a part of his general knowledge.” (Collier v. Simpson, 5 C. & P. 460.)
The present case falls within this authority. Dr. Campbell is shown to be a man of large experience and extended reading in his profession, who had given his own opinion, and it was not improper for him to state that the opinion was formed from the study of books and men, and also that all the writers and authorities on the subject so far as he knew supported him in that opinion. (Carter v. The State, 2 Ind. 617; Lawson’s Expert and Opinion Evidence, 176; Rogers on Expert Testimony, 234; Whar. Cr. Ev., § 538.)
XII. The defendant’s counsel prepared and requested the giving of a series of instructions which the court declined to give, and the refusal of these constitutes sixteen of the alleged errors. Although a few of the instructions requested were incomplete and inaccurate statements of the law, in the main the requests were correct and applicable; but the court, instead of adopting the phraseology and order of those requested, as seems to be its custom, prepai-ed an elaborate charge in language of its own choosing. The charge given was clear and symmetrical, and embraced the law of all proper requests made by the defendant, in language, to say the least, equally as apt and accurate as that employed in the instructions requested; and indeed it seems to us that the court advised the jury upon and illustrated every element of the law applicable to the case. It would be unprofitable to extend this opinion so far as to point out in detail where each proper request is included in the charge given, as the difference is one of words merely, and those not included are so obviously improper as to require no special notice.
XIII. We will notice some of the objections urged against the instructions that were given. In the nineteenth instruction, the court stated that—
“Before the defendant can be convicted of murder in the first degree, under the first count of the information, the following facts must be established by the evidence beyond a reasonable doubt: 1. That said Mary Baldwin came to her death by an anaesthetic called chloroform; 2. That chloroform is a poison; 3. That said poison was administered to said Mary Baldwin by the defendant in the county of Atchison and state of Kansas; 4. That said poison was administered by the defendant willfully, knowingly, and with the intention of taking the life of said Mary Baldwin, on or about the 8th day of July, 1885; 5. That said Mary Baldwin actually died from the effects of the chloroform so administered to her. If, however, you find that chloroform is a poison, and that its administration to the said Mary Baldwin produced asphyxia resulting in death, this would be a death from poison within the meaning of the law. If you find the existence and concurrence of each and all of the five foregoing propositions beyond a reasonable doubt, then it is your duty to find the defendant guilty of murder in the first degree, as charged in the first count of the information herein; but if you have a reasonable doubt of the existence of any one of said five propositions, then it will not be your duty to find the defendant guilty of murder in the first degree under said first count.”
To this instruction two objections are made, the first of which is that the elements of malice and premeditation were omitted and not held to be essential to a conviction. It will be observed that the court told the jury that it must be shown that the defendant purposely took the life of the deceased by administering poison to her. The act described, and in fact, any murder committed by means of poison, as well as by lying in wait, involves and presupposes the elements of malice, premeditation and deliberation, and hence it was needless for the court to state that they are prerequisites to a conviction.
One of the five general facts stated by the court to be necessary, in order to establish the guilt of the defendant, was that chloroform is a poison, and because the court, in stating the third and fourth prerequisites to a conviction, used the words “said poison,” it is argued that it assumed it to be a fact that chloroform is a poison; and this is the other objection to the instruction. It may well be doubted whether it would be error to assume the existence of a fact of such universal knowledge as that chloroform is a poison. But, however that may be, it is clear that the instruction will not admit of that interpretation. The jury were told that this fact was essential, and one of the first to be found; and having found chloroform to be a poison, then they were in effect told that it must appear that said poison so found was administered by the defendant at the time and place charged, and with the intention of taking the life of his sister. Then, in the concluding sentences of the instruction, the- jury were reminded again that this was one of the essential facts to be found, and that the existence and concurrence of each and all of the five propositions must be found by them beyond a reasonable doubt before they could convict.
XIV. The twentieth instruction is the subject of considerable criticism. Its language is:
“It may be necessary to explain to you to a certain extent some of the terms used in the information, and others of a kindred nature. An ‘anaesthetic’ is defined by Webster in his dictionary as ‘that which produces insensibility to pain.’ Chloroform is defined by him as ‘au oily liquid of an aromatic ethereal odor, consisting of carbon, hydrogen, and chlorine. It evaporates speedily, and has a specific gravity of 1.5. It is an important anaesthetic agent, and is also used externally to alleviate pain. It is also a powerful solvent, dissolving easily wax, spermaceti, resins, etc.’ ‘Asphyxia’ is defined by the same authority as ‘ originally a want of pulse, or cessation of the motion of the heart and arteries;- — -as now used, apparent death, or suspended animation, particularly from suffocation or drowning, or the inhalation of irrespirable gases; — recently applied also to the collapsed state in cholera, with want of pulse.’ ‘Poison’ is also defined by Webster as ‘any substance which, when introduced into the animal organization, is capable of producing morbid, noxious or deadly effect upon it.’ In some of the editions of his work he makes the following comments: ‘All medicines possessing sufficient activity to be of much value are always poisons in inordinate or excessive quantities, and everything poisonous is capable of proving medicinal in suitably reduced quantities. There are as many different modes in which poisons operate as there are different and distinct medicinal powers of any material activity.’ In the American Cyclopedia ‘poison’ is defined as ‘any substance which, introduced in small quantities in the animal economy, seriously disturbs or destroys the vital functions. Under■ this head are obviously included a vast number of bodies belonging to the mineral, vegetable and animal kingdoms, some solid, others fluid, and others gaseous, and deleterious vapors and miasmata imperceptible to the senses;’ and in the same article the same authority also states that ‘among the multitude of substances that rank as poisons are many, some possessing the most active qualities, which are also useful drugs, and which, administered in suitable quantities, are recognized among medicines in universal employment, and of the most beneficial character. The difference between a medicine and a poison is frequently a mere question of dose, and the line which divides them is sometimes narrow.’ As the question is raised by the evidence in this case, whether chloroform is a poison or not, the court also deems it proper to state that it is a powerful anaesthetic agent, having been discovered so recently as 1831; and not having come into use by the medical profession until 1847, there may be some room for a difference of opinion as to its powers, properties, and effects. In common parlance, however, chloroform is classed among the poisons; and by the pharmacy act passed by the legislature of this state in 1885, it is expressly named as one of the things which it is unlawful for any person to sell, (except to physicians, photographers, or upon prescriptions,) without being labeled as a ‘poison.’ The lawful and general use of chloroform is for the purpose of producing insensibility to pain during surgical operations and other painful processes, and in such cases it is generally administered by physicians and surgeons and their assistants.”
In regard to the foregoing instruction, it is stated that the court in quoting the definitions given in the books, transgressed the rule which forbids the introduction in evidence of books of authority, or of any citation therefrom. It is the duty of the court to advise the jury what questions are submitted for their consideration, and the rules of law applicable in determining the same; and it may also review the facts of the case, provided the jury are informed that they are the ex- elusive judges of the facts. (Crim. Code, §226.) Iu charging the law, it falls within the province and duty of the court to determine the sufficiency of the indictment or information, and to define and make plain the words used in charging the offense. By §107 of the criminal code, it is provided that “The words used in the indictment or information must be construed in their usual acceptation and common language, except words and phrases defined by law, which are to be construed according to their legal meaning.” Testimony is necessary where the words have a local meaning different from their ordinary acceptation, or where they have acquired a peculiar meaning in some science, art, or trade. But the court takes notice of the meaning and force of the ordinary words of our language, and also of technical words, where the meaning is well settled by common usage, and may, where it is necessary, define and explain them to the jury. The supreme court of Massachusetts held that—
“The general rule of law is that the construction of every written instrument is a matter of law, and as a necessary consequence, that courts must in the first instance judge of the legal force and effect of the language. The meaning of words and the grammatical construction of the English language, so far as they are established by the rules and usages of language, are prima facie matter of law to be construed and passed upon by the court.” (Brown v. Brown, 8 Met. 573. See also 1 Greenl. on Ev., §5; Thompson on Charging the Jury, §18; Rogers on Ex. Test., §121; Rodgers v. Kline, 56 Miss. 818; Haley v. The State, 63 Ala. 89; Gibson v. Cincinnati Enquirer, 5 Cent. L. J. 380.)
The words “anaesthetic,” “chloroform” and “poison” Avere used iu the information, and by the court in other parts of its charge. They are words in common use in our language, and have a Avell-settled meaning which is not local, and cannot be regarded as technical or peculiar. It AAras therefore proper for the court to aid and enlighten the jury by defining the Avords and giving their usual meaning and acceptation in common language. It is true the court quoted the definitions given in Webster’s Dictionary and the American Cyclopedia, but there is no claim that the definitions are incorrect in any respect. What cause then is there for complaint ? By incorporating the definitions and comments of those authorities in the instructions, the court approved them, and made the language employed in them its own; and as the definitions are in no way faulty, the defendant has no reason to complain that the language employed by the court had formerly been used by others. It may be stated that what was said regarding these words, as well as of “ asphyxia,” is not at all at variance with the testimony, and if the words defined were all treated as technical terms in science, and what was said of them as facts, still the court, as we have seen, had a right to sum up and present the facts of the case, so long as the jury were told that they were the exclusive judges of all the questions of fact; and this was done.
Neither do we think there was error in the statement of the court that in common parlance chloroform is classed as a poison. There may be some difference of opinion respecting some of its properties and effects; but it seems to us that it is regarded by the masses of the people as a poison. In addition to the fact that it is so classed in the books, the legislature of the state has published it as a poison, and required that it shall not be sold except upon prescription, or to physicians or photographers, unless the vessel in which it is contained, as well as the outside wrapper, shall be distinctly labeled “Poison;” nor unless upon due inquiry it is found that the purchaser is aware of its poisonous character. (Laws of 1885, ch. 150, §12.) This law, which all are presumed to know, places the same restrictions upon the sale of chloroform as is done in the case of arsenic, corrosive sublimate, and strychnia, and classes it with aconite, belladonna, digitalis, oxalic acid, “and other virulent poisons.” In view of these facts, it cannot be well claimed that the court erred in telling the jury that in common parlance chloroform is classed among the poisons. The court, however, did not take from the jury the question as to whether it is a poison; but when the instructions are read together, it will appear that what is complained of is beneficial rather than otherwise to the defendant. It was only saying that although chloroform is generally regarded by the masses of the people as a poison, yet they must not take that for granted, but, before the jury could convict, they must, from the evidence, find it to be a poison beyond a reasonable doubt.
XV. The court instructed the jury upon the law of descents and distributions, stating fully what would be the rights of the defendant under the law upon the death of his father; the direct and remote effect of his sister’s marriage; and his rights as heir of his mother, if he should survive her. In closing the instruction, the court stated:
“Whether the defendant had knowledge of all these rules of descents and distributions does not clearly appear; and if he committed the crime charged against him, he may or may not have been mistaken as to the direct or the remote probabilities of gain from his sister’s death; and his motive should be judged from his supposition as to the law of descents and distributions, rather than from the accuracy of his views upon that subject.”
It is urged that by the giving of this instruction the jury were sent into the field of conjecture and speculation to find a motive of the defendant for the commission of the offense. It should be remembered that the father of the defendant had died leaving a large estate, and his only heirs were the widow, the deceased, and the defendant. The deceased was about to be married, and the mother vras well advanced in years, and an invalid. The defendant had spent a large part of the money he had received from the estate, and was in great need of money. Upon the inquiry of the defendant, the probate judge testified that he explained to the defendant the law of descents and distributions, but just what he said the law is, is not shown. The defendant asked the court to instruct the jury regarding motive, and upon the law of descents and distributions, and this request, together with the circumstances of the case, certainly justified an instruction upon that subject. Nor was there error in the last part of the instruction, where the jury were in effect told with respect to motive, that the defendant, should be judged by the informaron upon which he acted, rather than upon the accuracy of his information.
XVI. It is next contended that the verdict is contrary to the evidence. In respect to the evidence, we need only to quote from the able opinion given by the trial judge in overruling the motion for a new trial:
“ Was the jury justified in finding the defendant guilty upon the evidence adduced ? The theory of suicide was extremely improbable; and the jury would perhaps be justified upon the evidence in believing that the entering of the dwelling was not for the purpose of rape, robbery, or larceny. With these motives and theories eliminated, the jury would be almost driven to one of two conclusions: either that Mary Baldwin was murdered by an enemy for the purpose of revenge, or by some person who hoped to gain by her death. In this view the range of probabilities as to her murderer is narrow and circumscribed. The circumstances do not point toward any person other than the defendant. Do they point to him with sufficient precision to justify the jury in saying that he is guilty beyond a reasonable doubt ?
“It is reasonably certain that Mary Baldwin died from the effects of chloroform, which had been purchased of Benjamin E. Binswanger, at Brokaw’s pharmacy in St. Joseph, Missouri, at some time after January 12, 1885. The defendant told Lewis H. Haynes, in April, May, or June, 1885, that he was going to St. Joseph. Mr. Binswanger was not asked in the court if he recognized the defendant as the person who purchased the chloroform. He only stated that when the photograph (admitted to be that of the defendant) wras shown to him at St. Joseph, he thought it made an impression .that he had seen the same face before. There is no testimony that any person saw the defendant near his mother’s house on the night of July 7, or the morning of July 8, 1885; but he resided only three or four blocks away, and he admitted to two persons that he was out that night, and to one of them that his wife was crying when he returned. Some marks in and about the panel seem to have been made by a knife having a blade like the one in the pocket-knife which the defendant carried. The door was probably open when the panel was cut out. This is indicated by the small cuttings which Mrs. Farries took to be sawdust, lying about eighteen inches inside of the door. This fact, together with some others, probably justified the jury in believing that the murderer resorted to a ruse to create a false impression that the house had been entered by a burglar for the purpose of robbery or larceny.
“These are substantially all of the circumstances tending directly to connect the defendant with the crime. A motive on the part of the defendant for the commission of the crime was perhaps sufficiently shown, if it be admitted that a man could be base enough to murder his own and only sister, for the direct or remote prospect of adding a few thousand dollars to his fortune. Much of the testimony relates to his conduct soon after the tragedy, and the jury perhaps believed that his actions ill comported with his innocence of the cause of his sister’s untimely death. It must be admitted that the evidence of the defendant’s guilt is not entirely conclusive, but it is of such a nature that honest and intelligent men may differ in opinion as to its sufficiency to justify a verdict of guilty.” (2 Kas. Law Jour. 326.)
Although the testimony written in the record is not as full and satisfactory as we would wish, after a careful reading we are constrained to the opinion of the trial judge that it is sufficient to uphold the verdict.
XVII. The effort of the defendant to show that the jury were influenced by the alleged prejudice and conduct of the people who attended the trial, is a failure; and the same may be said of his attempt to show that some of the jurors were disqualified, and had expressed opinions prior to the trial that the defendant was guilty of murdering his sister. Upon this question the testimony was oral and conflicting, and in such a case the finding of the trial judge, like the verdict of the jury, is conclusive upon this court. (The State v. Bohan, 19 Kas. 56; The State v. Tatlow, 34 id. 80.)
In concluding this opinion, we will say that the gravity of the offense, the peculiar circumstauces surrounding the case, and the great earnestness and ability with which t:ounsel for defendant has pressed his points upon the court, have led us to examine the record with great care. The testimony given, as well as every point made and authority cited, has been considered with that anxious attention which the consequences of a conviction demand; but we are forced to the conclusion that the case has been well and fairly tried, that the errors committed are technical and unimportant, and not such as would justify a reversal of the conviction. We will therefore affirm the judgment of the district court.
All the Justices concurring.
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The opinion of the court was delivered by
Horton, C. J.:
The facts in this case are substantially as follows: On July 18, 1884, George Rohlfs filed his bill of particulars against Henry Struber before a justice of the peace of Washington county; on July 23, the summons was issued, returnable July 28, at 10 o’clock A. m. ; service of summons was made by leaving a copy of the same, with all the indorsements thereon, at the usual place of residence of the defendant; Struber and his family, however, were absent at the time; on the return-day the plaintiff appeared with his attorneys, but the defendant made default. After hearing the evidence of the witnesses, the court rendered judgment in favor of Rohlfs, against Struber, for two hundred and forty-seven dollars and twenty-five cents, together with costs. The defendant filed an appeal bond, which was approved in writing by the justice, on August 8,1884. After the case reached the district court, Rohlfs filed his motion to dismiss the appeal, upon the ground that the bond had not been approved and filed in time. Struber alleged he had no actual knowledge that he had been sued by Rohlfs, or that any judgment had been rendered against him, until August 7,1884, the last day upon which an appeal could be taken; that he immediately prepared his appeal bond, and as soon as possible went to the office and house of the justice to present his bond and have the same approved; that upon his arrival at the house of the justice, about 11 o’clock of the night of August 7, he was found to be absent, attending a dance then going on; that he went in pursuit of the justice and found him, near midnight, two miles from his residence; that he then presented his bond, signed by the sureties, and that the justice accepted the same.
The sole question for our consideration is, whether the trial court erred in dismissing the appeal. The • statute provides that—
“ The party appealing shall, within ten days from rendition of the judgment, enter into an undertaking to the adverse party, with at least one good and sufficient surety, to be approved by such justice, in a sum not less than fifty dollars in any case, nor less than double the amount of the judgment and costs, conditioned: First, that the appellant will prosecute his appeal to effect, and without unnecessary delay. Second, that if judgment be rendered against him on the appeal, he will satisfy such judgment and costs. Such undertaking need not be signed by the appellant.” (Comp. Laws of 1879, ch. 81, §121.)
The statute further provides that an appeal shall be completed upon the filing and approval of the undertaking. Section 188 requires every justice of the peace to keep a book denominated a docket, in which must be entered by him, if an appeal be taken, the undertaking, and the time of entering into the same, and by which party taken. The certified transcript which the justice transmits to the clerk of the district court, with the papers in the causé, should affirmatively show the appeal has been taken within ten days from the rendition of the judgment; otherwise, upon motion of the appellee, the court may properly dismiss the appeal. Unless the undertaking is presented for approval at the office of the justice, orto the justice himself, within ten days from the judgment, the district court commits ho error in dismissing the appeal if a motion be made therefor. There is nothing in the transcript of the justice of the peace in this case which shows the appeal was taken in time. If there are any facts material to appear in a transcript or record of the justice which are untruthfully stated therein, they cannot be corrected or disposed of in the district court in a summary manner upon affidavits. It is claimed, however, that the justice has failed to enter on his docket matters required to be of record, and therefore that these omissions may be supplied by affidavits. If the justice had sent up an incomplete transcript, a diminution of the record might have been suggested, and then, perhaps, upon an amended transcript, all the facts relating to the presentation, approval and filing of the undertaking would have appeared. If Struber presented his bond with sufficient sureties at the office of the justice on August 7, 1884, during business hours, or if the justice accepted and verbally approved the undertaking at any time on August 7, the appeal would be in time, although the filing and written approval by the justice were not entered until the next day, as a justice cannot deprive a party of his right to appeal by an omission to act, either through negligence or design. The omission of a justice to enter his written approval upon an undertaking at the date he accepts the same, or his failure to file the undertaking at the date of its approval, will not deprive a party of his appeal.
If the transcript and records of the justice show that an appeal is not taken in time, and the statements therein are untrue, a direct proceeding must be instituted to correct the record. The matter cannot be inquired into collaterally.
In Iowa, the statute provides that —
“ Where an omission or mistake has been made by the justice in his docket entries, and that fact is made unquestionable, the circuit court may correct the mistake, or supply the omission, or direct the justice to do so.” (Section 3586, Code of Iowa of 1873.)
In this state we have no similar statute, and therefore the practice in Iowa is not permissible here.
The order and judgment of the district court will be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Horton, C. J.:
The facts in this case are substantially as follows: Frederick Koester sr. is the OAvner of a two-story brick building, situated on lots 13 and 14, in block 15, in Atchison city. On June 13, 1883, he rented the premises to Heber S. Taylor for the period of one year, at the rate of one hundred and thirty-five dollars per month, payable in advance, Taylor having the option to continue the lease for four years from its termination, upon the same terms. Afterward Taylor sublet the first floor of the building to William T. Temme, Avho opened a saloon, and, without having any permit, sold intoxicating liquors therein in violation of law. On June 22,1886, this action was brought against Koester and Temme to shut up and abate the place. On June 28, 1886, a temporary injunction Avas granted, restraining them from opening or keeping any saloon in the building for the sale of intoxicating liquors. On August 9, 1886, a motion was filed on the part of the plaintiff asking that Frederick Koester sr. be punished for contempt for violating the injunction granted against him. On the hearing of the motion, it was proved that after the granting of the temporary injunction a party from St. J oseph, Missouri, reopened a saloon in the room formerly occupied by Temme, and continued to sell intoxicating liquors in violation of the law; that Koester lived within a few blocks of this saloon; that the saloon was open to the public so that any person could enter and see that intoxicating liquors were sold in violation of law. It was also proved that at.the time Koester was a subscriber for two Atchison newspapers in which a notice appeared that a St. J oseph man had gone into the saloon business in the Koester building, formerly kept by W. T. Temme. It was admitted upon the hearing by the plaintiff, that the lease of the premises from Koéster to Taylor during all said time was in full force and effect, and that Taylor, the lessee, was in possession of the premises under the lease.
I. It is insisted upon the part of the appellant, that the legislature has no right to place any restrictions or limitations upon the sale of intoxicating liquors, if offered for medicinal, scientific or mechanical purposes only, and therefore that the legislature has no right to confine the sale of intoxicating liquors for these purposes to a class of men called druggists. This point was commented upon and disposed of in the Intoxicating-Liquor Cases, 25 Kas. 751. In those cases Mr. Justice Brewer, in speaking for the court, said :
“ We pass then to the second objection, and that is, that this portion of the statute must be pronounced unconstitutional and void because it is class legislation; because it. restricts the privilege of dealing in liquor to one class, the druggists, and thus debars many from engaging in a business which is profitable, and by some desired. This objection is not very strenuously urged, and cannot be sustained. It will not be doubted that the police power of the state is broad enough and strong enough to uphold any reasonable restrictions and limitations on the keeping, use or sale of any substance whose keeping, use or sale involves danger to the general public. The storage of powder or explosive and highly inflammable oils may be forbidden within city limits. The legislature may require railroads to fence their tracks, dangerous machinery to be everywhere inclosed, poisons to be labeled when sold, the practice of any profession requiring skill and knowledge to be confined to those who have passed a certain examination or pursued a prescribed course of study. By virtue of the same power it may commit the sale of liquor to any particular class of persons which by reason of its special training and habits it may deem peculiarly fit for such duty.”
II. We do not think the evidence presented upon the hearing justified the district judge in punishing Koester for contempt. The lease of the premises to Taylor was in full force and effect, and it is conceded that Taylor, as the tenant of Koester, had full possession of the premises. Temme was an occupant under Taylor, and so also was the party from St. Joseph, who reopened the saloon after Temme left. There is no evidence in the record tending to show that Koester leased the premises to Taylor with any knowledge that they would be unlawfully used by the lessee. There is no connection shown between Koester and Temme, or Koester and the person who opened the saloon, after the same was closed by the temporary injunction. By the lease, Koester parted with all control over the premises for the term granted to Taylor. It is true that the sub-lessees, during a part of the term, used the premises in violation of law, but there is no evidence that Koester assented in fact to such use, or in any way advised or participated in the operation of the saloon. There is no evidence that he had any personal control of the saloon, or was in any way interested therein. His rent was neither greater nor less on account of the saloon. (Crofton v. The State, 25 Ohio St. 249; The State v. Pearsall, 43 Iowa, 630.) The most which the evidence establishes is that after Koester leased his building to Taylor, he had knowledge that from June, 1886, to August of the same year, the lower room thereof was used as a place for the sale of intoxicating liquors, in violation of law, and that he omitted taking any steps to close the saloon or to oust his tenant. He might have taken steps to avoid the lease and reenter the premises. This, perhaps, was his moral duty, but his sanction and consent to the operation of the saloon in the building, which he had leased, ought not to be inferred from the mere fact of his non-interference with his tenant. Any stranger, having knowledge that a saloon was operated in the building, could have taken steps to close the same. ( The State v. Williams, 30 N. J. L. 102.)
If Koester had knowingly rented his building as a saloon, or if he had some interest in the operation of the same, or had advised or participated in its operation, a very different case would be before us for our determination. (The State v. Abrahams, 6 Iowa, 117; Abrahams v. The State, 4 id. 541.)
The order of the district judge will be reversed, and the cause remanded for further proceedings, in accordance with the views herein expressed.
All the Justices concurring.
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The opinion of the court was delivered by
Johnston, J.:
This is a proceeding in habeas corpus. The writ was issued upon the application of J. L. Wells, for the purpose of releasing T. A. Scates and W. W. Kimball from imprisonment. They are county commissioners of Seward county, and are held under a warrant of commitment for contempt, issued by the judge of the twenty-fourth judicial district. The cause of their commitment is the alleged disobedience of a peremptory writ of mandamus allowed by the said judge, commanding them to convene with the other commissioner and canvass certain returns of an election held in Seward county on February 8, 1887. The jurisdiction of the judge committing the parties is questioned. It is claimed that Seward county forms a part of the sixteenth judicial district, and therefore that the judge of the twenty-fourth judicial district had no authority to issue the writ of mandamus, nor to punish the county commissioners for disobeying it. In 1881 the sixteenth judicial district was created, and Seward county was included within its limits. It was also provided that until organized, Seward and other counties should be attached to Ford county for judicial purposes, and when organized, that terms of court should be held therein at such times as the judge of the district should order. (Laws of 1881, ch. 99.) By § 2 of chapter 119 of the Laws of 1885, an,attempt was made to attach the county of Seward to the county of Finney for judicial purposes, but this provision has been held invalid. (In re Wood, 34 Kas. 645.) By chapter 87 of the Laws of 1886, Seward county was effectually attached to Finney county for judicial purposes. This act was approved February 18, 1886, and went into effect February 19, 1886. At this session of the legislature the twenty-fourth judicial district was created, composed of the counties of Barber, Comanche, Clark, Meade, and the unorganized counfy of Kiowa. (Laws of 1886, ch. 121.) The county of Seward was not by this act included in or attached to the twenty-fourth judicial district, but it remained a part of the sixteenth judicial district until chapter 86 of the Laws of 1886 was enacted. Under the legislation last mentioned it was attached to Meade county for judicial purposes, the act being approved on the 20th day of February, 1886, and published the 26th day of February, 1886. This latter enactment is conceded to be valid, and it contains the latest exPresslon of the legislature regarding the judieial status of Seward county. That being the ease, ques^on 0f what district embraces Seward county is settled by the decision made in Pelham v. Comm’rs of Finney Co., ante, p. 101; same case, 12 Pac. Rep. 557. It was there determined that when an unorganized county is attached to an organized county for judicial purposes, it thereafter constitutes a part of the judicial district which embraces the organized county. When Seward county was attached to Meade county, it was made a part of the twenty-fourth judicial district. Seward county was organized on June 17, 1886, but that organization did not operate to transfer it to the sixteenth judicial district, nor to repeal the law'which placed it in the twenty-fourth. It is true that after the county was organized, it no longer formed a township of Meade county, nor could the officers of that county afterward exercise any power or control over the affairs of Seward county. But the organization did not disturb the boundaries of the twenty-fourth judicial district, nor detach the county of Seward therefrom. The statute placing the county in the district with Meade county was not a provisional one. It did not provide that the county should remain there until organized, and then that it should shift back into the sixteenth district, but it must remain in the district where it was placed by the legislature until it is taken out by subsequent legislation.
It has been suggested that this interpretation leads to difficulty, because the legislature has failed to specifically provide when regular terms of court shall be held in Seward county, but this failure does not defeat the jurisdiction of the judge, nor prevent the holding of courts in that county. By the general provision relating to courts, there must be a district court in each organized county. (Comp. Laws of 1879, ch. 28, §1.) In §4 of the act creating the twenty-fourth judicial district, it is provided that “the judge of the district herein named is hereby empowered to hold as many adjourned or special terms of court in either of the counties of the district as he may deem advisable.” (Laws of 1886, ch. 121.) Then in §10 of chapter 28 of the Comp. Laws of 1879, there is a provision that judges of the district courts have the power to hold .such special and adjourned terms in any county of their districts as they may deem necessary, and it provides how and when the order calling the special term shall be issued and the method by which a jury may be obtained. In these provisions ample authority is given to the judge of the district to hold special terms of court in the county of Seward until such time as the legislature shall fix the time for holding regular terms therein.
No other question is raised in the briefs filed by counsel; and as Seward county is a part of the twenty-fourth judicial district, it follows that the judge of that district had the jurisdiction which he exercised; and therefore T. A. Scates and W. W. Kimball, in whose favor the writ was granted, must be remanded.
All the Justices concurring.
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The opinion of the court was delivered by
Johnston, J.:
J. A. Smith brought an action against the defendants in error before a justice of the peace of Comanche county, which was then unorganized and attached to Barber county for judicial purposes, and thereby, for the time being, became and was a municipal township of Barber county. On the 14th day of March, 1885, he recovered a judgment against the town company for the sum of $300. On the 17th day of March, 1885, the following appeal bond was filed and approved :
“In Justice’s Court, before H. Chapman, Justice of the Peace of Comanche County, Kansas.— J. A. Smith, Plaintiff, v. The Nescatunga Town Company. — Whereas the defendant, The Nescatunga Town Company, intends to appeal from a judgment rendered against it in favor of the plaintiff, J. A. Smith, on the 14th day of March, 1885, by the justice of the peace of said county, now we, the undersigned residents of said county, bind ourselves to said plaintiff in the sum of $800, that said defendants shall prosecute this appeal to effect, and without unnecessary delay, and satisfy such judgment and costs as may be rendered against it therein.
J. E. Tincher. H. N. Cunningham.
J. W. McWilliams. C. L. Dunn.
“Approved by me, this 17th day of March, 1885.
H. Chapman, J. P.”
The cause was transferred to the district court of Barber county, and at the May term, 1885, the plaintiff moved to dismiss the appeal, alleging that the bond was insufficient.
The first objection is that in the heading of the bond, the .justice of the peace is designated as an officer of Comanche county, Kansas, instead of Comanche township in Barber county. The justice of the peace resided in and was an officer of Comanche county, which was then unorganized. It was at that time attached for judicial purposes to Barber county, and therefore it would have been accurate to designate him as an officer of Comanche township in Barber county. However, there was but one county of that name, and as the bond otherwise correctly described the cause and judgment, the technical error did not prejudice anybody, nor render the bond invalid. “Appeals are favored, and mere technical defects or omissions are to be disregarded as far as possible without obstructing the course of justice.” (Haas v. Lees, 18 Kas. 454.)
The next ground of objection is that the sureties on the appeal bond have failed to justify. To support this objection, the plaintiff in error cites § 723 of the code, which makes it the duty of an officer taking an undertaking provided for by the code and other statutes, to require the person offered as surety to make an affidavit of his qualifications. This provision is merely directory to the officer taking the security, and his failure to perform the duty will not invalidate the undertaking. It does not appear but that the sureties upon the bond are amply sufficient, and a mere failure to justify cannot be held a sufficient ground for a dismissal of the appeal. (St. L. L. & D. Rld. Co. v. Wilder, 17 Kas. 239.)
The judgment of the district court will be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Horton, C. J.:
The facts in this case are substantially as follows: On July 10, 1872, the Missouri Valley Life Insur anee company issued and delivered to Daniel Snyder its paid-up policy of insurance on his life, for the sum of $502.65, payable to Elizabeth and Desylvia Snyder, his children, in sixty days after due notice and proof of his death. On June 12,1883, Daniel Snyder and Elizabeth and Desylvia Snyder executed a written instrument of assignment on the back of the policy, as follows:
“Troy, Kansas, June 12, 1883. — For value received, without recourse on me, I hereby sell and assign to C. M. Parker the within policy, and authorize her to receive, collect and receipt for any money that may be paid thereon.
Daniel Snyder.
Elizabeth Snyder.
Witness: A. Perry.” Desylvia Snyder.
The policy of insurance with the written indorsement thereon was at the time of its execution delivered to Mrs. C. M. Parker, who paid a valuable consideration therefor. On November 14,1883, Daniel Snyder died. After the death of Daniel Snyder, and prior to August 2,1884, Mrs. Parker wrote the word “Canceled” across the face of said assignment, on the back of the policy, and signed the same, “Canceled.— C. M. Parker.” Mrs. Parker then delivered .the policy to Elizabeth Snyder and Desylvia Kinsey, née Snyder. On August 2, 1884, Elizabeth Snyder and Desylvia Kinsey executed another written instrument of assignment on the back of the policy, as follows:
“For value received, we hereby sell and assign to Joseph McCrum the within policy, and authorize him to collect the same.
August 2, 1884. Elizabeth Snyder.
Desylvia Kinsey.”
At said time Elizabeth Snyder and Desylvia Kinsey delivered the policy of insurance with all the indorsements thereon to Joseph McCrum, who commenced this action in the court below to recover the amount of the insurance policy. Mrs. Parker was not in any way related to nor a creditor of Daniel Snyder. The proof of death of Daniel Snyder was presented on behalf of Mrs. Parker, about December 26, 1883, and this embraced the affidavits of Elizabeth Snyder and Desylvia Kinsey, and also the certificate of the physician who attended Daniel Snyder to .the time of his death.
Under the circumstances, we do not think that McCrum can. recover upon the policy. It was decided in Insurance Co. v. Sturges, 18 Kas. 93, that —
“A person who has no interest in another’s life cannot purchase or take by assignment an insurance policy on such life. Such a thing would be clearly against public policy, and is not authorized by law.”
To the same effect are: Warnock v. Davis, 104 U. S. 775; Gilbert v. Moose, 104 Pa. St. 74; Ruth v. Katterman, 112 id. 251; May Ins., 2d ed., §74.
The exact question now at issue was not passed upon in Insurance Co. v. Sturges, because in that case the insurance company only claimed the assignment was void. Mrs. Parker, who accepted the assignment and paid for the policy, had no insurable interest in the life of the insured ; therefore the policy was not assignable to her; she took the policy solely for the purpose of speculation; the speculation was upon the life of the insured, and the sooner that was determined, the better the speculation; the policy so obtained was a mere wager, and v°id-
The sale and transfer thereof to Mrs. Parker by Elizabeth and Desylvia Snyder, the beneficiaries, was an attempted fraud upon the insurance company by which it was issued. After Mrs. Parker took the policy, if she could collect anything thereon she was thereby directly interested in the early death of the insured. The insurance company issuing the policy did not intend it should reach or belong to anyone directly interested in his death. The law will not permit a person thus interested to enforce a policy of insurance; all such speculation, or traffic in human life, independent of any statute, is condemned as being against public policy, and therefore not to be tolerated.
All the time Mrs. Parker had possession of the policy she believed that upon the death of the insured she would be paid the full amount thereof. All this time she was directly interested in the speedy death of the insured. This policy was placed in her possession, not only with the written consent of the beneficiaries, but upon a valuable consideration paid to them for the same; they therefore aided in creating, in the mind of Mrs. Parker, a desire for the early death of the insured; they held out to her the temptation to bring about the event insured against. Mrs. Parker was not successful in obtaining any money upon the policy, because she ascertained after the service of proof of death by her that it could not be collected in her hands, and therefore handed the same back to the beneficiaries. The law does not tolerate attempted frauds any more than it does those that are consummated. In making the transfer and assignment, and in receiving the money therefor, the beneficiaries, Elizabeth and Desylvia Snyder, were participants with Mrs. Parker in the attempted fraud upon the insurance company; the whole transac- . . . tion between the beneficiaries and Mrs. Parker contravenes public policy, and the law leaves the parties as it found them. As Mrs. Parker cannot enforce the policy, and as the transfer and assignment of the policy to Mrs. Parker by the beneficiaries is against public policy and under the ban of the law, the beneficiaries ought not to be permitted to enforce the policy; their assignee, McCrum, stands in their shoes, and is entitled to no greater rights or privileges than they are.
If Mrs. Parker, before the death of the insured, had demanded from the beneficiaries the money that she had paid for the assignment, upon the ground that the sale to her was void, she could not have recovered. If the beneficiaries can now recover, they are doubly benefited by the questionable transaction in which they were engaged: first, by receiving the value of the policy from Mrs. Parker; and second, by receiving the value of the policy again from McCrum.
It was said in the case of Gilbert v. Moose, supra, that “ So fraught with dishonesty and disaster, and so dangerous to even human life, has this life-insurance gambling become, that its toleration in a court of justice ought not for a moment to be thought of.” If the party who attempts to speculate in human life cannot enforce the policy which he has purchased on the life of another, in whose life he has no insurable interest, the beneficiaries who knowingly and purposely sell and assign to such a person the policy on the life of another for a valuable consideration ought not thereafter to be permitted to enforce the same for their own benefit-. If, under all'the facts of this case, the beneficiaries, or their assignee, could recover, the law forbidding the assignment of policies of insurance to parties who have no insurable interest might be readily avoided. If Mrs. Parker had been a creditor of the insured for any sum, the assignment would have been a valid contract as security for the same, and upon the death of the insured the assignee could have collected any sum lent to or owed by the insured, and the balance would have belonged to the beneficiaries or their assignee. Such a case is not presented.
Frank v. Insurance Co., 6 N. E. Rep. 667, (N. Y. Court of Appeals,) is referred to as an authority that the beneficiaries can maintain an action upon the policy notwithstanding the assignment to Mrs. Parker. The courts of New York hold that a valid policy of insurance effected by a person upon his own life is assignable like an ordinary chose in action, and that the assignee is entitled upon the death of the insured to the full sum, payable without regard to the consideration given by him for the assignment, or to his possession of any insurable interest in the life of the insured. (St. John v. Insurance Co., 13 N. Y. 31; Valton v. Assurance Co., 20 id. 32.) This court refused to follow the decisions of New York in Insurance Co. v. Sturges. The decision in Frank v. Insurance Co., supra, was rendered under a statute making a policy procured on the husband’s life, for the benefit of the wife, unassignable. The validity of an assignment of a policy to one having no insurable interest in the life of the insured did not enter into tbe ease; there was a want of power to assign. Therefore that case has no affinity with the one under consideration.
Finally, it is insisted as there is no claim in the answer of the insurance company that the assignment of the policy to Mrs. Parker was invalid, the insurance company had no right subsequently to urge that the assignment was worthless, or the policy non-enforceable, on account of such assignment. The issues of a case are made up from all of the pleadings. The amended reply of the plaintiff below stated that Mrs. Parker “ had no insurable interest in the life of Daniel Snyder, and that the assignment to her was void.” The question is whether upon the whole case, as presented, the plaintiff is entitled to recover. It is not for the sake of the insurance company that the transactions between the beneficiaries and Mrs. Parker are held wrongful, but such rule is founded on general principles of public policy forbidding speculative contracts upon human life. In all such cases the courts ought not to lend their aid to assist parties engaged in the perpetration or attempted perpetration of such wrongful speculations. (Hinnen v. Newman, 35 Kas. 709; Insurance Co. v. Sturges, supra.)
The judgment of the district court will be 'reversed, and the cause remanded for further proceedings in accordance with the views herein expressed.
All the Justices concurring.
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Opinion by
Holt, C.:
Action brought by plaintiff in error upon two notes of eighty dollars each, given in part payment of a harvester and binder; judgment in justice’s court for plaintiff; no appearance by defendant; appealed to the district court; trial by jury; verdict and judgment for defendant; motion for new trial overruled; case brought to this court; reversed, and remanded. (32 Kas. 666.) Another trial had; verdict for defendant, and various findings of fact found by the jury, consistent with general verdict; motion for new trial overruled, and judgment on findings and verdict; plaintiff brings case here.
Errors complained of: First, admission of incompetent testimony; second, refusal of an instruction asked by plaintiff. Defendant sets forth as a defense to the notes sued on, that the machine was sold as a good binding reaper; would not do good work, and was worthless for the purpose for which it was sold. Plaintiff contends that the defendant was not competent to operate a combined machine.
The testimony admitted complained of is: William Flanner, a witness for the defendant, was permitted, over the objection of plaintiff, to testify that in the season of 1881, the same year the machine in question was purchased, one Cook, his neighbor, purchased a Sandwich harvester with Travis binder, and he saw it in Cook’s field, operated by said Cook. Flanner was a farmer, and had for a long time owned a harvester and had seen those of different styles operated, but had never seen any Sandwich machine work, except the one in Cook’s field, and saw that machine at work on two different days. Cook, who operated the machine, was a farmer. He then testified that the machine in Cook’s field did not do good work, scattered the grain, and did not bind well. There was further testimony tending to show that the Travis binder was not satisfactory, and in the year 1882 the Sandwich Manufacturing Company took it off its reapers in the market, and put the Appleby binder in its place.
It is claimed there was error in allowing the witness Flanner to give certain testimony about the operating of the machine owned by Cook, because it was such evidence as could only be given by an expert, and the testimony did not show him to be so qualified. It was shown that he was familiar with harvesters and binders generally. It also appeared that Cook, who operated the machine, was a farmer, and that Flanner and other farmers, neighbors of Cook, had met in Cook’s field to see how the machine would work. We think there was sufficient evidence to show prima facie that Flanner could testify as an expert, and also that the machine was in the hands of parties familiar with farm machinery. A large part of the testimony given by Flanner was such as any witness knowing the facts, not being an expert, might properly testify to. But plaintiff in error urges with force and some plausibility that as Elanner had never seen the machine Nicholson operated, that he ought not to be allowed to testify that another machine did not do good work, and cites Craver v. Hornburg, 26 Kas. 96. In that case the question under consideration was, whether the machine sold defendant, a Randolph header, could do good work; and it was held error for the trial court to permit evidence to go to the jury tending to show that another Randolph header failed to do properly the work for which it was designed. It is not shown that the headers, whose work was sought to be compared, were of the same pattern or series; the record simply shows that it was another machine whose work was sought to be compared, while in this action the witness Flanner was asked if he had seen any of “those machines,” referring to the machine in controversy. In the case cited the court says it is nowhere contended that the header was unfit for the purpose for which it was designed; but the claim was that the particular machine was so defective that it would not do the ordinary work of such machines. In this case there was testimony showing that the Travis binder, a part of the combined machine, would not do the work for which it was designed; and the uncontradicted evidence is that the plaintiff in the next year, 1882, took the Travis binder off its machines, and put the Appleby binder in its place.
It was contended that the machine was defective, because the binder was worthless. There was testimony given by different witnesses tending to show that it would not perform the purposes for which it was sold, some of whom had had experience with it and others who had sold it as agents, and the further proof that the plaintiff had supplanted it by another kind of binder. Under the claim of defendant, and the evidence tending to show a defect 'Prayjg binder, we believe the testimony objected to was competent. In Lyon v. Martin, 31 Kas. 411, where the question in controversy was whether the machine was or was not well built and of good material and could do the work warranted, or if it failed to do good work, was it or was it not properly handled, the court said:
“ Perhaps for the purpose of tending to show that it was properly handled, testimony was admissible that other like machines in the hands of parties familiar with farm machinery, also failed to do the work warranted.”
Plaintiff offered instruction No. 6, to wit:
“If the jury find from the evidence that whatever trouble or delay the defendant had with said machine in the harvesting of his said crop of wheat was caused by the unskillfulness and ignorance of the defendant in the running and operating of sáid machine, and that said machine was a good reaper and binder, and in the hands of a competent man would do good work, then I charge you to find for the plaintiff for the amount of the two notes in suit, with’.the interest due thereon.”
Under the testimony introduced in this case, this instruction ought to have been given, as it presented a proper matter for the consideration of the jury that had not been called to their attention by any other instruction given by the court; and if it were not for the findings of the jury, the refusal of that instruction would be substantial error. The plaintiff submitted among other things the following question to be answered by the jury:
“Ques. 9: Was Thomas Nicholson, defendant herein, in the summer of 1881 a competent person to operate a combined reaping machine and Travis binder ? Ans.: Comparatively so.”
Defendant also submitted among other questions the following:
“ Ques. 6.: Was there a failure of consideration for the notes sued on? Ans.; Yes.”
“Ques. 8.: Would the harvester perform the purposes for which it was sold defendant. Ans.: No.”
The answer to question number 9 submitted to the jury is neither definite nor satisfactory, but there was no effort made to make it more positive. That finding alone would not cure the error in refusing the instruction above. But the answers given by the jury to ques tions Nos. 6 and 8 submitted by defendant, make it immaterial whether the instruction was correct or not. The jury found that the machine would not perform the purposes for which it was sold defendant, and in that view of the case it would not benefit the plaintiff in this case if Nicholson were fully qualified to operate a properly-combined reaping and harvesting machine.
There are other errors complained of in the record, but on examination we do not deem them material.
It is recommended that the judgment of the court below be affirmed.
By the Court: It is so ordéred.
All the Justices concurring.
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The opinion of the court was delivered by
Johnston, J.:
This is a proceeding to reverse a judgment rendered in an action for false imprisonment, brought by Jacob F. Boyce against the Wheeler & Wilson Manufacturing Company, C. S. Baker, and J. W. Hughes. Hughes was dismissed from the action, and the judgment went only against the plaintiffs in error. The facts upon which the case was disposed of are substantially these: The Wheeler & Wilson Manufacturing Company, a corporation organized for the manufacture and sale of sewing machines, was engaged in business at Topeka, Kansas, and C. S. Baker was its general agent at that place. The company had sold a sewing machine to Mary Hatfield, who subsequently married Jacob F. Boyce, the defendant in error. She paid a part of the purchase-money, and signed a contract in substance that the title to the machine should remain in the company until the balance of the purchase-money was paid. In November, 1881, the company directed its general agent to bring an action of replevin against Mary Boyce to recover the machine, claiming that there was a balance due thereon, a claim which she denied. An action of replevin was begun before a justice of the peace, and a writ was issued and placed in the hands of Constable Hughes, who reported that he had made search for the machine and was unable to obtain possession of it. C. S. Baker, the agent of the company, then directed Hughes to make and file an affidavit before the justice of the peace, alleging that Mary Boyce and her husband Jacob F. Boyce were in possession of the machine and had refused to deliver it to him, and thus obtain a warrant- for their arrest. This Avas done, and the justice issued a Avarrant to the constable commanding him to arrest Boyce and his Avife and commit them to the ShaAvnee county jail, there to remain until they should deliver the machine. Under this Avarrant Jacob F. Boyce was arrested and placed in jail without being taken before the justice and without any examination, hearing, or trial. The constable informed the general agent of the company that he had arrested Boyce and placed him in the county jail as requested, and Baker replied, “Now I guess he will give up the machine.” The replevin action resulted in a judgment in favor of Mary Boyce. Jacob F. Boyce was held in the county jail for ten days, and was never taken before any court or officer for examination or trial, and was finally discharged at the instance of the plaintiffs in error, and he became sick in consequence of his confinement. He at once instituted this action, and the jury awarded him damages in the sum of one thousand dollars, and the verdict was approved by the trial court. The plaintiffs in error complain chiefly of the rulings of the court in the matter of charging the jury. The jury were instructed that if the evidence justified it they could find exemplary damages or smart-money against the defendants. After the jury had been out some time and had practically agreed upon their verdict, the court recalled them and advised them that he Avas in error in giving the instruction that they might in their discretion assess exemplary damages, and AvithdreAv it from the jury, telling them that in their deliberations they should not consider the instruction AvithdraAvn. Objection Avas made to the withdraAval of the instruction, and an application of plaintiffs in error for leave to address the jury after the modification had been made was denied, and this ruling is assigned as error. This decision affords the plaintiffs in error no ground for complaint. The action of the court was favorable rather than prejudicial to their interests. The instruction given was predicated upon sufficient facts, was warranted under the law, and the defendant in error alone had reason to complain of its withdrawal. It is a well-established principle of jurisprudence, that corpora^oris may be held liable for torts involving a wrong intention such as false imprisonment, and exemp|ary <jamages maybe recovered against them for the -wrongful acts of their servants and agents done in the course of their employment, in all cases and to the same extent that natural persons committing like wrongs would be held liable. In such cases the malice and fraud of the authorized agents are imputable to the corporations for which they acted. This principle is too well settled to require argument, and the authorities sustaining it are numerous and well-nigh unanimous. (Railroad Co. v. Slusser, 19 Ohio St. 157; A. & G. W. Rld. Co. v. Dunn, 19 id. 162; Goddard v. Grand Trunk Rly., 57 Me. 202; Railroad Co. v. Quigley, 21 How. 213; Railroad Co. v. Arms, 91 U. S. 489; Railroad Co. v. Bailey, 40 Miss. 395; Railroad Co. v. Blocher, 27 Md. 277; Hopkins v. Railroad Co., 36 N. H. 9; Railroad v. Hammer, 72 Ill. 353; Reed v. Home Savings Bank, 130 Mass. 443; Fenton v. Sewing Machine Co., 9 Phila. 189; Goodspeed v. East Haddam Bank, 22 Conn. 530; Boogher v. Life Ass’n of America, 75 Mo. 319; Wheless v. Second National Bank, 1 Bax. 469; Jordan v. Railroad Co., 74 Ala. 85; Williams v. Insurance Co., 57 Miss. 759; Vance v. Railway Co., 32 N. J. L. 334; Cooley on Torts, 119; 3 Sutherland on Damages, 270, and cases cited; 2 Waifs Actions and Defenses, 447, and cases cited.)
The same doctrine has been fully recognized on several occasions by this court. (L. L. & G. Rld. Co. v. Rice, 10 Kas. 437; M. K. & T. Rld. Co. v. Weaver, 16 id. 456; K. P. Rly. Co. v. Kessler, 18 id. 523; K. P. Rly. Co. v. Little, 19 id, 269; Western News Co. v. Wilmarth, 33 id. 510.) The withdrawal of the instruction, although erroneous, was beneficial to the plaintiffs in error; and there can be no reversal unless the erroneous ruling is injurious to the party complaining.
It is next contended that the company cannot be held liable for the wrongful acts of Baker and the constable; and an instruction is challenged which holds that if the agent of the company caused, and procured the illegal arrest and detention of the defendant in error as charged, the company and its agents were both liable. Baker was the managing agent of the company, his authority was general, and the constable acted wholly under his direction and sanction. He had not only authority to’sell machines and collect the money due for the same, but it is conceded that he had authority to institute legal proceedings to recover possession of the machines conditionally sold and for which payment had not been made in accordance with the terms of the sale. The arrest and detention of Boyce was incidental to the replevin action, and was made as alleged to compel the delivery of the machine under a provision of the justices code relating to replevin, which provides that where the defendants or any other persons knowingly conceal the property replevied, or, having the control thereof, refuse to deliver the same to the officer, they may be committed until they disclose where the property is, or deliver the same to the officer. (Comp. Laws of 1879, ch. 81, §69.) Pie had full authority to represent the company, and whatever was done by him was done for the benefit of the company and for the accomplishment of its purpose. His act, although wrongful, was in the line of his employment, was done in the execution of the authority conferred upon him, and must be regarded as the act of the company. To make the corporation responsible it is not necessary, as plaintiffs in error contend, that the principal should have directly authorized the particular wrongful act of the agent, or should have subsequently ratified it. Judge Story, in treating of the liability of principals for the acts of their agents, says that—
“ The principal is held liable to third persons in a civil suit for the frauds, deceits, concealments, misrepresentations, torts, negligences, and other malfeasances or misfeasances and omissions of duty of his agent in the course of his employment, although the principal did not authorize or justify or participate in or indeed know of such misconduct, or even if he forbade or disapproved of them.”
And to sustain this he cites numerous authorities. “In all such cases,” he says, “the rule applies, respondeat superior, and it is founded upon public policy and convenience, for in no other way could there be any safety to third persons in their dealings either directly with the principal or indirectly with him through the instrumentality of agents.” (Story on Agency, §452.)
They complain further of an instruction in which the court stated that tlie warrant under which Boyce was taken and held in custody was illegal and void, and insufficient in law to justify his arrest and imprisonment. The warrant, as we have seen, was issued upon an affidavit charging Boyce with having control of the property replevied, and of refusing to deliver it to the officer who had the writ. There was no process issued except the warrant, and it commanded that he be committed at once to the county jail until he should deliver the property to the officer. No notice was given to him that the charge stated in the affidavit had been made against him, nor was an opportunity given him to refute it. The order of commitment was not based upon any examination, hearing, or trial, but was arbitrarily made in the absence of Boyce upon an ex parte statement. The plaintiffs in error attempt to justify this action, though not seriously we think, under § 69 of the justices code already referred to, which reads as follows:
“Whenever it shall be made to appear to the satisfaction of the justice, by the affidavit of the plaintiff or otherwise, that the defendant or any other person knowingly conceals the property sought to be recovered, or, having control thereof, refuses to deliver the same to the officer, the justice may commit such defendant or other person until he or they disclose where such property is, or deliver the same to the officer.”
The proceeding authorized by this statute is virtually one for the punishment of contempt. Whether a party is to be brought before the justice of the peace upon a notice or by attachment, or what the initial proceeding shall be, is not expressly provided. The section quoted does provide what punishment shall finally be visited upon a party; but this pun isliment is not to be administered until the guilt of the party is “made to appear to the satisfaction of the justice.” This language implies that there is to be a hearing and an adjudication of the charge upon its merits. When a contempt is committed in faoie curice the punishment is generally summary, and no initial proceeding is required; but when it is not committed in the view of the court the initial proceedings are necessary, and the party must have notice and opportunity to defend. The most common initial process is a rule or order to show cause why an attachment or warrant for contempt should not issue, of which service should be made; and in a proceeding to punish for criminal contempt, personal notice of the accusation is indispensable. Whatever procedure may be adopted, it is certain that a party cannot be condemned without notice; and a final judgment , , n . ’ „ . -n > rendered, as was done m this case, without a hearing or an opportunity to defend, is void. (Rapalje on Contempt, § 96.) While the language of the statute is not very explicit, it does not require the interpretation contended for, and if it did it would necessarily be held void.
The final error assigned is, that the damages awarded are excessive. This assignment is as groundless as those already considered. The case is an aggravated one, and the conduct of the plaintiffs in error exhibited a wanton and reckless disregard of the rights of the defendant in error. He was not a party to the replevin action; and the testimony is, that the machine in controversy was purchased long before he was married to the plaintiff in that action, and that he had no interest in or control over it. He was thrust into jail without warning or trial when there was no civil or criminal suit pending against him, and kept there for ten days with seventeen or eighteen prisoners who were either charged with or convicted of crime. The sewing machine sought to be recovered from his wife had been paid for, and belonged absolutely to her; and plaintiffs in error, with knowledge of this fact, undertook to compel the payment of money not due, or the recovery of property which they did not own, by the arrest and incarceration of the defendant in error without cause, and in a manner that was clearly illegal. Apart from the loss of time and interruption to his business, as well as the humiliation and indignity suffered by him by being thrust into jail upon a false charge, it appears that the confinement resulted in his sickness; and when we consider the malicious and oppressive conduct of the plaintiffs in error, and that the case is one which calls for the infliction of exemplary or punitive dam-ages> we can onty conclude that the verdict of one thousand dollars in favor of the defendant was fully justified, if not too small. We can say without hesitation, that an award of a larger amount would not have been disturbed on the ground that it was excessive.
It follows that the assignments of error must be overruled, and the judgment of the district court affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Horton, C. J.:
All of the alleged errors in this case are trivial and unimportant. If the motion for additional security for costs ought to have been allowed, this is not a sufficient ground for a reversal of the judgment, as it appears the plaintiff below was successful upon his claim against the defendant below, the party making the motion. The officers interested in the costs seem to be satisfied with the action of the court in overruling the motion for other security. As the defendant is liable for all the costs included in the judgment rendered against him, he is in no condition to make any complaint, nor have any of his rights been prejudiced by the ruling. The lease was properly introduced in evidence, and there was no material error in the introduction of the renewals entered thereon, because, although the defendant in the court below had no knowledge of such renewals, as long as he retained possession or control of the premises he must be considered to have held under the lease.
Legrand Byington had the right to sell and transfer the written lease to his son, Seymour L. Byington, although he was a minor. The written statement made by Legrand Byington in 1873, and the letter of Bradford Miller of February 3, 1873, were improperly admitted in evidence; but these errors are immaterial, as both Byington and Miller testified of their own recollection of the amounts severally stated by them. Byington figured up the amount of rent due from Wilcox from 1868 up to 1873. Miller testified that the amounts mentioned in his letter were paid by him for rent to Wilcox. The ease was submitted to the court without a jury, and therefore the introduction of these immaterial papers were less likely to cause any .prejudice.
The refusal of the court to state its findings of fact in writing, was not, under the circumstances of this case, error. Judgment was rendered March 30,1885. The motion for a new trial was filed the same day, but not argued until April 25,1885. On that day the motion was overruled. The defendant below never made any request to the court to state its conclusions of fact and of lawT, until after his motion had been overruled; then it was too late. The request should have been made before the court announced its findings. It is the general rule of practice for the parties to request the court, either just before or at the close of the argument made in the ■case, to state its findings in writing. Clearly, the request should be made before the final decision of the court. We do not think the statute contemplates that a party to an action may wait until the trial is ended, the final judgment rendered, and his motion for a new trial overruled, before intimating to the court that he desires the conclusions of fact and of law stated in writing. (Civil Code, § 290; Greene v. Williamson, 21 Kas. 68.) In this case, the trial court undoubtedly would have found specially, and would have stated in writing all of its findings, if the slightest intimation had been given before the final decision, that such a thing was desired.
The claim that the action was barred by the statute of limitations is not tenable. The lease was sold and assigned by Legrand Byington to Seymour L. Byington, on November 23,1870. Seymour L. Byington was then a minor, and he commenced this action on December 17,1883, within one year after he became of age. (Civil Code, §17.)'
An examination of the evidence and judgment does not satisfy us that the assessment of the amount recovered is too large. The omission of .the clerk of the court to include the amount of the costs in the judgment as recorded is not a ground for setting the same aside. “The judgment will certainly authorize a correct taxation of the costs. If, however, the clei’k should tax them erroneously, the court below will undoubtedly correct the taxation on motion.” (Linton v. Housh, 4 Kas. 536, 541; Clippinger v. Ingram, 17 id. 585.)
The judgment of the district court will be affirmed.
All the Justices concurring.
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Tlie opinion of the court was delivered by
Horton, C. J.:
Action by Hall against Brooks to recover $131, alleged to be a balance due for work and labor. Hall built a frame dwelling for Brooks on the corner of Lane and Eighth streets in the city of Topeka, under a written contract executed June 22, 1882, the contract-price being $525. He constructed one or two outside buildings under a verbal contract, and alleges that he did some extra work upon the dwelling, for all of which he charges $180.50. He admits credits by payments of -$574.50. Brooks alleges that the work on the dwelling was done in an uuworkmanlike manner, and because of this that he has been damaged $552. He also alleges that after the completion of the work there was a compromise of their claims upon each other, and that Hall was paid by him thereon $65. Upon the trial the jury returned a verdict for Hall of $151.09. In the motion for a new trial filed by Brooks, it is alleged that the verdict is not sustained by any evidence, and that the damages given by the jury are excessive, and appear to have been given under the influence of passion or prejudice. The evidence in the case clearly establishes a compromise and settlement. The great preponderance of the evidence shows that the dwelling was defectively constructed. The architect testified “that the work was not done in a good and workmanlike manner.” The evidence in the case also shows that after all the work was done by Hall, Brooks was dissatisfied with it.
About November 1, 1882, Hall went to see Brooks to get a settlement with him for the building of the dwelling and for his other work. Brooks told him to go down town and get Mr. Hadley, the architect; Hall did as requested; Hadley came up and the parties went through the house together, Hadley pointing out to Hall the porches, steps and windows, as not having been properly constructed. After looking through the dwelling, the parties went into one of the rooms and tried to settle. There were differences between them. Hall wanted his pay for the work, and Brooks objected to its character, and made claim for large damages. Finally, in the presence of Hadley, the architect, Hall and Brooks made a compromise and settlement of their claims upon each .other, Brooks paying $65, and Hall accepting the same, and executing the following writing:
“Received of W. H. Brooks jr. sixty-five dollars, in full of all demands to date of whatever nature and character, for all work of every description done for him, or at his suggestion, on house, barns, shed, privy, and porches.
W. J. Hall.”
The next day Hall went to Brooks and claimed that he had made a mistake in his figures, and wanted $131 more, but he did not offer to return the money received by him upon the settlement.
The rule is, if two parties having, or supposing that they have, claims upon each other, agree to compromise those claims, and to come to a general settlement of the matters in dispute between them without resortiug to litigation, and they act with good faith and stand upon an equal footing, and have equal means of knowledge as to the facts, the compromise is binding. It is not enough to set aside the compromise, that one of the parties may have been in error as to his figures. It is not claimed in this case that there was any mutual mistake of the parties, or that Brooks was guilty of any fraud, deceit, or misrepresentation. The only reason that Hall claims the compromise and settlement should be set aside, is, because he made a mistake in subtraction at the time of the compromise. This is not enough to invalidate the transaction. Of course if there was nothing in this case but the mere writing or receipt executed by Hall, the receipt would be open to explanation. (Thompson v. Williams, 30 Kas. 114; Bridge Co. v. Murphy, 13 id. 35.) But as it appears that there was a compromise and settlement between the parties at the date of the writing or receipt, and as the jury had no evidence before them tending to show that such compromise and settlement were the result of any mutual mistake, or fraud or unfairness, there was no evidence upon which they had the right to reject or overturn such compromise and settlement, and therefore the verdict of the jury, being unsupported by the evidence, must be set aside.
All the Justices concurring.
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The opinion of the court was delivered by
Johnston, J.:
At the August term, 1886, of the district court of Cloud county, the appellant was tried on a charge of assault and battery, and was convicted of assault. He appeals, and his principal complaint is of the charge of the court. In instructing the jury, the court said:
“ Both of the offenses of assault and battery, and of assault, are included in the charge in this case, and if. you find the defendant guilty, he may be convicted of either of said offenses, as the evidence may warrant; but if you find the defendant guilty, but entertain a reasonable doubt of which of the said offenses he is guilty, you can in that case only find him guilty of assault.”
This instruction was not applicable to the facts proven on the trial, and may have misled the jury in their verdict. There was only a single encounter between the appellant and the prosecuting witness. The appellant admits that he laid hold of the complaining witness with force and violence, but stated that it was not done until after he was violently attacked by the complaining witness, and that his action was taken in self-defense and was justifiable. It is stated in the charge of the court that the defendant admitted the force and violence, but claimed that what he did was done in self-defense ; and the testimony makes it clear that if the defendant was not guilty of assault and battery he was not guilty of any offense. The charge of the court should be adapted to the facts of the case, and the giving of an instruction which goes beyond the facts is liable to mislead the jury. By the instruction given, the court in effect assumed that some testimony had been offered tending to sustain the theory of a simple assault; and the jury, finding no evidence to support the charge of assault and battery, may have been led by this assumption to find the defendant guilty of an inferior offense not proven. Where there is even slight evidence that the offense committed may have been of a lower degree than the one charged, it is the duty of the court to give the law of such inferior offenses, but the court cannot properly instruct the jury upon a degree of the offense which the evidence does not tend to prove. (1 Bish. Cr. Proc., §980; Washington v. The State, 36 Ga. 222.) If the guilt of the defendant was apparent from the testimony, we might hold the error to be harmless; but taking the evidence as it appears iu the record, it is exceedingly doubtful whether the defendant committed any offense. Indeed, the testimony seems to preponderate in favor of the defendant’s theory that he acted only in self-defense, and did no more than was necessary to repel an unjustifiable assault. A perusal of the record leaves the question of the defendant’s guilt iu so much doubt that we are unable to say the erroneous instruction was not prejudicial to him; and hence there must be a reversal of the judgment.
All the Justices concurring.
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Opinion by
Holt, C.:
The plaintiff and defendant entered into the following contract, at the date named therein, viz.:
“Mound City, Kansas, Feb. 22,1884. — This agreement entered into between William Richey and Benjamin Shinkle: Benjamin Shinkle agrees to sell and deliver William Richey one hundred merchantable hogs at La Cygne, Kansas, between the first of June and the first of August, 1884; William Richey to pay six cents per pound; one hundred dollars to be paid on said contract, the balance on delivery of hogs.
. William Richey.
Benj. Shinkle.
“Received one hundred dollars on same. $100.
B. Shinkle.”
Shinkle brought his action against Richey, claiming judgment for one hundred and forty-five dollars, for the breach of said contract. The testimony showed that Richey was a dealer in stock and hogs, and lived at Mound City; that Shinkle was in the business of fattening and shipping stock and hogs. After the contract was made, and before the time of delivery, the price of hogs went down in the market. Richey made no demand on Shinkle for the hogs; was in La Cygne but once for a short time as the train stopped, and made no effort to see him. Shinkle did not notify Richey that he had the hogs ready to deliver to him. Shinkle, on and after June 1, 1884, up to August 1st of the same year, had one hundred merchantable hogs, or more, at La Cygne. About July 20th he weighed out one hundred of them, so they would be ready when Richey should come after them. Upon the first day of August, he shipped quite a large number of hogs to Kansas City, from the station at La Cygne, weighing out one hundred and sending them in the name of and as the hogs of Richey. They weighed 33,600 pounds, and sold for $5.10 per hundred. It was conceded by Richey’s attorneys, that if Shinkle could recover at all, the amount of his recovery should be $145.50. The court directed the jury to find for plaintiff in that sum. Defendant brings the case here for review.
The sole question in this action is, whether there was a sufficient delivery of the hogs named in the contract by Shinkle. The defendant claims that because plaintiff is asking affirmative relief, he must show that he did everything he was bound to do by the terms of the contract, and claims that it was plaintiff’s duty to notify him of the time he would deliver. Plaintiff had the number of hogs agreed upon after the first day of June until the first day of August, at the place where they were to be delivered, ready for delivery, and was anxious to deliver them. About the 20th of July he separated and weighed out one hundred merchantable hogs, so he would not have any trouble in getting them up when Richey should come to receive them. We do not think he was required to do more.
Defendant claims it was the duty of Shinkle to notify him of the exact time he would deliver the hogs. It is not so stipulated in the contract. In the absence of an express stipulation, the law fixes the last day of July as the time of delivery under the contract. Shinkle was at La Cygne on that day with his one hundred merchantable hogs, as he had been during the entire months of June and July. Richey was not there. He had failed to be at the place of delivery to receive the hogs at any time during the entire period designated in the coutract. He should have been there on the last day of July if no notice had been given him before, to receive and pay for the hogs.
He now seeks to evade the consequences of a contract fairly entered into, because Shinkle did not hunt him up to turn the hogs over to him. Richey was, or should have been, as much interested in the delivery of the hogs as Shinkle. He should not now be permitted to set up his own failure to live up to his contract, to escape the losses that came to him on account of the depression of the markets.
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
Johnston, J.:
This proceeding is brought, to reverse a judgment rendered against the plaintiffs in error in an action of replevin by the district court of Cloud county, at the November term, 1884. The validity of the record is challenged upon the ground that the case as made by plaintiffs was not served within the time allowed by law or given by the court. A motion for a new trial was overruled on the 22d day of November, 1884, and the court, upon the application of the plaintiffs, extended the time within which they might make and serve a case, to the 21st day of December, 1884. From the record it appears that the case was not served until the 22d day of December, and it does not appear that there was any extension of time by the court or judge, within which it might be done. It is true that the judge of the court certifies that the case-made was “duly served,” but this general statement cannot overcome the specific recital showing that it was served too late. Not being served within the time allowed by the court, the judge was without authority to settle or sign the same, and the case attached to the petition in error is a nullity. (Railway Co. v. Wingfield, 16 Kas. 217; Weeks v. Medler, 18 id. 425; Ingersoll v. Yates, 21 id. 90; Ætna Life Ins. Co. v. Koons, 26 id. 215.)
No questions are presented by the petition in error except such as are raised upon the admission of testimony and the instructions of the court, and therefore there is nothing before us for review. However, we have looked into the record brought up, and even if the case had been properly served and settled, we discover nothing which would require a reversal.
The cause will be dismissed from this court.
All the Justices concurring.
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The opinion of the court was delivered by
Johnston, J.:
This was an action of replevin, brought by Resin Clark to recover possession of four hundred bushels of corn from J. R. Voorhees, the sheriff of Marshall county, who seized and was holding the same as such officer. The case is substantially the same in its facts as Souders v. Voorhees, just decided. The plaintiff claimed the corn by virtue of a chattel mortgage which was given by Thomas Burnside upon a horse and a quantity of corn, the corn being described as follows:
“Four hundred bushels of corn now growing and being on the west half of section thirty-six, town three south, of range eight, east of the sixth P. M.”
There were over one thousand bushels of corn upon the premises described; and it differed greatly in both quality and value. The corn was green and growing when the mortgage was executed, and no part of the same was designated or set apart as being the corn mortgaged or intended to be mort gaged by Burnside to Clark. It was levied on while it was yet standing in the field and in the possession of the mortgagor, and before there was any separation of the four hundred bushels from the remainder of the corn in the field. Under these circumstances, we must hold the description in the mortgage to be insufficient. It is impossible for third persons to ascertain from the description, or by the aid of inquiries suggested by the mortgage itself, what particular part of the corn was intended to be mortgaged. The fact that the corn was not uniform in quality aud value makes it all the more important aud necessary that the mortgage should definitely designate the particular part intended to be covered by it. If a mortgage given on a small part of a growing crop without any separation or change of possession, and with a description like this, that gives no clue by which third parties may know what part is mortgaged and what reserved, is to be upheld, then gross frauds can be easily committed. To hide away his entire crop from his creditors, a party need only give a chattel mortgage upon a few bushels of the whole product, describing it so imperfectly that neither creditors nor officers could distinguish the mortgaged portion from the remainder. The theory advanced by plaintiff cannot be sanctioned; and following the case of Souders v. Voorhees, supra, we must concur in the ruling of the district court holding the mortgage to be void, and will therefore affirm its judgment.
All the Justices concurring.
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The opinion of the court was delivered by
Horton, C. J.:
It is contended that the plaintiff is not entitled to the relief demanded in the alternative writ, for the reason that he is attempting to enforce the provisions of a contract between the city of Hiawatha and himself, and that if any contract exists as he alleges, he has a plain and adequate remedy at law, either by an action for damages or a proceeding in equity for a specific performance of the contract. Under the allegations of the writ, there has been an agreement entered into between the plaintiff and the mayor and the conncil of the city of Hiawatha. Under this agreement the plaintiff is the purchaser of the bonds in dispute. If all of his allegations are true, he is entitled to receive them. It is the official duty of the mayor and the council to carry out the contract and issue the bonds. When these officials refuse to cany out the contract entered into by them, for the sale of the bonds, they are guilty of a breach of official duty.
It is well settled that the writ of mandamus lies in all cases where the plaintiff has a clear legal right to the performance of some official or corporate act, by a public officer or corporation, and no other adequate, specific remedy exists. (Civil Code, § 688; Railroad Co. v. Comm’rs of Clinton Co., 1 Ohio St. 77; The State, ex rel., v. Comm’rs of Jefferson Co., 11 Kas. 67; A. T. & S. F. Rld. Co. v. Comm’rs of Jefferson Co., 12 id. 127; The State v. Mo. Pac. Rly. Co., 33 id. 176; High Ex. Rem., §§17, 333; People v. Mayor, 10 Wend. 245; Van Rensselaer v. Sheriff, 1 Cow. 501; Railroad Co. v. Wisdom, 5 Heisk. 125.) Moses on Mandamus, p. 14, lays down this as the rule:
“ It will therefore be observed, that it is one of the remedie,? resorted to when a person desires to be placed in possession of a right illegally and unjustly withheld from him. It does not award damages as a compensation for an injury, but it seeks to give the thing itself, the withholding of which constitutes the injury complained of.
Within Railroad Co. v. Comm’rs of Jefferson Co., supra, and the authorities cited, the ordinary remedies of the law are insufficient for the proper enforcement of the rights claimed by the plaintiff. There is no legal remedy, other than by mandamus, by which he can obtain the identical bonds contracted for. He desires the execution and the possession of these bonds; and if the contract has been completed, as he alleges, the execution and delivery of these bonds by the defendants is an official duty imposed upon them by their contract.
The writ recites that the mayor and council, while in session, sold the bonds to the plaintiff; therefore the objection, that the writ fails to show the concurrence of the mayor in the contract, is not well taken. There is nothing in the writ tending to show that the mayor and city council were required by any ordinance to offer the bonds for sale by sealed proposals, or that the officials transcended their power in entering into the contract. (Comp. Laws of 1885, ch. 19, art.l, § 4.)
The authority given to issue bonds bearing interest at a rate not to exceed six per cent, per annum, empowers the defendants to issue bonds bearing interest at the rate of five and one-half per cent. Ordinarily, the authorized officials of a municipal corporation may bind it by resolution, or by vote clothe its officers with power to act for it. Our attention has not been called to any section of the “ act to incorporate cities of the second class” prohibiting the sale of bouds, or other personal property of a city, by resolution. In our examination of the statute, we have found no such limitation or restriction; therefore the contract entered into between the parties to this action, upon the resolution of the city council, as set forth in the writ, is valid. The motion to quash will be overruled.
All the Justices concurring.
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Opinion by
Holt, C.:
We do not believe that the property occupied as a homestead by Godfrey Hafer in his lifetime, and now occupied by his widow, Virginia Hafer, was,' at the time of the trial of this case, subject to partition. The court found that Virginia Hafer was occupying the same tract as her place of residence and homestead, and that Emma B. Hafer, now Emma B. Brennerman, was seventeen years of age. The statute provides:
“ If the intestate left a widow and children, and the widow again marry, or when all of said children arrive at the age of majority, said homestead shall be divided, one-half in value to the widow and the other one-half to the children.” (Comp. Laws of 1879, ch. 33, § 5.)
The children left by Godfrey Hafer were not all of age. The widow, Virginia Hafer,.continued to occupy as her home the homestead of the deceased, and until the widow married again, or children all arrived at the age of majority, such homestead could be claimed by the widow ag jlomes^eac[i (Vandiver v. Vandiver, 20 Kas. 501.) The court therefore erred in finding that the tract above mentioned and described was subject-to partition.
This case was tried in June, 1885, and by this time Emma B. Brennerman must have arrived at the age of majority. We feel called upon to decide the question whether the division of the homestead by the court would have been proper if it could have been legally divided at that time. The only question to be decided is, whether the ante-nuptial contract entered into between Godfrey Hafer and Virginia Bowser is to be upheld and enforced with reference to the homestead occupied by the parties during their married life, or should it be divided under chapter 33, Comp. Laws of 1879? The court held, when this case was here before, that the ante-nuptial contract was valid, and provided a rule for settling the property rights of an intestate different from that laid down in the statute of descents aud distributions, so far as all property was concerned, excepting only the homestead; and in reference to that it simply decided that such homestead could be occupied by the widow and minor children, independent of the said contract, until it was susceptible of partition. Now that the homestead may be divided, it is asked that the rule that applies to the distribution of the other property of an intestate shall not be applied to it. The constitution provides that a homestead occupied as a residence by the owner shall not be alienated without the joint consent of the husband and wife, when such a relation exists. The statute (ch. 33, Comp. Laws of 1879) further provides that the homestead shall be exempt from distribution under any of the laws of the state, aud from the payment of any of the debts of the intestate, but shall be the absolute property of the said widow and children. Both of these provisions are for the protection of the homestead, to preserve a home for the family against the claims of creditors. When, however, the widow marries again, or all of the children arrive at the age of majority, or the homestead is abandoned, it is then no longer a question of securing the homestead for the family against outside creditors, but is simply a matter of dividing it among those who have alike shared in the protection afforded them by the beneficent provision of the law exempting their home from forced sale. Then it may be divided exactly the same, so far as the widow and children of the deceased are concerned, as any other property that the intestate may have died seized of.
We are not able to perceive any valid reason for a different rule for dividing a homestead under an ante-nuptial contract, from that applied to other property. To be sure, there is a lixnitation of time whexx the homestead shall not be divided, but when such limitation expires and it is to be divided by law, there is no difference in the proportions given to the widow and the children, and that of any other property. We do not believe the claim of the widow to the hoxnestead is saci’ed and inviolate as against the # # ° legal claims of the children, after it can be divided. In a contract fairly made, and for a valuable consideration, Virginia disclaimed any share she might possibly have in the future in the hoxnestead, and agreed to take in lieu thereof the property stipulated for in the contract. This contract was made in prospect of marriage, and as a condition of the same. The intex’ests and rights she now claims ai’ose wholly because of the marriage so contracted under those conditions, and she obtained them subject to the expx’ess contract she had voluntarily entered into. If Godfrey Hafer had contracted with another party, before his marriage with Virginia, and which contract would have been a lien upon the homestead, and of which she had been cognizant, she could not now successfully assert her homestead rights against such party.
We think there are equally good reasons, in fairness and equity at least, for holding that she cannot now claim, in the face of and in opposition to her contract, what might otherwise have been her rights.
The defendants in error cite, among other authorities, McGee v. McGee, 91 Ill. 553; Phelps v. Phelps, 72 id. 546; McMahill v. McMahill, 105 id. 596; Abbott v. Cromartie, 72 N. C. 292; Garlock v. Baker, 46 Iowa, 334. (See also Mahaffy v. Mahaffy, 63 Iowa, 55.) The only case we care to notice is McMahill v. McMahill, upon which the defendants evidently rely, in which it is enunciated that a widow’s homestead right cannot be barred by an ante-nuptial contract to that effect. The court, however, founde^ its opinion upon the statutes of that state. Chief Justice Scott, speaking for the court, says:
“Section 1 of the homestead act, in force July 1, 1873, secures to every householder having a family an estate of homestead in the farm or lot occupied by him or her, which can only be extinguished in the mode provided in a subsequent section of the act; and section 2 of the same act provides such exemption shall continue after the death of such householder, for the benefit of the husband or wife surviving, so long as he or she shall continue to occupy such homestead. Only two modes are provided by which the homestead right or estate may be extinguished: first, by a release, waiver, or conveyance, in writing, subscribed by such householder and his wife, or her husband, if he or she has one, and acknowledged in the same manner as conveyances of real estate are required to be acknowledged; or, second, by conveyance of the premises, with abandonment or giving up of possession. The principle is, the statute secures the homestead to the husband or wife surviving, and such right can only be extinguished in the mode provided by the statute. It cannot be done by an ante-nuptial agreement, for the simple reason that is not one of the modes provided by statute by which such right may be extinguished.”
Such a decision was reached only by a divided court, three of the seven justices dissenting.
Section 5, chapter 33, Compiled Laws of 1879, prescribes an entirely different rule from § 2, chapter 52, Statutes of 111., where, relating to homesteads, it is said:
“Such exemption shall continue after the death of such householder, for the benefit of the husband or wife surviving, so long as he or she continues to occupy such homestead.”
The very reason given in that case to sustain the rule therein laid down, is wanting in this state.
When all the children arrive at the age of majority, a homestead in Kansas may be divided. In Illinois, a homestead shall continue for the benefit of the wife surviving, so long as she occupies the same. We see nothing in McMahill v. McMahill that conflicts with the conclusion we have arrived at, when the statutory provisions of each state are compared and considered.
We believe the rule laid down for the division of other property should be applied to a homestead also, when it is to be divided.
It is recommended that the judgment of the court below be' reversed.
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.:
Just prior to March 14, 1885, F. C. and Lewis Nuzman commenced an action before Thomas Bell, a justice of the peace of Jackson county, and in this action two cows belonging to James Schooley were seized under an order of attachment issued by the justice. On March 14, 1885, the justice issued an order to sell the cows, returnable within thirty days. On March 19, 1885, James Schooley commenced his action before E. D. Rose, a justice of the peace of Jackson county, to recover the possession of the cows, upon the ground that they were exempt from seizure and sale upon attachment, execution, or other process. In this action he recovered judgment, the court holding the cows exempt. This is the error complained of.
After the cows were seized upon attachment, Schooley ap-' peared before the justice issuing the order and gave notice that he claimed the cows as exempt. The justice said to him that he would receive any evidence by affidavit upon the matter, but no affidavit or other evidence was presented. It is now urged that by refusing to comply with the request of the justice, Schooley acquiesced in his decision and judgment, and therefore that the whole matter was res adjudieata. This is not so. In Watson v. Jackson, 24 Kas. 442, it was held that—
“ The decision of a motion made before a j ustice of the peace to discharge from seizure property taken on attachment, on the ground that it is exempt, is not conclusive, and the question of exemption may be tried thereafter in an action of replevin brought by the judgment debtor.”
It is next urged that the cows are not exempt, because it does not appear from the record that they were used by or were necessary for the support of Schooley or his family at the time of the seizure. The statute reads:
“ Every person residing in this state, and being the head of a family, shall have exempt from seizure and sale upon any attachment, execution or other process issued from any court in this state, the following articles of personal property: . . . Fifth. Two cows, ten hogs, one yoke of oxen, and one horse or mule, or, in lieu of one yoke of oxen and one horse or mule, a span of horses or mules; twenty sheep, and the wool from the same, either in the raw material or manufactured into yarn or cloth.” (Comp. Laws of 1879, ch. 38, §3.)
This section makes the articles therein named exempt, absolutely, and therefore the articles so named cannot be confined to such as the debtor is in the actual possession of, or such as are actually necessary for the support of himself or his family. The statute must be construed beneficially to the debtor. (Mallory v. Berry, 16 Kas. 293.)
The case comes to this court upon the findings of fact of the trial court, without the evidence, and all the terms of the lease under which one Speck holds the cows are not before us for our consideration. The findings show that Schooley is the owner of the cows, and that they are the cows he had at the commencement of this action, and that the Nuzmans are trying to seize and sell his interest therein; therefore we think he is sufficiently a party in interest to maintain this action.
Even if Schooley had eighteen or twenty head of cattle just prior to the commencement of this action, he had the right to claim as exempt the particular animals in dispute. The election of what animals he would claim as exempt, was with him, and not with the creditor.
“Where the debtor has a greater number of animals or articles than are enumerated as exempt, or where he has property which .exceeds in value the limit of the exemption, the selection should be made before the sale, but our law does not prescribe when or by whom it shall be made. In view of the fact that the statute is enacted mainly for the benefit of the debtor and his family, it appears to us that the debtor should be accorded the privilege of making the selection at any time before the sale.” (Rice v. Nolan, 33 Kas. 31.)
The judgment of the district court will be affirmed.
All the Justices concurring.
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Opinion by
Holt, C.:
The principal question to be considered is, whether this tract of land owned by the plaintiff is a part of the city of Topeka. If it is answered in the affirmative, then the judgment of the district court must be affirmed. Under the findings of fact we learn that one Zenos King laid out and platted his own land with the land in controversy, which he did not claim to own, as King’s addition to the city o'f Topeka, and afterward it was all attempted to be taken into the city as a part thereof by ordinance. We suppose that it is necessary ordinarily that land should be platted, and the plat should be filed in the office of the register of deeds in the county where the addition lies before the same can become a part of any city.
Such plat, however, must be made by the owner of the land which is intended to be made a part of the city. (Compiled Laws of 1879, ch. 78, §1; City of Topeka v. Gillett, 32 Kas. 438.)
We believe that such map or plat, so acknowledged and filed, was necessary before the land in controversy became a part of the city, unless plaintiff has acquiesced in the annexation proceedings, and has stood by and without objection has seen the city appropriate money or make improvements upon the faith of the validity of the proceedings whereby the land was attempted to be annexed to the city. The only finding showing anything claimed to be an acquiescence on the part of the plaintiff, is the fact of his having regularly paid taxes upon said tract, the same having been assessed for taxation in the city of Topeka. There is no finding that any sum of money whatever had been expended upon said tract by said city, nor any improvements made thereon, upon the belief that it was a part thereof. The question to be solved is, whether the payment of a tax upon this property, assessed as a part of the city of Topeka, is a ratification in law of the several acts of the defendant in attempting to annex and include the land in controversy within the city limits.
We do not believe that the payment of a tax, whether legally or illegally assessed, would be a ratification by plaintiff, or would in any manner- estop him from denying that the land was a part of the city of Topeka. The plaintiff gains nothing thereby; the city loses nothing; on the contrary, the city obtains the advantage of the tax, and in this we fail to see any element of ratification, or anything that would estop the plaintiff in this matter. (Strosser v. City of Ft. Wayne, 100 Ind. 443; Langworthy v. City of Dubuque, 13 Iowa, 86. Also, see Greencastle Township &c. v. Black, 5 Ind. 557.)
Defendant in error in its brief contends that because this tract of land was entirely surrounded by and embraced within the geographical limits of the city of Topeka, the city could condemn and open streets across it, when the necessities of its citizens demand it; and cites Curry v. Town of Mount Sterling, 15 Ill. 320, and also C. R. & R. Rld. Co. v. Town of Lake, 71 Ill. 333; see also Dunlap v. Town of Mount Sterling, 14 Ill. 251. In the case of Curry v. Town of Mount Sterling, the question there was upon an appeal from the assessment of damages to Curry for opening a street through his land within the corporate limits of the town of Mount Sterling. It was tried upon the theory that Curry’s tract of land was within the limits of the town; but he claimed that because the land was not properly platted, no street could be opened through the same. There was no contention that the land in controversy in that case was not really within the town limits; the only thing lacking was that it had not been platted. After he had taken his appeal from the assessment, in which he was not awarded any damages, he made a motion to dismiss the action, because the corporation had no power to lay out a street through land not properly subdivided into town lots.
This action is one brought to enjoin the opening of a street, because the land of Armstrong was never included within the corporate limits of the city of Topeka. In the case of Curry v. Town of Mount Sterling, and Dunlap v. Town of Mount Sterling, the fact in dispute in this case, namely, that the land was not within the city limits, was conceded in both of those cases.
We have no hesitation in saying that if the land of Armstrong had been, by his consent, added.to the city of Topeka, he could not now be heard to dispute the right of the city to open a street through it. The necessities of the public might justify the exercise of the right of eminent domain over any land that was a part of the city of Topeka, and the expediency of such proceedings would be left with the proper authorities of the city. We do not believe, however, that the city of Topeka has a right to take any land outside of its corporate limits for a public purpose without the consent of the owner.
Unquestionably the opening of this street would be a great benefit to many of the citizens of Topeka, and such street ought to be opened for the convenience, comfort and necessities of the people living in that portion of the city; but such arguments address themselves rather to the legislature than to the courts. There is ample provision now made for annexing such tracts of land as the one described in this controversy, to a city of the first class. (See ch. 99, Laws of 1887, “An act to amend an act to incorporate and regulate cities of the first class,” etc., approved March 5, 1887.)
We recommend that the judgment of the district court be reversed, and that judgment be rendered for plain tiff upon the findings.
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 action is brought in this court to compel the county clerk of Graham county to remove his office, records, etc., from Graves’s addition to the town of Millbrook, to the original town site of Millbrook.
On'April 1, 1880, the governor issued his proclamation, declaring the county of Graham organized, and designating Millbrook as the temporary county seat. On July 12, 1881, a special election Avas ordered to be held in Graham county, to determine the permanent location of the county seat of the county. The vote cast at said election was canvassed on July 16, 1881, and no place having received a majority of all the votes cast, a second election was ordered to be held, the balloting to be confined to Gettysburg and Millbrook. The second election for the permanent location of the county seat was held on July 26, 1881. The vote was canvassed July 30, 1881, and Millbrook, having received a majority of all the votes cast, Avas duly declared the permanent county seat of Graham county. At the time of the designation of the temporary county seat of Graham county, and also at the time of the location of the permanent county seat of that county, Millbrook Avas unincorporated, but was mentioned and described as Millbrook, in a town plat, executed and acknowledged by N. C. Terrell, on the 2d day of May, 1879 — the land so platted being the north fifty-six and ten-elevenths acres of the Avest half of the northeast quarter of section twenty-seven, of township eight south, of range twenty-three west, in Graham county. No election for the removal or the relocation of the county seat of Graham county has been had or ordered since July 26, 1881. Millbrook became and con tinued to be the temporary county seat of Graham county until July 30, 1881, and thereafter became and continued to be the permanent county seat of that county.
On April 8, 1885, Benj. B. F. Graves and wife acknowledged and recorded a plat of a certain tract of land adjoining the original town site of Millbrook, and designated such tract of land as “Graves’s addition to the town of Millbrook.” On April 18, 1885, the county commissioners of the county entered into a contract with Benj. B. F. Graves and C. Tillotson for the removal of the several county offices from the original town site of Millbrook to lot 17, in block 30, in Graves’s addition to the town of Millbrook; said lot 17 is distant from the original town site of Millbrook from one-half to three-quarters of a mile. On July 7, 1885, the board of county commissioners of Graham county by a written order directed all the county officers to remove their respective offices, records, books, etc., from the town site of Millbrook to Graves’s addition. On July 14, 1885, the defendant, H. J. Harwi, county clerk, in pursuance of said order, removed his office, records, etc., to a one-story frame building on said lot 17, in Graves’s addition, which had been donated to the county for a court house. On October 8, 1886, Millbrook was incorporated as a city of the third class, and embraced within the corporate limits is Graves’s addition. The original town site of Millbrook is therefore now only a portion of the present city of Millbrook. The court house belonging to the county of Graham and situated in Graves’s addition is valued at $2,500, and is occupied by all the officers of the county with the records of their offices. All of the buildings, with the exception of three or four, have been moved from the old town site to the addition, and in the addition there are from fifty to one hundred houses.
It is claimed upon the part of the defendant, that as it is impossible to obtain water upon the original town site of Mill-brook, and as there is plenty of water in Graves’s addition, and as all the principal part of the business has left the old town and gone to the addition, the removal of the county seat to the addition was conducive to the public interests, and therefore that the county commissioners had the legal right to make the order of removal, and that it is the duty of the county officials to obey the same. The question is, whether the county comnissioners of Graham county have any authority to change the county seat from the original town site of Mill-brook, where it was located by the voters, to the addition platted April 8,1885. Sec. 119, ch. 24 Comp. Laws of 1879, reads:
“At the time of counting the votes at any election at which a vote shall be taken for the permanent location of the county seat, it shall be the duty of the judges or inspectors of the election in each precinct to canvass the votes cast for such location, and make a certified return thereupon to the board of county commissioners, whereiu they shall state the whole number of votes cast, the name of each place voted for, and the number of votes given for each; which return shall be attested by the clerks, and shall be returned at the time of making other returns to the board of county commissioners, who shall, from such returns made to them, determine the whole number of votes given for each place in the county, which shall be entered upon the records in the office of the county clerk; and when some one place in the county shall have received the majority of all the votes cast in the county at one election, it shall be the duty of the county clerk, under his hand and seal, to certify the result to the secretary of state.”
Chapter 26, Comp. Laws of 1879, provides:
“Sec. 6. The board of commissioners shall meet on the Saturday following said election, and proceed to canvass the vote; and the place having received the majority of all the votes cast shall be proclaimed by them the county seat of the county.”
“ Sec. 8. In case of a second election, the board of county commissioners shall meet on the Saturday following, canvass the vote and proclaim the result, as hereinbefore provided.
“Sec. 9. The county officers who are required by law to keep their offices at the county seat shall, within twenty days after said proclamation, remove all books, records, papers and furniture belonging to the county, to the place therein named; and if any officer shall fail to remove within the time prescribed by this section, he or his sureties shall pay to the county the sum of five dollars for each and every day of such failure, to be sued for and collected by the board of county commissioners.”
From these provisions of the statute it is evident that the place having received the majority of all the votes cast is to be the county seat of a county. In this case, the place selected as the county seat of Graham county was the original town site of Millbrook, located on fifty-six and ten-elevenths acres of land as platted, acknowledged and recorded by N. C. Terrell. The wisdom of the choice for the county seat made by the voters of Graham county may be questioned, but their power to make it is beyond dispute. As the original town site of Millbrook was selected as the permanent county seat of Graham county, we do not think the county commissioners of that county, or any of its officials, have the power to change or remove the county seat to ° # -i ..i any lot or tract of land not within the original town site. Did such power exist, the exercise of it by the county commissioners would be discretionary, and their action final; and if it existed, the offices of the county officials might be removed upon some addition, one, two, three or more miles from where the county seat "was permanently located by the voters. (The State, ex rel., v. Smith, 46 Mo. 60.) If the electors of Graham county prefer Graves’s addition to the original town site of Millbrook as the place for the permanent county seat of that county, they have the right, if they pursue the provisions of the statute, to select that place; but this power is denied the county commissioners or the officials of the county, unless a vote is taken therefor. An addition to a county seat is not, strictly speaking, a part of the original town site. (The State v. Smith, supra.)
In this state, as well as Missouri, donations may be made to a county as inducements to obtain the location of a county seat at a particular place. (Setter v. Alvey, 15 Kas. 157; Yoxall v. Comm’rs of Osborne Co., 20 id. 581; The State v. Elting, 29 id. 397.)
The peremptory writ of mandamus will be ordered as prayed for.
All the Justices concurring.
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Opinion by
Simpson, C.:
The first question presented in this case by the brief of the plaintiff in error is one of very great practical importance, both to the people and the legal profession of this state. The counsel for plaintiff in error urges his views with great vigor and ability, and presents his side of the ease in its strongest light. It is worthy of passing comment, that this question has never before been presented to the court. In the multiplicity of foreclosure actions in every judicial district, and in the great variety of contention arising out of them, the question must have occurred • many times; and the fact that it has not found its wray to this tribunal until so late a day, must be accepted as a belief that the general judgment of the profession must have accorded with that of the learned district judge who rendered the judgment in this case.
The question presented is this: Is the personal judgment rendered against the mortgagor in an action to foreclose a mortgage, a lien on the other real estate of the debtor within the county ? Counsel for plaintiff in error, with all his research, has not called our attention to a single adjudicated case in which the question has been determined; and we have been unable to find but few in which it was considered, and in those the decision was based upon some statutory provision peculiar to the state in which they were rendered, and afford no light and lend no assistance to its determination here. We must decide this question for ourselves, and must seek and find, in the various provisions of our code, on the subjects of judgment and execution, the nature and extent of the lien of a judgment in an action to foreclose a mortgage. There are but three sections of the code that have any application to this question, and they are §§ 399, 419, and 517. If they have reference to one and the same subject, they are to be taken as in pari materia; and to be considered and construed together, and such construction is to be given them as will make them harmonious, and give expression to each and all of them. There certainly can be no variety of opinion as to the kind or character of judgment that is to be rendered in such an action. There is but one judgment provided for in § 399, and that is a personal judgment. It is the same kind of a judgment that is rendered in every other action for the recovery of money only. It possesses all the features and is endowed with all the characteristics of judgments in all ordinary actions. The statute itself makes no distinctions, enumerates no differences, mentions no departures from what we all understand to be a judgment on a money demand. There is in addition to this ordinary judgment one for the sale of the property charged, and an application of the proceeds to the satisfaction of the judgment.
Under § 419 it is provided that judgments of courts of record of this state shall be liens on the real estate of the debtor within the county in which the judgment is rendered, from the first day of the term at which the judgment is rendered. The language of this section is very broad and comprehensive, and seems to include all judgments that are rendered by courts of record in the state, and declares without exception, and in terms so positive that there is no room left for construction, that they shall be liens on the real estate of the debtor within the county.
The mortgage lien is created solely by the acts of the parties; a judgment lien is the creature of positive law. It exists only by virtue of the authority of the statute, the same power that authorizes the rendition of the judgment. Judgments are not of themselves liens upon property; they are made so by the legislative enactments. When the mortgagor makes default in payment, at the time and in the manner specified by the mortgage, and the owner recovers a judgment, the nature of the lien is changed by operation of law, from a special one that results from the contract of the parties, to a general one that is created by the law-making power of the state. The legislature, from an organic necessity, legislates for a class of cases, rather than for particular or special ones, and it gives to all judgments of like kind and chai'acter the same lien; so that we are unable to see from a consideration of these two sections combined, that legislation has made any exception in case of mortgage liens; they are placed on the same footing as liens in other actions for the recovery of judgments for money.
Counsel for plaintiff in error calls our attention specially to § 517 of the code, and hopes that we will carefully note the wording of that section. We have done so, and as a result, we are very confident that it will not bear the construction he seeks to give it. That section is a part of the article of the code that treats of executions. The object of the whole article is to prescribe the manner of the issue, service and return of these writs, and to regulate all the incidental proceedings thereto, and gives a definition of the various kinds of executions allowed by it. It declares, in § 517, that—
“In all special cases the execution shall conform to the judgment or order of the court. When a judgment for any specified amount, and also for the sale of specific real or personal property, shall have been rendered, and an amount sufficient to satisfy the amount of the debt or damages and costs, be not made from the sale of the property specified, an execution may issue for the balance, as in other cases.”
The judgment in a foreclosure action generally declares that the amount secured is a lien on the real estate specified in the mortgage; and more often than otherwise, declares that amount a first lien on such property. Of course we all understand that this part of the judgment will be enforced subject to the rights of all other persons not parties to the action in which it was rendered, and without prejudice to the priority of lien of any prior incumbrancer; so that a mortgage lien, in an action to foreclose it, and in the enforcement of it after it has passed into judgment, is subject to all the other provisions of the statute, and the principles of the law, on all questions respecting it. There is absolutely nothing in this section that can be construed in conflict with the scope and bearing of §419. Tt might be held, if it were necessary to do so, that this section has the effect to preserve in the judgment lien the contract of the parties that specific real property should be devoted to the payment of the debt; but its true intent and meaning are to prescribe the manner in which a judgment lien in a class of cases in which there is a charge on real property, shall be enforced; that the contract and understanding of the parties should be carried out, by first selling the specific property pledged to the payment of the debt; and if it turns out that this is not sufficient for that purpose, then that an execution should issue for the residue in the same manner and with like effect as if there had been no specific property charged with its payment.
In taking these three sections together, we conclude that § 399 is declaratory of the kind of a judgment that is to be rendered in all foreclosure actions. Section 419 declares the effect of such a judgment as a lien upon the real estate of a debtor; section 517 prescribes the manner in which such a judgment is to be enforced. Under a judgment for any other money demand, the judgment creditor has a lien on the real estate of the debtor within the county; under a judgment on a money demand secured by mortgage, a judgment creditor has a lien on the real estate of the debtor within the county; with this condition attached, that the proceeds of the sale of certain specific real property shall be first applied to the satisfaction of such judgment. This we adopt, and declare to be the true construction of the various sections of the code of civil procedure on judgments rendered in actions to foreclose mortgages.
There are some decisions of this court that we think have an important influence in determining the construction of these sections of the code. Gillespie v. Lovell, 7 Kas. 419, was an action for the recovery of money due on an account, and to foreclose a mechanics’ lien for the amount so claimed to be due; an attachment was also issued in the case. The principal question in the case was, as to whether an order of attachment could be issued in an action on an account, and to foreclose a mechanics’ lien. The court say, (Valentine, J.:)
“Under §190 of the civil code, the plaintiff may have an attachment in every ‘civil action for the recovery of money.’ The enforcement of a mechanics’ lien is, under said code, a civil action for the recovery of money. The debt upon which the action is brought is the real subject of the action, and the mechanics’ lien is simply subservient and auxiliary thereto; and the judgment rendered in such an action is not merely one of foreclosure, but it is a personal judgment against the debtor for the amount of the debt, with interest, and the property upon which the lieu exists is ordered to be sold to satisfy said judgment. If this was purely a suit in equity to foreclose a mechanics’ lien, a suit in which no personal judgment could be rendered, probably an attachment would not lie; but as it is not such a suit, as it is an action in which a personal judgment is allowed by law, a judgment that will not only reach the property upon which the mechanics’ lien exists, but will also reach all the property of the judgment debtor not exempt bylaw from execution, a judgment upon which an ordinary execution may be issued, there seems to be no good reason why an attachment may not be issued in this case as in other cases. The language of the statute is certainly broad enough. Will it be supposed that such a judgment as the one rendered in mechanics’-lien cases would not, when rendered, be a lien the same as other personal judgments upon all the real estate of the judgment debtor subject to execution, that which is free from the mechanics’ lien, as well as that which is subject to it ? Will it be supposed that the plaintiff would not have the same right to an attachment and garnishment upon such a judgment, after the property subject to the mechanics’ lien had been exhausted, as he would have upon aiiy other judgment?”
This is a very suggestive case, and its reasoning applies as well to actions to foreclose a mortgage, as to enforce a mechanics’ lien. It establishes the proposition that, under our system of pleading and practice, actions to enforce charges or liens on specific property that were formerly equitable in their nature, are now converted into legal actions. It has also been decided by the court, that in an action to foreclose a mortgage where the plaintiff claims a personal judgment for money, the defendant is entitled to a jury trial. This court has held that in an action to foreclose a mechanics’ lien, if the plaintiff fail in establishing the lien, he is nevertheless entitled to a personal judgment for the amount due him. (Haight v. Schuck, 6 Kas. 192.)
In the case of Shedd v. McConnell, 18 Kas. 594, it being an action to foreclose a mortgage, an order of attachment was issued against the property of the defendant, on the theory that the mortgaged pi’operty was not sufficient to pay the plaintiff’s claim. In deciding the questions raised, Justice Valentine said, in commenting on the case of Gillespie v. Lovell:
“The logical deduction from the decision is, that in an action for money, in which a personal judgment may be rendered against the defendant, the plaintiff may, if sufficient cause exists, have an attachment against the property of the defendant, notwithstanding the fact that in the same action the plaintiff seeks to foreclose a lien on specific property held as security for the debt due, provided such lien is insufficient security for the plaintiff’s claim.”
From these cases it must be held that in this state all civil actions to enforce liens on specific property are to be regarded in classification as legal actions for the recovery of money; that the parties thereto are entitled to a jury trial; that they are entitled to all the provisional remedies applicable; that personal judgments are rendered in su°h acti°DS> and that such personal judgments are liens on all the real estate of the debtor within the county in which they are rendered. We therefore conclude that at the time of the purchase of the land described in his petition by the plaintiff in error, it was subject to the lien of the judgment rendered in the foreclosure action of Tristam Dunham v. Noah W. Weaver and Alice M. Weaver.
As a second reason for reversal, the plaintiff in error claims that “if a judgment be rendered with a stay of execution, no lien is created upon the real estate of the debtor until the plaintiff has a right to issue his execution.” In support of this statement of the law he cites Overton on the Law of Liens, page 337; Scriba v. Deanes, 1 Brock. (U. S. C. C.) 167, a decision of Chief Justice Marshall; Bank of the United States v. Winston’s Ex’rs, 2 id. 253; Ashton v. Slater, 19 Minn. 347; United States v. Morrison, 4 Pet. 124; Burton v. Smith, 13 id. 464. The two cases cited from Brockenbrough are decisions of Chief Justice Marshall. The contention was as to priority of lien by judgments, mortgages, and deeds of trust. The judgments were rendered and the mortgages and deeds of trust executed in the state of Virginia. The chief justice says:
“The judgment in favor of John Allan, having been first rendered, would constitute the first lien had there been no stay of execution. The rank of that judgment depends on the question, whether the lien takes place at its rendition, or at the time when execution may issue on it. It must be admitted, that a judgment at common law did not bind lands, and that there has been no statute whioh in direct terms creates the lien. But the courts have so construed the statute which gives the elegit as to infer a lien from the power to take the lands in execution. The lien then grows out of the right to issue the elegit, and is, consequently, inseparably connected with that right. It would seem to follow irresistibly from these premises, that Allan’s judgment constituted no lien on the lands until it was in his power to issue execution thereon.” (Scriba v. Deanes, 1 Brock. 166.)
The other case, Bank of the United States v. Winston’s Executors, 2 Brock. 252, is but an affirmance of what is said in the first case.
It must be admitted that these cases have no application to the case at bar; in this state we have a statute declaring that —
“Judgments of courts of record, of this state, and of courts of the United States rendered within this state, shall be liens on the real estate of the debtor, within the county in which the judgment is rendered, from the first day of the term at which the judgment is rendered; but judgments by confession, and judgments rendered at the same term during which the action was commenced, shall bind such lauds only from the day on which such judgment was rendered.” §419.)
This section of the code meaus what it says in plain terms, that judgments are liens from the time specified. The statute itself fixing the time at which the lien attaches, it is not dependent on the issue of an execution, or any other act of the judgment creditor.
The citation from Overton, page 337, is to this extent: “ But if the judgment be rendered with a stay of execution, no lien is created until the plaintiff has a right to issue his execution.” To support the text, he refers to the two cases from Brockenbrough’s Circuit Court Reports. The case of United States v. Morrison, 4 Pet. 124, decided by Chief Justice Marshall, is but an affirmance of the two cases reported by Brockenbrough. The case of Burton v. Smith, 13 Pet. 364, is a case from the eastern district of Virginia, and again affirms the first case in Brockenbrough. In the case of Ashton v. Slater, 19 Minn. 347, the plaintiff had a judgment in 1861 against Heylin, who owned certain lands that were bound by the lien of the judgment; Heylin died in 1866, and Slater was his administrator. The ten years allowed by the statutes of Minnesota within which a creditor must enforce his lieu had expired. He had also failed to prove his judgment as a claim against the estate, and appealed to the court to aid him in the enforcement of his lien. And whatever the court says is based upon this state of facts, and has no possible application to this question we are considering. It will be seen that these cases furnish us no aid in the construction of our statutes on the subject of judgment liens, and it must be admitted that with the possible exception of § 468 of the code, there are no statutory provisions supporting the views of the plaintiff in error.
We have seen that the real estate of the debtor within the county is bound by the lien of a judgment from the first day of the term at which it was rendered. The lien thus created and declared by statute exists until the judgment becomes dormant, or is barred by the statutes of limitation. It is true that under § 468, it may become subordinate to the lien of some other judgment creditor, by failure to have execution issued and levied within a year after its rendition. What effect a stay of execution by consent of the judgment creditor for more than one year may have on the liens of other judgment creditors is not now necessary to inquire, as the plaintiff in error is not a judgment creditor, and does not fall within the operation of that section. He is not named in the statute, and takes nothing by it.
By operation of law, a stay of execution is allowed in certain actions in which there is a waiver of appraisement. (Code, §453.) Even this does not operate on the judgment or lien; it does not have the effect to impair the lien. If it is a first one, its seniority must be preserved by levy within the year. (See Smith v. Kimball, ante, p. 474.)
It is a very common practice in this state to grant to the judgment debtors a stay of execution, and it has been done, without a claim ever having been asserted before, that the lien of the judgment was suspended during the time of the stay; and while this fact is not conclusive, we cite it only for the purpose of showing that the construction we give the statute is the one that has been adopted and acted on by the bar for years. We conclude, therefore, that the stay of execution did not suspend the lien of the judgment in the foreclosure action of Dunham v. Weavei’, so as to protect the plaintiff in error in his purchase of the land from Mrs. Weaver.
We therefore recommend that the judgment of the district court 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
Holmes, J.:
This is an appeal by various parties from rulings of the district court in a declaratory judgment action. The action was originally filed on behalf of Unified School District #407, seeking a determination of the number of votes necessary by a school board to legally appoint new members to fill vacant positions created by the resignation of one or more members of the school board and a determination of whether a school board may, at a regular meeting, conduct business which is not listed on the published agenda.
As is often heard at sporting events, you can’t tell the players without a program. We will try to set forth the cast of characters in this proceeding and the facts that have led them to this court. Prior to this controversy, the school board of U.S.D. #407 consisted of the following members:
Position 1 Don Rrungardt
Position 2 Cecil Mashburn
Position 3 Elmer Svaty
Position 4 Lynda Keys
Position 5 Charles Willson
Position 6 Richard Reeves
Position 7 Robert McCobb
On February 8 or 9, 1982, Robert McCobb’s resignation from position 7 was accepted by the board. On or about April 26, 1982, Elmer Svaty’s resignation from position 3 was accepted. At the regular meeting of the board held on May 10, 1982, all of the remaining five members were present and a motion was made and seconded that Lee Fisk be appointed to fill position 7 on the board. The vote for Mr. Fisk to fill that vacancy was three to two in his favor. On June 3,1982, Mr. Fisk filed his oath of office with the election commissioner. K.S.A. 25-2024.
On June 10, 1982, this action was filed on behalf of U.S.D. #407 for a determination of whether a three to two vote of a five-member school board was sufficient to legally name Mr. Fisk to fill position No. 7.
Thereafter, while the suit to determine Mr. Fisk’s status was pending, and at the next regular meeting of the school board on June 14, 1982, it was moved and seconded that Mr. Jack Stoller be appointed to fill position No. 3. The vote was again three to two, this time in favor of Mr. Stoller. Mr. Fisk, although notified of the time and place of the meeting, did not attend and therefore did not participate in the vote on Mr. Stoller. Later, during the same meeting, board member Charles Willson, position No. 5, resigned his position. At that point, the board was composed of four of the original members and perhaps Fisk and Stoller. On June 21,1982, the district court held that Mr. Fisk had been duly appointed to position No. 7. On June 22, 1982, Mr. Stoller filed his oath of office. On June 29, 1982, at the next regular board meeting, certain members of the board were of the opinion that as there were six members of the board at the time the vote was taken on Mr. Stoller on June 14, 1982, the three to two vote did not constitute a majority of the six-member board and was insufficient and a new vote was taken to fill position No. 3. At this meeting, due to the prior resignation of Mr. Willson, and the district court affirmance of Mr. Fisk, the board was back to five members with the appointment of Mr. Stoller still up in the air. The names of Jay B. Thielen and Jack Stoller were placed before the board and Mr. Thielen was appointed to fill position No. 3 by a three to two vote. Mr. Stoller did not participate in this meeting.
On July 14, 1982, the matter again came before the district court for a determination of whether Mr. Stoller, as a result of the June 14, 1982, vote, or Mr. Thielen, as a result of the June 29, 1982, vote, or either of them, was duly appointed to position No. 3. The court held that Mr. Stoller had been duly appointed to position No. 3 at the June 14, 1982, board meeting. Various parties have appealed from the two court judgments affirming the appointments of Fisk and Stoller. U.S.D. #407 has appealed all rulings of the court solely for the purpose of having a final determination of whether Fisk, Stoller or Thielen, or any of them, are duly appointed members of the school board, and whether a school board may conduct business, at a regular meeting, which was not included in a published agenda. Mr. Fisk and Mr. Thielen appeal from the court’s judgment that Mr. Stoller was appointed to position No. 3, and Mr. Stoller appeals from the judgment that Mr. Fisk was appointed to position No. 7. Fisk and Thielen also appeal from the court’s holding that the published agenda for a regular meeting of the school board may be amended at the meeting.
To further complicate the cast of characters in this action, original board members Cecil Mashburn, position No. 2, and Richard Reeves, position No. 6, were recalled from office at a special election held November 2, 1982. Thus, at this point we have two original board members, Mr. Fisk claiming position No. 7, and both Mr. Stoller and Mr. Thielen claiming position No. 3. Positions 2, 5 and 6 remain vacant. In order that the school board could carry on day-to-day functions, and to prevent the schools from being closed, this court entered an emergency order on the 19th day of November, 1982, authorizing the two remaining original members, along with Mr. Fisk and Mr. Stoller, to carry on the day-to-day routine business of the board.
With the facts as set forth above, we now turn to the issues before the court. They are: (1) does a school board have authority to consider matters at a regular meeting which are not contained in a previously prepared and released agenda, and (2) how many votes are required to fill a vacancy on a school board?
In considering the first issue, defendants-appellants Fisk and Thielen contend that as the matter of the filling of position No. 3 was not included in the advance agenda for the June 14, 1982, meeting, the action of the board in voting three to two to appoint Mr. Stoller was void. It is the position of these appellants that once a public agenda has been prepared and published, the board can take no action on any matter not contained in the agenda. They rely upon certain written internal policies of the board and the open meetings statute, K.S.A. 1982 Supp. 75-4318. The statute provides in pertinent part:
“(a) Except as otherwise provided by state or federal law or by rules of the house or senate, and except with respect to any impeachment inquiry or other impeachment matter referred to any committee of the house of representatives prior to the report of such committee to the full house of representatives, all meetings for the conduct of the affairs of, and the transaction of business by, all legislative and administrative bodies and agencies of the state and political and taxing subdivisions thereof, including boards, commissions, authorities, councils, committees, subcommittees and other subordinate groups thereof, receiving or expending and supported in whole or in part by public funds shall be open to the public and no binding action by such bodies shall be by secret ballot, but any administrative body that is authorized by law to exercise quasi-judicial functions shall not be required to have open meetings when such body is deliberating matters relating to a decision involving such quasi-judicial functions.
“(b) Notice of the date, time and place of any regular or special meeting of a public body designated hereinabove shall be furnished to any person requesting such information ....
“(d) Prior to any meeting hereinabove mentioned, any agenda relating to the business to be transacted at such meeting shall be made available to any person requesting said agenda.” (Emphasis added.)
The board’s written rules for the organization and procedures of the school board provide that “the superintendent shall make an agenda for each regular meeting and shall mail a copy of each agenda to each member of the Board of Education.” The procedural rules also provide the agenda will be released to the news media no later than 5:00 p.m. on the Friday before the day of the regular meeting.
Appellants Fisk and Thielen take the position that Mr. Fisk had the right to rely upon the published agenda for the June 14, 1982, meeting which Fisk did not attend. He contends he remained away from the meeting to avoid further complications as his status had not been finally determined by the district court. He claims, however, that if he had known that the matter of filling position No. 3 was to be considered, he would have been present.
We note at the outset that K.S.A. 1982 Supp. 75-4318 contains no requirement that a public body prepare and publish an agenda. The statute merely provides that if an agenda is prepared prior to any meeting, it shall be made available to any person requesting it. The statute also mandates that notice of the date, time and place of any meeting shall be furnished to any person requesting that information. See Smoot and Clothier, Open Meetings Profile: The Prosecutor's View, 20 Washburn L.J. 241, 269 (1981). In addition, it is clear that the usual procedures of U.S.D. #407 called for an item on the agenda designated “consent calendar” and, at the beginning of each regular meeting, additions or deletions could be made in the published agenda. This had been a standing procedure of the board followed at all regular meetings. At the meeting of June 14, 1982, the matter of considering an appointment to fill position No. 3 was raised as an item on the consent calendar, and was approved by a unanimous vote of the five members present.
Appellants rely upon two California cases in addition to their argument that K.S.A. 1982 Supp. 75-4318, together with the board’s rules of procedure, preclude any amendment of the published agenda. In Santa Barbara School Dist. v. Superior Court, 13 Cal. 3d 315, 335-36, 118 Cal. Rptr. 637, 530 P.2d 605 (1975), and Carlson v. Paradise Unified School Dist., 18 Cal. App. 3d 196, 199-200, 95 Cal. Rptr. 650 (1971), the California courts found that the school districts were under an agenda requirement as a matter of law. Because the education code imposed an agenda notice requirement on the district, the boards were unable to amend the agenda or otherwise circumvent the requirement. The only requirement in the instant case is that contained in the board’s own rules of procedure which requires the superintendent to prepare and make public an agenda. Defendant-appellant Stoller, on the other hand, relies upon the so-called New Jersey rule as set forth in Crifasi v. Governing Body of Oakland, 156 N.J. Super. 182, 383 A.2d 736 (1978). In Crifasi the court stated:
“We conclude that the trial judge’s construction of the Sunshine Law to the effect that where an agenda is issued as to a regular meeting only matters listed thereon may be considered, would lead to an anomalous result, i.e., that while a public body which holds a regular meeting without an agenda at all may act upon any matter, public bodies which have, without statutory compulsion, published a separate agenda for such meetings, would be limited to the matters listed in that agenda. Such a rule would encourage public bodies not to issue any agendas for regular meetings, thus defeating the legislative purpose of increasing the public’s awareness of governmental processes, Polillo v. Deane, supra [74 N.J. 562 (1977)].
“Of course, if it can be shown that the omission in an agenda for a regular meeting was intentional and was designed to deceive the public, a statutory violation thereby arises. No statute should be construed so as to permit its purpose to be defeated by evasion.” p. 187.
We agree with the reasoning of the New Jersey court. Nothing in our statutes requires a board of education to prepare and publish an agenda and, if having done so, we find nothing to prevent an amendment of the agenda at the time of the meeting. The court in the instant case found that the agenda furnished the board members was not misleading and that although Mr. Fisk was under a duty to attend the meeting (K.S.A. 1982 Supp. 72-8205), he “simply exercised his own prerogative not to attend based on his independent, but what he later found out to be erroneous, judgment as to what may transpire at the meeting.”
We also note that K.S.A. 1982 Supp. 72-8205 provides that if a school board calls a special meeting then written notice of the time, place and purpose of the meeting shall be given to all members and “no business other than that stated in the notice shall be transacted at such meeting.” There are no such restrictions for regular meetings of the board.
We hold that absent a statute or board rule specifically prohibiting the right of a school board to amend its previously published agenda, such agenda may be amended and supplemented at any regular meeting of the board in the same manner as other business of the board is conducted.
The next point involves the legality of the appointment of Mr. Fisk by a three to two vote of a five-person board and the appointment of Mr. Stoller by the same vote of a six-person board, assuming Mr. Fisk’s appointment was valid. Several statutes must be considered, which provide as follows:
“72-8205 [1982 Supp.]. Boards of education; meeting times; quorum; abstention from voting; general powers; legal counsel for officers and employees, (a) The board shall meet at least once each month. At some time during the month of July of each year, the board shall adopt a resolution specifying a regular meeting time of the board and such resolution shall specify the regular hour of commencement of the meeting, as well as the day of the week and the week of the month. Such resolution shall also provide that if the regular meeting date occurs on a Sunday or on a legal holiday or on a holiday specified by the board, such regular meeting shall be held on the day following commencing at the same hour. Such resolution shall also specify the regular meeting place of the board and may specify that any regular meeting may be adjourned to another time and place. Special meetings may be called at any time by the president of the board or by joint action of any three members thereof. Written notice, stating the time and place of any special meeting and the purpose for which called, shall, unless waived, be given each member of the board at least two days in advance of the special meeting and no business other than that stated in the notice shall be transacted at such meeting. A majority of the full membership of the board shall constitute a quorum for the purpose of conducting any business of the school district, and the vote of a majority of the full membership of the board shall be required for the passage of any motion or resolution. Any member who abstains from voting shall be counted as having voted against the motion or resolution. If a member announces a conflict of interest with regard to the issue, the member may leave the meeting until the voting on the issue is concluded and the member who abstains from voting thereby shall not be counted as having voted.” (Emphasis added.)
“25-2022. Vacancies on boards of education filled by appointment; publication of notice; term of appointee. Any board shall have power to fill by appointment any vacancy which occurs thereon, and such appointee shall serve the unexpired term. When a vacancy occurs, the board shall publish a notice one time in a newspaper having general circulation in the school district stating that the vacancy has occurred and that it will be filled by appointment by the board no sooner than fifteen (15) days after such publication. If such vacancy occurs before January 1 of an odd-numbered year leaving an unexpired term of more than two years such appointee shall serve until the July 1 after the following general school election as provided in K.S.A. 25-2023 or any amendments thereto.
“In the latter event, the unexpired term of two years commencing July 1 after the following general school election shall be filled at such election and the ballots or ballot labels and returns of election with respect to such office shall be designated as follows: ‘To fill the unexpired term.’” (Emphasis added.)
“25-2022b. Excessive vacancies on boards of education; appointments made by governor. Whenever the membership of any board of education shall by resignation, death, removal from office or otherwise be reduced to a number less than four (4), the governor shall appoint to such board of education sufficient members so that the membership of the board of education totals four (4). When the membership of such board of education has been restored to four, such four members shall, within six (6) months, appoint members to fill the remaining vacancies in the manner provided in K.S.A. 25-2022. Members appointed under the authority of this section shall be appointed for the unexpired term in the manner provided in said K.S.A. 25-2022. Vacancies on a board of education subject to the provisions of this act shall be certified to the governor by the clerk of the board of education.”
“77-201. Rules of construction. In the construction of the statutes of this state the following rules shall be observed, unless such construction would be inconsistent with the manifest intent of the legislature or repugnant to the context of the statute:
Fourth. Words giving a joint authority to three or more public officers or other persons shall be construed as [giving] such authority to a majority of them, unless it be otherwise expressed in the act giving the authority.”
It is the position of all three defendants that K.S.A. 1982 Supp. 72-8205, which requires a vote of at least four members of the board for the passage of any motion or resolution, is not applicable to the filling of vacancies for the reason that K.S.A. 25-2022 is a special ..statute granting specific powers to the board in one limited area while K.S.A. 1982 Supp. 72-8205 is a general statute granting broad general powers to the board.. As K.S.A. 25-2022 contains no express provision as to the vote required, it is argued that under K.S.A. 77-201 a majority of a quorum is all that is required when voting to fill a vacancy. The plaintiff school district,, while not talcing any particular position, has pointed out that K.S.A. 1982 Supp. 72-8205 may be the controlling statute. If this be true then none of the three defendants was duly appointed as none of them received four votes.
Appellants contend that when K.S.A. 1982 Supp. 72-8205 is compared with the election statutes in Article 20 of Chapter 25 and K.S.A. 77-201, an ambiguous situation has been created by the statutes. Does K.S.A. 1982 Supp. 72-8205 require that the filling of vacancies under K.S.A. 25-2022 may only be done by an affirmative vote of at least four of the remaining members of a school board? We think it does.
In determining the question before the court, certain basic rules of statutory construction apply.
“The fundamental rule of statutory construction, to which all other rules are subordinate, is that the purpose and intent of the legislature governs when that intent can be ascertained from the statutes. In determining legislative intent the court may properly look to the purpose to be accomplished, and the necessity and effect of the statute.” In re Adoption of Trent, 229 Kan. 224, Syl. ¶ 1, 624 P.2d 433 (1981).
“[A] general and specific statute should be read together and harmonized wherever possible.” State v. Makin, 223 Kan. 743, 745, 576 P.2d 666 (1978).
“Statutes in pari materia should be read together and harmonized, if possible, to the end that all may be given force and effect.” City of Overland Park v. Nikias, 209 Kan. 643, Syl. ¶ 1, 498 P.2d 56 (1972).
K.S.A. 1982 Supp. 72-8205 andK.S.A. 25-2022 both deal with the powers and procedures of school boards and therefore are said to be in pari materia. Black’s Law Dictionary 898 (4th ed. rev. 1968).
In attempting to determine the legislative intent behind the various statutes in question, K.S.A. 25-2022b is informative. This statute provides that if the membership of a school board shall be reduced to less than four “the governor shall appoint to such board of education sufficient members so that the membership of the board of education totals four.” The statute then provides that the four members shall, within six months, appoint members to fill the remaining vacancies in.the manner provided by K.S.A. 25-2022. It appears obvious that the statute authorizes the governor to bring the board up to minimum strength required to conduct the business of jthe board under K.S.A. 1982 Supp. 72-8205. In such a situation, must all four members be unanimous in their choice before another member may be appointed? Appellants argue such a construction of the statute would be blind to the realities of life, particularly when there is bitter disagreement among the remaining board members as often occurs and as has apparently occurred in U.S.D. #407. However, the same argument could be made of any board that lacked seven members. We do not adopt the argument that one or more of the members of a four-person board will refuse to perform the duties the office and refuse to cooperate in bringing the board to full membership.
Appellants contend K.S.A. 25-2022 is a special statute granting the board specific power to act in a specific situation and as such takes precedence over the requirements and restrictions of K.S.A. 1982 Supp. 72-8205, which is a general statute granting the board broad powers for the ordinary conduct of the business affairs of the school district. Thomas v. Board of Trustees of Salem Township, 224 Kan. 539, 545, 582 P.2d 271 (1978); Continental Ins. Co. v. Windle, 214 Kan. 468, 472, 520 P.2d 1235 (1974).
We have no quarrel with the rule of law advanced by appel lants but find it inapplicable. When all the statutes are read together, as they must be, we find no ambiguity or conflict. K.S.A. 1982 Supp. 72-8205 is specific in its requirements that the vote of a majority of the full membership of the board is required for the passage of any motion or resolution. There is no contention that the words “the full membership of the board” refers to anything less than seven persons and we agree with that position. K.S.A. 25-2022, which grants authority to the board when it consists of four or more, does not specify the vote necessary to fill a vacancy. There is no reason for it to do so. When read in connection with the statute giving the board its general authority and power, it appears obvious that a vote of four or more is required to fill a vacancy. There was no reason for the legislature to spell out in K.S.A. 25-2022 such a requirement when it is already contained in K.S.A. 1982 Supp. 72-8205. Likewise, K.S.A. 77-201 has no application when the board’s actions and power are already controlled by K.S.A. 1982 Supp. 72-8205. If it can be said that K.S.A. 25-2022 is a special statute taking precedence over K.S.A. 1982 Supp. 72-8205, then certainly K.S.A. 1982 Supp. 72-8205, which governs the specific authority, restrictions and powers of a school board, is a special statute when compared to K.S.A. 77-201, which is a general rule of statutory construction.
It would be totally incongruous to say that four affirmative votes of a school board are required to approve day-to-day operations including such minor matters as approval of purchases of supplies and on the other hand say that the vital function of filling a board vacancy could be accomplished by a vote of only three members. When all of the statutes are read together, we cannot attribute such an intent to the legislature. If that is the desire of the legislature, a simple amendment of K.S.A. 25-2022 may accomplish it.
We hold that K.S.A. 1982 Supp. 72-8205 controls the vote necessary on a motion or resolution to fill vacancies on a school board the same as for the passage of any other motion or resolution. The attempted appointments of Mr. Fisk, Mr. Stoller and Mr. Thielen all fail for lack of a sufficient vote. However, in order that U.S.D. #407 may continue to function, this opinion shall not become final until thirty days after the mandate is issued or until the governor has appointed additional persons to the school board to bring its membership to four as mandated by K.S.A. 25-2022b, whichever event first occurs. In the meantime, our earlier order authorizing Mr. Fisk and Mr. Stoller to participate in the day-to-day business of the school board of U.S.D. #407 shall continue in full force and effect until this opinion becomes final as hereinbefore set forth.
One final comment seems appropriate. When the membership of the board has been restored to four or more members pursuant to K.S.A. 25-2022b, or otherwise, we trust the members will put aside their personal differences and proceed to carry out their statutory duties as they have sworn they will do.
The judgment of the trial court to the effect that a school board may, at a regular meeting, consider matters not contained in a previously published agenda is affirmed and the judgment of the trial court that a vote of less than four members of a school board is sufficient to fill a vacancy on the board is reversed.
Schroeder, C.J. dissenting as to Syl. ¶ 5 and the corresponding portions of the opinion.
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The opinion of the court was delivered by
Miller, J.;
The defendant, Alvin F. Grauerholz, appeals from his conviction by a jury in Montgomery District Court of two charges of felony theft, K.S.A. 21-3701, arising out of substantial shortages of funds in two estates of which he was executor. The issues presented are: whether it was error not to permit exhibits to be shown to the jury during trial; whether the conduct of a psychiatrist who examined the defendant violated defendant’s constitutional rights; whether Count I of the information was barred by the statute of limitations; whether it was error to refuse to let defendant call and examine jurors during the hearing on his motion for a new trial; whether this court should abandon the M’Naghten rule and adopt the A.L.I. rule; and whether the evidence was sufficient to support the verdict.
Alvin F. Grauerholz was for many years a practicing attorney in Coffeyville, Kansas. On January 14, 1975, he was issued letters testamentary as executor of the estate of General George Wark, deceased. Count I of the information charges the defendant with the theft of funds from that estate. The evidence disclosed that from February 4, 1975, to and including February 9, 1979, the defendant wrote, signed, and negotiated various checks upon the Wark Estate trust account. The funds received (more than $53,000) were deposited in either the defendant’s trust account or in his office account. His secretary prepared all checks for payment of the funeral bill, taxes, and other usual expenses of an estate; she did not prepare nor did she have any knowledge of the checks written by the defendant. In 1977, defendant caused to be prepared and filed a preliminary accounting for the Wark estate. No irregular withdrawals, transfers of funds from the estate trust account, or other irregularities were disclosed. When the matter came on for final settlement, defendant appeared in court without any bank statements or other supporting records; he secured a continuance, appeared on the appointed day, but still failed to bring the records with him. He testified that some $13,000, which should have been in the Wark estate trust account, was not there but was in his office trust account; the latter statement was not true — the funds were not in defendant’s office trust account. Defendant attributed the problem to his bad bookkeeping. On January 23, 1980, he was removed as executor of the Wark estate. It was later determined by the administrator de bonis non c.t.a., that there was a shortage in the Wark estate of approximately $53,600.00.
Count II of the information charges the defendant with the theft of funds from the estate of Emily J. Patterson, deceased. He was the named executor, and letters testamentary were issued to him on October 24, 1978. He paid the funeral expenses out of the estate funds, then withdrew varying amounts which he deposited in his own general account or his law office account. He closed out the decedent’s savings account in the amount of some $3,293.00. A check was written to the defendant by the First Federal Savings and Loan for the amount of this account; it was endorsed by him, but those funds never found their way into the Emily J. Patterson estate. The defendant was removed as executor of that estate and an administrator was appointed on March 20, 1980. The administrator testified that the defendant had withdrawn funds from the Patterson estate account in the amount of $10,200; that sum, together with the proceeds of the savings account, was missing. The defendant’s total defalcation in the Patterson estate amounted to some $13,493.00.
The trial took approximately 13 days. All of the court records in the two estates were received in evidence, together with all of the checks, bank statements, and accounts. Defendant pled not guilty and not guilty by reason of insanity. Two psychiatrists testified for the defense that in their opinion the defendant was insane and did not know the difference between right and wrong at the time the thefts occurred. One psychiatrist testified for the State; he reached the opposite conclusion, voicing the opinion that the defendant knew the difference between right and wrong during all of the relevant time periods. The jury returned a verdict of guilty on both charges.
Defendant first contends that the trial court erred in refusing to allow counsel to pass all of the exhibits to the jury before submission of the case to the jury. The trial court refused to permit counsel to pass each exhibit to the jury upon introduction; however, counsel was permitted to read at length from each exhibit and to discuss each exhibit fully with the witnesses. Checks, endorsements, bank statements, deposit slips, accounts and the various probate files were read and discussed at length before the jury; the germane parts of all of the documents were thus fully presented to the jury during trial. All of the exhibits were sent with the jury to the jury room and remained there during deliberations.
Defendant relies primarily upon an Indiana case, Micks v. State, 249 Ind. 278, 230 N.E.2d 298 (1967), wherein the appellate court criticized the trial court for interpreting an exhibit for the jury, rather than permitting the exhibit to be read in full or passed to the jury so that each juror could make his or her own interpretation. We do not find the opinion persuasive under the facts of this case, where the exhibits were read at length and fully discussed, and where the exhibits themselves were ultimately sent to the jury room where the jurors could examine them at their leisure. The case is clearly distinguishable.
We have held, in a recent case, that the manner in which exhibits are handled at trial is within the trial court’s discretion, and the court’s decision will not be disturbed because of the manner in which the exhibits were handled except in cases of abuse. State v. Fenton, 228 Kan. 658, 667, 620 P.2d 813 (1980). The trial court here exhibited extreme patience and granted counsel wide latitude in reading and discussing the exhibits in minute detail.
The exhibits ranged from very material items, such as cancelled checks and bank statements, to those that were inconsequential if not immaterial, such as a turn-of-the-century family album and mid-1930’s dues cards. Had the trial court permitted each of the jurors to examine each of the hundreds of exhibits, the trial would have been greatly extended and regularly interrupted, without benefit to either defendant or the State. As is the normal practice in this state, the exhibits were sent to the jury room at the time the jurors retired to deliberate. See State v. Fenton, 228 Kan. at 667, and State v. Poulos & Perez, 230 Kan. 512, 514, 639 P.2d 477 (1982). We find no abuse of discretion and no error.
Defendant next contends that his right to be represented by counsel, to be secure from self-incrimination, and other constitutional and statutory rights were violated to such an extent that he was denied a fair and impartial trial. His argument in support of this claim centers around the procedure followed in requiring him to submit to a mental examination, and the report of the physician who examined him.
During a pretrial conference in March, 1981, the State requested that defendant be given a mental examination pursuant to K.S.A. 22-3219, which provides, in applicable part, that:
“(2) A defendant who files a notice of intention to rely on the defense of insanity thereby submits and consents to abide by such further orders as the court may make requiring the mental examination of the defendant and designating the place of examination and the physician or physicians by whom such examination shall be made. ... A report of each mental examination of the defendant shall be filed in the court and copies thereof shall be supplied to the defendant and the prosecuting attorney.”
The State asked that Warren G. Phillips, M.D., be named as the examining physician. The trial court sustained the motion, but no written order was ever filed. Defendant appeared as directed, and was examined on March 30, 1981. Dr. Phillips submitted his report, dated April 21, 1981, which included a cover letter to Glenn Casebeer. Copies of the report and cover letter were sent to defense counsel on April 27,1981. The cover letter points out that the defense will contend that the defendant was incompetent towards the end of 1979 and the early part of 1980; that defendant was declared incompetent and a guardian was appointed for him by a local court during this period; that prior to that time the defendant himself felt that he was competent; and that the defense may well have many impressive character witnesses. The cover letter, Exhibit 6-K’s, and now included as a part of Record Volume 32, was offered jointly by both counsel, and was thus received in evidence without objection. Both in the report and in his testimony, Dr. Phillips concluded that the defendant was competent throughout the entire period of his handling of the Wark and Patterson estates.
The statute does not require a written order directing a mental examination, although that is the usual procedure. The defendant voiced no objection to the State’s motion for an examination, complied with the order, and promptly received a copy of the report of the examining physician and his cover letter. We see no prejudice arising from the bare fact that the order was not reduced to writing.
Dr. Phillips’ report and cover letter disclose no facts which were confidential communications from the defendant to the physician; to the contrary, all of the statements made therein allude to matters which were well known both to the prosecutor and to defense counsel. Defendant’s first and only objection to the testimony of the doctor or to the cover letter came on July 21, during the trial, after the jury had heard both the direct examination and at least half of the cross-examination of Dr. Phillips. In that objection, defense counsel asked that the court dismiss the case and discharge the defendant or, in the alternative, that the court strike the testimony of Dr. Phillips from the record and declare a mistrial. We have examined the testimony of the physician, together with his report and cover letter, and find nothing therein which would require the relief requested by defendant in his motion.
The defendant makes much of the fact that Dr. Phillips was not instructed by written order of the trial court that he was to make a psychiatric examination of the defendant as an impartial expert appointed by the court. Dr. Phillips was suggested by the county attorney; presumably the county attorney made contact with the expert before asking the court to appoint him to make the examination. We see nothing erroneous or prejudicial. Under K.S.A. 22-3219, the trial court is empowered to appoint a physician to make a mental examination; the expert may well be one suggested by the prosecution, since the defendant — as in this case — may already have selected and consulted psychiatrists of his own choosing or may have secured the services of such experts through ex parte proceedings under K.S.A. 22-4508, as amended by Chapter 142, Section 18, 1982 Laws of Kansas, and K.S.A. 22-3219. It is clear that Dr. Phillips was appointed to make the examination upon the motion and suggestion of the prosecutor; his testimony came as no surprise to the defendant. Such procedure was entirely appropriate. Rule 12.2(c) of the Federal Rules of Criminal Procedure similarly provides for a psychiatric examination, “upon motion of the attorney for the government,” in appropriate cases. Such rules are common and their constitutionality has been sustained. See the full text of the Advisory Committee note to Fed. R. Crim. P. 12.2, 3A Wright, Federal Practice and Procedure: Criminal, at 476 (2d ed. 1982), and 62 F.R.D. 298.
Defendant contends, for his third point, that Count I of the information was barred by the two-year statute of limitations, K.S.A. 21-3106(2). The State’s evidence indicated that the defendant transferred money out of the Wark estate account at various times from February 4, 1975, to and including February 9,1979. This prosecution was commenced with the filing of the information on October 16, 1980, and the amended information upon which defendant was tried was filed on October 30, 1980. Clearly, the transfer on February 9,1979, was within the two-year period.
K.S.A. 21-3106(3)(c) also provides that “The period within which a prosecution must be commenced shall not include any period in which: . . . (c) The fact of the crime is concealed.” In State v. Gainer, 227 Kan. 670, 608 P.2d 968 (1980), the defendant had stolen two guns. He hid them for a time and thereafter used them as his own. The theft was not discovered for more than two years. We held that the crime of theft by obtaining or exerting unauthorized control over property with intent to deprive the owner permanently of the possession, use or benefit of his property as proscribed in K.S.A. 21-3701(a) is not a continuing offense. We also held that the defendant’s act of hiding the guns did not constitute concealment as contemplated by K.S.A. 21-3106(3)(c). We said:
“Hiding or disposing of the property stolen does not constitute concealment of the fact of the crime as contemplated in the statute. To hold otherwise would extend the statute of limitations beyond its stated term in practically every case of theft and this would lead to uncertainty in an otherwise certain provision of the statute of limitations. Concealment of the fact of the crime refers to concealment of those criminal acts which constitute the crime. Hiding or disposing of the property stolen does not constitute concealment of the fact of the crime. To constitute concealment of the fact of the crime of theft sufficient to toll the statute of limitations there must be a positive act done by or on behalf of the accused calculated to prevent discovery of the theft by those owning or having possession of the property before the theft. Mere silence, inaction, nondisclosure, or disposal of the stolen property is not concealment of the fact of the crime as contemplated in K.S.A. 21-3106(3)(c).” 227 Kan. at 674-675.
Defendant contends that he did not conceal the fact of the crime. We disagree. As executor, defendant filed a lengthy preliminary accounting on November 29, 1977. He did not show, among the disbursements made by him from the estate, the large number of sizeable checks which he had drawn on estate funds and deposited in his own bank accounts. He did not show the funds which were then on deposit in the Wark estate bank account. The withdrawals from the Wark estate throughout the protracted pendency of that matter were all made by checks drawn personally by the defendant; his secretary, who prepared the usual executor’s checks and accounts, had no knowledge of them. Further, when requested by the judge to produce his bank and accounting records, the defendant twice failed to do so. Finally, the defendant ignored repeated requests from other interested counsel for information about the Wark estate. We conclude that the defendant’s continuing course of conduct, including his preparation and execution of the checks in a furtive manner, his preparation and filing of an incomplete and inaccu rate preliminary accounting, and his refusal to produce financial records, constituted sufficient conduct evidencing a design to conceal the ongoing thefts. His acts did not amount to “mere silence, inaction, nondisclosure, or disposal of the stolen property.” The two-year statute of limitations was thus tolled by defendant’s active concealment of the facts of the crime.
The fourth claim of error asserted is that the trial court erred in refusing to permit the defendant to call three jurors to testify on the hearing of defendant’s motion for a new trial. This claim is based upon the affidavit of one of the jurors, which recited in substance that the juror was 67 years of age, that he was tired, sick, and hungry, and that he held out for an acquittal until the final vote. He also complains that the exhibits were not passed to the jury during trial. The cases relied upon by the defendant are easily distinguishable and are not persuasive. Clearly, there is nothing in the juror’s affidavit which indicates that anything occurred either inside or outside the jury room which would bear on the validity of the verdict. K.S.A. 60-441 expressly prohibits inquiry into the reasoning or mental processes of the jury. That the juror was persuaded by other jurors to join in the verdict, and that he did join in the final verdict, is clear from the affidavit. The trial court did not err in refusing to permit the defendant to subpoena jurors, based upon the record before it. We find no error.
Finally, defendant contends that the application of the M’Naghten rule in this case unduly prejudiced him, and that this court should adopt the A.L.I. definition of insanity. This court has consistently refused to adopt any test other than the M’Naghten test for insanity, and we steadfastly adhere to our prior opinions on the subject. State v. Topham, 231 Kan. 167, 642 P.2d 986 (1982); State v. Dargatz, 228 Kan. 322, 614 P.2d 430 (1980); In re Jones, 228 Kan. 90, 612 P.2d 1211 (1980); and State v. Sanders, 225 Kan. 147, 587 P.2d 893 (1978). What we said in In re Jones, 228 Kan. at 99, is relevant here:
“The M’Naghten rule is the law of this state. If degrees of insanity were placed on a scale of one to ten in ascending order of severity, those failing the M’Naghten test are all ‘tens.’ To fail the M’Naghten test one must not have understood the nature of his acts or that such acts were wrong — the so-called right and wrong test. Generally speaking, evidence that a defendant attempted to conceal the crime or his identity as the perpetrator thereof goes a long way to defeat an insanity defense.”
We should point out that evidence of one’s mental state is admissible on the subject of intent, and the defendant was permitted to introduce all of the evidence he wished, in order to show his mental capabilities throughout the period involved herein. The ultimate issue, however, is that posed by the M’Naghten test, and the jury was properly and fully instructed in that regard. By its verdict, the jury found that the defendant knew that it was wrong when he diverted funds from the Wark and Patterson estate accounts into his own; in short, the jury rejected the proffered insanity defense.
As indicated earlier in this opinion, a guardian and conservator was appointed for the defendant in 1981. The guardian-conservator was granted leave to file a brief, and did so. He points to the following language from Syl. f 2 of our opinion in State v. Dargatz, 228 Kan. 322, which reads:
“Although a mental illness or defect not amounting to legal insanity is not a defense, since, for purposes of the capacity to commit crime, degrees of mental abnormality are not recognized, where the crime charged requires a specific intent, evidence of a mental defect which negates the specific intent is admissible.”
He then argues that the jury should have been given a special instruction on diminished capacity. Not so. In the Dargatz opinion, at page 332, we said: “The doctrine of diminished mental capacity, while never specifically rejected by this court, is inconsistent with the law of this state and we decline to adopt it.” (Emphasis added.) As we said in the Dargatz syllabus, evidence of mental defects is admissible; but the instruction now proposed by the guardian-conservator is not the law of this state and should have been rejected if it had been proposed at trial.
Next, the guardian-conservator argues that the evidence is insufficient to support the verdict, and in particular to support a finding that the defendant had the specific intent required. The standard of review which we must apply is whether the evidence, viewed in the light most favorable to the prosecution, convinces us that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. See State v. Douglas, 230 Kan. 744, 745, 640 P.2d 1259 (1982), and cases cited therein. Having reviewed the voluminous evidence, we are convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt, and could have found that the defendant had the specific intent included within the elements of the offenses with which he was charged.
Finally, the guardian-conservator argues that the trial court should have instructed the jury on the lesser included offenses of attempted theft or unlawful deprivation of property. The trial court had a duty to instruct on lesser included crimes “of which the accused might be found guilty under the information or indictment and upon the evidence adduced . . . .” (Emphasis supplied.) K.S.A. 21-3107(3). We have held that this duty arises, however, only if the evidence would have justified a conviction of one of those offenses. State v. Masqua, 210 Kan. 419, 502 P.2d 728 (1972), cert. denied 411 U.S. 951 (1973). An attempt is defined by K.S.A. 21-3301(1) as follows:
“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.” (Emphasis added.)
There is no evidence that the defendant failed in the perpetration of the crimes charged; the completed crimes were clearly established. Where the crime charged is completed, there is no call for an instruction on attempt. State v. Buggs, 219 Kan. 203, 206, 547 P.2d 720 (1976).
Unlawful deprivation of property, a class A misdemeanor, is defined by K.S.A. 21-3705 as follows:
“Unlawful deprivation of property is obtaining or exerting unauthorized control over property, with intent to deprive the owner of the temporary use thereof, without the owner’s consent but not with the intent of depriving the owner permanently of the possession, use or benefit of his property.”
An accused has the right to have his theory of the case presented to the jury, and where there is evidence to support a lesser included offense, the court should instruct upon it. Here, however, there was no evidence that the defendant intended to float an unauthorized temporary loan from the estates, or that he intended to return the money after a short period. He took the money from the estates, deposited it in his own accounts, and spent it; there was nothing left to return. His defense was either that he did not take the money, or that if he did take it he didn’t know what he was doing. There simply was no evidence upon which an instruction of unlawful deprivation of property could be premised, and the trial court did not err in failing to so instruct. See State v. Warren, 221 Kan. 10, 557 P.2d 1248 (1976).
This case was well and fully presented to the trial court by both counsel; the defendant was ably and conscientiously represented by dedicated counsel, and his side of the case was meticulously presented, both at trial and upon appeal. We have carefully considered each point raised, but find no prejudicial error.
The judgment is affirmed.
Fromme, J., not participating.
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The opinion of the court was delivered by
Porter, J.:
In this case judgment awarding a peremptory mandamus was rendered December 8, 1906, and the defendant railway company was ordered to resume the transfer service for the plaintiff. (Larabee v. Railway Co., 74 Kan. 808.) Thereafter defendant sued out a writ of error to the supreme court of the United States, where the judgment was affirmed. (Missouri Pacific Ry. v. Larabee Mills, 211 U. S. 612.) After the affirmance of the judgment by that court the plaintiff filed here a claim for damages arising out of the defendant’s refusal to furnish transfer service covering the period from the suspension of such service, August 29, 1906, until it was resumed undér the peremptory writ. The Hon. H. C. Sluss was appointed commissioner to take the testimony and report his findings of fact and conclusions of law. The report has been- made, and a number of exceptions have' been filed thereto by the plaintiff and by the defendant.
The plaintiff’s principal objection arises over the dis-allowance of a claim for the loss, of profits covering a period of 117 .days, at $100 per day, and aggregating $11,700. The basis-of this claim is the alleged inability of the mill company to grind corn'and market'corn products.
The commissioner’s findings and his reasons for disallowing the claim are stated as follows:
“I find from the evidence that the mill company’s mill is equipped for grinding corn and the production of corn products, and has a maximum capacity of 100,000 pounds of corn per day;'that the mill'company ground but little corn during the period of the-suspension of the' transfer service. There is no evidence of the price of corn or of corn products during that period,- or of the. cost of manufacture; nor evidence of the work and profits of other mills of similar character and similarly located as the mill company’s; the only evidence being the estimate of witnesses based on the. maximum, capacity of the mill, and the fact that it was an unusu ally good corn year, and the fact that the mill company had made money in handling corn through their elevator located on the Santa Fe during the same period, and the belief of the witness that the mill company could have ground a large amount of corn, and that the [in] view of the conditions it would have yielded a profit of ten cents per hundred pounds. ■ I conclude that the evidence is too indefinite and uncertain, based too largely upon estimate, opinion and assumption to justify a finding that there was a loss of profit by reason of inability to grind corn, or if there was a loss, how much it amounted to; and I find the claim not proven.”
These conclusions are in hafmony with settled rules respecting damages for loss of profits, and meet with our approval. It is true, as said by Judge Brewer in the opinion in Hoge v. Norton, 22 Kan. 374, cited by the plaintiff:
“It is not always easy to draw the line between profits that are a legitimate element of compensation and those that are too remote, contingent or uncertain» The old idea that profits were never recoverable was long since exploded; and now, even in actions on contract, it is said that they may be recovered when proximate and certain. ‘The general rule is that the party injured by a breach of contract is entitled to recover all his damages, including gains prevented as well as losses sustained, provided they are certain and such as might naturally beexpected to follow the breach. It is only uncertain and contingent profits, therefore, which the law excludes.’ (Griffin v. Colver, 16 N. Y. 489.)” (p. 379.)
The difficulty here' is, that from the evidence presented the commissioner was not able, nor are we'able, to determine with reasonable certainty that any loss of profits was occasioned by reason of plaintiff’s inability to grind corn, or the amount of such loss, if any.
The commissioner rightly refused to allow any damages to the mill company for losses which it claimed to have sustained by the suspension of transfer service prior to the issuance of the alternative writ, holding that up to that time it was optional with the plaintiff to avail itself of mandamus or to pursue its remedy in •an ordinary action for damages, and that the only power of this court to award damages is by virtue of its jurisdiction in the mandamus proceeding, and that such jurisdiction had its inception with the alternative writ. The provision of the code authorizing the allowance of damages in mandamus proceedings is:
“If judgment be given for the plaintiff, he shall recover the damages which he shall have sustained, to be ascertained by-the court or jury, or by referees, as in a ■civil action, and costs.” (Civ. Code, § 723.)
(McClure v. Scales, 64 Kan. 282.)
Objection is made by the defendant to the allowance ■of certain claims for wages of men and teams in hauling flour, grain and mill stuffs to the Santa Fe tracks, and the contention is made that it was the duty of the plaintiff to mitigate its damages by all reasonable means within its reach, and that it was within its power to have compelled the defendant railway company to furnish all the cars needed to reach common points by serving a written demand and making the ■cash deposit provided by the statute. The commissioner held that the burden of proof was upon the defendant to show that to the knowledge of the mill company the defendant was prepared to furnish and ready .and willing to furnish to the mill company promptly, ■on reasonable request, such cars as were needed to enable it to deliver its product to common points as promptly and satisfactorily as could be done by shipment over the Santa Fe in the manner the particular .shipments were made, and that there was a failure of proof on the part of defendant to establish this contention. Upon the statement of the facts, the conclusions of the commissioner appear to be sound, and to require no elucidation or comment. The defendant objects to the allowance of this claim, aggregating $2386.86, on the further ground that the only evidence in support of it was incompetent.. We have examined ■the evidence of the witness, Larabee, and agree with the commissioner’s conclusion that it was not secondary or hearsay, that it was competent, and that the objections to its admission were properly overruled.
One of the main controversies is over the allowance of attorneys’ fees for plaintiffs attorneys. The ninth claim, for the sum of $2500 for services of Waters & Waters in bringing and prosecuting the'mandamus proceeding, was allowed, the commissioner finding that mandamus was a proper and necessary proceeding to be instituted by the mill company, that Waters & Waters were employed for that purpose, that they instituted and successfully conducted the same, and that their services were reasonably worth the amount claimed. It is sufficient to say that we approve the finding and the allowance of the claim.
The tenth, twelfth, thirteenth, fourteenth and fifteenth claims are for the professional services and expenses of attorneys employed by the mill, company to represent it in the supreme court of the United States. The contentions of the defendant respecting these claims are so clearly stated and so fully met and answered by the commissioner that we quote from his report, as follows:
“Upon these claims I find, that, following the judgment of this court awarding the peremptory mandamus, the Pacific company caused a writ of error to be issued December 24, 1906, to the supreme court of the United States from said judgment, and on the same day filed a supersedeas bond in this court, which bond was approved by the court, and thereupon the Pacific company filed its petition in error in the supreme court of the United States, together with its transcript of the record and of the cause. The Pacific company presented the following assignments of error:
“That the supreme court of Kansas erred:
“ (1) In deciding that the switching service required was not in any part interstate commerce.
“(2) In deciding that the subject matter of the suit was not governed by the acts of congress regulating commerce.
“ (3) In deciding that the Pacific company was under obligation to perform the transfer service required of loaded cars destined to points, without the state of Kansas. . . . .
“(5) In deciding that it had jurisdiction to compel the Pacific company to render the, transfer service required in the carriage of property subjects of interstate commerce destined to points without the state of Kansas. ■
“(6) In assuming jurisdiction of the suit in.so. far as it involved the carriage of property the subject of interstate commerce.
“ (7) In deciding that chapter 345, Laws of 1905, of Kansas, was not invalid in so far as it attempted to compel the transfer or carriage of property subj ect to interstate commerce destined to points without the state of Kansas.”
The commissioner finds that these assignments of error and the propositions involved therein “were supported by a masterly and .exhaustive analysis of the provisions of the constitution and the statutes and decisions” bearing upon the subject in the briefs of the defendant’s counsel. The report then proceeds as follows:
“It was reasonably necessary for the mill-company to employ counsel to represent it in the supreme court of the United States of professional standing, learning and experience to adequately combat the contentions and answer and arguments of, counsel for the Pacific company. For. this purpose the mill company employed, in addition to Waters & Waters, W. H. Rossington, Charles Blood Smith and John F. Switzer, who were well equipped and qualified to adequately present the case of the mill company to the supreme court of the United. States. The compensation and expenses of these gentlemen, under that employment constitute the ninth, tenth, eleventh, twelfth, thirteenth, fourteenth and fifteenth claims of damages .filed by the mill company.”
The contentions of the defendant aré that these claims cover expenses incurred in the. supreme court of the United States and not in this court,. that .the judiciary act of the United States (4 Fed. Stat. Anno., pp. 195-734) deprives this court of all power to allow in this proceeding any damages or expense incurred as a result'of the proceeding in error, that the .supersedeas bond taken at the time the writ of error was allowed was conditioned that the plaintiff in error should answer all damages, and that the only remedy of the mill company was to apply to the supreme court of the United States for the allowance of its claim for damages, and that upon the affirmance of the judgment in this case that court did allow to the mill company the ,sum of $20 as and for its counsel fees in that court.
Again, the conclusions of the learned commissioner are so clearly and forcibly stated that we adopt them as a part of our opinion. His language is:
“Upon this objection I conclude:
“(1) That the jurisdiction of this court in mandamus is the creation of the constitution and the stat-, utes of the state of Kansas.
“(2) That this court is the sole judge of what that constitution and those statutes provide.
“(3) That the jurisdiction of this court in mandamus over persons within its jurisdiction can not be affected by act of congress.
“ (4) That the judiciary act does not and was not intended to affect the jurisdiction of this court.
“(5) That the .jurisdiction of .this court in mandamus attaches upon the issuance of the alternative writ, and the subject matter of the proceeding being the awarding a peremptory mandamus, that jurisdiction continues unabated, not only until the writ is . awarded, but also until the writ is issued and obedience to it enforced.
“ (6) That the alternative writ is a command of the ' performance of specified and prescribed duties; and return to the writ is a refusal to perform the duties prescribed; the judgment awarding a peremptory mandamus is a conclusive adjudication that such refusal was wrongful, and the act of the court compelling compliance with the command of the alternative writ.
“ (7) That the damages comprehended by the Kansas statutes are the injuries sustained as the natural and probable consequences of the wrongful refusal to comply and the expenses reasonably and necessarily incurred in compelling compliance with the command of the alternative writ.
“ (8) That the allowance of the writ of error did not operate to remove the suit from the supreme court of the state into the supreme court of the United States; its only effect was to bring up the record for purposes of review.
“ (9) The allowance of the writ of error did not operate as a supersedeas; the taking the supersedeas bond brought about the supersedeas. The taking the bond, and the supersedeas itself, in so far as it can be conceived of as a substantial act,-was -the action of the supreme court of Kansas.
“I conclude that the objection should be disallowed, and a claim for the reasonable compensation of the attorneys mentioned for their services in the case in the supreme court of the United States, and their reasonable and necessary expenses, should be allowed as part of the damages sustained by the mill company.”
The commissioner also finds that no agreement has ever been made between the mill company and any of its attorneys as to the amount of their compensation, and that the attorneys will claim and accept in full discharge of„ plaintiff’s liability to them whatever amount the court shall determine to be reasonable and allowed as part of the plaintiff’s damages. After reciting at some length the character of the service performed by the plaintiff’s attorneys in the preparation of their briefs and arguments in answer to the defendant’s con-, tentions in the controversy the commissioner concludes from all the evidence that a reasonable allowance for the services of Waters & Waters in the supreme court of the United States is the sum of $5000, and a like sum was allowed for the services of W. H. Rossington and Charles Blood Smith. The attorneys were also allowed their expenses in attending court. To John F. Switzer was allowed $500 for services in the preparation of briefs.
A number of attorneys well known to the court were called as witnesses by both parties and gave their opinions as to what were reasonable attorneys’ fees for the services in question. As usual in such cases there was a wide divergence of opinion expressed. The commissioner found that these opinions were given in answer to two sets of hypothetical questions, propounded by the plaintiff and defendant respectively, and without opportunity on the part of the witnesses to give the question of what was really involved in the case a thorough and careful study; and he concludes that none of the witnesses had given the elements of the case such study and consideration as would justify the court in adopting the opinions of any of them as a basis for its judgment. The commissioner, calling to his aid his own general knowledge and professional experience, and considering all the circumstances in evidence, “the character and the importance of the litigation, the labor and time necessarily involved therein and the result of the same” (Noftzger v. Moffett, 63 Kan. 354, 359), proceeded to find the several amounts which he believed to be reasonable compensation for the services rendered. This he was warranted in doing. The opinions of expert witnesses in such cases are never conclusive upon the court and were not conclusive upon the commissioner. (Noftzger v. Moffett, supra; Bentley v. Brown, 37 Kan. 14.) The service performed, the character and importance of the litigation and the result obtained thereby are all conceded; and these elements, as held in Noftzger v. Moffett, supra, must be considered by the court, and furnish a sufficient basis upon which to determine what are fair and reasonable amounts to be allowed as compensation for the attorneys. In view of these considerations we are not inclined to disturb the findings of the commissioner or to regard the allowances as excessive of unreasonable.
The claims allowed by the commissioner and approved by the court are as follows:
“First claim. — For expense of hauling flour, grain and mill stuffs from mill to Santa Fe tracks....... $2,386 85
“Second and third claims. — Wages of men unloading flour transferred by teams.................... 1,381 25
“Fourth claim. — Loss resulting from closing down ■of mill thirteen and one-half days................ 1,890 00
“Ninth claim. — Waters & Waters, attorneys’ fees in this court............................i... 2,500 00
“Tenth, twelfth, thirteenth, fourteenth and fifteenth claims. — Attorneys’ fees and expenses in supreme court of the United States................. 11,480 00
“Seventeenth claim. — Larabee’s expenses to Topeka ;........................................... 186 00
“Eighteenth claim. — Expenses and per diem of plaintiff and counsel at’ St. Louis...........'...... 160 00
“Twenty-first claim. — F. D. Larabee, attendance on commissioner ................................ 30 00
$20,014 10
One further question remains to be considered. The -defendant raised the point before the commissioner that the plaintiff is not entitled to recover any damages in this proceeding for the reason that the mill company “during the period in which the damages claimed arose, was a member of the Southern Kansas Millers’ Commercial Club; that this club was an association of millers, and the object and purpose of it was to control the price of wheat and flour, and prevent competition in the purchase of wheat and in the sale of flour, land included in its membership and allied associations substantially all the persons engaged in the milling business throughout Kansas, Oklahoma and Texas; and was an organization in violation of the antitrust laws •of Kansas.”
A large amount of evidence w-as taken which tended strongly to prove this charge, although it was not sufficient to satisfy the commissioner that it had been established. It becomes unnecessary for us to weigh the evidence because of a further finding of the commissioner, which appears to be supported by the evidence, that the performance of the switching service, which was the subject matter of this action, was no part of the purpose- of the organization of the Southern Kansas Millers’ Commercial Club, and in no sense a part of or necessary to the carrying out of any of the purposes for which the club was organized. Under the authority of Barton v. Mulvane, 59 Kan. 313, 317, the plaintiff is entitled to recover whatever damages it has sustained by the wrongful suspension of the transfer service unless the service sought to be enforced was a necessary part of the purposes of some unlawful trust or combination, and unless some violation of the trust law entered into was a part of the cause of action in the original proceeding. To the same effect are: Bement v. National Harrow Co., 186 U. S. 70; Connolly v. Union Sewer Pipe Co., 184 U. S. 540; Loeb v. Columbia Township Trustees, 179 U. S. 472, 479; Embrey v. Jemison, 131 U. S. 336, 348; National Distilling Co. v. Cream City Importing Co., 86 Wis. 352, 355.
• It follows from what has been said that the report of the commissioner is approved and his findings and conclusions of law are confirmed.
West, J., not sitting.
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The opinion of the court was delivered by
Burch, J.:
Ekblad, as administrator of the estate of Hanna Linderholm, deceased, brought suit to recover upon an overdue promissory note, and to enforce a real-estate mortgage given the decedent by John P. Hanson. Judgment was rendered for the plaintiff on. the note, the mortgage was foreclosed, the property covered by the mortgage was sold pursuant to the judgment, and the sale was confirmed. The defendant appeals and attacks the proceedings on various grounds.
It is urged that the plaintiff had no capacity to sue because his appointment was void.
The act relating to the appointment of executors and administrators provides as follows;
“Administration of the estate of an intestate shall be granted to some one or more of the persons hereinafter mentioned, and they shall be respectively entitled thereto in the following order, to wit:
“First, His widow, or next of kin, or both, as the court may think proper; and if they do not voluntarily either take or renounce the administration within thirty days after the death of the intestate, they shall, if resident within .the county, upon application of any one interested, be cited by the court or judge for that, purpose.
“Second, If the persons so entitled to administration are incompetent, or evidently unsuitable for the discharge of the trust, or if they neglect, for twenty days-after service of said citation, without any sufficient cause, to take administration of the estate, the court shall commit it to one or more of the principal creditors, if there be any competent and willing to undertake-the trust.
“Third, If there be no such creditors, and the court is satisfied that the estate exceeds the value of one hundred dollars, the court shall commit administration to such other persons as it shall deem proper.” (Gen. Stat. 1868, ch. 37, § 12, Gen. Stat. 1909, § 3447.)
The plaintiff was not a relative or creditor of Hanna Linderholm and was appointed eleven days after her death. Two of her children neither took nor renounced administration, were not cited by the court for that purpose, and entered no express consent to the plaintiff’s appointment. The appointment of the plaintiff,, however, has not been questioned by any one having a right, under the statute, to the office, or by any one interested in the estate. It is argued by the defendant that the court was without power to make any appointment during the thirty-day period allowed next of kin to take or renounce administration and was without power to appoint the plaintiff or any one else without first citing eligible next of kin pursuant to the section of the statute quoted.
The jurisdiction of the probate court to grant letters of administration does not depend upon the section of the statute which has been quoted, but upon section 8436 of the General Statutes of 1909 (Gen. Stat. 1868, ch. 37, § 1), which reads as follows:
“That upon the decease of any inhabitant of this state, letters testamentary or letters of administration on his estate shall be granted by the probate court of the county in which the deceased was an inhabitant or résident at the time of his death.”
In the case of Ewing v. Mallison, 65 Kan. 484, 493, 70 Pac. 369, it was said that the essential jurisdictional facts upon which the appointment of an administrator depends are: (1) The death; (2) an estate to administer; (3) residence. Whenever these facts exist jurisdiction to appoint some one administrator exists (Nickel v. Vogel, 76 Kan. 625, 631, 92 Pac. 1105), which can not be lost or defeated by any course of conduct the court may take in determining who the administrator shall be. Section 3447 of the General Statutes of 1909 gives certain persons a preferential right to be appointed and establishes rules of procedure for the guidance of the court in making the appointment. It is the duty of the court to follow, the statute, respect those rights and observe those rules, but if it should wrongfully fail or refuse to do so jurisdiction is not affected, nobody can complain except those whose rights are recognized by the statute, and their remedy is by appeal. One who bears no relation to the estate except that he owes it money has no standing to complain that the surviving spouse, next of kin, or creditors, who might have secured the appointment but did not, were passed by. This case is identical in principle and almost identical in facts with that of Taylor v. Hosick, Adm’r, &c., 13 Kan. 518. When sued on his note Taylor disputed Hosick’s capacity to sue. The court said:
“The probate court unquestionably had a right to appoint some person administrator. The facts already stated gave the court jurisdiction. But it is claimed that the court should have appointed a brother, sister, or creditor of the deceased; or that’ the court should have cited all the brothers, sisters, and creditors of the deceased to appear, and take or renounce the administration, before the court could appoint Hosick. As the brothers and sisters of the deceased were his nearest "kin living, the court should have done as Taylor claims; and if the court did not do so, then the brothers, sisters, or creditors of the deceased would, in a proper proceeding, have a right to complain. But still these are not jurisdictional matters. Even if the probate court erred in the appointment of Hosick, still the appointment is valid until set aside by proper authority, .and, in a proper proceeding. The appointment can not be attacked collaterally, as Taylor now attempts to do, and especially not by himself, who. is neither a relative nor a creditor of the deceased. Letters of administration can be attacked collaterally only when the probate court for some reason has no jurisdiction to make the appointment, and never when the court has merely committed an erjor by appointing one person (who is eligible) when the court should have appointed some other person.” (p. 526.)
In the case of Taylor v. Hosick, Adm’r, &c., supra, the •appointment was not made until more than thirty days had elapsed from the date of death. The defendant argues that the case should be distinguished for that reason. The decision was, however, that an utter disregard of one of the statutory requirements — that relating to a citation upon eligible next of kin to appear and take or renounce administration — is to be regarded merely as an error in procedure and not as of the substance of jurisdiction. Likewise, action before the time has elapsed for the voluntary appearance of next of kin involves an error in procedure only, to be remedied by motion in the probate court to set aside the premature appointment and by appeal.
In the case of Brubaker v. Jones, 23 Kan. 411, a collateral attack was made on the appointment, of an administrator of the estate of Franklin Brady, deceased. The court said:
“That Brady was an inhabitant of Allen county, and died intestate, leaving an estate to be settled, are undisputed facts, and these facts are sufficient to give the probate court of Allen county jurisdiction to make the appointment. Whether the probate court adopted the right procedure or not in ascertaining these facts, or in making the appointment, or whether the court appointed the right person or not, are wholly immaterial questions in this controversy. These questions can not be raised in the collateral manner in which the plaintiffs now seek to raise them.” (p. 412.).
The principles stated in the case of Taylor v. Hosick, Adm’r, &c., supra, and Brubaker v. Jones, supra, are sound, have been recognized in many subsequent decisions, and are a part of the settled law of this state.
It is stated that the action was begun without an order from the probate court to do so, that the money due was not necessary for the payment of debts, and that one of the heirs desired the note and mortgage to be set off to him by an order of distribution; and it is argued from these facts that the plaintiff had no capacity to sue. The facts stated do not, either singly or taken together, have the slightest bearing upon the capacity of the administrator to sue, which is an attribute of his official character attaching by virtue of his appointment and inhering in the legal status thereby created.
The facts referred to are urged as defenses to the action. Even if there were no debts whatever due from the estate the probate court had jurisdiction to appoint an administrator and to proceed to administer the estate for other purposes than for the benefit of creditors. (Nickel v. Vogel, 76 Kan. 625, 92 Pac. 1105.) Upon his appointment the administrator became vested with the legal title to the note and mortgage as personal assets in his hands for all purposes of the administration. (Gen. Stat. 1868, ch. 37, § 66, Gen. Stat. 1909, § 3501.) One of the incidents of the legal title is the right to enforce payment by action. Assets of this kind are not usually sold, but are reduced to money. (Lappin v. Mumford, 14 Kan. 9, 16.) It is a general duty of an administrator to collect unpaid debts due the estate, and in this state he must do so, as far as possible, within one year from the date of his bond, under section 3497 of the General Statutes of 1909 (Gen. Stat. 1868, ch. 37, § 62), which reads as follows:
“The executor or administrator shall, as far as he is able, collect the assets of the estate within one year after the date of the administration bond.”
The word “collect” as used in this statute does not mean merely “assemble” or “reduce to possession,” but in the case of assets in the form of enforceable obligations the word has its ordinary signification, which includes the use of the usual means for accomplishing collection. (Ryan v. Tudor, 31 Kan. 366, 2 Pac. 797.) That such was the legislative intention is rendered certain by the fact that the section quoted is immediately followed by a grant of power to compromise certain classes of claims, debts and demands, under certain conditions. This statutory authority to sue needs no re-enforcement in the form of an order from the probate court, and so far as the debtor is concerned the right of action against him is absolute. He has no standing to resist payment because the money due from him may not be needed to pay debts. He has no vicarious function to perform in respect to the management of the estate. His sole business is to pay, and the district court has no authority, in a suit on his note, to supervise the management and settlement of the estate, either on his request or on the request of persons claim ing to be ultimate distributees. The probate court is vested with authority to administer estates, to direct and control the official acts of executors and administrators, to make final distribution, and to determine all questions which may arise in connection with those sub-, jects. Distributees, as interested parties holding the equitable title to the assets of the estate, might, if they so desired, apply to the probate court to stay the administrator’s hand and to reserve particular assets not necessary for the payment of debts to be distributed in kind. But the district court could not rightfully entertain such an application so long as the probate court had jurisdiction of the subject, and neither the probate court nor the district court should listen to such an application from one in the situation of the defendant.
It was discretionary with the court to grant or to refuse permission to present the so-called supplemental" defense, and the discretion was not abused. Judgment was properly rendered on the pleadings. If the note and mortgage had not been surrendered to the clerk at all the order confirming the sale would have constituted a waiver of the rule by the court which made it. However, the purpose of the rule was accomplished before confirmation, without any prejudice whatever to the defendant’s substantial rights. The judgment was not superseded. No equitable right to a sale in parcels was presented to the district court so far as the abstract discloses, and nothing appearing in the brief justifies a re-sale. . .
The statute requires the court to order taxes to be paid out of the proceeds of a judicial sale. (Laws 1876, ch. 34, § 56, Gen. Stat. 1909, § 9332.) The requirement is made for the benefit of the public treasury and not for the benefit of interested persons. The statute not having designated when the order shall be made, power to make it éxists as long as the court has control over the proceeds of sale. All persons are bound to know that the law makes the lien for taxes superior to all others without a judgment to that effect, and makes it the duty of the court to apply the proceeds of sale to the satisfaction of such lien. Consequently no injury can result to any one if the order be delayed until confirmation when the proceeds of the sale are in court for distribution.
Nothing else in the case requires comment and the judgment of the district court is affirmed.
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The opinion of the court was delivered by
Mason, J.:
The Kansas City Paper House, a corporation, sued the Foley Railway Printing Company, a corporation, upon á promissory note. The defendant claimed a credit of $500 on account of an indebtedness of that amount which it asserted was owing to P. T. Foley, its president, -by the plaintiff. This is the only matter still in controversy. A referee found in favor of the defendant, and a judgment was rendered accordingly, from which the plaintiff appeals.
The appellant contends that even if it was indebted to Foley, it could not be required to credit the amount upon the note, since no assignment was shown from Foley to the Foley company. Foley, who personally managed the business of his company, testified in substance that he intended the company to have credit on the note for his claim against the paper company, and gave the latter notice to that effect. This in effect amounted to an assignment, and the paper company, being fully protected against a further assertion of the claim by Foley, can not complain of the lack of formality.
The appellant also contends that there was no competent evidence that it owed Foley the $500, because his claim rested upon an agreement which he professed to have made with a salesman of the paper company, who was not shown to have had any authority to bind his employer in that respect, and whose authority was denied under oath in the reply. Foley testified in effect that the paper company, through the salesman referred to, agreed to pay him $500 for his assistance in procuring a contract to supply paper and other material to the state; that he went to Topeka, and in the interest of the paper company, “talked up” its goods to a member of the executive council, showing samples; that after thf contract had been awarded to the paper company he had several conversations with its president in regard to his arrangement with the salesman, and that the president did not deny the salesman’s authority to make such an agreement. When the Foley company rested its case, the paper company moved “to strike out that part, of the conversation in reference to the contract with Mr. Shaw [the salesman], as there is no proof of any authority on the part of Mr. Shaw to make the contract.” The record shows that this motion was sustained. The only evidence on the most vital portion of the Foley company’s case seems to have been stricken out by this ruling. No order was made reinstating it, and its place was not supplied by any further testimony. It is at least doubtful whether the ruling was not correct, for there was no evidence that Shaw had authority to make the agreement with Foley, unless it is to be found in the testimony that the president of the comT pany, in the course of a conversation, the details of which are not stated, did not deny it. But whether the ruling was right or wrong, the referee, in deciding that the Foley company could recover without the evidence that was stricken out, must have proceeded upon an erroneous view of the law, which necessarily affected the judgment. Where a court makes its own findings of fact from the evidence reported by a referee, it may doubtless take into account evidence which the referee had stricken out, if the circumstances be such that the adverse party is not thereby prejudiced by being deprived of an opportunity for rebuttal. But testimony which the referee has eliminated from his consideration can not be considered by the court in determining whether there was any evidence to sustain his finding. Here the findings and conclusions of the referee were couched in the most general terms, so that his precise theory of the case is not disclosed. This situation requires that a new trial be ordered.
Other questions are argued which will naturally arise at another trial, and therefore should be decided now. The appellant contends that public policy forbids a recovery upon such a contract as that testified to by Foley. There was some evidence that the contract, contemplated a payment for the exertion of personal and political influence upon members of the executive' council, and that the services rendered were of that character. If that was the case the contract was, of course, void. But there was also testimony that Foley was employed simply as an ordinary salesman, because of his experience in using and buying paper and. other material handled by the plaintiff, and that his. efforts were in accordance with that employment, and. were confined to exhibiting samples and “talking up” the goods and the responsibility of the house. If that was the case the contract was valid. In this aspect the question is merely one of fact, proper to be decided by a tribunal which sees and hears the witnesses.
The evidence suggested, but perhaps did .not absolutely determine, that Foley’s compensation was to be' contingent upon the procuring of the state contract. There is a conflict of judicial opinion as to whether that circumstance should stamp the contract as illegal. In Tool Company v. Norris, 69 U. S. 45, it was said:
“Agreements for compensation contingent upon success suggest the use of sinister and corrupt means for the accomplishment of the end desired. The law meets-the suggestion of evil, and strikes down the contract from its inception. There is no real difference in principle between agreements to procure favors from legislative bodies and agreements to procure favors in the' shape of contracts from the heads of departments. ... All agreements for pecuniary considerations to control the business operations of the government . . . are void as against public policy, without reference to the question whether improper means are contemplated or used in their execution. The law looks to' the general tendency of such agreements, and it closes the door to temptation.by refusing them recognition in any of the courts of the country.” (pp. 55, 56.)
In that case, however, it was plainly shown that the ■services for which a recovery was sought consisted in bringing personal and political influence to bear upon the public officers charged with the duty of letting a contract for the purchase of supplies for the government. The language quoted was obviously used with that fact in mind. Substantially the same thing was said in the recent case of Russell v. Courier P. & P. Co., 43 Colo. 321, 95 Pac. 936. But there too the contract involved was clearly bad upon other grounds than that it provided for contingent compensation. We find no case in which an agreement to pay for services in selling goods to a public body, which was found to be otherwise fair and unobjectionable, has. been held void because payment was to be made only in the event of a sale being effected. If the fact that payment is made to depend upon results renders such an agreement void, it must be because the salesman who has a pecuniary interest in the success of his efforts will be presumed to resort to methods which he would otherwise avoid. This is recognized by a text-writer in these words:
“We know the sinister influences that are being constantly employed and that willing ears are lent to corrupt propositions; and when men have every motive for the advancement of such propositions, it is safe to say that any contract which leaves an opportunity for the tender of such propositions can not be too forcibly condemned. Let men who seek dealings with the government employ men who are prompted by no motives except the desire to fulfill their duty. The inconvenience attending such a restriction is so much counterbalanced by the obvious benefits that the seeming injustice has no place worthy of notice.” (Greenhood, Public Policy, p. 365.)
That test, however, seems to be repudiated in Oscanyan v. Arms Co., 103 U. S. 261, where stress is laid upon the question, not whether the amount of compensation depends upon the result, but whether it is unusual or excessive, the court saying:
■ “And here it may b'e observed, in answer to some authorities cited, that the percentage allowed by established custom of commission merchants and brokers, though dependent upon sales made, is not regarded as contingent compensation in the obnoxious sense of that term, which has been so often the subject of animadversion by this court, as suggesting the use of sinister ■or corrupt means for accomplishing a desired end. They are the rates established by merchants for legitimate services in the regular course of business.” (p. 276.)
The fact that the compensation of a salesman, employed to sell goods to the public, depends upon his success may tend to show a purpose to use illegal means, or a probability that such means will be used, but we do not think that it should be regarded as conclusive on either point, nor that in and of itself it should be deemed to characterize the employment as illegal. (Paving Co. v. Botsford, 56 Kan. 582, 44 Pac. 3; Howland v. Coffin, [N. Y. Supr. Ct.] 47 Barb. 653; Bergen v. Frisbie, 125 Cal. 168, 57 Pac. 784; Beal v. Polhemus, 67 Mich. 130, 34 N. W. 532; Stanton et al. v. Ernbrey, Administrator, 93 U. S. 548.) We believe this view accords not only with sound reason, but with what has actually been decided by the courts. Cases bearing more or less directly on the matter are collected in various textbooks and notes. (15 A. & E. Encycl. of L. 974; 9 Cyc. 490; 121 Am. St. Rep. 726; 6 A. & E. Ann. Cas. 218; 4 L. R. A., n. s., 213.) Many of the cases in these collections involve contracts for influencing legislation, which are not entirely analogous to those for the sale of goods, and may well be regarded as subject to a more stringent rule.
Foley testified that he talked with a member of the ■executive council, showed him the samples, and went over the matter with him so that he would understand the questions that would come up. That these representations were made to an individual instead of to the council as a body might afford a reason-for believing that illegal methods were pursued, but does not of itself compel that conclusion. To give information regarding a proposed contract to one of several members of a board charged with the letting of it is a means of getting the information before the board, and does not necessarily imply secrecy or concealment.
The judgment is reversed and a new trial ordered.
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The opinion of the court was delivered by
Porter, J.:
In this suit the appellant challenges the validity of chapter 386 of the Laws of 1907, as amended by chapter 27 of the Laws of 1909 (Gen. Stat. 1909, •§§8727-8739), creating the entomological commission and providing for the extermination of San José scale. Appellant is the owner of a large orchard of apple and peach trees, grapes and other fruit, and sued to enjoin the defendants from entering upon his premises for the purpose of inspecting, spraying and destroying the fruit trees and vines, and from causing the expenses incurred in the performance of such services to be taxed against his property. In their answer appellees admitted that they were about to inspect, and, if necessary, destroy the trees, vines and other shrubbery on •appellant’s premises, and that the costs and expenses incurred by them would be taxed against his property; they alleged that appellant’s orchard is infected with San José scale, and asked that he be enjoined from interfering in any manner with the work of the commission in exterminating the same. On the trial the court found the acts of the appellees justified, and enjoined appellant from interfering with the proceedings. From this judgment he appeals.
Chapter 386 of the Laws of 1907 creates the entomological commission, to consist of the secretary of the State Board of Agriculture, the secretary of the Kansas State Horticultural Society, the professor of entomology of the University of Kansas, the professor of •entomology at the State Agricultural College, and a nurseryman actively engaged in the nursery business within the state, to be appointed by the governor. The purpose of the act is the suppression and extermination of San José scale and other injurious insect pests and plant diseases. In order to accomplish such purpose the entomologists, their assistants and employees, are authorized to enter upon the premises of any private individual and inspect, destroy, treat or experiment npon such insects or plant diseases. In case the officers mentioned or their employees shall find such insects or diseases to exist, they are required to mark in ■some conspicuous way all trees, vines, shrubs or plants so infested, and to give notice in writing to the owner,, tenant, or person in charge of the premises, of the condition thereof. The act then provides that if the owner or person in charge shall not within ten days thereafter destroy or treat the same in accordance with the regulations and rules of the commission, the commission shall cause the work to be done. The act of 1907 provided that the expenses of such extermination or treatment, properly certified by the commission, should be collected by the county attorney of the county where such premises are located, who was directed to account therefor to the commission. The legislature of 1909 amended the act so as to provide that the expense incurred in inspecting, treating and exterminating such insect pests should be paid by the owner of the premises within a certain time after the services were performed, in default of which it should-be taxed against, the property and collected in the same manner as delinquent taxes. The amendment, so far as it relates to the present controversy, reads as follows:
“The necessary expense thereof shall be paid by the owner or owners of the real estate from which said infestation has been removed in pursuance of this act. The state entomologist or his deputy shall serve or cause to be served upon said owner or any one in. possession and in charge of said real estate, a notice, stating the amount of said charge, and further stating that if said charge be not paid to the county treasurer of-the county wherein said real estate is located within twenty days from the date of the service of said notice, that the same will become a lien upon said real estate.. Copy of said notice, together with the proof of service, shall be at once filed with the county clerk, and if said amount is not paid within the time therein stated, said county clerk shall spread the same upon the tax roll prepared by him and said amount shall become a lien against said real estate and be collected as other taxes are collected, and said real estate shall be sold for nonpayment of said taxes the same as now or hereafter may be provided by law for sale of real estate for delinquent taxes. Should the owner of said real; estate not pay said charges within the stated time, the same shall be presented to the board of county commissioners by the county clerk and by them allowed and paid out of the general fund of said county by the county .treasurer, and when said amount is collected as taxes it shall be paid into the general fund of said! county. The cost .of eradication or treatment of such infestation, as above stated, shall be paid to the county treasurer, to whom the county clerk' shall certify all amounts due as reported to him by the entomologist in charge. The county treasurer shall forward to the state treasurer on the first of each month all amounts thus received. These amounts shall be paid into the general fund of the entomological commission.” (Laws 1909, ch. 27, § 1, Gen. Stat. 1909, § 8732.) •
There was ample evidence to warrant the finding that appellant’s orchard is infested with San José scale. It is conceded that the appellees were attempting to follow the provisions of the statute. They and their employees had gone upon the premises of the appellant and had marked certain trees and shrubs for déstruction, and had marked others for treatment by spraying; they had given the appellant due notice in writing, ordering him within ten days thereafter to treat and destroy the pest under the rules and regulations of the commission. Upon his failure to comply with the order, the commission was about to cause the work to be done and the expense thereof charged against appellant’s property.
The appellant asserts that the act of 1907, as. amended by that of 1909, is unconstitutional. Generally stated, his contentions are: that the law deprives, him of his property without due process of law, and. therefore violates the fourteenth amendment to the federal constitution; that it deprives him of the right h> a jury trial, in violation of section 5 of the bill of- rights; that it attempts to confer judicial power upon the commission and its employees, and to give them authority to determine the amount of taxes which shall be assessed against the appellant’s property, without notice or opportunity to contest the amount thereof; that it violates section 1 of article 11 of the constitution of Kansas requiring a uniform and equal rate of assessment and taxation. Little if any attempt is made in the brief to argue these propositions separately; but counsel for appellant urge the following specific objections to the statute: (l).That there is no method of procedure or hearing provided by which appellant’s right to protest against the destruction of his property is preserved; that the law delegates to the commission and its employees the power to mark trees for destruction without a hearing or trial as to the necessity thereof; (2) that it fails to prescribe any compensation for property destroyed, whether taken rightfully or wrongfully; (3) that no notice or opportunity is provided by which the appellant may contest the amount of the expenses which shall be taxed against his property. Most of these objections rest upon what appears to be a failure to distinguish between the exercise of the power of eminent domain and the exercise of the power of police regulation. Many cases are cited where legislative enactments have been held invalid on the ground that they provide for taking private property for public use without compensation. These authorities have no application to the present case. The courts have universally recognized the distinction between the two powers. Under the exercise of the one, private property can not be taken either for public or private use without compensation; in the exercise of the other, the use of property may be limited, or controlled, or the property itself destroyed, without any compensation therefor being made to the owner. It is no objection to the validity of laws passed in the proper and lawful exercise of the police power that provision is not made for compensation to the individual whose property may be affected thereby. Property taken or destroyed for the purpose of abating a nuisance or to prevent the spreading of a pestilence is not taken for public use. All private property is held subject to such reasonable restraints and burdens as in the opinion of the legislature will secure and maintain the general welfare and prosperity of the state. It is held subject to the obligation that it shall not be used so as to affect injuriously the rights of the community. • It belongs to the legislative branch of the government “to exert what are known as the police powers of the state, and to determine, primarily, what measures are appropriate or needful for the protection of the public morals, the public health, or the public safety.” (Mugler v. Kansas, 123 U. S. 623, 661, 31 L. Ed. 205; Mo. Pac. Rly. Co. v. Finley, 38 Kan. 550, 16 Pac. 951.)
In the exercise of this power the legislature may be justified in excluding property dangerous to the property of citizens of the state, as, for example, animals having infectious or contagious diseases. The police power is said to be inherent in government, but can only be exercised by authority of legislative enactment. It is for the legislature to determine what laws are needful and appropriate to promote the public welfare and to prevent the infliction of public injury. So long as the legislature, in attempting to exercise this power, does not violate any of the provisions of the organic law or encroach upon some power vested in congress by the federal constitution, the exercise of its discretion is not subject to review by the courts. (Matter of Application of Jacobs, 98 N. Y. 98, 50 Am. Rep. 636.) In the language of Justice Gray, in Blair & Hutchinson & Smith v. Forehand, 100 Mass. 136:
“All rights of property are held subject to such reasonable control and regulation of the mode of keeping and use as the legislature, under the police power vested in them by the constitution of the commonwealth, may think necessary for the preventing of injuries to the rights of others and the security of the public health and welfare. In the exercise of this power, the legislature may not only provide that certain kinds of property (either absolutely, or when held in such a manner or under such circumstances as to be injurious, dangerous or noxious) may be seized and confiscated upon legal process after notice and hearing; but may also, when necessary to insure public safety, authorize them to be summarily destroyed by the municipal authorities without previous notice to the owner — as in the familiar cases of pulling down buildings to prevent the spreading of a conflagration or the impending fall of the buildings themselves, throwing overboard decaying or infected food, or abating other nuisances dangerous to health.” (p. 139.)
It cannot be doubted that the legislature possessed the power to declare that the existence of San' José scale, which is well known to be injurious and dangerous to the. fruit -industry of the state, constitutes a nuisance. The evidence in the case at bar shows beyond question that this particular pest is so prevalent in Sedgwick county as to become a source of great danger to the fruit growers in the community, as.well as to those in other sections of the state. The statute, viewed in the light of the evidence and aided by facts which common experience and observance teach respecting the danger to an important industry of the state from the presence of insect pests, must be regarded as appropriate and well calculated to accomplish the purpose of the legislature, and therefore a proper exercise of the police power. Similar laws have been upheld in other states. Thus, in County of Los Angeles v. Spencer, 126 Cal. 670, 59 Pac. 202, 77 Am. St. Rep. 217, it was said:
“It is known that the existence of the fruit industry in the state depends upon the suppression and destruction of the pest mentioned in the statute. The act in question is, therefore, a proper exercise of the police power which the legislature has, under section 1 of article 19 of the constitution, to subject private property to such reasonable restraints and burdens as will secure and maintain the general welfare and prosperity of the state. Abeel v. Clark, 84 Cal. 226; Train v. Boston Disinfecting Co., 144 Mass. 523, 59 Am. Rep. 113.” (p. 673.)
The law in question here is of the same character as are the quarantine laws pertaining to Texas cattle and splenic fever, which the legislature has enacted for the purpose of preventing the infection of cattle •and other live stock. It falls within the miscellaneous cases referred to by Judge Cooley in his Constitutional Limitations, as follows:
“And there are other cases where it becomes necessary for the public authorities to interfere with the control of individuals of their property, and even to destroy it, where the owners themselves have fully observed all their duties to their fellows and to the state, but where, nevertheless, some controlling public necessity demands the interference or destruction. A strong instance of this description is where it becomes necessary to take, use, or destroy the private property of individuals to prevent the spreading of a fire, the ravages of a pestilence, the advance of a hostile army, or any other great public calamity. Here the individual is in no degree in fault, but his interest must yield to that ‘necessity’ which ‘knows no law.’ ” (Cooley, Const. Limitations, 7th ed., p. 878.)
Cases sometimes arise where the exigencies of the situation require private property to be' destroyed immediately in order to prevent the spread of pestilence or some other calamity, and where, under all the circumstances, the loss which the individual suffers is so inconsiderable in comparison with the benefit to the public that in the opinion of the legislature he is regarded as fully compensated by his individual share in the benefit accruing to the public. Other cases will arise where it is apparent that if no action is taken by the state the property of the individual will be destroyed or rendered of little or no value. In Shafford v. Brown, 49 Wash. 307, 95 Pac. 270, the supreme court of Washington had under consideration a statute giving power to a county fruit inspector to destroy fruit infected with insects, and held that the owner of such fruit had 'no cause of action against the inspector for damages for its destruction for the reason that it had no value.
It is true that in some of the laws providing for the abatement of nuisances the legislature has made provision for compensation to the individual for the loss-of his property where it has been destroyed. Thus the statute authorizing the live-stock sanitary commissioner, when in his opinion it shall be necessary to-prevent the spread of any contagious or infectious disease among the live stock of this state, to destroy animals with, or which may have been exposed to, certain diseases, provides that he shall first cause the animals-to be appraised (Laws 1905, ch. 495, § 7, Gen. Stat.. 1909, § '9138), and the owner is to be paid the value as fixed by the appraisement; but the statute expressly provides that this right of indemnity for such loss shall' not extend to cases where such animals have been brought into the state in a diseased condition or from an infected district or state or brought into the state in violation of any law or quarantine regulation, or to cases where the owner has violated the quarantine law or disregarded any regulation of the live-stock sanitary commissioner, - nor to any case where the animal came into the possession of the claimant with knowledge that it was diseased or had been exposed to contagion-(Laws 1905, ch. 495, §12, Gen. Stat. 1909, §9143). The same, statute (Laws 1905, ch. 495, § 8, Gen. Stat. 1909, § 9139) provides that in fixing the value of any-such animal the commissioner shall be governed by the value thereof at the date of the appraisement, so that the state does not undertake to compensate the owner for any loss occasioned by the disease or infection. And for some reason which the legislature deemed sufficient it is further provided in the same section as follows: “That no animal or animals shall be appraised except those affected with contagious pleuro-pneumonia of cattle or foot-and-mouth disease, or such as have been exposed thereto.” The legislature acted upon the theory that in the exercise of the police power for the purpose of affording protection to the live stock industry of the state it might authorize the destruction of private property, making provision in some cases for-full compensation to the owner thereof, in other cases for partial compensation, and in still others for no ■ compensation. The act for the protection of domestic animals is not before us and its constitutionality is therefore not in question. Its validity, however, has not, so far as we are aware, been attacked upon any of the grounds urged against the statute now under consideration.
In 1888 the legislature enacted a law providing for the appointment of sheep inspectors and prescribing-their duties. (Laws 1883, ch. 144, Gen. Stat. 1909, §§ 9094-9100.) The act, which seems never to have been assailed as invalid, authorizes such inspectors to order the owner of sheep afflicted with certain diseases to cause the same to be dipped or otherwise treated, and when the owner fails to comply with such order he is subject to a fine which is made a lien upon the sheep. There is a further provision that the inspector shall then cause the sheep to be treated and the costs and expenses shall be charged against the sheep and made a lien thereon, which shall be collected in any court of competent jurisdiction.
A similar act was passed by the legislature of 1909 for the suppression of tuberculosis in cattle, which authorizes the owner of any animals found to be so infected to deliver them to the live-stock sanitary com- • missioner and to receive from him an order on the board of county commissioners of the county in which the diseased animals are located for fifty per cent of' the appraised value of such animals as if they had not been diseased, provided that no county shall recognize such order unless such animals have been owned in . the county at least 120 days prior to the time the tuberculin test was administered to them. (Laws 1909, ch. 169, Gen. Stat. 1909, §§ 9164-9171.)
It rests wholly with the legislature to determine-' whether in the exercise of its power of police regu lation the individual whose property is destroyed shall receive compensation therefor. In the statute of which •.appellant complains no such provision appears. Doubtless the legislature considered, what is most obvious, that no serious hardship is likely to result.to the owner of property through the enforcement of its provisions. No tree or shrub is to be destroyed until upon in.spection it is found to be so seriously infested with insect pests as to be of no practical value. On the other hand, if its condition is found to be such that it' ■ can be preserved by spraying or other treatment, and the owner, after due notice thereof, refuses to give it proper treatment, the state steps in and for the purpose of preventing the spread of the infestation administers the necessary treatment and frequently preserves the property from ultimate destruction. The ■ owner, by being compelled to pay the necessary expense incurred in the treatment and preservation of his property, is required to pay only what is justly due the state.
There is no force in the obj ection that the statute is repugnant to the fourteenth amendment. That clause of the federal constitution does not limit the subjects upon which the police power of the state may be exerted, .nor was it designed to interfere with the power of the state to enact laws for the preservation of the health, morals, peace, or welfare of the people. (Mugler v. Kansas, 123 U. S. 623, 31 L. Ed. 205; Minneapolis Railway Co. v. Beckwith, 129 U. S. 26, 32 L. Ed. 585; Prohibitory Amendment Cases, 24 Kan. 700.)
In Mugler v. Kansas, supra, it was contended that the state, by prohibiting, in its constitution and laws, the manufacture or sale of intoxicating liquors for general use as a beverage, deprived the citizen of his property in violation of the fourteenth amendment. The court held that a prohibition simply upon the use of property for purposes declared by the legislature to be injurious to the health, morals, or safety of the community “can not, in any just sense, be deemed a taking or an appropriation of property for the public benefit” (p. 668), for the reason that the owner is not disturbed in -the control or use of 'his property for lawful purposes nor restricted in his right to dispose of it, but-its use is forbidden only for certain purposes prejudicial to the public interests. The court, however, went much further and held that “the destruction, in the exercise of the police power of the state of property used, in violation of law, in maintaining a public nuisance, is not-a taking of property for public use, and does not deprive the owner of it without due process of law.” (Syl.) Upon this proposition the late Justice Harlan, in the opinion, used this language:
“Nor can legislation of that character come within the fourteenth amendment, in any ca.se, unless it is apparent that its real object is not to protect the community, or to promote the general well-being, but, under the guise of police regulation, to deprive the owner of his liberty and property, without due process of law. The power which the states have of prohibiting such use by individuals of their property as will be prejudicial to the health, the morals, or the safety of the public, is not — and, consistently with the existence and safety of organized society, can not be — burdened with the condition that the state must compensate such individual owners for pecuniary losses they may sustain, by reason of their not being permitted, by a noxious use of their property, to inflict injury upon the community. The exercise of the police power by the destruction of property which is itself a public nuisance, or the prohibition of its use in a particular way, whereby its value becomes depreciated,, is very different from taking property for public use, or from depriving a person of his property without due process of law. In the one case, a nuisance only is abated; in the other, unoffending property is taken away from an innocent holder.” (123 U. S. 669.) •
The statute is not invalid because it delegates to the commission the power to declare the existence of conditions which call into operation the provisions of the statute. The legislature of the state may declare that to be a nuisance which is detrimental to the health, morals, peace, or welfare of its citizens, and may confer power upon local boards or tribunals to exercise the police power of the state when in the j udgment of such tribunals the conditions exist which the legislature has declared constitute such nuisance. Similar power has. been conferred upon cities of the first class to remove certain nuisances, and to tax the costs of the proceedings upon the property where the nuisances are located. (Laws 1905, ch. 109, § 1, Gen. Stat. 1909, § 918.) Like-authority is conferred upon the live-stock sanitary commissioner to determine that domestic cattle or live stock are infested with certain contagious diseases. (Laws 1905, ch. 495, § 5, Gen. Stat. 1909, § 9136.)
“The legislature of the state may declare that a nuisance, which is such in fact, and may create a commission with power to determine whether the conditions defined by the act exist.” (Cooley, Const. Limitations, 7th ed., p. 882, note 1.)
In determining whether the conditions exist which the legislature declares constitute a nuisance, that is, whether a particular orchard, or some portion thereof, is so infested with insect pests as to require treatment or extermination, the commission exercises some discretion which is in a limited sense judicial, but no more so than the discretion generally exercised in the enforcement of police regulations. It is like the discretion exercised by inspectors of health, food, grain, milk, live stock, by the various state boards and commissions, and by city officers charged with the enforcement of police regulations, which, in order to be effective, often require prompt and summary execution, and which from their nature call for the exercise of more or less discretion in the officers whose duty it is to make them effective.
The same objection was urged against the act creating the board of railroad commissioners and acts supplementary thereto. It was held that although the' board is required to exercise judgment and discretion and to make orders for the regulation and control of railroads and other common carriers, the act does not confer upon the board either executive or judicial powers. (The State v. Railway Co., 76 Kan. 467, 92 Pac. 606.) To the same effect is Schaake v. Dolley, ante, p. 598, 118 Pac. 80, where it was held that the granting or refusing of an application for a bank charter by the charter board calls for the exercise of discretion, and that the act creating the board is not invalid because it provides that the board shall refuse a bank charter if upon examination it shall determine against the public necessity of the business in the community in which, it is sought to establish such bank. The statutes construed in both of the foregoing cases were passed by the legislature under the police power of the state. The precise question was before the. supreme court of California in County of Los Angeles v. Spencer, 126 Cal. 670, 59 Pac. 202, 77 Am. St. Rep. 217, where a statute almost identical with this was construed, and it was held that:
“A statute designed to protect and promote the horticultural interests of the state, which declares that all places, orchards, etc., infected with the pests mentioned in the statute are public nuisances, and which act is a proper exercise of the police power, is not unconstitutional on the ground that it confers judicial powers upon the horticultural commissioners, where a commissioner, in determining whether any particular place is a nuisance, must necessarily exercise some discretion which, in a strict sense, is judicial in its nature.” (77 Am. St. Rep., heádnote.)
Nor is the act invalid because no procedure or method is provided by which the owner may contest the necessity for the destruction of his property. The exigencies of the situation and the conditions which the legislature had in mind require prompt and summary action. The fruit industry of a large portion of the state might be jeopardized by delays resulting from almost any method or procedure which could be devised by which the owner could have a hearing as to the necessity for the destruction of his property. If his orchard is infested with the dangerous pests which the statute was designed to exterminate, the legislature declares the condition to constitute a nuisance which the interests of the state require shall be abated promptly and summarily. In order that private property might not be liable to destruction under the provisions of the statute, except where the-conditions actually exist, the legislature provided that the commission shall be composed of persons possessing a scientific .and practical ■knowledge of horticulture. • And when those persons have determined that an orchard, or some portion of it, is infested with such insect pests it would seem that the question is one about which there could be little room for reasonable minds to differ. Under the police power the legislature may, when necessary, authorize the seizure and confiscation or destruction of private property without previous notice to the owner. (Blair & Hutchinson & Smith v. Forehand, 100 Mass. 136.)
It is urged that the act is unconstitutional because it authorizes the cost of the proceeding to be charged against the property of the owner without notice to him or opportunity to question the amount thereof. The act, however, requires notice in writing to be served upon the owner, stating the amount of expense incurred by the commission and notifying him that unless the same be paid within twenty days the same will be taxed against his property. He therefore has notice before any lien is created upon his property, and before it can be taken or sold. Having this notice, he is relegated to his common-law remedies. If he believes the amount charged is greater than it should be, he has ample time to determine what is the proper charge, tender the same to the county clerk, and enjoin in any court of competent jurisdiction the collection of a greater amount. It has been held by the supreme court of the United States that the phrase “due process of law” does. not necessarily mean a judicial proceeding. (McMillen v. Anderson, 95 U. S. 87, 41.) On the other hand, it does not necessarily mean a special tribunal created for the express purpose of hearing the merits of the particular controversy. Where ample notice is provided which gives to the property owner an opportunity to have a hearing in any court of competent jurisdiction before his property is affected he is afforded due process of law.
But we do not regard the cost of the proceedings as. a tax, although the act refers to it as a tax to “be collected as other taxes are collected.” It is merely the-expense of abating a nuisance, and there are various ways which the legislature might have adopted for its. collection. They might have provided for its collection by an action against the owner, after his neglect or refusal, upon due noticé, to ábate the nuisance, following ■ the method provided for collecting the cost and expenses of inspecting and treating diseased sheep (Laws-1883, ch. 144, § 4, Gen. Stat. 1909, § 9097) ; or, the method prescribed where infected cattle are taken by order of the live-stock sanitary commissioner under section 9136 of the General Statutes of 1909, which provides that all the costs and expenses of taking,-holding■ and caring for such animals shall be paid by the owner, and if not so paid, the animals shall be advertised and sold in the same manner as personal property on execution.
Instead of adopting either of these methods the legislature provided that the cost of abating the nuisance-should be paid by the owner of the property, and in default of such payment the board of county commission- - ers should pay it, so that the work of the commission should not be delayed; and then gave the county a lien upon the real estate for the indebtedness due it from, the owner and authorized the county to enforce such lien by the method employed in the levying and collect ing of taxes. The California statute gives to the county a lien upon the real estate for the expenses incurred and provides for its enforcement by an ordinary action. It was held that the lien is not for a delinquent tax but merely for an indebtedness due to the county. (County of Los Angeles v. Spencer, 126 Cal. 670, 59 Pac. 202.)
Since the expense incurred by the commission is not a tax the act is not repugnant to the provision of the constitution which requires a uniform and equal rate of assessment and taxation.
The act being constitutional and valid, the court properly denied the appellant the relief prayed for, and the appellees were entitled to a permanent injunction against his interfering with the execution of the law.
The judgment is affirmed.
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Per Curiam:
The only question in this appeal is whether a verdict should have been set aside on the ground that it was a “quotient” verdict. One juryman testified that the result was reached “by adding the sums named by the respective jurors, and then by dividing the sum total by twelve,” in pursuance to a previous agreement that the sum so arrived at should be their verdict, and which sum was accordingly returned as such. Two jurors testified that the jury first took a ballot to see if they would arrive at their verdict by addition and division, but that after the quotient was found another ballot was taken to determine whether that sum should be returned as their verdict, and that the process was “simply . . . for the purpose of seeing if we could not come closer together on thé amount, as there was a great variance as to the amount that the plaintiff would be entitled to, and we never agreed beforehand that we would arrive at our verdict in that way.”
The plaintiff’s evidence brought the case within the rule stated in City of Kinsley v. Morse, 40 Kan. 588, and the conflict of evidence having been resolved in his favor the judgment is affirmed.
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The opinion of the court was delivered by
Mason, J.:
In 1899 a general fee-and-salary act was passed which provided (Laws 1899, ch. 141, § 8; see Gen. Stat. 1909, § 8663), that clerks of the district court should charge and collect certain fees for their services; that if in any case the fees charged should amount to less than $500 a year, the county commissioners should allow a sum which in addition to the fees should not exceed $500, or, in counties of less than 2000 population, $350; that the clerks should retain all fees collected up to an amount dependent upon the popula tion, and one-half of any excess, paying the other half to the county treasurer. This stated amount, for counties having from 3000 to 10,000 inhabitants, was fixed at $900. The population of Edwards county was then, and has ever since been, between those limits.
In 1905 a special act was passed (Laws 1905, ch. 233, repealed by Laws 1911, c^i. 195) entitled “An act regulating the fees of the district clerk of Edwards county, Kansas,” reading as follows:
“The district clerk of Edwards county, Kansas, shall be allowed to retain out of the fees of his office such fees to the extent of six hundred dollars per annum, and when in any quarter the said fees amount to less than one hundred and fifty dollars, the board of county commissioners of said county shall pay to said clerk the difference between the fees collected and the said sum of one hundred and fifty dollars, as the salaries of other county officers are paid.”
In 1909 the section of the general act of 1899 which related to clerks of the district court was amended, and, as an incident to the amendment, reenacted in full. No material change was made, except by the addition of a provision that “in all counties having a population of less than 25,000, if the fees collected for any quarter ending March 31, June 30, September 30 or December 31 shall amount to less than one-fourth the amount of such per annum maximum, then the board of county commissioners shall allow and pay the clerk of the district court in such county a sum which in addition to said fees shall make the amount of such maximum for said quarter, and the fees remaining charged and uncollected at the end of such quarter, when collected, shall be turned into and become a portion of the general fund of the county.” (Laws 1909, ch. 140.)
H. J. Wilson was clerk of the district court of Edwards county in 1909. He. claimed that the commissioners should allow him such sum as added to his fees would give him a total compensation at the rate of $900 a year, according to the terms of the general law of 1909. The commissioners claimed that the special act of 1905 controlled and that his compensation was limited thereby to $600 a year. The controversy was submitted upon an agreed statement and a judgment was rendered in favor of the plaintiff. The county appeals.
A local act will ordinarily prevail over a subsequent general act in terms covering the same matter. This rule is one of construction and its value is as an aid to ascertaining the true legislative intent. (36 Cyc. 1087-1090.) It must, however, control here unless the circumstances indicate a purpose to supersede the special act. By the statute of 1899 the district clerk in Edwards county, so long as the population remained between 3000 and 10,000, was entitled to retain fees up to $900 a year; but however small his income from that source, the county could give him no relief beyond adding enough to bring his compensation up to $500. A number of special acts passed in 1901, 1903 and 1905 favored the clerks of certain district courts by requiring the counties to make them such allowances as should be necessary to bring their compensation up to a fixed sum. For instance, the clerk of the district court of Ottawa county was thus guaranteed compensation up to $800 a year, the general statute still entitling ■him to retain fees up to $1000 if such an amount should be collected. (Laws 1905, ch. 252.) If the special act under consideration had been of the same character, and had merely provided that the district clerk of Edwards county should be paid enough to insure him $600 a year, he would probably be entitled to the benefit of the amendment of 1909 in effect guaranteeing to district clerks the collection of fees up to the amount they were entitled to retain under the general law. But the special act went beyond this. It took Edwards county out of the operation of the general statute fixing the maximum amount of fees to be retained, as regulated by population, and established such maximum amount at $600, irrespective of the number of inhabitants. The statute of 1909 made no change whatever with regard to the amount of fees that were to be retained by district clerks; it merely reenacted the old schedule, which, because of the special act, no longer affected Edwards county. This schedule, being the same in both acts, is deemed to have been in force' all the time, and not to be a new enactment. (Gen. Stat. 1868, ch. 104, § 1, subdiv. 1, Gen. Stat. 1909, § 9037, subdiv. 1.) “An act which limits the operation of an earlier one is not repealed by implication by a reenactment of the original statute, incidental to its amendment in some other respect, but continues in force as a limitation upon the amended statute.” (The State v. Kansas City, 83 Kan. 431, syl. ¶ 1; see, also, to the same effect, 36 Cyc. 1084.) The only new matter in the 1909 law was the provision requiring that (in counties of less than 25,000 population) the district clerks should be guaranteed an income equal to the maximum amount of fees they were allowed to retain. It did not purport to change the amount of the statutory maximum in any case. The general purpose was apparent of treating clerks of the district courts with greater liberality, but only by insuring them compensation up to the amount of fees they were authorized to retain. The legislature had already, at a time when it had unquestioned authority to do so, established a special maximum of $600 in the case of Edwards county, and no purpose to change this being shown the plaintiff must abide by it.
The judgment is therefore reversed and a judgment for the defendant ordered.
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The opinion of the court was delivered by
West, J.:
The Reversible Self-sharpening Plowshare Company, owning a patent on the invention indicated, sold Sparks an agency for the sale of territory. Sparks was to sell the exclusive right to vend the patented article in certain counties in Oklahoma and Indian Territory, his vendees to purchase the plowshares of the company at a sum not exceeding three dollars each. He was to have eighty dollars for each county sold and was to sell twenty counties within one year. It was expressly stated in the contract of agency that it was not intended to vest Sparks or any customer of his with any interest in the patent, but only to authorize the exclusive right to sell the invention. As part consideration for the agency Sparks executed to Stewart, a member of the company, four notes for $500 each, due in six, twelve, eighteen and twenty-four months, respectively, each having printed on its face the words “given for a patent right.” Bolte, another member of the company, sold his interest to Stewart, receiving therefor the Sparks notes, and finding a chance to trade for certain real estate, the owner of which did not desire notes which showed that they were given for a patent right, induced Sparks to take back the four notes and give him in lieu thereof the four ordinary notes sued on. The defense was that the new notes were in reality given for an interest in a patent right and were void for failure so to state. A jury being waived, the court found for the plaintiff and entered judgment upon the notes. The defendants appeal.
It is urged that the new notes, being taken in place of the old ones and really for the-same consideration, are void under the act relating to patent rights. (Laws 1889, ch. 182, §§ 1-8, Gen. Stat. 1909, §§ 5515-5517.) On the other hand, it is insisted that no interest in the patent passed by the contract with Sparks, but that a mere agency was thereby created, and, further, that the surrender of the old notes was the consideration for the new ones, and therefore they are valid.
Section 5515 of the General Statutes of 1909 makes it unlawful for any person to sell or offer to sell or barter any patent right or any right which such person shall allege to be a patent right without filing with the clerk of the district court copies of the letters patent duly authenticated. Section 5516 requires any person taking any obligation in writing “for which any patent right or right claimed by him or her to be a patent right, shall form a whole or any part of the consideration,” to insert the words “given for a patent right.” Violation of these provisions is by section 5517 made a misdemeanor. The parties to the original notes recognized the applicability of the statutes by inserting the required words. While the contract contains the provisions that “it is not intended hereby to vest in the party of the second part, or for the party of the second part to be authorized to vest in any other person, firm or corporation any interest in the patent hereinbefore referred to, but only to authorize and empower the party of the second part, as the agent of the parties of the first part, to sell unto other persons, firms and corporations the exclusive right in one or more of the counties in the territory hereinbefore mentioned to sell to dealers or consumers” still, other portions vest in the agent the exclusive right and authority to sell territory for the patented invention which is to be manufactured by the company and sold by it at a sum not to exceed three dollars for each plowshare. The instrument in fact vests the exclusive right to sell territory at so much a county, the purchaser to have the exclusive right to sell the plowshares in a given county after they have been purchased of the company. In Pinney v. Bank, 68 Kan. 228, it was held that a sale of the exclusive right to manufacture, use and sell a patented invention in a given territory carries with it an interest in the patent right itself. In Nyhart v. Kubach, 76 Kan. 154, it was held that a sale of the exclusive right to sell the patented article within a certain territory is a sale of an interest in the patent right. It was there said:
“It is universally recognized, however, that a sale of the rights conferred by the letters patent within a certain territory is.a sale of a patent right.” (p. 157.)
In Tredick v. Walters, 81 Kan. 828, a similar ruling was made with reference to the sale of the exclusive right to sell for a certain time in a definite territory a mold or molds designed expressly and only to be used for the manufacture of the patented article. At page 835 it was said:
“The right to manufacture, sell and use a patented article is the very essence of the intangible thing called a patent.”
The reason for this ruling is that letters patent are evidence that the government, for the purpose of encouraging inventions, has for a time certain granted to the inventor a monopoly. (30 Cyc. 815-817.) This monopoly consists of the exclusive right to manufacture, use and sell the patented invention, and whenever the patentee parts with any portion of this monopoly he necessarily disposes of an interest in his patent. The right to sell is as exclusive .as the right to manufacture, and after vesting Sparks and his customers with the exclusive right to sell the plowshare in a given county the holder of the patent no longer had a complete monopoly of the manufacture and sale of the invention; and, of course, the company could not vest this interest in the patent — the monopoly— and at the same time retain it. The quoted words of the contract concerning the intention indicate a fruitless attempt to avoid or evade the statute, although strangely enough, the very notes taken contained the required words. Sparks was not employed as an agent to sell the plowshares; he was given an exclusive agency to sell to others the exclusive right to sell them in certain territories.
It is argued that since we first adopted and followed the construction given by the supreme court of Indiana to a statute similar in terms, a different view has been taken by that court, as shown in Hankey v. Downey, 116 Ind. 118. But this decision marks no departure from former decisions; it simply holds that a note given for the mere purchase of a patented article need not contain the words “given for a patent right,” the court reaffirming its former expressions that when given for an interest in the patent right the note must contain these words. Had Sparks purchased a plowshare of the company or of some agent or customer authorized to sell, and given his note therefor, it would not have been necessary to include these words, for there is a manifest distinction between the manufactured article itself and a monopoly of the right to manufacture, use or sell it. The evident purpose of the statute is to protect those who are asked to accept notes given for patents by having such notes carry with them the evidence, of this fact, but it is as clearly not the intention to burden in this way each sale of a patented article, if, indeed, the legislature could do so.
The proposition that the surrender of the old notes, and not an interest in the patent right, formed the consideration for the new notes is too tenuous and transparent to warrant extended consideration. Bolte sold an interest in the patent and received therefor the notes which had been given for another interest in the same patent; then instead of inducing Sparks to erase the significant words from the old notes he procured him to exchange for them the new notes freed from such words, so that the owner of the desired real estate would accept them. The surrender of the old notes was not the consideration, but was simply one item in the program of mutual courtesy by which Stewart, Sparks and Bolte were attempting to supersede paper scarred by a statutory birthmark with notes possessing a fair skin. Bolte acted with full knowledge, and if this plan could succeed then the only thing necessary to render the statute futile would be for the seller of a patent right to exchange the lawful note received for one unmarked by the required statutory verbiage. The law can not be thus trifled with. Counsel say in their brief: “Appellee had no knowledge of the contract of Stewart and appellant.” But the appellee, Bolte, testified, as shown by the abstract, that he wrote the notes sued on, that he was a member of the company, that he sold his interest to Stewart and took from him the notes given by Sparks, and that when he obtained the Sparks notes from Stewart he knew that Sparks had given them as part payment for an interest in the patent right. The case of Russell v. Gregg, 49 Kan. 89, is cited, but that was a case of alleged failure of consideration, followed by a compromise, and the giving of a new note for a much smaller amount — j-in effect a case of accord and satisfaction, no question under the patent statute being raised or in anywise involved.
The judgment is reversed and the cause is remanded with directions to enter judgment in favor of the defendants.
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The opinion of the court was delivered by
Benson, J.:
The appellant, A. A. Truskett, was convicted of murder in the second degree, in killing J. D. S. Neely, at Caney, on January 7, 1911. The grounds of appeal are: that the information was defective; that a motion for a continuance was improperly refused; that several jurors were incompetent; and that erroneous, rulings were made respecting evidence and in giving and refusing instructions.
The information was direct and certain, and the offense was clearly charged as required by the criminal code. (Crim. Code, §§ 104, 109.) The criticism is that it was not charged in the information that a mortal wound was inflicted upon the deceased. As the information, in ample form, charged that the appellant shot and killed the deceased with a pistol, it seems a wound was inevitable — a shot that kills, in the ordinary course of events, must wound. It is true that in many of the time-honored forms of indictment the infliction of a mortal wound is set out, and it may be that some courts have held the omission of such an allegation fatal, but our statute provides simple rules which fully protect the rights of the accused without needlessly encumber ing the record with useless repetition and verbiage. A person who is plainly charged with willful, deliberate and premeditated murder by shooting another with a revolver can not fail to understand the nature of the charge whereof he is accused.
The jurors were examined at length respecting opinions and prejudices. They had read newspaper reports such as are usually published in cases of homicide. As ordinarily happens, apparently contradictory answers were given in some instances. From some of the answers settled opinions respecting the issue of guilt or innocence appeared, but' further examination revealed that no fixed opinions had been formed, and only such impressions were made as are usually incidental to such reading, without leaving any real conviction on the subject. The court patiently endeavored, through examination by counsel and by an occasional question from the bench, to ascertain whether a challenged juror was really disqualified because of his opinions upon the issue. This subject has been recently considered in The State v. Stewart, ante, p. 404, 116 Pac. 489. Within the principles stated in the opinion in that case, the court did not err in overruling the challenges. It should be observed that the fact of killing was not controverted on the trial, and so a belief that the appellant had killed the deceased was unimportant .unless there was’ a settled opinion that the killing was criminal.
The appellant asked for a continuance to procure the testimony of three witnesses, two of whom, however, appeared at the trial. The proposed testimony of the other witness related to a matter remotely material, as tending to show the appellant’s state of mind at a particular time, but there was nothing to show that the fact could not be proven by other witnesses, and the history of the transaction of which this was a comparatively unimportant part was given by other testimony upon the trial.
■ A more serious question arises upon exceptions to instructions given and refused, and this requires a brief statement of the facts. The appellant is a resident of Caney, and was sixty-three years old at the time of the homicide. In a joint venture with his nephew, he had purchased in the spring of 1910 an oil lease upon lands in Oklahoma, near Caney, belonging to an Indian owner who was a minor at the time, but upon whom the rights of majority had been conferred by an Oklahoma court. The Indian agreed to make other papers, if necessary, when he became of age. Previous to this lease — which was made to one Overfield, and assigned to the Trusketts — another lease had been made by a guardian to the Lenox Oil & Gas Company, which by its terms expired on September 24, 1910. The Indian owner became of age on September 26, 1910. There was testimony tending to show that some time in April, 1910, a person in the employment of the Wichita Natural Gas Company induced the Indian owner to leave his home in Oklahoma and go with him on a roving trip through several states, stopping for brief periods in various cities, visiting places of resort and amusement; that they returned to Oklahoma on September 25, and the Indian owner conveyed the land by warranty deed to another person, for the use of the gas company, on the next day, being then of full age. In the meantime, about September 15, the guardian of the Indian had made another lease to one Closser, for the benefit of the Wichita Natural Gas Company, without consideration, to enable that company to keep possession until a suit could be filed. The appellant was advised by his attorney that the statute allowing the rights of majority to be conferred by the court did not apply to Indian allotments, and he became anxious about his title to the lease. When the original guardian’s lease expired he appeared on the ground to take possession, but found there a large number of men, some of whom were armed, who refused to allow him to take possession, and who, as appellant was informed and believed, were holding possession for the Wichita Natural Gas Company. The appellant commenced an action in an Oklahoma court to restrain the gas company and others from obstructing him in taking possession, and Closser commenced an action in a federal court to restrain appellant from interfering with his possession.
Mr. Neely was about sixty-one years of age, and resided in Ohio. He was president of the Wichita Natural Gas Company, and was in the habit of visitingCaney and vicinity occasionally, and when there stayed at the Palace hotel. He left his home soon after January 1, 1911, and after spending a short time in the vicinity reached the Palace hotel on January 6, and' remained there over night. Early in the morning of January 7 the appellant called at the hotel and inquired, if Mr. Neely was there, and asked how long he would stay, and was informed by one of the proprietors that he would stay three or four days. He remained in the office, and was walking about when Mr. Neely came downstairs, a little before seven o’clock. Mr. Neely read a letter, and then went out through a rear door and passed along a walk to a detached water-closet. The appellant then left the office through a front door and passed along a walk leading around a part of the building to the rear walk and on into the closet. Very soon two shots were heard in quick succession, and Mr. Neelywas seen coming out of the closet holding his side and exclaiming, “Oh! oh! oh!” and was soon followed by-the appellant, holding a revolver in his hand, who proceeded along the walk to the front of the hotel. Mr. Neely' fell before reaching the door of the hotel out of which he had come, and soon after expired. One bullet entered- the breast and passed through the heart and out below the right- armpit. The other entered the abdomen and lodged in the tissues below the point of exit of the upper bullet. The appellant was next seen at his nephew’s store about a block distant, when he said, “I have shot Neely. I had to do it. Where is Will?” Immediately in front of the door of the closet was a. urinal, and a hall along the side opened into three compartments. The movements of the two men to and from the closet were seen by witnesses, who also heard the shots. There was no eyewitness of the shooting or • of the relative position or action of the parties at that. time, and no testimony of any conversation or of any statements made by either of them. The time between the shooting and the statement of the appellant, just, related, is uncertain, but only a short time, possibly a few minutes, intervened. There was a window at each end of the hall in the water-closet, which closet was thirteen feet long. At the time of the shooting the light in the closet was probably dim.
The hotel was on the road leading from the appellant’s home to the railway station. When appellant came to the hotel that morning he stated that he had got up early to take the morning train for Bartlesville, but had mis*sed it. (It was due to leave at 6:33 A. M.) His attorney, with whom he had frequently consulted concerning the lease, and who represented him in the-suits relating to it, resided at Bartlesville. Counsel for appellant stated in his opening address to the jury, in substance, that when his client went to the closet he did not know of Neely’s presence there, but on seeing him, having a settlement of the litigation on his mind, said: “I want to see you after a while, when you get time, and see if we can not do something toward settling our • difficulties; I would like to see you about it”; and that Mr. Neely responded: “You can see me right now,” and started toward him with one hand at his hip and the other in front of him; and that thereupon the appellant said, “Stop! stop!” but Neely still coming on, he shot him in self-defense, believing that his life was in imminent danger. It was also claimed by the defense that the appellant, being in poor physical health and worried over his troubles, was insane at the time and not responsible for his act. Evidence was adduced tending- to show the matters concerning the leases, the failure to get possession, the spiriting away of the Indian owner of the land, his subsequent conveyance of the title, and the resulting litigation. Also, that appellant had been recently enfeebled by disease and was anxious and worried over the business matters referred to. This evidence was allowed, as bearing upon the condition of his mind and the question of his sanity. Several witnesses having an opportunity to observe testified that they believed that he was not of sound mind. On the other hand, witnesses for the state testified that in their opinion he was of sound mind.
The court submitted to the jury by proper instructions the question whether the appellant was insane at the time the killing was done, but refused to give instructions concerning justifiable homicide, and failed to instruct them concerning manslaughter.
Evidence was given tending to prove that the deceased was strong in character, persistent in overcoming obstacles and quick in action, and that it was his habit in talking to put his hands to his hips, or of putting one hand to one of his hips. In rebuttal the state was allowed, over the appellant’s objection, to give evidence that the general reputation of the deceased was that of a good, peaceable, quiet, honorable, upright and law-abiding citizen.
The appellant requested instructions concerning the right of self-defense, which were refused, and the court instructed the jury that no evidence had been offered in support of the statements made by the attorney for the appellant in his opening address of a conversation in the closet and the threatening attitude of the deceased, and added:
“No evidence whatever has been offered or presented here, showing such an occurrence, or any threat, or attack, or assault, or threatened assault of any kind or character upon the defendant, Truskett, by John D. S. Neely, thát would justify the killing of said John D. S. • Neely by the defendant, Truskett, and you are in structed to entirely disregard such unsupported statement of counsel.”
It was proper to call attention to the fact that the statement of counsel made with such particularity of ■detail was not to be considered as evidence, but the language used, when considered in connection with the refusal to submit the question- of self-defense to the jury, and the failure to instruct concerning manslaughter, in effect withdrew the consideration of the matter of self-defense from the jury, leavinguthem only to find whether the appellant was insane, and if not, ■ then whether the killing was murder in the first or in the second degree.
Where a question is purely one of law, although arising in a criminal case, it is exclusively for the court. (The State v. Bowen, 16 Kan. 475.) But the rule, subject to some exceptions not involved in this case, is that questions of fact are exclusively for the jury. As stated in the opinion in The State v. Jackson, 42 Kan. 384, 22 Pac. 427:
“In criminal cases it is never competent for the court to take a question of fact away from the jury and to decide it itself. Of course a necessary fact may in some cases not be a question of fact, for the fact itself might be admitted by the parties, or it might not be disputed, and the entire and uncontradicted evidence in the case might clearly, unquestionably, conclusively and directly prove the same.” (p. 386.)
In this case it was primarily a question of fact whether the appellant shot Neely; however, that was not a question for the jury, for the shooting was admitted in the opening statement, but it was a question whether the shooting was done maliciously or whether it was done in self-defense. Aside from his own declaration made soon after the occurrence, the circumstances, conversation or statements, if any, attitude, manner and conduct of the parties could only be determined from the outward circumstances, for there were no eyewitnesses to the tragedy. What transpired within the closet is entirely a matter of inference, not of law but of fact.
“Presumptions of.fact are questions .of fact. 'They are merely the major' premises of those inferences which juries are at liberty to draw, in the light of their experience as men of the world, from facts directly proved. Another judge long ago said: ‘A presumption of any fact is properly an inferring of that fact from other facts that are known; it is an act of reasoning.’ It is in the nature of a logical inference or argument. It is, says another writer, ‘a logical argument from a fact to' a fact; or, as the distinction is sometimes put, it is an argument which infers a fact otherwise doubtful from a fact which is proved.’ ” (1 Ell. Ev. § 81.)
Professor Thayer says:
“That this determination by the jury involves a process of reasoning, of judgment and inference, makes no difference; for'it is the office of jurors ‘to adjudge upon their evidence concerning matter of fact, and thereupon to give their verdict; and not to leave matter of evidence to the court to adjudge, which does not belong to-them.’ ” (Thayer, Prel. Treatise on Ev. at the Common Law, p. 189.)
In The State v. Smith, 13 Kan. 274, this court in reviewing an instruction which informed the jury that, the law presumes an illegal conversion from certain facts, said:
“Ordinarily, a jury might well draw such an inference from such facts; but the court below says in effect, that they are compelled to draw such an inference, and this, in our opinion, is an unauthorized assumption by the court of a duty that belonged exclusively to the' jury.” (p. 298.)
This rule is also applied in the consideration of a demurrer to the evidence, for it is the province of the-jury not only to consider the facts directly proven but inferences from such facts. (Brown, Adm’r, v. A. T. & S. F. Rld. Co., 31 Kan. 1, 1 Pac. 605.) The jury are' not only to consider the various acts constituting what Wigmore calls “the outward part of a crime,” but such inferences therefrom as reason, common sense, and ordinary observation and experience may lead them to deduce. Wigmore, in speaking of presumptions as related to the burden of proof, says:
■ “The various acts constituting the outward part of a crime are sometimes said to constitute a presumption Gf malice or criminal intent. But most of these instances are to-day understood to be either ‘conclusive presumptions,’ i. e., rules of substantive law defining the criminal act, or else mere inferences of fact not affecting the accused with a duty to produce evidence.” (4 Wig. Ev. § 2511b.)
Courts have sometimes fallen into the error of laying down as imperative presumptions of law, propositions which are only permissive inferences. (1 Ell. Ev. § 83; 4 Wig. Ev. §§ 2490, 2491.) This subject was treated by the supreme court of Michigan in a case concerning the effect of evidence of good character to rebut the presumption .of malice from certain facts. It was said by Chief Justice Cooley in the opinion:
“The difficulty at this point lies in attempting to surround the jury with arbitrary rules as to the weight they shall allow to evidence which has properly been placed before them. This court has several times found it necessary to declare that no such arbitrary rules are admissible. We refer particularly to the cases of People v. Jenness, 5 Mich. 305; Maher v. People, 10 id. 212, and Durant v. People, 13 id. 351. The trial of criminal cases is by a jury of the country, and not by the court. The jurors, and they alone, are to judge of the facts, and weigh the evidence. The law has established this tribunal because it is believed that, from its numbers, the mode of their selection, and the fact that the jurors come from all classes of society, they are better calculated to judge of motives, weigh probabilities, and take what may be called a common-sense view of a set of circumstances, involving both act and intent, than any single man, however pure, wise and eminent he may be. This is the theory of the law; and as applied to criminal accusations, it is eminently wise, and favorable alike to liberty and to justice. But to give it full effect, the jury must be left to weigh the evidence, and to examine the alleged-motives by their own tests. They can not properly be furnished for this purpose with balances which leave them no discretion, but which, under certain circumstances, will compel them to find a malicious intent when they can not conscientiously say they believe such an intent to exist.” (The People v. Garbutt, 17 Mich. 9, 27.)
The rule that inferences from the direct or outward facts attending an alleged crime, where there is no eyewitness of the occurrence, are for the jury, has been applied in Kentucky in several cases of homicide, and it was held that in such a situation the jury must be allowed to determine whether the killing was excusable, justifiable or felonious, as the character of the act, whether criminal or justifiable, must be inferred as a fact from the outward circumstances. In Rachford v. Commonwealth, 16 Ky. Law Rep. 411, 28 S. W. 499, the court said:
“How can it be said that the jury are the sole judges of the facts if the law leaves them to conclude only that the accused committed the homicide with malice aforethought? Ordinarily, the instructions must conform to the proof, and be suggested by the proof; but, where there is none showing the facts attending the killing, the law applicable to murder, manslaughter, and self-defense must-be given.” f
In another case the court said:
“No one saw, or professed to have seen, both the deceased and the appellant at the moment when the shooting was done, or for some moments before. . . . In that case the facts attending the killing must be ascertained wholly from circumstances.
“The homicide may then have been excusable self-defense, manslaughter, or murder. The facts attending the killing must be ascertained in order to ascertain to .which category the killing belongs. It is the province of the jury to ascertain these facts, and the court erred in refusing to instruct in the law of manslaughter. In doing so the court took upon itself to decide that no facts existed which could reduce the killing to manslaughter. That action, as stated by the learned judge, was based on the ground that there was no evidence whatever ‘going to show that the killing was done in sudden heat and passion,’ and therefore an instruction as to the law of manslaughter would be abstract and misleading.
“The same reasoning would equally apply to an instruction in regard to the law of self-defense, and the instruction given on that subject might have been refused with equal propriety. If the jury had a right from the circumstances in evidence before them to inquire whether the killing was done in self-defense, they had an equal right to inquire whether it was not done under circumstances which made it manslaughter.
“When no witness introduced on the trial saw the homicide committed, or saw the parties after they met on the occasion when the killing occurred, the law applicable to murder, manslaughter and self-defense should be given, in order to meet any state of fact the jury may find, from the circumstances in evidence, to have existed.” (Rutherford v. Commonwealth, 76 Ky. 608, 611.)
In a later case, reviewing those just cited and others in that state, the court of appeals of Kentucky affirmed the principle declared in the previous cases. The body of the victim — a woman- — bore marks of fatal violence, and the ground, bushes, and grass bore evidence of a struggle. The accused made a statement to the sheriff that he had killed her, but that he had to do it. Evidence was also given of the imprint of a shoe going in the direction of appellant’s home from a place near where the body was found. The accused did not testify. The court, referring to the admission of the accused, held that it must be considered, in connection with the accompanying declaration that he had to do it, and passing to the alleged error upon the refusal to instruct concerning the right of self-defense, said:
“It is most forcibly urged (that the victim) , was a defenseless woman, and the accused a strong, able-bodied man, still there can be no question but what he would have been entitled to an instruction authorizing his acquittal if the jury believed that he acted in his necessary, or to him apparently necessary, self- defense. The fact that he offered no evidence in his own behalf can not be allowed to militate against him. If the facts which the commonwealth brought out in evidence showed that by any possibility the killing might have been done by accused in self-defense, then he was entitled to have that phase of the law presented to the jury. . . . Inasmuch as the appearance of the ground shows that there had been a struggle, and accused is alleged to have said that he did the killing because he had to, it is possible that it might 'have been done in self-defense, and, if possible that it might have been so done, then the jury should have been instructed accordingly.” (Frazier v. Commonwealth, [Ky. 1908] 114 S. W. 268, 269.)
It is true that in the above quotation some weight is given to the indications of a struggle, for there a knife had been used upon the victim and wounds as if made by a stone were found upon her head, and that a struggle had occurred seemed probable, but where only a gun is used a previous struggle is not a usual accompaniment, and in such a case the principle decided is applicable apart from the indications of a .struggle. Conceding that the statement made by the appellant immediately after the homicide, that he had shot Neely and that he had to do it, was not part of the res gestse, and was therefore admissible, as the court ruled, only as bearing upon his mental condition, still it must be remembered that substantially the same statement was made to the sheriff in the afternoon, as testified to by that officer as a witness for the state. It is true that part of the remark was self-serving, but it was a part of one statement, offered we must presume •as an admission tending to prove guilt, and must be considered as a whole and its effect left to the jury. (The State v. Brown, 21 Kan. 88; Johnson v. Powers, 40 Vt. 611, 612.) It is true the jury might have believed the first part and rejected the last part of the statement, but it was their province to do so and not that of the court.
The statutes of this state carefully limit the function of the court, reserving to the jury the exclusive right to decide the facts. Section 236 of the criminal code provides:
“If he [the judge] presents the facts of the case, he must inform the jury that they are the exclusive judges of all questions of fact.”
In Carl Horne v. The State of Kansas, 1 Kan. 42, an instruction which referred to the homicide as “this murder” was held erroneous. The court said:
“If it be considered as presenting the facts, or suggesting a conclusion from facts, it is equally error. If the first, it is error because the jury were not informed that they were the exclusive judges of the facts. If the second, it is error because it was intimating a conclusion from facts, which is the special and exclusive province of the jury.” (p. 74.)
While in this case the jury were properly informed that they were the exclusive judges of the facts, stilí the decision that there was no evidence of self-defense for the jury to consider was a conclusion from outward circumstances which, as held in that case, was the exclusive province of the jury.
In The State v. Moore, 67 Kan. 620, 73. Pac. 905, the defendant contended that a conviction of murder in the second degree should not be upheld because the facts warranted only an acquittal, the jury by their verdict having found that he was not guilty of murder in the first degree, but the court said:
“The evidence in the case was wholly circumstantial. No one saw. the deed who could be used as a witness by the state, and in finding a verdict the jury were confined to an interpretation of the dumb memorials outraged nature herself preserved. This court is not prepared to say that a state of facts could not exist under the evidence involving purpose and malice but •excluding deliberation and premeditation. There may have been a quarrel and the larceny may have been an •afterthought.” (p. 626.)
The same principle applies here; no one having seen the deed, inferences from the memorials and outward circumstances were for the jury. This principle that inferences of fact are for the jury was applied in The State v. Clark, 69 Kan. 576, 77 Pac. 287. It was stated that:
“The effect of the instructions given was a ruling by the court that the circumstances of the homicide confined the offense to a willful, deliberate and premeditated killing, which is murder in the first degree, or to a murder done purposely and maliciously, but without deliberation and premeditation, which is murder in, the second degree.” (p. 581.)
Commenting on the evidence, it was held in that case that the jury should not have been precluded from finding a lesser degree. The following excerpt was included in the opinion:
“On the trial of a person indicted for murder, although the evidence may appear to the court to be simply overwhelming to show that the killing was in fact murder, and hot manslaughter or an act performed in self-defense; yet, so long as there is evidence relevant, to the issue of manslaughter, its credibility and force are for the jury, and can not be matter of law for the decision of the court. (Stevenson v. United States, 162 U. S. 313, syl.) ” (69 Kan. 584.)
The same rule should apply to justifiable homicide, or self-defense, as to the lesser degrees, and was so applied by this court (The State v. Demming, 79 Kan. 526, 100 Pac. 285), where it was contended that the admitted facts compelled an acquittal. It was there said:
“But the question whether under all the circumstances the defendant was justified in shooting 'him was clearly one for the determination of the jury. . . . Although the testimony was largely undisputed, the guilt or innocence of the defendant depended upon the inferences to be drawn from it, and these inferences were for the jury.” (p. 527.)
The language of Chief Justice Johnston in The State v. McAnarney, 70 Kan. 679, 79 Pac. 137, is pertinent here:
“Since there was no direct evidence as to the facts attending the killing, the court can not assume to decide what the facts are. The manner of the killing and the purpose of the defendant at the time are necessarily questions for the jury.” (p. 687.)
It is not decided that the court may not in a proper case, where the direct facts showing the commission of a crime are given in evidence by those who witnessed the occurrence, state to the jury that there, is no evidence to sustain a particular issue. But where there is no eyewitness of the killing and the evidence is wholly circumstantial, leaving inferences to be drawn in order to determine the facts in immediate relation to such killing, it should be left to the jury to draw such inferences, and determine whether the act is criminal.
It must be remembered that the burden of proof was not upon the appellant to show that he acted in self-defense, for in criminal cases the burden never shifts to the defendant to prove innocence but remains upon the prosecution to prove guilt until it is established beyond a reasonable doubt. When a homicide occurs it is either murder in the first or second degree, manslaughter in one of its degrees, or justifiable or excusable homicide, according as the evidence may show, and that the act is murder or manslaughter must be shown, otherwise the presumption of innocence applies. Guilt may be shown from circumstances, and that a killing was malicious or unlawful may be found from outward facts proven or admitted; but the finding, being one of fact, is for the jury. In the same manner and by the same reasoning the jury may find whether the act was justifiable, or criminal in an inferior degree.
No discussion is indulged in of the weight or weakness of any inference that might be drawn from the evidence in this case. It is only held that these are matters of fact for a jury, however weak or incon elusive they may be, if the elements of self-defense were not' necessarily excluded by the undisputed evidence. It is not necessary to critically consider the proposed instructions presented by 'the appellant respecting self-defense. They were amply sufficient to challenge the attention of the court to that subject, and instructions upon it should have been given and the refusal to do so was error. (The State v. Jdckett, 81 Kan. 168, 174, 105 Pac. 689.) While the same duty rested upon the court to inform the jury concerning the lower degrees as to instruct concerning self-defense, yet in the absence of a request to do so the omission was not, in this instance, erroneous. (The State v. Newton, 74 Kan. 561, 87 Pac. 757.) The careful preparation of instructions concerning self-defense indicates a purpose to waive instructions concerning manslaughter. (The State v. Winters, 81 Kan. 414, 105 Pac. 516.)
The court admitted evidence of the good character of the deceased. Such evidence is permissible in cases of homicide where there is evidence that the deceased was of a turbulent or quarrelsome disposition, which may be offered in support of a claim of justification. If there was any evidence of a turbulent or quarrelsome disposition in the deceased it was very slight, but perhaps enough to justify evidence in rebuttal limited to-the characteristics material to the inquiry. The admission of the evidence relating to the character of the deceased is consistent with the appellant’s theory of self-defense. With that matter eliminated the evidence was irrelevant. (The State v. Potter, 18 Kan. 414.)
An instruction relating to circumstantial evidence was requested and refused. It has been held that an instruction upon that subject should be given if requested where the evidence is such that the conviction might be upon circumstantial evidence alone. (The State v. Andrews, 62 Kan. 207, 61 Pac. 808, as applied in The State v. Gereke, 74 Kan. 200, 87 Pac. 759.) As stated in the case last cited, when the circumstantial evidence is incidental to', or corroborative of, direct evidence the refusal to give the instruction is not erroneous. In the view we have taken an instruction embodying the principle, as approved by several decisions of this court, should .have been given, although upon the theory that there was nothing for the jury tó consider to support the claim of self-defense its refusal was not erroneous.
Referring to other specifications of error, it is sufficient to say that there was no error in the ruling respecting evidence of threats. It was for the jury to find whether they related to the deceased and their import in the connection with which they were uttered. The clothing of the deceased was properly in evidence. (The State v. Jackett, ante, p. 427, 116 Pac. 509.) The evidence of nonexpert witnesses who testified concerning the appellant’s sanity was properly received, sufficient opportunity for observation on their part having been shown. The weight of their opinions was for the jury. (Fish v. Poorman, ante, p. 237, 116 Pac. 898.)
Other minor questions are presented in the briefs but do not require comment. The conduct of the trial and rulings, except as herein criticized, are not subject to any just complaint.
The judgment is reversed and the cause remanded for a new trial.
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Per Curiam:
The motion to set aside the order which suspended the defendant from the office of sheriff is denied, it being-held that even if the act providing for the removal of unfaithful public officers does not affect officers for whose removal the constitution expressly provides, it is valid at least so far as it applies to other public officers, including a sheriff. The grounds for this holding will be stated in the opinion to be filed on the final disposition of the case. No order can be made in this proceeding requiring the clerk of the district court to pay over the fees earned by the successor of defendant. While Bramlette, who is sheriff for the time being, is entitled to all fees due for services performed by him while acting- as sheriff, the clerk of the district court, who is withholding such fees, is not a party to this proceeding and, therefore, an effective order can not be made upon him.
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Per Curiam:
The appellees recovered judgment against the appellants in this action for the wrongful and malicious taking of corn which appellees claimed to be exempt to them as feed for their stock.
The errors complained of are: (1) The admission of evidence of Marcy and Hatcher, which consisted only in the presentation by each of a memorandum of the amount of corn delivered by appellees to appellant Wheat, which each witness had written off at the request of appellees, who were unable to make the memorandum. The circumstances were fully explained to the jury, and we do not see that the evidence could have any different weight than if the memorandum had been prepared by the appellee. (2) That the court erred in giving certain instructions relating to exemptions. The evidence of one of the appellants shows that Wheat had procured a sham order of attachment to be issued by a justice of the peace, not to take property to satisfy a claim of indebtedness, but expressly ordering the taking of a certain number of bushels of corn. We think the evidence justifies the instruction. (8) That the trial court erred in certain instructions relating to exemplary damages. Appellant Wheat, in at least a part of his testimony — the evidence not being consistent with itself — claimed the right to take the corn on the ground that he had bought a specific crib of corn, a portion of which was the corn taken. At the same time, instead of going and taking the corn, as he claimed he had a right to do, he procured the order of attachment, and appellant Cochenet testifies, in substance, that after being informed that the appellees claimed the corn as feed for their stock, they took all of their corn, but seven or eight bushels. (4) That the trial court erred in not instructing the jury as to Wheat’s rights to the corn according to his theory. The court fairly instructed upon the evidence generally, and we do not find from the abstract that the appellants asked any instruction upon this specific matter. (5) That the court erred in overruling appellants’ motion for a new trial. (6) That the court erred in rendering judgment on the verdict of the jury. We think the verdict and judgment are fully supported by the evidence and that no prejudical error against the appellants occurred in the trial.
The judgment is affirmed.
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The opinion of the court was delivered by
Johnston, C. J.:
The appellant was convicted of the offense of statutory rape committed on the person of Clara Nemechek, a female child under the age of eighteen. In the information it was alleged that the offense was committed on August 13, 1909, and at the trial testimony was given of three acts of sexual intercourse, the first in April, 1909, the second in August, 1909, and the third about September 1, 1909. The- appellant objected to evidence of more than one act, but the objection was overruled. After the evidence was in, and upon motion of appellant, the state elected to rely on the act of August 13, and the court informed the jury that they could not find appellant .guilty upon evidence of any other transaction than the one upon which the state had elected to stand but that “you may consider her testimony as to each and all alleged doings and relations between her and the defendant for the purpose of determining the relations existing between the parties.” It is insisted that the acts were unrelated and that as only one offense was charged the admission of evidence of more than one was erroneous and prejudicial. Numerous authorities are cited to support the general rule that proof of an offense unconnected with that charged against the de fendant is inadmissible. It is well settled, however, that in prosecutions for what are designated as sexual offenses proof of prior and subsequent acts are admissible although such acts in and of themselves constitute offenses. In The State v. Borchert, 68 Kan. 360, evidence of prior acts was admitted, not to show another offense, but to show the previous relations and as tending to establish the one for which the defendant was prosecuted. In The State v. Stone, 74 Kan. 189, a prosecution for carnally knowing a female under the age of eighteen years, it was held that the admission of evidence of subsequent acts of intercourse which occurred as late as fifteen months after the acts charged in the information was not error. While in that case the subsequent acts were somewhat remote there were circumstances tending to show continuousness of illicit relations. In the opinion it was said:
“Subsequent intimacy does illustrate the prior dispositions of individuals of opposite sex toward each other, and the question is how far derivable inferences may be carried backward. Manifestly this is, in the main, a question of weight and not of relevancy.” (p. 191.)
■There was an effort made to have the court modify the doctrine of The State v. Stone, 74 Kan. 189, in The State v. Hibbard, 76 Kan. 376, but after a reconsideration of the question and the authorities the rule admitting evidence of acts of sexual intercourse occurring after the one upon which a conviction is sought was reaffirmed, and it was held that the doctrine was sustained “not only by the better reason but by the greater weight of authority” (p. 379), and many of the authorities were cited. The State v. Hansford, 81 Kan. 300, and The State v. Chance, 82 Kan. 388, are to the effect that if the evidence tends to prove the offense charged it is not rendered inadmissible because it may tend to prove the commission of other offenses. The testimony of the acts in this case could not be excluded on account of remoteness as the first one occurred about four months before the one on which a conviction is sought and the last one about two weeks after.
Appellant further contends that the proof is insufficient to sustain the verdict in that no evidence was given in corroboration of that of the prosecutrix. Under the common law evidence corroborating that of the prosecutrix was not essential to a conviction. In some states it is expressly provided by statute that'the defendant can not be convicted unless the prosecutrix is corroborated by other evidence tending to connect the defendant with the commission of the offense. No such statute has been enacted in this state, and it has already been held that, in the absence of a statute, there may be a conviction on the uncorroborated evidence of the prosecutrix if it is believed by the jury. (The State v. Tinkler, 72 Kan. 262.) There was supporting testimony in this case. There was the pregnancy of the prosecutrix, her report of the facts when, her condition became apparent, and the birth of the child. There was testimony of a statement by appellant that he had illicit relations with a “Dutch girl,” and latef an attempt by appellant to obtain a settlement with the father of the prosecutrix which included an offer of money to end the litigation.
We find no error in the record and the judgment is affirmed.
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Per Curiam:
The questions presented and argued on the hearing of the motion, although subdivided and much amplified, are substantially the same as presented and decided in the original opinion. That the probe used prior to the operation was incorrectly designated in the opinion as “olive tipped” instead of “curved” must be conceded, but does not appear to be very material.
We are unable to say that the action was not based upon the alleged negligence of the defendants, for the reason that the petition charged that the negligence was wanton and gross. We think that the charge included any lesser degree of negligence as well. The greater includes the less.
The claim of the appellees that the evidence given in response to hypothetical questions propounded to expert witnesses was not sufficient to justify the submission of the case to the jury is based upon the theory that Doctor McClintoek relied entirely upon the statement that was made to him by Doctor King, and that Doctor King relied entirely upon the statements of the patient and upon his own examination and observation. The plaintiff evidently did not adopt this theory, but contends that the surgeons did make some further examinations, the result of which cast doubt upon the statements of the patient that he had swallowed his teeth and of themselves suggest a more searching examination. The plaintiff propounded questions upon her own theory of the facts, as to which it is not improbable that different minds might come to different conclusions in considering the evidence. If so, this alone furnishes a proper question for determination by a jury. Each party had a right to propound hypothetical questions upon his own theory of what 'the evidence tended to prove, provided such questions contained no material exaggeration or perversion of facts assumed. It was said in Commercial Travelers v. Barnes, 75 Kan. 720:
“Hypothetical questions put to expert witnesses should be based upon such facts only as the evidence, tends to prove, and .if as to any material hypothesis such question is without the support of evidence, it should be excluded. It may not be -required that the question be based upon conceded facts nor that it embrace all the facts of which there is evidence, neither is technical accuracy required in the framing of the question; but no material exaggeration or perversion of facts assumed is permissible.
“Each party has a right to assume, so far as there is any justification in the evidence, that the facts will be found in accordance with his theory and against the theory of the opposite party, and is entitled to frame hypothetical questions in accordance with such assumption.” (Syl. ¶¶ 1, 2.)
As to this expert testimony two questions are presented : (1) Did the surgeons at the time of the operation entirely rely upon the information above referred to and proceed to operate without further examination or diagnosis? (2) Had the surgeons a legal right so to do? The former is a question of fact; the latter a mixed question of law and fact. The appellees have no right to insist that the appellant should adopt their theory of the facts; neither have they any right to insist that the experts in their evidence should decide the question of law, whatever may have Been the opinion of the experts as to the common practice in the profession. Had the case gone to a jury, it would have been the province of the jury to determine the questions of fact, after being advised by the instructions of the court upon the questions of law.
It is also contended that the patient died, not from the effect of the operation but from the effect of the anaesthetic, the administering of which was necessary in any event; We can not say from the evidence that it was necessary to administer an anaesthetic before a full examination and diagnosis could be made. Some examination appears, in fact, to have been made by Doctor King before the anaesthetic was administered and some thereafter by Doctor McClintock.
After carefully considering all of the questions raised and ably argued by counsel in support of the motion, we still think that questions of fact were involved, supported by some evidence, which should have been submitted to the consideration of the jury, and that the court erred, as indicated in the original opinion, in sustaining the demurrer to plaintiff’s evidence. We therefore adhere to the former decision.
Burch, J., dissenting.
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The opinion of the court was delivered by
West, J.:
The appellant, Orval Kington, was born March 26, 1883. When about ten years of age Joshua Barbee deeded Kington the west half of the quarter sec tion in controversy, Barbee remaining the owner of the east half. The quarter section continued to be assessed as one tract to Barbee, the appellant not being shown to have been in possession of his portion. On January 18, 1901, Finney county, through its proper officers, executed to L. M. Bland a tax deed to the entire quarter. Orval Kington became of age March 26, 1904, and therefore had until March 26, 1905, to redeem. (Laws 1876, ch. 84, § 128, Gen. Stat. 1909, § 9466.) He employed Milton Brown to look after the matter in the summer or fall of 1904. Brown testified that in the winter of 1904, or not later than January or February, 1905, he went to the office of the county treasurer and asked him to figure up what was necessary to redeem the west half of the quarter, stating that he, Brown, wanted to redeem it for Kington, the owner of the land, and laid down on his counter $200 United States gold coin; that the treasurer said it was impossible to figure it out, as it was assessed and taxed with other lands and improvements and he could not and would not accept any sum. After this Brown testified that he met the defendant, Ewart, and told him that the Bland tax deed under which Ewart held by quitclaim was void, and offered to pay whatever he, Ewart, might reasonably name for a quitclaim by way of redemption; that if he would not do this he, Brown, would bring suit against him for the land; that Ewart said he would do what was right, but wanted to see Bland and his attorney, and not to bring suit; that he would take up the matter and name a sum. Brown further testified that in the fall of 1905 he again met Ewart, and that thereafter he had various conversations with attorneys, who agreed to take up the matter but who did not make any proposition. On August 17, 1906, Brown filed a petition for Kington, alleging the invalidity of the tax deed; that the land had been rented by Kington to Bland for grazing purposes upon the agreement that Bland would pay the taxes, and that Bland had used it for grazing purposes and failed to pay the taxes, and that Kington had been and then was ready and willing to pay the legal taxes and charges if the court would fix the same; that he had repeatedly offered to pay what would be lawful and right, but that the defendant had refused to agree with the plaintiff and his attorneys and agents in the matter. The petition contained an allegation that the rents were worth $100 and that the tax deed was a cloud upon the title. After an answer setting up the tax deed and conveyance from Bland, the plaintiff amended his petition, setting up an offer to pay the lawful taxes and charges, and that this offer had been made to the defendant and his attorneys in 19Ó5, and alleging that their promises had caused plaintiff to delay bringing his action, and that defendant was thereby estopped from insisting on the statutory time. The court made findings of fact and rendered judgment in favor of defendant, and the plaintiff appeals, insisting that the tax deed is void for the reason that the west half of the quarter was not assessed separately, for the reason that the grantee, Bland, violated his agreement to pay the taxes for the use of the land, and that defendant is estopped to defend on the ground that the action was not brought within one year from plaintiff’s majority.
The fact that the quarter was assessed as one tract does not of itself render the deed void on its face. (Edwards v. Sims, 40 Kan. 235, 241.)
The plaintiff testified that shortly after he received his deed Bland came over to his mother’s house and talked with him and Mr. Barbee outside the house; that at that time Mr. Barbee and his mother were looking after his land for him, he being about ten years of age; that Bland had a talk with Barbee and him about renting the land; that Bland said he would want to graze it, and would take care of the improvements and fences and pay all the taxes on the place for the use of it until Kington became of age; that Mr. Barbee said he would recommend this to the mother, and that when told of it she said “All right,” and that plaintiff saw Barbee go and say something to Mr. Bland, and that afterwards he, plaintiff, saw Bland’s cattle grazing on the land. The court struck out this conversation, and it is claimed that the testimony was incompetent because Barbee had since died. But neither party was executor, administrator, heir at law or next of kin to Barbee, and we see no reason why this evidence was incompetent. (Civ. Code, § 320.) Other testimony indicated quite strongly that such a conversation or arrangement was had with Bland, although this was denied by him, he himself testifying that he grazed it from some time in 1894 until he sold it to the appellee. If, as claimed by King-ton, Bland agreed to pay the taxes for the use of the land and failed to do so, he had no right to allow the taxes to accumulate and take a deed to himself, and this evidence should have gone to the jury upon this point. (Carithers v. Weaver, 7 Kan. 110; Duffitt v. Tuhan, 28 Kan. 292.)
The alleged promises and delays on the part of the defendant and his counsel, which were said to amount to an estoppel, were so largely subsequent to the plaintiff’s arriving at majority that they can hardly be considered sufficient for this purpose, there being no mention of the statute of limitations and no promise to waive it. Of course, a promise to settle, after the statute had run, could have no effect to prevent a party from suing before it had run. The abstract does not show that the statute of limitations was pleaded, but counsel so state, and the case is treated as if it were.
The attempt to pay the county treasurer sufficient gold to redeem seems to have been about all that the plaintiff was able to do in that respect, assuming, as we do, that the amount, $200, was sufficiently large. The statute (Laws 1893, ch. 110, § 3,' Gen. Stat. 1909, § 9470) provides that a minor, or some person in. his behalf, shall pay to the county treasurer the sum for which such land was sold, with certain costs, etc. If the treasurer did not and could not know or ascertain the exact amount, it is not strange that the minor could not, and it would seem'that the spirit of the statute was observed, at least, by the request made and the amount of money offered, and there is no question that the minor had the right to redeem within one year after 'arriving at majority. (Hulsman v. Deal, 82 Kan. 518.)
If the tax deed be valid, the action was brought too late, as more than one year after majority had expired. Had the action been timely, however, the offer and request to the county treasurer, if shown by competent evidence, would have been proper touching the good faith of the appellant and the necessity for his suit. If the tax deed be void for failure of the grantee to pay the taxes which he offered to pay, it could not start the statute of limitations running, and such offer and request would be equally competent. If, as asserted and sought to be proved, there was a violated agreement to pay the taxes for the use of the land, the deed can not stand in the way of granting relief to the appellant, and his evidence on this point should have been received. Its exclusion was error, and the judgment is reversed and the cause remanded for further proceedings.
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Per Curiam:
This case is substantially like that of Fox v. Turner, ante, p. 146, 116 Pac. 233, and is affirmed for the reasons there stated. An additional ground of error is here assigned, relating to the admission of evidence, but it is not found to be well taken, or to require further discussion.
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The opinion of the court was delivered by
Mason, J.:
Henry S. Stephenson was killed while in the employ of the Missouri, Kansas & Texas Railway Company. His widow recovered a judgment against the company, from which it appeals.
There was evidence tending to show these facts: Stephenson was one of the crew operating a pile-driving train. Two cars, known as the tool car and the piling car (a flat car loaded with piles), were separated from the others, and the tool car was fastened to the track by two chains attached to it at the end next to the piling car, each of which was clamped to the corresponding rail. When it became necessary to move these cars the clamps were unfastened from the rails and hung upon two iron bars or spikes, called drift bolts, which projected some eight or.nine inches from the end of the tool car. Nearly opposite one of these bars a timber on the piling car projected so far that when the two cars were forced together the end of the bar and the end of the timber came so close to each other that there was not room for a man to stand between them. It was a part of Stephenson’s duties to* fasten and unfasten one of these clamps. On the day of his death the cars had to be moved to make way for a passing train. By the plan of operation the clamps should have been unfastened and hung to the bars and a signal passed to the engineer that all was ready, and then, and not until then, the engine and the cars to which it was attached should have been moved against the tool car so as to be coupled to it. Stephenson was handling the clamp on the side of the car where the timber projected opposite to the bar. He unfastened the clamp, but before he had succeeded in hanging it in place the man who was handling the other clamp, and who is referred to,as a “clampman,” gave the word that all was in readiness. The signal was passed to the workman in control of the engine, the train was moved ■against the tool car, forcing it against the piling car, ■and Stephenson was caught between the bar and timber and killed.
A motion.-to make the petition more definite and certain, and to strike out certain portions of it, was denied, and the’ruling is assigned as error. The petition covered a great deal of ground, and its allegations were quite general. The trial would perhaps have been facilitated if the issues could have been more sharply defined in the pleadings, but as it does not appear that any substantial prejudice resulted to the defendant from their lack of clear definition, all the facts having been fully developed, we can not say that material error was ■committed in this regard.
The defendant maintains that the evidence had no tendency to show that Stephenson’s death resulted from any negligence of the company’s employees, but, on the ■other hand, conclusively established that it was due to, his own failure to exercise reasonable care. The workman who gave the word that all was ready testified, in substance, that before he did so Stephenson reported to him, saying he was all right, indicating that he had ■completed the work on his side and that everything was in readiness there. The jury, however, expressly found that this testimony was untrue, and that in fact the witness gave the word without having received any report from Stephenson, and before Stephenson had finished his work. The entire testimony of this witness, viewed in the light of the surrounding circumstances, made it a fair matter for the determination of the jury whether in fact he negligently gave the signal too soon, while Stephenson was still at work between the cars. In behalf of the defendant the argument is made that Stephenson need not have gone between the rails — that he need not have placed himself between the bar on the one side and the timber on the other; that he should himself have given a signal to hold the engine until he was through; that he had been warned of the dangers resulting from his employment, and'from his method of performing his work, and knew of the risks involved. These were all matters for the consideration of the jury, and their verdict must be deemed to have resolved them against the 'contentions of the defendant.
A deposition in behalf of the plaintiff was introduced in evidence. The jury were afterwards instructed to disregard it. The contention is made that notwithstanding the instruction the defendant suffered prejudice from the jury having heard the testimony. Ordinarily an error in the admission of evidence is cured by its subsequent withdrawal. We find nothing in the circumstances of the present case to take it out of the. general rule.
Complaint is made of the instructions refused and those given. We think that the general charge was a sufficient guide for the jury, especially in view of the answers which they returned to the specific questions submitted to them. 1
The petition alleged, and the jury found, that the defendant was negligent, in that the conductor, engineer and foreman was absent. The defendant argues with much force that the absence of these employees could not have been the proximate cause of the accident. The only apparent connection between their absence and the death of Stephenson is that if they: had been present the disastrous- results of the premature signal might have been prevented. For instance, in the absence of the engineer the fireman occupied his place. If the fireman had been upon his own side of the cab he might have discovered Stephenson's peril and have prevented the catastrophe. But the petition also álléged that the defendant was negligent in • causing 'the train to be moved while Stephenson was working between the cars. The question whether Stephenson’s fellow clampman had received word from him before reporting that everything was in readiness was sharply presented by the evidence; and the jury found specifically that Stephenson had not reported himself as ready, and that his death was caused by the other clampman’s negligence in signaling for the coupling while he was still between the cars, as well as by the absence of the conductor, engineer and foreman. There was abundant evidence that Stephenson was justified in believing that the coupling would not be made until he had unf astened the clamp, hung it upon the bar, and reported that he was through with the work. The vital question in the case was whether the other clampman negligently caused the signal to be passed for the engine to start, while Stephenson was in a place of danger. The jury answered this question in the affirmative, and their answer seems unaffected by any of the rulings complained of. The liability of the defendant appears, therefore, to have been established by the jury’s determination of a disputed question of fact. It is true that the petition charged negligence upon the engineer, fireman, conductor, brakeman and foreman, alleging that it was their duty to see that the train was not moved while Stephenson was at work between the cars; and it made no mention of the clampman, who was found by the jury to have been directly at fault. But the fault was found to have been committed while he was engaged in duties of the same general character as those usually performed by brakemen, and it does not appear that a reference to him in the pleadings would have enabled the defendant to make any different presentation of the case, or that the failure to refer to him placed it at any disadvantage. We conclude that the real matter in controversy was fairly heard and decided, and that thére is no occasion for a new trial.
The judgment is affirmed.
Benson, J., not sitting.
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The opinion of the court was delivered by
Benson, J.:
This action is upon a note for $500, dated March 1,1902, and accompanying mortgage made by the appellees. The answer alleged that the securities were given in part consideration for a quarter section of land, one-half of which is described in the mortgage, upon the false representation of the appellants’ agent made in the circumstances following, as stated in the answer: i. e., that James A. Oatis was in possession of the land, having owned it for many .years; that in November, 1889, he had mortgaged it to the Guaranty Investment Company for $1500, and the principal sum and several interest installments were unpaid; that F. E. Lane, agent of appellants, represented to the appellees that this 1500-dollar mortgage 'had been foreclosed in the federal court, and that appellants had purchased the land at the foreclosure sale and owned it. Relying upon these representations, the appellees rented the land from this agent, and paid xents thereon from March 1, 1897, to March 1, 1902, . when, upon the false representation that appellants still •owned the land, they purchased eighty acres of it for $600, paying $100 in cash, and giving the note and mortgage sued upon for the remainder. The answer prayed for cancellation of the securities so given and for the recovery of the rents and the cash payment.
The reply denied the authority of F. E. Lane to act as agent for the appellants, and set out the mortgage of $1500 made by the appellees in 1889, the assignment thereof to the appellants, and alleged that it remained unpaid; that in March, 1896, Oatis and wife, being in default upon several instállments of interest, made a deed of the land to the appellants and deposited it with their agent at Jamestown, Kan., in escrow, in pursuance of an agreement that it should be surrendered in one year upon payment being made of all past-due interest, otherwise it should be delivered to the appellants ; that such payments were not made and the deed was sent to the appellants accordingly; that thereupon Oatis rented the land and paid some rents thereon down to March 1, 1902, at which time it was agreed that the land should be reconveyed to James A. Oatis for $1500, the principal of the original mortgage, which should thereupon be released, and as the deed so made by the appellees had not been recorded it should be returned to them in lieu of a reconveyance; that pursuant to this agreement the appellees gave the note and mortgage sued upon and paid $100 cash, and W. F. Oatis, to whom the appellees conveyed the other half of the quarter section, paid $400 and gave his note and mortgage for $500, thus making up the $1500; and thereupon the old mortgage was released and the deed returned to James A. Oatis as agreed.
On the trial appellee James A. Oatis testified to the representation as alleged in the answer; that he took the lease and held thereunder until March 1, 1902, when he purchased the land upon the agreement that the executors should make a conveyance to him and release the old 1500-dollar mortgage; that upon the statement of appellants’ agent that delay would be necessary in obtaining the deed, he made a conveyance of eighty acres of the land to W. F. Oatis, and gave the notes and mortgage sued upon and paid $100 in cash, W. F. Oatis paying $400 and giving his note and mort gáge upon his 'eighty acres for $500, and in this manner the 1500-dollar consideration was made up; that in the spring of 1904 he discovered that the appellants did not own the land and that the representations so made to him were false, and thereupon he refused to pay interest on the 500-dollar mortgage. Mrs. Oatis testified that she never executed a deed to the appellants, but James A. Oatis did not testify on that matter.
Evidence was given for the appellants tending to prove that F. E. Lane was not their agent and had no authority to act for them, but was the son and employee of F. A. Lane, who was their agent. F. E. Lane testified that he did not make the representations charged by. the appellees. F. A. Lane testified that he was agent for the appellants and that the business detailed in the reply was transacted through his office, and his testimony tended to prove the allegations of the reply.
The case was tried by jury and a verdict returned for the appellees for $160, upon which judgment was rendered, the effect of which is to release them from paying the 500-dollar note and mortgage sued upon, besides recovering the amount stated in the verdict. The appellees admit that they have not paid the original. 1500-dollar mortgage, except some interest thereon.
Numerous errors are assigned upon the rulings of the court, but only two need to be considered. The first relates to the decision overruling the objection to any evidence in support of the answer. This contention is based upon the proposition that the execution of a deed from the appellees to the appellants, as alleged in the reply, was admitted by failure to deny it under oath. While the code states generally that “allegations of the execution of written instruments . . . shall be taken as true unless the denial of the same be verified by the affidavit of the party, his agent or attorney” (Civ. Code, §110), still a denial of such allegations in a reply is unnecessary, as the code further provides that allegations of new matter in a reply “shall be deemed to be controverted by the adverse party.” (Civ. Code, § 129; Continental Ins. Co. v. Pearce, 39 Kan. 396.)
Another assignment of error relates to the .verdict and judgment thereon. It is argued that upon the undisputed facts appearing from all the evidence the judgment should have been for the plaintiffs. This is the principal question to be decided. The general verdict establishes several facts at issue under the pleadings concerning which the evidence was in conflict, i. e., that false representations that the title to the land was in the executors were made in 1896; that no deed was made by the appellees conveying the land to the appellants or to Charlemagne Tower for their benefit; and that it was agreed in March, 1902, that a conveyance should be made by Tower or the executors to James A. Oatis. These matters being established, the material facts so found, with those shown by the undisputed evidence, are: That the appellees gave a mortgage upon the land on November 1, 1889, to secure a loan of $1500, which was soon after assigned to the appellants. Sometime before March, 1896, appellee James A. Oatis being in default upon several interest payments, was induced, upon the false representations of the appellants’ local agent that they had foreclosed the mortgage and then owned the land, to accept a lease thereon and to pay rents until March 1, 1902, when he agreed to pay $1500, the principal of the mortgage debt, for a release of the mortgage and a deed of the land. Thereupon the appellees conveyed eighty acres of the land to. W. F. Oatis, who paid $400 in cash and made his note and mortgage for $500,- and the appellees paid $100 cash and made the note and mortgage in suit for $500, which money, notes and mortgages were then delivered to the appellants, who thereupon released the old mortgage April 25, 1902, but did not make a deed; the release was recorded shortly before this suit was brought. The appellee, James A. Oatis, paid interest on the new note and mortgage until June, 1904, when he discovered that the appellants never owned the land, and thereafter refused to make further payments. The appellants are nonresidents of this state, and F. A. Lane, father of the F. E. Lane referred to, was their agent in Kansas at the time of these transactions. If was the understanding of the appellants that the adjustment of March, 1902, was an extension of the original indebtedness, and they so treated the transaction; credits were given to appellees for the rents received, and yet at the time the new securities were given there was an arrearage of interest still due upon the old mortgage; which was abated in the adjustment. No part of the principal of that debt has ever been paid.
Upon the foregoing facts, the judgment ought not to stand. The representation that the old mortgage had been foreclosed and that the appellants owned the land resulted finally in no loss to the appellees, for the rents paid by them were credited on their indebtedness and they were undisturbed .in their possession. Neither were they in any way injured by the failure of the appellants to cause a conveyance to be made to them pursuant to the agreement of March 1, 1902, conceding it to be as they alleged and as the jury found by their general verdict, that they had never made a deed to the appellants, but always owned the land. They could suffer no loss by the failure of a party to make a conveyance to them who never had any title to convey. While the weight of the evidence appeared to be that they did make a deed, to be held by the appellants or by their agent and to be returned on payment of arrears of interest, their own allegations were to the contrary, supported by the testimony of Mrs. Oatis and sustained by the verdict. If the appellees did make such a deed, their whole contention fails. If they did not, then they held, and still hold, the title; in either case they have suffered no loss, and having obtained a release of the old mortgage should pay the new one.
The false representations concerning the title made-in the year 1896 afford no ground now for any relief not already obtained. Fraud without injury is not actionable. (Sonnesyn v. Akin and Babcock, 14 N. Dak. 248; 20 Cyc. 12.) To maintain an action for relief on the ground of fraud it must be shown that the fraud occasioned loss or injury. (Stinson v. Aultman, 54 Kan. 537; 18 Am. St. Rep. 561, note.) As appellees were by such misrepresentations induced to rent their own land, they were entitled to have the rents credited on their indebtedness. This was done, and yet by the verdict of the jury they are allowed to recover the-rents again. This is inequitable.
The case having been fully tried and all the facts clearly appearing from the evidence contained in the abstracts, only questions of law remain to be decided,, and judgment may therefore be directed by this court under section 594 of the civil code. (Worth v. Butler, 83 Kan. 513.)
Looking through the forms of these transactions to-the substance, accounting, as we may, for discrepancies concerning unimportant details by the lapse of time and failures of memory, it seems clear that the note and mortgage sued upon should be treated as renewals, of the original indebtedness and that recovery should be allowed accordingly.
As the appellants alleged and offered evidence that a. deed was made by the appellees to Charlemagne Tower, jr., for their benefit, it is equitable and proper, notwithstanding the allegations and testimony of the appellees to the contrary, that the appellants should deposit with the clerk a quitclaim deed conveying the-land to James A. Oatis. This will protect the appellees against any possible loss or expense should it. be hereafter found that the appellees had in fact ex ecuted a deed as claimed and had forgotten the incident. The appellants, being parties to the suit, will by the judgment be barred of any interest in the land they might have under such deed.
The judgment is reversed and the cause is remanded with directions to enter judgment for the plaintiffs for the amount due upon the note and mortgage sued upon and for foreclosure and sale, upon the deposit in court, for the appellees, of a good and sufficient quitclaim deed duly executed and acknowledged by Charlemagne Tower, jr., and wife, conveying the premises described in the original 1500-dollar mortgage to James A. Oatis.
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The opinion of the court was delivered by
West, J.:
Mary E. Mathes and husband sued the Shaw Oil Company and two other corporations to recover rent for use of gas taken from wells drilled under a lease of the plaintiffs’ land. The lease provided that its rights and obligations and benefits should continue so long as gas or other mineral, if found, could be produced in paying quantities; that if gas should be found sufficient to justify saving and casing the wells the lessors were to have gas for domestic use on the premises; if the lessees should use, market or sell gas from any well for other than domestic or drilling purposes they were to pay therefor fifty dollars a year, but gas used for these purposes was to be free. The petition alleged the use of certain^gas for other than domestic or drilling purposes, and prayed judgment. The second defense was to the effect that the gas wells were in fact oil-producing wells, from which it was necessary to remove the gas, and therefore no rental was due for the gas used. As to this defense a demurrer was overruled, and this was held error. (Mathes v. Shaw, 80 Kan. 181.) After this decision the plaintiffs filed an amended and supplemental petition, to which the defendants demurred, and, the demurrer being overruled, answers were filed, and after trial a judgment was rendered for the plaintiffs. Error is assigned in overruling the demurrer, in overruling objections to evidence, in overruling a demurrer to plaintiffs’ evidence, in the admission and rejection of certain testimony and m overruling a motion for a new trial. The demurrer was on the ground that no cause of action was stated and also that several causes were improperly joined. The latter ground can not under section 93 of the code be raised by demurrer. It is suggested that no error is assigned on the refusal to grant a new trial, but on page 38 of defendants’ brief this assignment may be found, which counsel say was intended to be contained in the grouping of errors at pages 2 and 3 but was overlooked by the printer.
The chief complaint of the defendants is that the amended and supplemental petition failed to state a cause of action by reason of contradictory .and self-destructive allegations. The original petition alleged in substance that plaintiffs made a lease to corporation A, which assigned to one Thorne, who assigned to corporation B, which corporations and person thereafter by some arrangement or- understanding with corporation C caused the latter to claim a controlling interest and ownership in the lease and a controlling authority over the leasehold premises and a liability for the payment of rental therefor; that corporation D, by some arrangement or agreement or understanding between the one person and the three corporations, took over the lease and obligated itself to carry out its conditions ;■ that the nature of these various arrangements was unknown to plaintiffs but that all of the defendants (corporations B, C and D) had an interest in the lease and leasehold premises and were liable to plaintiffs for the payment of the-rentals; that the defendants and their assignors had put down wells -and used. gas for other than the excepted purposes, and that the three defendants had since September or October, 1904, used such gas and were still using it,-for which judgment was prayed. Second and third causes of action repeated these allegations for the purpose of covering successive periods,.the total amount prayed for being $450 with interest. The amended and supplemental petition simply adopts, the original petition and adds two causes of action for gas used for successive periods subsequent to the periods covered by the original pleading. Because of the allegations that the assignees “claimed” to have arranged to succeed the assignors vigorous complaint is made that this is no assertion of a fact requiring the defendants to.respond. But this allegation is followed by the other, that the assignees claimed to be entitled to the control and authority over the leasehold premises and liable for the rental and that they had proceeded to use gas without paying for it. We see nothing misleading or perplexing in this. If the various defendants were using the plaintiffs’ gas under a claim that they were acting under a lease as successors to the lessee, and not paying for it, this would make them liable, and the plaintiffs could not be kept out of the rental for failure to understand the terms and conditions upon which the defendants were claiming their authority to operate the lease and use the gas. If as alleged they were using the gas by virtue of rights which they claimed under the lease, a contract liability would arise; if the unknown arrangement was a mere subterfuge and they were using the gas without right their liability would be that of tort feasors but the same in amount. They doubtless knew better than the plaintiffs the nature of their own arrangements, but whatever these were they could not use the gas without being liable for its value. In their answer, instead of raising the question of misjoinder, they asserted that the alleged gas wells were oil wells, and practically denied using the gas at all. The evidence was such that the jury rendered a verdict for $776, which the trial court approved.
We have examined the evidence shown by the abstract, and while not as clear as it might be, it is sufficient to support the verdict. Where parties assume to take one’s gas under leasehold rights they should so conduct the enterprise that the lessor may know to whom he is to look for his rental, and when such parties by means of undisclosed arrangements and overlapping periods of occupation so cloud the situation that.the lessor is unable to understand it, he may rightfully look to all such parties to pay for products which they have actually used under their claim of leasehold rights. The defendants sought to show that the wells were oil producers and that the gas which they also furnished had to be removed to avoid injury to the oil and to the machinery. This was practically an attempt to interpose the same defense which was held bad in Mathes v. Shaw, 80 Kan. 181, the excuse being that the former decision went too far. An expression from Thornton on the Law Relating to Oil and Gas is cited, but this is based on the decision in Shewalter v. Hamilton Oil Co., 28 Ind. App. 312. There the lease was in some respects similar tg the.one under consideration, but the first cause of action expressly alleged that the wells had produced gas in paying quantities, and it was held competent for the defense to rebut this averment. Here there was no such allegation, and the material question related to the actual use and not to the quantitative production. Under the lease and under the pleadings it did not matter whether the wells produced oil or not, or more oil than gas, for if they produced gas sufficient to be used for pumping oil, as alleged, and the defendants so used it, they were liable.
The judgment is affirmed.
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The opinion of the court was delivered by
Holmes, J.:
Dennis Shepherd appeals his convictions by a jury of four counts of aggravated robbery (K.S.A. 21-3427).
Around midnight, April 28, 1981, two black males entered a Kansas City, Kansas, 7-11 store under the pretenses of buying some products and playing the amusement machines. One of the men asked the price of some typing paper. The other, identified later as Shepherd, attempted to obtain change for a dollar bill in order to operate the games. The night clerk responded that he was unable to open the register drawer just for change and suggested he would have to wait a short while until the register was opened to ring up the next sale.
Following some additional discussion about opening the cash drawer, the man went to the back of the store to wait and the clerk went about his routine chores. Shortly thereafter, the same two men appeared at the checkout counter with guns demanding that the clerk open the drawer and hand over the money. The clerk, however, being unfamiliar with the operation of the register for “no sale” transactions was unable to open it. One of the men struck the clerk with his gun.
During the robbery, there were customers both in the store and entering the store. These people were instructed by the gunmen to put their wallets and the contents of their pockets on the counter. One of the robbers later picked up these items and fled. The other took the still unopened cash register to the parking lot where he broke into it, removed the contents, and also fled. Before the robbers left they made their victims lie on the floor. The entire affair was observed by the wife of one of the victims who was waiting outside in her car. The robbery took at least five minutes but may have lasted as long as twenty to twenty-five or thirty minutes according to one witness’ testimony.
Shortly before the Wyandotte County robbery, two black males robbed a Johnson County Quik-Trip store using the same general modus operandi. In the course of the investigation of the Wyandotte County crime, three witnesses to that crime were shown a film strip taken by automatic cameras in the Johnson County store and positively identified the defendant and his accomplice as the Wyandotte County robbers. The Wyandotte County victims and witnesses were also shown photographic lineups and viewed live lineups in which the defendant was always positively identified as one of the robbers in this case. He was also positively identified in court. The accomplice, one George Holliday, entered a guilty plea on the charges and named the defendant as his partner. Holliday, however, was not called to testify at trial. The defendant relied on an alibi.
At the close of the evidence, the defendant requested that the jury be given an instruction on eyewitness identification testimony pursuant to State v. Warren, 230 Kan. 385, 635 P.2d 1236 (1981). The trial judge refused to give the instruction and de fendant asserts as his first point on appeal that this constituted reversible error.
The defendant argues on appeal that inconsistencies among the testimonies of the four victims and the fifth eyewitness indicate the identification evidence to be unreliable. He points out that the witnesses were in disagreement as to the robber’s attire and facial hair and as to which robber struck the store clerk. We also note the differences in testimony as to the duration of the offense.
In Warren we said:
“In any criminal action in which eyewitness identification is a critical part of the prosecution’s case and there is a serious question about the reliability of the identification, a cautionary instruction should be given advising the jury as to the factors to be considered in weighing the credibility of the eyewitness identification testimony.” Syl. ¶ 1. (Emphasis supplied.)
Inherent in the Warren decision is that the question of the propriety for the instruction lies with the trial court in the first instance.
The State contends that there was never a waver or doubt in the minds of the witnesses that the defendant was one of the robbers. Even though there may have been some minor discrepancies as to the description of the robber, that fact alone does not make the failure to give a Warren instruction error. The State also points out there was never any challenge to any of the lineups or any claim that the lighting was poor in the store during the robbery and that all the witnesses had occasion to observe the defendant’s face for some period of time. This offense took considerably longer to complete than did the robbery in Warren.
The witnesses were consistent individually and their testimonies were all positive and unwavering. Although, given the defense of alibi in this case, identity was a critical part of the State’s case, there was no serious question of reliability and the failure to give a Warren instruction did not constitute error.
For his second point on appeal the defendant argues that the court erred in allowing evidence of the Johnson County robbery to be admitted against him. The defendant had been convicted of that robbery before his trial in this case.
Prior to the admission of the evidence under K.S.A. 60-455, the court held a hearing to determine its relevancy, materiality, and possible prejudice to the defendant. Consistent with this court’s holdings in State v. Bly, 215 Kan. 168, 523 P.2d 397 (1974), the trial judge made an admissibility determination outside of the presence of the jury and later gave a proper limiting instruction. The jury was instructed to the effect that evidence of the Johnson County robbery could only be considered for the limited purposes of determining “the defendant’s identity, preparation, and opportunity,” in the commission of the Wyandotte County crime.
The defendant’s contention on appeal focuses on the prejudicial effect of the prior crimes evidence, but as we said in State v. Faulkner, 220 Kan. 153, 551 P.2d 1247 (1976), the prejudicial effect is to be balanced against the probative value of the evidence.
The State points out that there were a number of factual similarities between the instant crime and the Johnson County offense which make the evidence highly probative. The offenses occurred in close proximity to one another. There was testimony showing that the two convenience store locations were only about a ten-minute drive apart. The two offenses occurred within approximately one-half hour of each other. Both offenses involved convenience stores and were committed by two young black adult males carrying guns described as .38 or .357 caliber. In both robberies the men first spoke with the clerks about purchasing certain products, then robbed them. And in both robberies, the assailants, in order to facilitate their escape, made the victims lie down on the floor. Finally some of the Wyandotte County witnesses had identified the two persons shown in the Johnson County film strips as the Wyandotte County robbers.
If the two crimes had occurred in the same county, there is no doubt but that they could have been combined for trial. The trial court, in applying the balancing test enunciated in Faulkner, merely found that the probative value of the evidence outweighed any possible prejudice to the defendant. We find no abuse of discretion in that ruling.
For his next point on appeal, the defendant contends that the trial court erred in denying his second motion for a new trial. That motion was based on a change in George Holliday’s version of the robbery which defendant alleges is newly discovered evidence which became available only after the trial of this case was completed and the first new trial motion overruled. At the hearing on the second new trial motion, Holliday admitted that he had previously told the court, when he entered his guilty plea, that Shepherd had been his accomplice in the robbery. However, Holliday then told the court that he was lying previously and that another individual named Anderson had helped him. He claimed he had lied earlier because he thought it was in his best interest in trying to get a good deal on his plea bargain. The trial court did not find his recantation persuasive and denied defendant’s motion.
As we said in State v. Bryant, 227 Kan. 385, 607 P.2d 66 (1980), recantation is looked upon with great suspicion. When a hew trial motion is based on the recanting of a prosecution witness’ testimony, the weighing of the recantation is for the trial judge in passing on the merits of the motion. State v. Larkin, 212 Kan. 158, Syl. ¶ 3, 510 P.2d 123, cert. denied 414 U.S. 848 (1973). The same principles apply when the motion is based upon a recantation by one who, while not actually testifying against the defendant before, had previously put a different story on record. The determination of whether to grant a new trial under such circumstances rests within the sound discretion of the trial court and nothing in the record indicates any abuse of that discretion. See State v. Norman, 232 Kan. 102, 652 P.2d 683 (1982).
Finally, appellant asserts that this court committed error when it denied his motion to remand this case to the trial court for the purpose of hearing another motion for-new trial based upon alleged newly discovered evidence. At the time of filing the motion to remand on October 15, 1982, this case had already been docketed for oral argument to be heard on November 30, 1982. The motion contained the following allegations:
“2. That appellant has discovered new evidence which in the opinion of appellant is tantamount to grounds for a new trial.
“4. That appellant believes that the Assistant District Attorney failed to reveal exculpatory evidence that he was aware of to appellant prior to trial, to wit: an FBI report concerning photographs of appellant that the FBI compared.”
There was no further indication of the evidence which defendant proposed to present to the trial court. After the State filed a response in opposition to the motion to remand, the motion was denied by this court on November 5, 1982. Defendant then sought permission of this court to file a supplemental brief on the question of whether this court had committed error and defendant also sought oral argument on the point. Roth requests were granted. K.S.A. 22-3501 provides in part:
“A motion for a new trial based on the ground of newly discovered evidence may be made within two years after final judgment, but if an appeal is pending the court may grant the motion only on remand of the case.”
The statutes do not provide any specific procedure for the handling and determination of a motion to remand a case from the appellate courts. The granting of a motion to remand a case from the appellate courts for the purpose of the trial court hearing a motion for new trial based upon alleged newly discovered evidence or for other trial court proceedings lies within the sound discretion of the appellate court. The granting of such a motion is not a matter of right which accrues in every case merely by filing a motion seeking remand. While the statutes are silent on procedural standards, better practice suggests that a defendant seeking to have a case remanded from the appellate courts should set forth with some specificity sufficient details of the evidence to be presented to the trial court in support of the motion for new trial so the appellate court may determine in the first instance whether there are valid grounds to expect that a new trial' might be granted by the trial court. The appellate courts cannot be expected to operate in a vacuum and grant every motion to remand a case already on appeal absent a showing that the motion for new trial has merit and is not frivolous or an attempt to delay the appellate process.
In considering a motion to remand a case for further proceedings in the trial court, it is not the function of the appellate court to weigh and attempt to determine the credibility of the proposed evidence to be presented to the trial court. However, the appellate court may look to the allegations of the motion to remand to determine whether the proposed evidence, if proved, might warrant the granting of a new trial by the trial court. In doing so the appellate court will consider the allegations in the same light and under the same principles as the trial court would view the actual evidence. All doubts or inferences arising from the allegations in the motion to remand should be resolved in favor of the appellant.
From the supplemental brief filed by appellant and from oral argument we have now been apprised of the substance of the evidence appellant desires to present to the trial court. Appellant asserts that the Johnson County district attorney’s office had secured mug shots of defendant Shepherd and sent them, along with the automatic surveillance camera film strips to the Federal Bureau of Investigation, seeking a determination of whether the F.B.I. could make a positive identification of either of the robbers shown in the film strip by comparing it with the mug shots of the defendant. The F.B.I., after comparing the film strip and the mug shots of the defendant, responded in a written report which stated:
“A few general facial characteristics in common were observed between the photographs of Dennis Shepherd (Kl) and the photographs of the [Johnson County] robbery suspect. However, a positive identification was not made because the Kl photographs were not taken in views sufficiently comparable to the views displayed in the Q1 film strips.”
This report was at all times a part of the Johnson County district attorney’s file which was available to Shepherd’s defense attorneys. It also appears that the Johnson County film strips were shown to some of the witnesses to the Wyandotte County robbery and evidently they were able to identify one of the robbers in the film strip, who later turned out to be the defendant Shepherd, as one of the robbers in the Wyandotte County robbery.
Following the trial and conviction of Shepherd in Johnson County, an assistant district attorney from Wyandotte County went to Johnson County to confer with the prosecutor who had tried the Johnson County case. During that conference the Johnson County file was made available but the Wyandotte County prosecutor did not examine it in detail. He never saw the F.B.I. report and had no knowledge of its existence although the Johnson County prosecutor did mention to him that certain surveillance photos from the Johnson County robbery and mug shots of Dennis Shepherd had been sent to the F.B.I. for purposes of scientific identification analysis but that the F.B.I. could not make any positive scientific identification. This information was not relayed to defendant’s counsel and defendant’s present counsel did not become aware of the information until shortly before his motion to remand this case was filed in this court.
It is the contention of the appellant that the F.B.I. report contains exculpatory evidence that might have been utilized during trial to in some manner impeach the witnesses’ identification of defendant. The defendant argues that the Wyandotte County prosecutor was under a positive legal duty to disclose exculpatory evidence to him. We agree. State v. Kelly, 216 Kan. 31, 33, 531 P.2d 60 (1975). Justice requires that the principal onus be upon the prosecution to disclose favorable evidence. Therefore, he claims that because the Wyandotte County prosecutor did not tell him about the F.B.I. report, he should be given a new trial or at least a remand so that the district court can hear his motion for new trial. We disagree.
In Kelly this court explored the duty of the prosecution to disclose evidence to the defendant as that duty arose in different hypothetical situations. The court discussed several leading federal cases on the subject. The case of United States v. Keogh, 391 F.2d 138 (2d Cir. 1968), was cited as establishing three types of circumstances in which the disclosure problem arises. Those categories were restated in Kelly as follows:
“(1) [W]here there is a deliberate bad faith suppression for the purpose of obstructing the defense or intentional failure to disclose evidence which has high probative value and which could not have escaped the prosecutor’s attention; (2) where there is a deliberate refusal to honor a request for evidence where the evidence is material to guilt or punishment, irrespective of the prosecutor’s good or bad faith in refusing the request; and (3) where suppression was not deliberate and no request for evidence was made, but where hindsight discloses that it was so material that the defense could have put the evidence to significant use.” p. 34.
In the instant case, the defendant concedes that there was neither an intentional corruption of the truth-seeking process nor a specific request for the F.B.I. report, thus this is a case falling in the third category and commonly referred to as “oversight” cases.
In the “oversight” cases, the Kelly court laid down the rule as follows:
“When the withholding of evidence by the prosecution is not deliberate and in bad faith and when the prosecution has not refused to honor a request for the evidence made at a proper stage of the proceedings, the defendant should be granted a new trial only if the record establishes: (1) that evidence was withheld or suppressed by the prosecution, (2) that the evidence withheld was clearly exculpatory, and (3) that the exculpatory evidence withheld was so material that the withholding of the same from the jury was clearly prejudicial to the defendant.” p. 36.
The United States Supreme Court in United States v. Agurs, 427 U.S. 97, 49 L.Ed.2d 342, 96 S.Ct. 2392 (1976), an oversight case, stated:
“The proper standard of materiality must reflect our overriding concern with the justice of the finding of guilt. Such a finding is permissible only if supported by evidence establishing guilt beyond a reasonable doubt. It necessarily follows that if the omitted evidence creates a reasonable doubt that did not otherwise exist, constitutional error has been committed. This means that the omission must be evaluated in the context of the entire record. If there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial. On the other hand, if the verdict is already of questionable validity, additional evidence of relatively minor importance might be sufficient to create a reasonable doubt.” pp. 112-113.
We are of the opinion that appellant’s position lacks merit for several reasons. At the outset, it is apparent that the F.B.I. report was available to defense attorneys long before either trial. The rules relating to the granting of a new trial under K.S.A. 22-3501 on the grounds of newly discovered evidence were recently set forth in State v. Johnson, 222 Kan. 465, 565 P.2d 993 (1977):
“The rules for granting of a new trial for newly discovered evidence have often been stated. The granting of a new trial for newly discovered evidence is in the trial court’s discretion. [Citation omitted.] A new trial should not be granted on the ground of newly discovered evidence unless the evidence is of such materiality that it would be likely to produce a different result upon re-trial. [Citation omitted.] The credibility of the evidence offered in support of the motion is for the trial court’s consideration. [Citations omitted.] The burden of proof is on defendant to show the alleged newly discovered evidence could not with reasonable diligence have been produced at trial. [Citations omitted.] The appellate review of an order denying a new trial is limited to whether the trial court abused its discretion. [Citations omitted.]” (Emphasis added.) p. 471.
The file of the Johnson County prosecutor was, at all times prior to and after trial, open to defendant’s attorneys. Defendant’s present appellate counsel in this case was also counsel of record for the defendant in the Johnson County case from November 23, 1981, until at least March 19, 1982. He represented the defendant at the sentencing in the Johnson County case and in the early stages of the appeal of that case. There has been no showing that the F.B.I. report was not readily available to defendant’s trial counsel or to his present counsel.
Additionally, the materiality and relevance of the report is questionable at best. Generally speaking, evidence is exculpatory if it tends to disprove a material fact in issue. Kelly, 216 Kan. at 36. In the question before us, the F.B.I. had been asked to compare mug shots of Dennis Shepherd with the surveillance film depicting the Johnson County robbery in progress. The F.B.I. concluded that it could not identify any one in the sur veillance film as Dennis Shepherd because the mug shots were not taken in views sufficiently comparable to the views displayed in the film. Dennis Shepherd has at this time been sufficiently identified as one of the robbers in the surveillance film inasmuch as he was convicted of the robbery of the convenience store in Johnson County. Although an appeal in that case has not been finally determined, the records in this court and in the office of the Clerk of the District Court of Johnson County reflect that this same F.B.I. report was the basis for the filing of a motion there on the grounds of newly discovered evidence which had been withheld by the prosecution. That motion was overruled by the Johnson County trial court.
Finally, the witnesses in the Wyandotte County case, when shown the surveillance film, were relying on their own knowledge of the appearance of the defendant who committed the Wyandotte County robbery, not on the mug shots which were sent to the F.B.I. The F.B.I. report indicates no positive identification could be made because the mug shots were not taken from camera angles similar to those shown in the film strip. The witnesses, however, had an opportunity to view the defendant from all angles for from somewhere between five and thirty minutes. Their comparison was of the man and the film strip, not the mug shotó and the film strip. The F.B.I. report does not address the question of the identity of the robbers in the Wyandotte County case, nor does it attempt to compare the actual defendant with the pictures on the film strip. Appellant’s argument is one of attempting to compare apples with oranges on the theory both are fruit. Considering the positive evidence supporting the convictions in this case, the F.B.I. report, even if admissible in evidence, certainly would not be likely to produce a different result upon retrial.
While it is the function of the trial court and not the appellate courts to weigh and determine the credibility of alleged newly discovered evidence, we cannot say, on the showing made before this court, that it was error to refuse to remand this case for hearing on the proposed motion.
The judgment is affirmed.
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The opinion of the court was delivered by
Schroeder, C.J.:
This action was filed by B. Steven Black (plaintiff-appellee) against Don Schmid Motor, Inc. (defendant-appellant), hereinafter referred to as Schmid, seeking to revoke acceptance of a 1977 Peugeot automobile purchased from Schmid for breach of express and implied warranties. In addition to recovery of the purchase price and consequential damages, the plaintiff sought damages under the Magnuson-Moss Federal Warranty Act, 15 U.S.C. § 2301 et seq., and the Kansas Consumer Protection Act, K.S.A. 50-623 et seq. Schmid timely filed a third-party action against its seller, Peugeot Motors of America, Inc. (third-party defendant-appellee), seeking indemnification for any judgment against Schmid. The jury found the plaintiff was entitled to revoke acceptance of the automobile and recover the purchase price plus $3,471.15 in consequential damages. The jury further found that Peugeot was not liable to Schmid for any part of the judgment awarded to the plaintiff. Numerous trial errors are asserted by Schmid on appeal.
Initially the following facts are pertinent. In February 1978 the plaintiff entered into negotiations with the defendant for the purchase of a 1977 Peugeot automobile. The care had previously been driven by a Peugeot factory representative and had 22,967 miles registered on it. A salesman for Schmid told the plaintiff that because the car had been driven by a representative of Peugeot and had been properly maintained during that time, the car would be warranted as if new and would be given a standard “12 months or 12,000 mile” warranty. The sales order for the car, signed by a sales manager for Schmid, stated “Warranty to 2-16-79 or twelve thousand miles whichever comes first.” The plaintiff purchased the car on February 22, 1978, for $8,028.85.
Within a few short weeks the plaintiff began to experience the first of many problems with the car. He noticed that the transmission was leaking fluid and returned the car to Schmid to have the leak repaired. They indicated a small leak was found and had been fixed. A short time later the plaintiff noticed the transmission was again leaking and the transmission made noise when turning corners. The plaintiff again took the car to Schmid for repairs and assumed the problems had been fixed.
A couple of weeks later the plaintiff noticed the leak in the transmission was worse. In addition, the accelerator would stick when the car was driven over 40 miles per hour, the radio began to malfunction, and the air conditioner would leak cold water when the car turned corners. The plaintiff took the car to Schmid and talked to a Schmid salesman about these problems. When the plaintiff went to retrieve the car two or three days later the car would not accelerate when the plaintiff pressed on the gas pedal. It was discovered that some linkage on the accelerator had not been reconnected. While driving home the plaintiff discovered that the problems had not been repaired; the car still accelerated by itself and the transmission still made noises. When he arrived at home the plaintiff called Mr. Don Schmid to express his anger over the continued failure of Schmid to repair the car. Mr. Schmid told the plaintiff that he had a business to run, that mechanics were expensive and hard to find, and that he did not have time to talk to every dissatisfied customer.
In addition to the persisting problems with the transmission, radio and accelerator, other problems emerged. The thermostat for the air conditioner did not work and a warning light for the exhaust gas recirculating system (ERG) on the dashboard stayed on all the time. For the fourth time the plaintiff took the car to Schmid with a list of these problems. The service writers “got a little angry” with him because the car had been brought in so often. The plaintiff told the service personnel that he had been told the transmission sounded like it did not have adequate fluid in it. However, when Schmid’s employees attempted to check the fluid they could not find the transmission dipstick and had to be shown where it was by the plaintiff.
The car remained at Schmid’s for several days. The plaintiff was told that they were having trouble finding out what the problem was with the EGR light and were checking with Peugeot about it. When the plaintiff picked the car up he was told everything had been fixed except the radio, which was not covered by warranty. Much to the plaintiff’s chagrin, he again realized none of the problems had been corrected. When he arrived home he noticed the inside car lights did not come on and discovered that a group of wires had been pulled out of a box under the dashboard. The transmission leak was getting much worse and the plaintiff resorted to carrying transmission fluid in the trunk of the car. The plaintiff testified that every time he added fluid the transmission would be empty again and would need to be refilled within a day or two. The problems with the radio and air conditioner also continued.
In July 1978, five months after the car was purchased, the plaintiff took it to Schmid to be repaired for the fifth time. He left a list of all the problems he was having with the car. Three or four days later the plaintiff was told the car was ready. While driving the car back to work the clutch on the air conditioner fell out of the car onto the highway. Upon arriving at work the plaintiff called his attorney. He testified he has not driven the car since. This action for revocation of acceptance was subsequently filed. Conflicting evidence was presented indicating the plaintiff had driven the car between 5,300 and 7,000 miles since purchasing it. Additional evidence will be discussed as it becomes necessary.
The appellant first contends that the evidence presented was insufficient to support the jury’s determination that the plaintiff was entitled to revoke his acceptance of the Peugeot automobile. Revocation of acceptance is a remedy provided by K.S..A. 84-2-608 which allows a buyer to rescind his purchase of defective or nonconforming goods. K.S.A. 84-2-608 reads:
“(1) The buyer may revoke his acceptance of a lot or commercial unit whose nonconformity substantially impairs its value to him if he has accepted it
“(a) on the reasonable assumption that its nonconformity would be cured and it has not been seasonably cured; or
“(b) without discovery of such nonconformity if his acceptance was reasonably induced either by the difficulty of discovery before acceptance or by the seller’s assurances.
“(2) Revocation of acceptance must occur within a reasonable time after the buyer discovers or should have discovered the ground for it and before any substantial change in condition of the goods which is not caused by their own defects. It is not effective until the buyer notifies the seller of it.
“(3) A buyer who so revokes has the same rights and duties with regard to the goods involved as if he had rejected them.”
A buyer may only revoke acceptance where the nonconformity of the goods substantially impairs the value of the goods to the buyer. See Rasor, Kansas Law of Sales § 10-3 (1981). In McGilbray v. Scholfield Winnebago, Inc., 221 Kan. 605, Syl. ¶ 1, 561 P.2d 832 (1977), this court held:
“The purchaser of a motor vehicle who seeks to enforce a revocation of acceptance pursuant to K.S.A. 84-2-608 must establish (1) the nonconformity of the vehicle, (2) the needs and circumstances of the purchaser, and (3) that the nonconformity in fact substantially impairs the value of the vehicle to the purchaser.”
See also Newmaster v. Southeast Equipment, Inc., 231 Kan. 466, 646 P.2d 488 (1982). The appellant contends that no evidence was presented by the plaintiff concerning his particular needs and circumstances, rendering it impossible for the trier of fact to determine whether any nonconformity of the goods substantially impaired the value of the automobile to the plaintiff.
This point is without merit. Nonconformity, the needs and circumstances of the purchaser and substantial impairment of value to a purchaser are all issues to be determined by a trier of fact. McGilbray, 221 Kan. 605, Syl. ¶ 2. The needs and circumstances of the buyer is a subjective question, whereas the inquiry whether the nonconformity in fact substantially impairs the value to the buyer is an objective question and requires evidence from which it can be inferred that the plaintiff’s needs were not met because of the nonconformity. 221 Kan. at 609. A jury is entitled to draw all reasonable inferences of fact from the evidence presented, State v. Fenton, 228 Kan. 658, 666, 620 P.2d 813 (1980), and jurors have the right to use that knowledge and experience which they possess in common with men in general about a matter concerning which a witness has testified. Noland v. Sears, Roebuck & Company, 207 Kan. 72, 76, 483 P.2d 1029 (1971).
Admittedly, the plaintiff did not testify expressly concerning his needs and circumstances with respect to his purchase or use of the automobile, or what the value of the Peugeot to the plaintiff would have been had the car conformed to the terms of the contract. However, to sustain the appellant’s point would require this court and a jury of average intelligence to ignore the obvious use and purpose of an automobile for the plaintiff. The evidence showed that the car had been driven between 5,300 and 7,000 miles in the five months the plaintiff was able to use it. The plaintiff testified he had to purchase another car to replace the Peugeot. On at least one occasion the plaintiff had to rent a car when the Peugeot was being repaired. The plaintiff was employed in two jobs at the time, one as a computer operator and another as a computer consultant. The plaintiff testified he often was required to miss work when he needed to have the car repaired because of the time involved in taking the car to Schmid and in obtaining transportation elsewhere. The plaintiff estimated that he had spent approximately 150 hours of his time in his efforts to have the car repaired, which, when multiplied by his hourly wage, amounted to $1,400 in lost earnings.
There was abundant evidence from which the jury could infer that the Peugeot, like most cars, was relied on by the plaintiff for his means of transportation to and from work on a daily basis, and that he needed dependable transportation for this purpose. We cannot accept the rigid and narrow position taken by the appellant that no evidence was presented from which the jury could infer the specific needs and circumstances of the plaintiff and what the value of the car would have been to him had it conformed to the contract. It was possible, therefore, for the jury to determine whether the defects in the car substantially impaired its value to the plaintiff.
The appellant further contends that acceptance of the car was not revoked before a substantial change in the condition of the car occurred, as required by K.S.A. 84-2-608(2), because the car had been driven 7,000 miles prior to attempted revocation. What constitutes “substantial change” is a question of fact. The jury was properly instructed that the plaintiff must prove “that the revocation occurred before there was a substantial change in the condition of the automobile, which was not caused by the defective condition of said automobile.”
A general verdict resolves all controverted issues in favor of the prevailing party. Byers v. Hesston Appliance, Inc., 212 Kan. 125, 130, 509 P.2d 1151 (1973). A finding that acceptance of the car had been revoked before a substantial change had occurred was implicit in the jury’s verdict.
In McGilbray it was held the value of a motor home to the buyer had not been substantially impaired where the defects were minor, all defects had been repaired by the seller, and the plaintiff had not been prevented from taking the vehicle on several trips and had driven the vehicle 8,700 miles during the 50 weeks he owned it. The court emphasized that other cases finding the value of a vehicle to be substantially impaired were distinguishable because in each case the seller had failed to satisfactorily repair a major defect in the vehicle. 221 Kan. at 610-11. The defendant in McGilbray had remedied all defects brought to its attention by the buyer.
In Newmaster v. Southeast Equipment, Inc., 231 Kan. at 470-71, the failure to repair defects was again emphasized as the key factor in the court’s decision. There the plaintiff was permitted to revoke his acceptance of a sower/tiller where the seller was notified of the defect in the machine three days after delivery and two and one-half months later the machine was returned because the seller had failed to make any attempt to repair the machine after repeated requests to do so.
Numerous cases from other jurisdictions have discussed the substantial impairment requirement for revocation of goods under § 2-608 of the Uniform Commercial Code. See, e.g., Annot, What Constitutes “Substantial Impairment” Entitling Buyer to Revoke his Acceptance of Goods Under UCC § 2-608(1), 98 A.L.R.3d 1183. Many cases have permitted a dissatisfied purchaser to revoke acceptance of a motor vehicle where the seller has repeatedly failed to repair defects. Typical of these cases is Durfee v. Rod Baxter Imports, Inc., 262 N.W.2d 349 (Minn. 1977), which involves facts very similar to those in the instant case. The plaintiff purchased a Saab automobile from the defendant and numerous problems began to emerge almost immediately. Among other minor problems, a rattle developed under the dashboard, the seatbelt warning system would activate without cause, the accelerator would stick, the engine would continue to run after the key was removed, the temperature gauge registered “hot,” and five months after the purchase the car began to stall repeatedly. The plaintiff took the car to the seller and another Saab dealer several times for repairs. In an attempt to solve the problem with the seatbelt warning device a front seat was removed and a used seat temporarily installed which remained that way until the plaintiff revoked acceptance of the car several months later. Because of continued stalling the car had to be towed to the dealership several times and often the car would remain at the dealership several weeks for repairs. Most of the minor defects described above continued to persist. The plaintiff revoked acceptance nine months after the purchase and had driven the car 6,300 miles.
In holding the defects substantially impaired the value of the Saab to the plaintiff the court in Durfee, 262 N.W.2d at 355, quoted from Stofman v. Keenan Motors, Inc., 63 Pa. D. & C.2d 56, 59, 14 U.C.C. Rep. Serv. 1252 (1973):
“The question we must consider is just how long the buyer must wait and how many unfulfilled promises may be made before he is entitled to revoke his acceptance of an automobile and be returned the purchase price. Our sympathies lie with those who repeatedly return their cars for repairs or service, then get them back in almost the same condition as when the complaints were originally registered. Sympathies aside, the law, ever just, provides a remedy for the situation where such a purchaser seeks to revoke his acceptance after receipt of and payment for the goods purchased.”
The court further went on to note that a seller does not have unlimited time to deliver conforming goods; therefore, the failure to repair could result in substantial impairment even if the defects could have been repaired.
A similar conclusion was reached in Ford Motor Credit Co. v. Harper, 671 F.2d 1117 (8th Cir. 1982), where the buyer had purchased a four-wheel-drive tractor to use on his farm during muddy times of the year. The tractor engine continued to stall and repeated efforts by the seller to repair it were unsuccessful. As a result the buyer was unable to use the tractor during the muddy periods of the year and revoked acceptance seventeen months after the purchase. The court had no difficulty finding that factory related defects and the inexpert attempts at repair and maintenance by the seller established a nonconformity under the contract which substantially impaired its value to the buyer. 671 F.2d at 1124.
This court likewise has no difficulty finding in the instant case, based upon the evidence presented by the plaintiff, that the Peugeot automobile did not conform to the contract and that this nonconformity substantially impaired its value to the plaintiff. Nonconformity “includes not only breaches of warranties but also any failure of the seller to perform according to his obligations under the contract.” U.C.C. § 2-714, comment 2. The test for substantial impairment is, after all, a common sense perception. Ford Motor Credit Co. v. Harper, 671 F.2d at 1124. After five attempts by the plaintiff to have the car repaired, most of the minor defects and the leak in the transmission continued to exist. In addition, the air conditioner clutch fell out of the car onto the highway while the plaintiff was driving to work after having had the car serviced and the air conditioner worked on. In order to drive the car the plaintiff was forced to daily check and add transmission fluid. In this condition the car was of questionable value to the plaintiff. The evidence supports the jury’s verdict that the plaintiff was justified in revoking his acceptance of the Peugeot automobile and was entitled to the return of his purchase price.
The appellant next contends the plaintiff failed to present sufficient evidence to establish a breach of the implied warranty of merchantability under K.S.A. 84-2-314, and that such failure was fatal to the plaintiff’s cause of action for revocation of acceptance. The plaintiff premised his action for revocation upon the defendant’s breach of the implied warranty of merchantability and express warranty. The general verdict forms submitted to the jury provided that the jury could either find the plaintiff was entitled to revoke his acceptance and recover the purchase price and consequential damages, or, if revocation was not allowed, the plaintiff could recover for breach of the warranties. Instructions were given on implied warranty of merchantability, express warranty, damages for breach, and revocation of acceptance. The appellant claims the trial court erred in denying its motion for a directed verdict or dismissing the plaintiff’s action for breach of implied warranty of merchantability because no evidence was presented by the plaintiff regarding (1) the ordinary purpose for which a 1977 Peugeot is used, (2) the expectations of the plaintiff as to a car with 22,967 miles on it, and (3) that the defect existed at the time it left Schmid’s control.
To establish a breach of the implied warranty of merchantability under 84-2-314(2)(c) a buyer must prove first, the ordinary purpose of the type of goods involved, and second, the particular goods sold were not fit for that purpose. Kansas case law has interpreted this to mean that the buyer must show the goods were defective and the defect existed at the time of the sale. Rasor, Kansas Law of Sales § 9-2. See, e.g., Querry v. Montgomery Ward & Co., Inc., 217 Kan. 104, 109, 535 P.2d 928 (1975).
The contention that no evidence was presented regarding the ordinary purpose of a 1977 Peugeot with 22,967 miles on it, and what the plaintiffs expectations were regarding the car, asks the court to again ignore the obvious. The plaintiff testified he believed he was buying a new car and he was told the car would be warranted as new. The plaintiff testified he was forced to miss work because of the problems with the car. He obviously drove the car to and from work on a daily basis and expected the car to provide dependable transportation for that purpose. In International Petroleum Services, Inc. v. S & N Well Service, Inc., 230 Kan. 452, 454, 639 P.2d 29 (1982), the court recognized that under the implied warranty of merchantability set forth in 84-2-314 an ordinary buyer in a normal commercial transaction has a right to expect that the goods purchased will not turn out to be completely worthless, but on the other hand cannot reasonably expect that those goods will be the finest of all possible goods of that kind.
A claim for breach of implied warranty may be proved by circumstantial evidence. Butterfield v. Pepsi-Cola Bottling Co., 210 Kan. 123, 126, 499 P.2d 539 (1972). On a motion for a directed verdict all facts and inferences reasonably to be drawn from the evidence must be resolved in favor of the party against whom the ruling is sought and if the evidence is such that reasonable minds could reach different conclusions thereon, the motion should be denied. Lemley v. Penner, 230 Kan. 25, 27, 630 P.2d 1086 (1981). The jury could have inferred from the evidence presented the plaintiff’s reasonable expectations as to the use of the Peugeot. The jury could also have found that the defect existed when the car left Schmid’s control. For these reasons the trial court did not err in submitting this issue to the jury under proper instructions.
Several points are raised concerning the express new car warranty of “twelve months or 12,000 miles” extended to the plaintiff. Initially the appellant contends the trial court erred in ad- milling evidence regarding the express new car warranty and instructing the jury on breach of express warranty because a claim for breach of express warranty was not contained in the pretrial order.
In his original petition the plaintiff stated a claim for breach of implied warranty of merchantability as the basis of his claim for revocation of acceptance. In an amended petition the plaintiff additionally alleged Schmid had breached the express warranty extended to him that the automobile “would be free from defects in material and workmanship for a period of one (1) year from the date of purchase or 12,000 miles after purchase, whichever came first.” The pretrial order, drafted by counsel for Schmid, stated:
“In the course of selling the automobile to the Plaintiff, the Defendant warranted to the Plaintiff that the vehicle was of a quality which was at least fit for the ordinary purposes for which automobiles are used, and in all respects was of merchantable quality. The plaintiff relied upon the implied warranty of merchantability.”
The trial court ruled that this paragraph encompassed claims for breach of both express and implied warranties.
This court has often held that the purpose of the pretrial order is to define and clarify the issues, and when entered pursuant to K.S.A. 60-216, has the full force and effect of other orders of the court and controls the subsequent course of trial unless modified to prevent manifest injustice. See Country Club Home, Inc. v. Harder, 228 Kan. 756, 762, 620 P.2d 1140, modified 228 Kan. 802 (1980); Dold v. Sherow, 220 Kan. 350, 353, 552 P.2d 945 (1976); Kleibrink v. Missouri-Kansas-Texas Railroad Co., 224 Kan. 437, 441-42, 581 P.2d 372 (1978). Large discretionary power is granted to the trial court in permitting or refusing modification and amendment of the issues outlined in a pretrial order. Frevele v. McAloon, 222 Kan. 295, 298, 564 P.2d 508 (1977); Tillotson v. Abbott, 205 Kan. 706, 709, 472 P.2d 240 (1970); K.S.A. 60-216.
Regarding the provisions of the corresponding Federal Rule, Fed. R. Civ. Proc. 16, 6 Wright & Miller, Federal Practice and Procedure, Civil § 1527, 608-10, states:
“Although federal judges generally recognize the binding effect of the pretrial order, this does not mean that it is rigidly and pointlessly adhered to at trial. The application of preclusion always is viewed as a matter of judicial discretion. Thus, in the absence of. an abuse of that discretion, it is not error for the court to permit the introduction of evidence or to give instructions on issues beyond the scope of the order or to hear witnesses not listed in accordance with the court’s order. In addition to allowing matter to be introduced that is outside the pretrial order in appropriate cases, courts have held that the order should be construed liberally so that it covers any of the possible legal or factual theories that might be embraced by its language. Even if the pretrial order cannot be interpreted to apply to the issue that is challenged as being outside its terms, relief still may be available because Rule 16 explicitly provides that the order may be modified to ‘prevent manifest injustice.’ ”
In view of the policy allowing liberal construction of pretrial orders and the broad discretionary power placed in the trial court over modification of pretrial orders, we do not believe the trial court erred in allowing the admission of evidence and instructing the jury concerning express warranty. The appellant Schmid, whose attorney drafted the pretrial order, was fully aware the plaintiff was relying on breach of both express and implied warranties in his action for revocation. Certainly no surprise can be claimed, and the appellant has not indicated in what way he was prejudiced by the admission of this evidence, other than by an unfavorable jury verdict. Under the circumstances presented here the trial court did not abuse its discretion by construing the language contained in the pretrial order to embrace a claim for breach of express warranty.
The appellant further contends the trial court erred in denying Schmid’s motion for a directed verdict on the plaintiff’s claim for breach of express warranty. It is Schmid’s position that the express new car warranty noted on the purchase order was in fact a manufacturer’s warranty extended by Peugeot and that Schmid merely relayed the warranty to the plaintiff. With the exception of the notation indicating a warranty on the purchase order, Schmid maintains the record is “totally barren” of any evidence in support of the extension of an express warranty by Schmid to the plaintiff and the plaintiff “clearly understood” the express warranty came from Peugeot rather than from Schmid.
The evidence in the record concerning the express warranty comes entirely from the plaintiff’s testimony. Neither Schmid nor Peugeot presented evidence concerning Peugeot’s alleged practice of extending a manufacturer’s new car warranty to purchasers of cars which previously had been driven by Peugeot factory representatives. The plaintiff testified extensively concerning his understanding about the express warranty. At various times the plaintiff testified:
“A. . . . [I]n other words, one was a brand new car, the other one had been driven by . . . the Peugeot representative that visited Don Schmid as the representative of Peugeot. And, that the car was — had been properly maintained by the representative; in other words, normal warranty work, normal checkups, normal service had been performed, and that Don Schmid and Peugeot would warrant the car just as if I was buying the red car .... And I made sure that I understood what Mr. Rydjord was saying, was that it didn’t matter which car I bought, I still got the same service and still got the same warranty.
“Q. Did John Rydjord, your salesman, tell you that Don Schmid guaranteed this car for twelve months or twelve thousand miles?
“A. ... I was told both. I was told that Don Schmid was the authorized dealer for Peugeot and that they would — first of all, that I would receive a warranty from Peugeot. That is why it states on this piece of paper that there is a warranty, because I had nothing to go on. . . . I was told that this would keep me going until the warranty arrived from Peugeot and that the warranty that arrived from Peugeot would be the same as the warranty card you get when you buy a Ford or Chevy or any car, that you can take to any authorized dealer and have the warranty work done.
“Q. So, you were to receive a Peugeot warranty?
“A. Yes.
“Q. Well, did he say it had a Don Schmid warranty, a standard Peugeot warranty —
“A. Well, like I said before, he told me that it was . . . that the car had a full warranty of twelve months — or twelve thousand miles and one year, or twelve months, which was the standard Peugeot warranty; that Don Schmid would administer any warranty work that needed to be done and stand behind the warranty; and that I would receive in a very short period of time, because it was a car driven by a Peugeot representative, a new warranty plate, or record, from Peugeot that could be used at any dealership in the United States that was an authorized Peugeot dealership.”
The plaintiff further testified as follows concerning the “warranty card” he was to receive from Peugeot which would serve to prove the car was under warranty:
“A. ... I tried going through Don Schmid to get the warranty card. I tried calling Peugeot to get the warranty card. And if I asked Don Schmid, Don Schmid said we’re talking to Peugeot; and when I called Peugeot, they said, we’re working on it. But, I never received it.”
As stated before, on a motion for a directed verdict all facts and inferences reasonably to be drawn from the evidence must be resolved in favor of the party against whom the ruling is sought. We find that evidence was presented from which the jury could have inferred that an express warranty was extended to the plaintiff from Schmid.
The appellant next contends the trial court erred in submitting Schmid’s claim for indemnity against Peugeot to the jury. At the close of the evidence, Schmid profferred an instruction concerning Schmid’s claim for breach of implied warranty of merchantability against Peugeot and the measurement of damages for breach of an implied warranty. In support of the proffered instruction Schmid relied in part on K.S.A. 84-2-607(5), which states in part:
“Where the buyer is sued for breach of a warranty or other obligation for which his seller is answerable over
“(a) he may give his seller written notice of the litigation. If the notice states that the seller may come in and defend and that if the seller does not do so he will be bound in any action against him by his buyer by any determination of fact common to the two litigations, then unless the seller after seasonable receipt of the notice does come in and defend he is so bound.”
The following discussion then took place between the court and the parties:
“Mr. Metzger [attorney for Schmid]: Okay. 84-2-607(5) is the vouching in statute under the Uniform Commercial Code which places a duty on Peugeot to come in and defend us for those actions in which they are liable over to us.
“The Court: Under their warranty?
“Mr. METZGER: Under their warranty. If they fail to do that, the statute then says that they are bound by any questions of common fact.
“The Court: What do you mean by ‘bound by issues of common fact’?
“Mr. Campbell [attorney for Peugeot Motors]: The issues have been taken care of by the verdict form and by the instruction on the warranties and merchantability. You’ve already instructed that it applies to me, too.
“The Court: Right.
“Mr. Campbell: I just think that is going to confuse the jury.
“The Court: It looks to me like it would, too, because it has confused me about what you mean by ‘issues of common fact’ and ‘bound by’. Whether the jury is going to think —
“Mr. Metzger: It very well may be, Your Honor, that is actually a question of law for Your Honor to decide because what — it’s a statutory codification of indemnification.
“The COURT: We will work on that after a verdict comes in, though.
“Mr. Metzger: That would be fine with me. I just didn’t want to waive my ability to argue that we should, irregardless of the jury verdict, we should be indemnified afterward.
“The COURT: I’ll deny that at this time but leave it open for argument after the verdict comes in.”
The verdict forms submitted to the jury included one for the jury to determine the amount of damages Schmid was entitled to recover from Peugeot. The jury found that Schmid was not entitled to any damages from Peugeot. Following the trial the appellant filed a motion for the court to determine the indemnity issue between Schmid and Peugeot. The trial court refused to entertain the motion on the ground that it had submitted the issue to the jury and it had been determined at that time. The appellant claims the trial court reserved the legal question of indemnification for determination by the court after the verdict was returned.
Close examination of the dialogue reproduced above and the record reveals that the issue reserved by the trial court was the construction of the words “bound by issues of common fact,” referring to K.S.A. 84-2-607(5), and not, as the appellant contends, the issue of the amount of damages Schmid was entitled to recover from Peugeot for breach of the implied warranty of merchantability. Other evidence in the record also bears out this conclusion. The defendant Peugeot presented evidence to the effect that all problems with the Peugeot automobile were the result of negligent and careless repair work by Schmid, rather than manufacturing defects in the car. In addition to the previously mentioned verdict forms submitted to the jury, numerous instructions were given relating to Peugeot Motors’ liability to Schmid for damages for breach of implied warranty of merchantability. Instructions were given concerning Schmid’s burden of proof on the issue of its damages against Peugeot Motors; Peugeot’s liability to Schmid for inherent defects in the vehicle, but not for Schmid’s failure to repair the vehicle; a manufacturer’s liability to a person who is damaged by breach of implied warranty; Schmid’s claim that Peugeot was liable for the defects in the automobile; the implied warranty created by Peugeot when it sells cars to Schmid; and Peugeot’s role as seller of automobiles to Schmid.
The appellant did not object to any of these instructions or the verdict forms submitted to the jury. Under K.S.A. 60-251(¿) where no objection is made to an instruction it becomes the law of the case unless clearly erroneous. Iseman v. Kansas Gas & Electric Co., 222 Kan. 644, 649, 567 P.2d 856 (1977); Snyder v. City of Concordia, 182 Kan. 268,272, 320 P.2d 820 (1958). The appellant does not contend on appeal that any of these instructions are clearly erroneous. It appears that the appellant seeks two opportunities to have Peugeot’s liability to it determined. The appellant acquiesced in the instructions regarding Peugeot’s liability, which were submitted to the jury and became the law of the case, and now it claims this issue should have been determined by the court as a matter of law. We find the issue of Peugeot’s liability to Schmid for damages for breach of implied warranty was submitted to and determined by the jury.
In arguing its right to indemnification from Peugeot Motors, the appellant has confused its right to “vouch in” a party liable over to him under K.S.A. 84-2-607(5) with its right to recover indemnity from Peugeot based upon Peugeot’s breach of implied warranty of merchantability. Where a buyer pursues the provisions of this statute, it merely binds the vouchee to “any determination of fact common to the two litigants.” This avoids the necessity of relitigating the issues of liability to the plaintiff. Uniroyal, Inc. v. Chambers Gasket & Mfg. Co., 177 Ind. App. 508, 521, 380 N.E.2d 571 (1978). (We note that while Peugeot Motors participated in this action it defended only its liability to Schmid and did not defend Schmid’s liability to the plaintiff.) The mere finding that Schmid was liable to the plaintiff does not, without more, entitle Schmid to indemnity from Peugeot under K.S.A. 84-2-607(5). 177 Ind. App. at 524. A question of fact was presented to the jury as to whether or not Peugeot breached its implied warranty of merchantability to Schmid making it “answerable over” to Schmid for Schmid’s liability to the plaintiff.
Schmid steadfastly maintains it sold the vehicle to the plaintiff in the exact condition it was in when received from Peugeot; and thus, any defects in the vehicle at the time of the sale to the plaintiff were present when the car was sold to Schmid by Peugeot. On the other hand, Peugeot contends Schmid was found liable to the plaintiff for failure to repair the automobile rather than for defects in the vehicle.
A right of indemnity exists where a party is compelled to pay damages that rightfully should have been paid by another party. 41 Am. Jur. 2d, Indemnity § 20. Thus, a seller that is liable for damages to a purchaser of defective goods may seek indemnity from the manufacturer where the damages were the proximate result of the manufacturer’s breach of warranty. Where, however, the damages result from the seller’s failure or refusal to repair the goods rather than any manufacturing defect in the goods, the seller’s right to indemnity against the manufacturer for breach of warranty is barred. See Schroeder v. Fageol Motors, Inc., 12 Wash. App. 161, 170, 528 P.2d 992 (1974), modified 86 Wash. 2d 256 (1975); Massingale v. Northwest Cortez, 27 Wash. App. 749, Syl. ¶ 6, 620 P.2d 1009 (1980).
A general verdict resolves all controverted issues in favor of the prevailing party and imports a finding on all issues in a case which are not inconsistent with answers to special questions submitted. Byers v. Hesston Appliance, Inc., 212 Kan. 125, 130, 509 P.2d 1151 (1973). Peugeot was a prevailing party in this action. The jury was properly instructed that “Peugeot Motors is liable to Don Schmid Motors for inherent defects in the vehicle, but not Don Schmid’s failure to properly repair the vehicle.” A finding by the jury that the plaintiff’s damages were caused by Schmid’s failure to repair the car rather than defects in the car was inherent in the verdict returned by the jury specifically finding Peugeot not to be liable to Schmid for the plaintiff’s damages.
Schmid argues in the alternative that if the issue of indemnification was properly submitted to the jury it was prejudicial for the trial court to refuse Schmid’s proffered instruction as the instructions given by the trial court, taken as a whole, did not adequately state the law of indemnification. The appellant proffered the following instruction:
“Don Schmid Motors, Inc., has asserted a claim against Peugeot Motors of America, Inc., based upon an alleged breach of the implied warranty of merchantability. As you were informed in an earlier instruction, Don Schmid Motors, Inc., is not only a dealer/merchant but is also a buyer and Peugeot Motors of America, Inc., is the seller/merchant of Don Schmid Motors, Inc. Therefore, if you find that Peugeot Motors of America, Inc., breached its implied warranty to Don Schmid Motors, Inc., then Don Schmid Motors, Inc., is entitled to recover damages from Peugeot Motors of America. Said damages are to be measured as follows:
“1) The difference in value of the automobile in question at the time it was purchased as said automobile was warranted minus its actual value, and
“2) Any loss resulting from the general or particular needs of Don Schmid Motors, Inc., of which Peugeot Motors of America, Inc., had reason to know of including attorney’s fees which could not be reasonably avoided, and of which Peugeot Motors of America, Inc., breach was a proximate cause.”
Error cannot be predicated on the refusal to give an instruction when its substance is adequately covered in other instructions. Van Hoozer v. Farmers Insurance Exchange, 219 Kan. 595, 614, 549 P.2d 1354 (1976). Instructions should be general in nature insofar as possible. If they properly and fairly state the law as applied to the facts in the case when considered as a whole, and if the jury could not reasonably be misled by them, the instructions should be approved on appeal. Timsah v. General Motors Corp., 225 Kan. 305, Syl. ¶ 3, 591 P.2d 154 (1979).
The instruction proffered by Schmid merely restated portions of other instructions given to the jury relating to Peugeot’s liability for damages for breach of implied warranty of merchantability. It was not error for the court to submit the indemnity issue to the jury without giving Schmid’s proffered instruction.
Schmid additionally complains about the insufficiency of other instructions given by the trial court. We have reviewed the instructions given and find they fairly presented the law as stated in McGilbray.
The appellant also complains about Instruction No. 9 given by the trial court regarding breach of express warranty.
The first 4 paragraphs of this instruction were taken from PIK Civ.2d 13.15 (1977), and the appellant concedes it is a correct statement of the law regarding express warranty. The appellant contends, however, the instruction is insufficient because it does not specifically address the issue of whether Schmid or Peugeot Motors extended the express warranty to the plaintiff.
In determining the insufficiency of an instruction the court must focus on whether the jury could reasonably have been misled by it. The determination whether the probable effect of the instruction has been to mislead the jury and whether the error has been prejudicial so as to require reversal depends upon all the circumstances of the case, including a consideration of all the evidence. Curby v. Ulysses Irrigation Pipe Co., Inc., 204 Kan. 456, 462, 464 P.2d 245 (1970). Throughout the trial Schmid emphasized its position that it had not extended an express warranty to the plaintiff, but had merely relayed the warranty extended by Peugeot. The jury was well aware of this position. Under the circumstances of this case we cannot say the jury was misled by the trial court’s failure to specifically instruct the jury concerning which party had extended the warranty.
The appellant also complains that the last paragraph of Instruction No. 9, stating that the alleged defect must be present at the time it left the possession of the seller or manufacturer, is an erroneous statement of law for breach of express warranty, although it is an element of proof for breach of implied warranty of merchantability. However, we have discerned from the record that this paragraph was added to the instruction upon the appellant’s express request. While this paragraph was an erroneous statement of law as it. relates to breach of express warranty, any misleading of the jury because of it would have been to the appellant’s benefit. Certainly the appellant was not prejudiced by it. We hold the jury could not reasonably have been misled by the instruction given and we find no error requiring reversal.
The appellant’s final point on appeal concerns the trial court’s allowance of attorney’s fees to the plaintiff pursuant to the provisions of the Magnuson-Moss Federal Warranty Act, 15 U.S.C. § 2301 et seq. Section 2310(d)(2) of 15 U.S.C., provides:
“If a consumer finally prevails in any action brought under paragraph (1) of this subsection, he may be allowed by the court to recover as part of the judgment a sum equal to the aggregate amount of cost and expenses (including attorneys’ fees based on actual time expended) determined by the court to have been reasonably incurred by the plaintiff for or in connection with the commencement and prosecution of such action, unless the court in its discretion shall determine that such an award of attorneys’ fees would be inappropriate.”
Initially the appellant contends the issue of attorney’s fees was outside the scope of the pretrial order. The pretrial order stated the plaintiff sought damages of $7,000 for violation of the Magnuson-Moss Federal Warranty Act. Based on our discussion earlier in this opinion regarding this issue we find this was sufficient to state a claim for attorney’s fees under the Act.
The Magnuson-Moss Federal Warranty Act is a limited federal consumer warranty law which applies to manufacturers, sellers and consumers of “consumer products.” The Act primarily provides guidelines in connection with written express warranties and in many cases invalidates attempted disclaimers of implied warranties of merchantability. See White and Summers, Uniform Commercial Code § 9-3 (2d ed. 1980); Clark and Davis, Beefing Up Product Warranties: A New Dimension in Consumer Protection, 23 Kan. L. Rev. 567, 606-17 (1975). Section 2310(d)(1) provides that a consumer damaged by the failure of a supplier to comply with its obligations under an express or implied warranty may bring a civil action for damages and other legal and equitable relief in any state or federal court.
Following an evidentiary hearing on the issue of attorney’s fees the trial court awarded the plaintiff attorney’s fees in the amount of $3,000. Section 2310(d)(2) of 15 U.S.C., specifies that an award of attorney’s fees to a prevailing party under the Act is within the discretion of the trial court. See Trost v. Porreco Motors, Inc., 297 Pa. Super. Ct. 393, 397, 443 A.2d 1179 (1982). The trial court did not abuse its discretion in the award of attorney’s fees to the plaintiff.
The appellant further contends the trial court erred in refusing to award attorney’s fees to Schmid against Peugeot Motors. Cases from other jurisdictions have recognized that attorney’s fees can be awarded to consumers but not to retailers against a manufacturer under the Act. See Nobility Homes, Inc. v. Ballentine, 386 So. 2d 727, 730-31 (Ala. 1980); Ventura v. Ford Motor Co., 173 N.J. Super. 501, 504, 414 A.2d 611 (1980).
As a retailer buying consumer products for resale from the manufacturer, Schmid is not within the definition of consumer as it is used in the Magnuson-Moss Federal Warranty Act, 15 U.S.C. § 2301(3),'and thus is not entitled to recover damages or attorney’s fees against Peugeot under the Act. 15 U.S.C. § 2310(d)(2). Furthermore, Schmid was not a prevailing party in this action. The trial court was correct in refusing to grant attorney’s fees to Schmid against Peugeot Motors.
The judgment of the lower court is affirmed.
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The opinion of the court was delivered by
McFarland, J.:
This is a declaratory judgment-injunction action originally brought by five construction firms claiming the defendant Kansas Department of Transportation violated K.S.A. 44-201 by specifying, on wholly state-funded highway projects, payment of federal Davis-Bacon prevailing wage rates [40 U.S.C. § 276a(a) and (b) (1976)]. Plaintiffs Ritchie Paving, Inc., and Utility Contractors, Inc. appeal from the trial court’s adverse decision.
Defendant Kansas Department of Transportation (hereinafter referred to as KDOT) gave appropriate notice of its intention to let bids on some 32 highway projects located in various parts of the state. The bid letting was set for December 17, 1981. The bid specifications for each project: (1) required the payment of the applicable Davis-Bacon minimum wage rates; and (2) compliance with K.S.A. 44-201.
Plaintiffs contend that some Davis-Bacon wage scales set certain wage rates lower than the “current rate of per diem wages” mandated by K.S.A. 44-201 and, accordingly, KDOT’s inclusion of same in the specifications is unlawful.
Before proceeding to the discussion herein the following should be noted. R. D. Andersen Construction Co., Inc., has been a party to four comparatively recent Kansas appellate court cases involving construction and interpretation of K.S.A. 44-201. Multiple references to these cases are necessary to the determination of the issues herein. To avoid confusion arising from the similarity of case names, the four cases are listed and will be henceforth referred to as Andersen I, II, III or IV, as follows:
Andersen I: Andersen Constr. Co. v. Weltmer, 223 Kan. 808, 557 P.2d 1197 (1978), full opinion, 224 Kan. 191, 577 P.2d 1197 (1978).
Andersen II: Andersen Construction Co. v. City of Topeka, 228 Kan. 73, 612 P.2d 595 (1980).
Andersen III: R. D. Andersen Constr. Co. v. Kansas Dept, of Human Resources, 7 Kan. App. 2d 453, 643 P.2d 1142 (1982), rev. denied 231 Kan. 801 (1982).
Andersen IV: Baker v. R. D. Andersen Constr. Co., 7 Kan. App. 2d 568, 644 P.2d 1354 (1982), rev. denied 231 Kan. 799 (1982).
In Andersen II this court summarized the Davis-Bacon Act as follows:
“The Davis-Bacon Act, ch. 411, §§ 1-7, 46 Stat. 1494 (1931), as amended (codified at 40 U.S.C. § 276a to 276a-7 [1976]), requires the Secretary of Labor to determine the minimum wages to be paid laborers and mechanics employed by contractors on federal or federally funded construction projects. Under the published regulations, 29 C.F.R. § 1.1 et seq. (1979), the Secretary compiles wage rate information, determines the prevailing wage scales, and publishes them periodically in the Federal Register. ‘Wages,’ ‘scale of wages,’ ‘wage rates,’ ‘minimum wages,’ and ‘prevailing wages’ are required by 40 U.S.C. § 276a to include not only the basic hourly rate of pay but also fringe benefits.
“Davis-Bacon wages must be paid by all contractors on state and local construction projects when any federal financial assistance is utilized. 42 U.S.C. § 6708.” 228 Kan. at 76.
For purposes of the Davis-Bacon Act wage scales, Kansas is divided into five wage areas. Multiple prevailing wage scales are developed by the United States Secretary of Labor for each area based on the type of construction project involved. The wage scale adopted in each instance by KDOT is the highway construction classification. Certain categories of highway workers therein have a lower wage rate than their counterparts in other classifications. Illustrative of this is the “carpenter” category. In Wage Area No. 2 (Sedgwick County), a carpenter on a highway project has a minimum wage of $5.83 per hour (46 Fed. Reg. 21,566 [1981]) while a carpenter on a high-rise construction project had a minimum wage of $11.45 per hour (46 Fed. Reg. 34,971 [1981]). These wage scales were stipulated in the case herein.
The key factor for purposes of this issue is that the wage rates under Davis-Bacon are the result of project-based analysis. The basis therefore is 40 U.S.C. § 276a(a), which provides in relevant part:
“[S]hall be based upon the wages that will be determined by the Secretary of Labor to be prevailing for the corresponding classes of laborers and mechanics employed on projects of a character similar to the contract work in the city, town, village, or other civil subdivision of the State, in which the work is to be performed . . . .”
We turn now to the Kansas statute in controversy. K.S.A. 44-201 provides:
“44-201. Eight-hour day; exceptions; payment of current rate of per diem wages where work performed. ‘The current rate of per diem wages’for the intents and purposes of this act shall be the rate of wage paid in the locality as hereinafter refined to the greater number of workmen, laborers or mechanics in the same trade, occupation or work of a similar nature. In the event that it be determined that there is not a greater number in the same trade, occupation or on similar work paid at the same rate, then the average rate paid to such laborers, workmen or mechanics in the same trade, occupation, or work shall be the current rate. The locality’ for the purpose of this act shall be the county wherein the physical work is being performed: Provided, That where cities of the first or second class are located in said counties, each such city shall be considered a locality.
“Eight hours shall constitute a day’s work for all laborers or other persons employed by or on behalf of the state of Kansas or any municipality of said state, except in cases of extraordinary emergency which may arise, in time of war, or in cases where it may be necessary to work more than eight hours per calendar day for the protection of property or human life. Laborers or other persons so employed, working to exceed eight hours per calendar day, shall be paid on the basis of eight hours constituting a day’s work. Not less than the current rate of per diem wages in the locality where the work is performed shall be paid to laborers or other persons so employed.
“And laborers and other persons employed by contractors or subcontractors in the execution of any contract or contracts with the state of Kansas or any municipality thereof shall be deemed to be employed by or on behalf of the state or such municipality so far as the hours of work and compensation herein provided are concerned.
“That the contracts hereafter made by or on behalf of the state of Kansas or by or on behalf of any county, city, township or other municipality of said state with any corporation, person or persons which may involve the employment of laborers, workmen or mechanics, shall contain a stipulation that no laborer, workman or mechanic in the employ of the contractor, subcontractor or other person doing or contracting to do the whole or a part of the work contemplated by the contract shall be permitted or required to work more than eight (8) hours in any one calendar day except in cases of extraordinary emergency (as defined in this act); such contract shall contain a provision that each laborer, workman or mechanic employed by such contractor, subcontractor or other person about or upon such public work shall be paid the wages herein provided: Provided further, That the provisions of this act in regard to hours worked per calendar day shall not apply to the construction, reconstruction, maintenance, or the production of local materials for: Highways, roads, streets, and also the structures and drainage in connection therewith; sewer systems; waterworks systems; dams and levees; canals; drainage ditches; airport grading, drainage, surfacing, seeding, and planting.” (Emphasis supplied.)
Under K.S.A. 44-201 the “current rate of per diem wages” is the “rate of wage paid in the locality” to workmen in the same trade or work of a similar nature.
Plaintiffs argue that K.S.A. 44-201 does not permit project-based classification of workers. Put more simply, the contention is that a carpenter is a carpenter whether working on a highway, a high-rise office building, or a chicken coop. Therefore plaintiffs argue wages of all carpenters in the locality should be considered in establishing the current rate of per diem wage referred to in K.S.A. 44-201. Davis-Bacon wage scales are project-based and authorize, in a particular area as shown in the earlier illustration, payment to a highway project carpenter of approximately one-half the minimum wage authorized for a high-rise building project carpenter. Plaintiffs argue the Davis-Bacon variation in wages for similar jobs among the various classifications in a given area is a patent violation of K.S.A. 44-201. We do not agree.
The issue of whether K.S.A. 44-201 itself requires a project-based analysis was before the Court of Appeals in Andersen IV. After reviewing prior case law construing K.S.A. 44-201, the court therein concluded:
“Workers, although in the same generic class of employment, are not necessarily always in the ‘same trade, occupation or work of a similar nature,’ to use the statutory language. Persons employed to do similar tasks may nevertheless not be in the ‘same trade, occupation or work of a similar nature,’ owing to the fact that such workers perform these similar tasks in substantially different work environments. The ‘eight-hour law’ should be construed in light of these statements.
“We hold that in computing the ‘current rate of per diem wages’ for the purposes of 44-201, only those workers employed to do similar tasks on similar classifications of projects should be taken into account. Only if no classification of projects, and therefore no differential wage rates exist, should consideration be given to all the workers in the locality doing similar tasks, regardless of the project setting they work in.
“. . . A project-based analysis would also lessen the burden on a plaintiff who sues a contractor under 44-201, for his proof could be limited to similar projects, and would not have to involve all workers doing similar tasks in any setting. Further, a project-based construction would indirectly serve the ‘eight-hour’ mandate of 44-201 in addition to directly affecting the ‘minimum wage’ provisions. These two arms of the statute are like two sides of the same coin; if a worker is not paid an adequate wage for his eight-hour day of work on a public construction project, it is highly likely that economic pressures may force him to work at some other employment in addition thereto, thus obviating one purpose of 44-201, that being to prevent overworking of public employees.” 7 Kan. App. 2d at 575-76.
We conclude the foregoing holding and rationale of the Court of Appeals are sound and should be approved. Inasmuch as K.S.A. 44-201 itself requires project-based analysis in determining the “current rate of per diem wage,” Davis-Bacon can hardly be deemed in violation of the Kansas statute by virtue of employment of the same considerations in determining the prevailing wage rates. There is no claim that a classification for highway construction projects is improper where project-based classifica tions are permissible. We further conclude the inclusion of the Davis-Bacon wage scale in the specifications herein is not a violation of the “current rate of per diem wages” requirement of K.S.A. 44-201 on the basis that said scale is project based.
In summary, in determination of the current rate of per diem wages under K.S.A. 44-201, substantially similar projects in the locality are the considerations. In determining highway construction wages the comparison must be to other highway construction projects, not to building or residential construction. Only if there are no substantially similar highway construction projects in the locality may one look to other types of projects.
Plaintiffs’ evidence in support of their contention that the Davis-Bacon wage scales herein are unlawful by virtue of being lower than those required by K.S.A. 44-201 was only valid if the Kansas statute did not permit project-based analysis. Plaintiffs argue that the Davis-Bacon division of the state into five wage areas is substantially different from the “locality” requirement of K.S.A. 44-201. However they have failed to estáblish that such circumstances have, in fact, resulted in inclusion of a wage scale lower than that mandated by the Kansas statute.
Another area of plaintiffs’ concérn is that the inclusion of both minimum wage provisions in the specifications is confusing to contractors.
In Andersen II this court said:
“K.S.A. 44-201 sets a floor below which wages paid by contractors on public projects may not fall.” Syl. ¶ 1.
“K.S.A. 44-201 does not prohibit a municipality, if it wishes to do so, from specifying wage rates and scales higher than those required by K.S.A. 44-201, and from including them in the specifications and in the contract.” Syl. ¶ 2.
“K.S.A. 44-201 was enacted not for the benefit of contractors but to protect employees by fixing a floor under wages on public projects. It is an expression of public policy that payment of low wages shall not give a contractor an advantage in bidding or securing a public contract.” Syl. ¶ 4. 228 Kan. 73.
Inclusion, in essence, of two minimum wage considerations simply sets a double floor below which wages paid by contractors may not fall. The wage paid any particular workman may not be less than the minimum wage required under either Davis-Bacon or K.S.A. 44-201.
It should also be recalled that it is the particular workman who claims violation of K.S.A. 44-201 who may bring an action for recovery of the underpaid wages. See Andersen III, 7 Kan. App. 2d 453.
The next issue is whether KDOT has authority to include a specific minimum wage schedule in its highway construction specifications.
Unlike the federal Davis-Bacon Act which requires a wage rate specification, K.S.A. 44-201 does not. Andersen I. However, K.S.A. 44-201 does not prohibit a municipality from electing to have a specific wage rate. Andersen II. See also Andersen IV, 7 Kan. App. 2d at 574. Public bodies having authority to enter into contracts for public works or improvements have the authority to fix the terms of those contracts so long as the terms do not contravene statutory law or public policy. Andersen II, 228 Kan. at 79-80. The Kansas Secretary of Transportation is a public official vested with authority to make contracts (K.S.A. 68-407). Consequently, he may fix the terms of those contracts so long as the terms do not contravene statutory law or public policy. Andersen II, 228 Kan. at 80.
The Transportation Secretary may elect, as did the City of Topeka in Andersen II, to include specific minimum wage rates. If he does, such specifications must be equal to or be greater than the prevailing wage determinable under K.S.A. 44-201 for substantially similar projects in the locality. Andersen IV. Permitting the Secretary to employ Davis-Bacon rates is not only consistent with Andersen II but also decisions from other jurisdictions. E.g., Woodside Village v. Sec. of U.S. Dept. of Labor, 611 F.2d 312 (9th Cir. 1980).
We conclude that KDOT had authority to include the Davis-Bacon wage scale in the specifications herein.
As their next issue plaintiffs argue KDOT’s adoption of the Davis-Bacon wage rates was an invalid delegation of authority to the Department of Labor. This issue is wholly without merit. As noted by the trial judge herein, “[t]he decision to use the Davis-Bacon scale is that of the defendant [KDOT] and not the Department of Labor.”
Other issues raised have been considered and found to be without merit.
The judgment is affirmed.
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The opinion of the court was delivered by
Herd, J.:
This is a damage suit for breach of express and implied warranties, strict liability in tort, violation of the Kansas Consumer Protection Act (KCPA) and breach of contract. The trial court directed a verdict for the defendants. This appeal followed.
Since we are reviewing a directed verdict we will examine the facts giving rise to this controversy in the light most favorable to the plaintiff. Bill Stair is a commercial strawberry grower. He is able to under-price his competition by permitting his customers to pick their own strawberries. He has a five-acre patch near Independence and a seventeen-acre patch north of Bartlesville, Oklahoma. We are concerned here with the Oklahoma acreage.
Strawberries grown in the area of Stair’s fields are dependent upon irrigation for successful production. The Caney River, which flows close to the Oklahoma acreage, is a plentiful source of water for irrigation. In June 1976, Bill Stair purchased an irrigation system from Gaylord Enterprises, La Cygne, Kansas, to take advantage of the available water supply. The system is composed of a travel gun connected to five hundred feet of three-inch hose. The water is pumped from the river into the hose and forced out through the gun which moves slowly across the field. The total cost of the irrigation system was $3532.37. The hose cost $2175.
Rex Gaylord, the proprietor of Gaylord Enterprises, was a dealer for the General Irrigation Company, Carthage, Missouri, which was in the business of buying components and assembling irrigation systems. The hose, which was a component part of the irrigation system, was in turn manufactured by Goodyear Tire & Rubber Company.
Mr. Stair used the irrigation system without incident during the 1977 strawberry season. On September 4, 1978, however, a pencil-sized hole developed in the hose. This caused a loss of water pressure resulting in a shutdown of the system.
At the time the hose burst, Rex Gaylord was no longer a dealer for General Irrigation, causing Stair to go directly to General Irrigation through the person in charge of product complaints, Mr. Diggs. Since Stair had not completed his irrigating, Diggs gave Stair several options which would allow continued use of the hose. Stair chose to sever a small portion of the hose and use it as a sleeve over the damaged area.
On September 7, 1978, Mr. Diggs notified Robert Carlton, a representative of Goodyear in Kansas City, of Mr. Stair’s problems with his hose. On September 13, Mr. Carlton responded to Diggs, stating: “Suggest waiting until hose fails completely, or until season over, then we can request RGA [Return Goods Authorization] and return to Akron.” On September 15, Mr. Diggs sent the following letter to Mr. Stair:
“I have received word from Goodyear Tire & Rubber Co. and they have indicated they will request that the hose be returned to Akron for inspection as soon as you have completed the season.
“Please let me know when you are through or if the hose fails completely.”
Stair testified he called for an RGA number in November and received no reply. This is denied by appellees. However, it is undisputed on February 15, 1979, Diggs sent a letter to Mr. Stair advising: “Goodyear would like to fulfill any obligation they might have with this hose but we need to know if you are complete with use for now and present status of problem.” On February 20, Mr. Stair called Mr. Diggs and requested an RGA. Mr. Diggs replied he would have to call Goodyear and get the RGA. On March 5, 1979, Mr. Diggs sent the RGA number to Mr. Stair.
Stair received his RGA number March 8, 1979. That day he called Mr. Diggs to inquire regarding how long it would take to get the hose back from Goodyear. Before sending it he wanted to make sure he would have it or a replacement hose by April 15, 1979, because after that date his strawberries would be needing irrigation. Mr. Diggs got in touch with Goodyear, then called Stair back and assured him there would be no problem. (Mr. Diggs disputes this.) Stair shipped the hose to Goodyear the same day.
Goodyear received the hose on March 14. On April 17, 1979, Goodyear wrote to Mr. Diggs advising him that an eighty per cent credit or $1207.12 would be issued on the hose. General Irrigation then wrote Stair to inform him of Goodyear’s decision. General Irrigation offered Stair $1218 in credit to be used toward the purchase of a replacement hose which in 1979 cost $2725. At the time neither Goodyear nor General Irrigation had any five-hundred-foot lengths of three-inch hose in stock. However, the letter informed Stair another manufacturer did have a five-hundred-foot length of hose.
Goodyear was not without a hose for long. After a conversation with Mr. Carlton, Mr. Diggs informed Stair Goodyear would ship a replacement hose as soon as Stair paid General Irrigation $337.88. Stair accepted the proposal. General Irrigation received his check on April 26 and ordered the hose from Goodyear the same day. It appeared the parties had settled their differences.
Goodyear shipped the replacement hose by common carrier on May 8, 1979. It was not delivered until June 14. Stair refused to accept delivery due to lateness. In the meantime, to make sure he had water to save his strawberry plants Stair had ordered a new hose from another company during the first part of June. He received that hose June 13,1979. Mr. Stair used the new hose the rest of the season. The 1979 crop was severely damaged.
Stair filed this lawsuit against Rex Gaylord, Mr. Diggs, General Irrigation and The Goodyear Tire & Rubber Company, alleging strict liability in tort, wilful misrepresentation, breach of express warranty, breach of implied warranty of fitness and merchantability, breach of contract and violation of the KCPA, K.S.A. 50-623 et seq. He also alleged actual and punitive damages each in excess of $10,000.00.
The case was tried in March of 1982. Following the opening statements the court dismissed Gaylord as a party. At the con elusion of the evidence the court directed verdicts in favor of appellees Diggs, General Irrigation and Goodyear. Stair appealed the directed verdicts for General Irrigation and Goodyear.
Appellant first contends the trial court erred in allowing each of the three original defendants three peremptory challenges. K.S.A. 60-247(c) governs the allowance of peremptory challenges when there are multiple defendants:
“In civil cases, each party shall be entitled to three (3) peremptory challenges, exceptas provided in subsection (h) of section 60-248, as amended, pertaining to alternate jurors. Multiple defendants or multiple plaintiffs shall be considered as a single party for purpose of making challenges except that if the judge finds there is a good faith controversy existing between multiple plaintiffs or multiple defendants, the court in its discretion and in the interest of justice, may allow any of the parties, single or multiple, additional peremptory challenges and permit them to be exercised separately or jointly.”
Appellant argues there was no good faith controversy existing between the multiple defendants in this case. An examination of the record shows each defendant filed cross-claims against the other two, claiming Mr. Stair’s problems were the fault of the other defendants. Because of this and because the statute places the awarding of additional peremptory challenges within the discretion of the trial court, we find no error. See Massoni v. State Highway Commission, 214 Kan. 844, 852-53, 522 P.2d 973 (1974).
Since all the remaining issues involve the propriety of the directed verdicts entered by the trial court let us examine this court’s scope of review. We have held in reviewing a directed verdict this court will resolve all facts and inferences in favor of the party against whom the ruling is sought. If the evidence is such that reasonable minds could reach different conclusions thereon, the motion should be denied. Lemley v. Penner, 230 Kan. 25, 27, 630 P.2d 1086 (1981).
Initially there is the question regarding the applicability of the Kansas Uniform Commercial Code (UCC), K.S.A. 84-1-101 et seq., and, more specifically, Article 2 of that code, K.S.A. 84-2-201 et seq. The scope of Article 2 is set out in K.S.A. 84-2-102, which reads as follows:
“Unless the context otherwise requires, this article applies to transactions in goods; it does not apply to any transaction which although in the form of an unconditional contract to sell or present sale is intended to operate only as a security transaction nor does this article impair or repeal any statute regulating sales to consumers, farmers or other specified classes of buyers.”
According to K.S.A. 84-2-106(1): “A ‘sale’ consists in the passing of title from the seller to the buyer for a price.” Obviously, a sale is a transaction. “Goods is defined in K.S.A. 84-2-105:
“(1) ‘Goods’ means all things (including specially manufactured goods) which are movable at the time of identification to the contract for sale other than the money in which the price is to be paid, investment securities (article 8) and things in action. ‘Goods’ also includes the unborn young of animals and growing crops and other identified things attached to realty as described in the section on goods to be severed from realty (section 84-2-107).
“(2) Goods must be both existing and identified before any interest in them can pass. Goods which are not both existing and identified are ‘future’ goods. A purported present sale of future goods or of any interest therein operates as a contract to sell.”
The transaction involving the irrigation system was a “sale” and the hose purchased as a part of that system clearly falls within the definition of “goods.” We conclude the UCC is applicable.
It is clear Goodyear made an express warranty regarding the five-hundred-foot hose. K.S.A. 84-2-313(l)(a) states:
“(1) Express warranties by the seller are created as follows:
“(a) Any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise.”
In the Goodyear Tire & Rubber Company Irrigation Hose Guarantee, Goodyear assured the buyer the hose would be “free from defects in material and workmanship.”
The issue before the trial court was whether Goodyear had breached this express warranty. In order to take the case from the jury the trial court had to find there was no evidence Goodyear breached its express warranty. In other words, the appellant had to present some evidence Goodyear’s warranty became a part of the basis of the bargain and the product did not live up to the assurances in the warranty. Goodyear’s Irrigation Hose Warranty lasted at least in part for five years. The fact the hose developed a hole after approximately one and one-half years is evidence the product was defective. Goodyear’s willingness to offer an eighty percent credit and late to replace the hose is further evidence it considered the product defective. Even though a settlement was reached between the parties pertaining to the damaged hose, it was never completed due to a delay in delivery of the hose. Thus the question of whether a settlement was reached and, if not, the question of Goodyear’s breach of express warranty remains unresolved. Both questions should have been submitted to the jury.
General Irrigation made a similar warranty regarding its products but this warranty was limited by the following statement: “Components manufactured by others than General Irrigation Company have no warranty except that given by the original manufacturer.”
Since General Irrigation made no express warranty regarding the hose the question arises whether it still could have been liable under the implied warranty of merchantability theory. K.S.A. 84-2-314(1) states:
“[A] warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind.”
General Irrigation could clearly be considered a merchant because it deals in goods of the kind involved here. K.S.A. 84-2-104. Further, the fact General Irrigation did not sell the hose directly to Stair is of no consequence. K.S.A. 1982 Supp. 50-639(h), a part of the KCPA which will be discussed in more detail later, states: “[N]o action for breach of warranty with respect to property subject to a consumer transaction shall fail because of a lack of privity between the claimant and the party against whom the claim is made.” Similarly, the Kansas comment to K.S.A. 84-2-314 states in part: “The concept of fitness for ordinary purposes is part of the warranty of merchantability and extends protection to the ultimate consumer as well as to a merchant buying for resale.”
The applicability of these rules will be questionable in subsequent breach of warranty cases. The Products Liability Act, K.S.A. 1982 Supp. 60-3301 et seq., now excuses a seller from liability for a defective product manufactured elsewhere if he had no knowledge of the defect and could not have discovered the defect while exercising reasonable care. K.S.A. 1982 Supp. 60-3306. This statute however, was not enacted until the 1981 legislative session, long after Mr. Stair had experienced problems with his irrigation system. Generally a new statute will operate only prospectively unless (1) its language clearly indicates the legislature intended it to operate retrospectively, or (2) the statutory change is merely procedural or remedial in nature and does not affect the substantive rights of the parties. Davis v. Hughes, 229 Kan. 91, 101, 622 P.2d 641 (1981); Nitchals v. Williams, 225 Kan. 285, Syl. ¶¶ 1, 2, 590 P.2d 582 (1979). Since neither of these exceptions are pertinent here K.S.A. 1981 Supp. 60-3306 does not apply to the case at bar.
Tobe merchantable goods must be at least “fit for the ordinary purposes, for which such goods are used.” K.S.A. 84-2-314(2)(c). In this sense a buyer can show a product is unmerchantable if it is defective when it leaves the manufacturer’s control. Butterfield v. Pepsi-Cola Bottling Co., 210 Kan. 123, 126, 499 P.2d 539 (1972). Again, since there was evidence the hose was defective there was evidence from which the jury could have found the irrigation system was defective. As such the question of whether General Irrigation breached the implied warranty of merchantability should also have been allowed to go to the jury.
Once a warranty is breached by the seller the buyer is entitled to an appropriate remedy. There was evidence Mr. Stair and the appellees had agreed the remedy would be a new hose shipped to Mr. Stair for $337.88. There was also evidence, however, this agreement broke down because of delay in delivery. The question of whether this agreement had in fact dissolved and whether Stair properly refused delivery of the hose was essentially a fact question for the jury.
If Mr. Stair did properly refuse delivery of the hose he was then entitled to turn to the remedies provided by the UCC. K.S.A. 84-2-714 covers the buyer’s damages with regard to goods which have already been accepted:
“(1) Where the buyer has accepted goods and given notification (subsection (3) of section 84-2-607) he may recover as damages for any nonconformity of tender the loss resulting in the ordinary course of events from the seller’s breach as determined in any manner which is reasonable.
“(2) The measure of damages for breach of warranty is the difference at the time and place of acceptance between the value of the goods accepted and the value they would have had if they had been as warranted, unless special circumstances show proximate damages of a different amount.
“(3) In a proper case any incidental and consequential damages under the next section may also be recovered.”
K.S.A. 84-2-715 deals with incidental and consequential damages:
“(1) Incidental damages resulting from the seller’s breach include expenses reasonably incurred in inspection, receipt, transportation and care and custody of goods rightfully rejected, any commercially reasonable charges, expenses or commissions in connection with effecting cover and any other reasonable expense incident to the delay or other breach.
“(2) Consequential damages resulting from the seller’s breach include
“(a) any loss resulting from general or particular requirements and needs of which the seller at the time of contracting had reason to know and which could not reasonably be prevented by cover or otherwise; and
“(b) injury to person or property proximately resulting from any breach of warranty.”
See also Panhandle Agri-Service, Inc. v. Becker, 231 Kan. 291, 298, 644 P.2d 413 (1982).
In all cases involving a buyer’s damages for breach regarding accepted goods, the burden of proof is on the buyer. K.S.A. 84-2-607(4).
The controversy here surrounds Stair’s claimed damages for partial loss of his 1979 strawberry crop, allegedly the result of the breach of warranty. At trial Mr: Stair showed evidence of the difference in his strawberry crop profits between 1979 and other years. The appellees argued the figures were speculative and didn’t include some of the operating expenses, such as fuel costs and taxes. The trial court agreed and cited this as the major reason for the directed verdicts.
The basic objective of damages under the UCC is “that the aggrieved party may be put in as good a position as if the other party had fully performed . . . .” K.S.A. 84-1-106(1). One commentator has stated: “Without incidental and consequential damages this goal would be unreachable in many cases .... The availability of consequential damages is vital. It may mean the difference between recovering one dollar, the price of a defective part, and one million dollars, the damages caused as a result of the defective part, in personal injury, lost profits, and more.” Rasor, Kansas Law of Sales Under the UCC § 10-11, pp. 10-36, 10-37. See also La Villa Fair v. Lewis Carpet Mills, Inc., 219 Kan. 395, 406, 548 P.2d 825 (1976).
Under the UCC consequential damages need not be proven with any particular degree of certainty. Indeed, one purpose of subsection (1) of K.S.A. 84-1-106 “is to reject any doctrine that damages must be calculable with mathematical accuracy. Compensatory damages are often at best approximate: they have to be proved with whatever definiteness and accuracy the facts permit, but no more.” Official UCC Comment, § 1-106. In addition, K.S.A. 84-2-715(2)(a) requires a showing the damages were reasonably foreseeable and that the buyer attempted to mitigate damages. See Rasor, p. 10-38; International Petroleum Services, Inc. v. S & N Well Service, Inc., 230 Kan. 452, 463, 639 P.2d 29 (1982).
Given the broad scope of the UCC provisions on damages, we are convinced the damages issue should have been submitted to the jury. Appellant’s evidence showed he grossed $22,210.60 with a net profit of $17,021.85 from seven acres of strawberries at the Bartlesville field in 1978. It further revealed he grossed only $10,235.25 with expenses of $6160.43 from seventeen acres of strawberries at Bartlesville in 1979. Finally, his evidence was that the same seventeen acres of strawberries grossed $30,179.20 with a net profit of $22,880.76 in 1980. The expense items of fuel and taxes were omitted from the accountings for all three years, making comparison valid. The incomplete evidence regarding expenses, however, does not fender the accounting statement false or incorrect. The evidence shows the dramatic reduction in production and sales for 1979. The appellees vigorously cross-examined the Stairs thereby informing the jury the expense items were incomplete. The appellant was not required to provide an exact dollar amount of damages. The evidence presented a valid question of fact from which the jury could have rendered a verdict.
However, even if the evidence of damages is adequate for submission to the jury on that issue, there remains the question of causation. If appellant’s lost profits are not attributable to the defective hose and the delivery of its replacement, there was no issue to submit to the jury. See Official UCC Comment 13, K.S.A. 84-2-314.
We have held the question of causation is essentially a jury question. Sieben v. Sieben, 231 Kan. 372, 374, 646 P.2d 1036 (1982). Therefore, if there was any evidence introduced tending to show the appellees’ actions caused Stair’s damages, the issue should have gone to the jury. Here, appellant offered evidence his receipts from strawberry sales were lower in 1979 than in 1978 and 1980 when he had adequate irrigation. The jury could reasonably have found this was due to the defective hose. Stair also offered evidence appellees were unreasonably slow in delivering a replacement hose for the defective one in violation of their agreement. Thus, there was also evidence the appellees’ acts caused Stair’s damages. Hence, the jury should have been permitted to decide the factual questions.
The next issue pertains to the application of the KCPA, K.S.A. 50-623 et seq. The trial court found there was no violation of the Act and directed a verdict in favor of the appellees. Appellant argues this was error.
The KCPA was enacted by the Kansas legislature in 1973 with the objectives, among other things, “to protect consumers from suppliers who commit deceptive and unconscionable practices,” and “to protect consumers from unbargained for warranty disclaimers.” K.S.A. 50-623(b) and (c). In order to promote these policies the KCPA is to be construed liberally. Willman v. Ewen, 230 Kan. 262, 267, 634 P.2d 1061 (1981).
The most important provisions of the Act are K.S.A. 50-626(a) which states: “No supplier shall engage in any deceptive act or practice in connection with a consumer transaction,” and K.S.A. 50-627(a) which states: “No supplier shall engage in any unconscionable act or practice in connection with a consumer transaction.” K.S.A. 50-624(h) defines “consumer” as “an individual who seeks or acquires property or services for personal, family, household, business or agricultural purposes.” “Agricultural purposes” refers to “a purpose related to the production, harvest, exhibition, marketing, transportation, processing or manufacture of agricultural products by a natural person who cultivates, plants, propagates or nurtures the agricultural products.” K.S.A. 50-624(c). A “supplier” is “a manufacturer, distributor, dealer, seller, lessor, assignor or other person who, in the ordinary course of business, solicits, engages in, or enforces consumer transactions, whether or not he or she deals directly with the consumer.” K.S.A. 50-624(i). Finally, a “consumer transaction” means “a sale, lease, assignment or other disposition for value of property or services within this state ... to a consumer or a solicitation by a supplier with respect to any of these dispositions.” K.S.A. 50-624(c). Plainly, the KCPA applies. Mr. Stair was a consumer, General Irrigation and Goodyear were suppliers and the sale of the irrigation hose was a consumer transaction.
The real question here is whether there is any evidence by which the jury could have found either of the appellees were guilty of a deceptive or unconscionable practice. Deceptive acts include “the intentional failure to state a material fact or the intentional concealment, suppression or omission of a material fact . . . .” K.S.A. 50-626(&)(3). Here, if the alleged assurances that the hose would be returned by a certain date were made knowing there was no way this could be done the appellees might be liable. There is no evidence, however, that such was the case. If the assurances were made they were made sincerely and the appellees simply were not able to live up to them.
Neither is there any evidence the appellees committed any unconscionable acts. Unconscionability is a question for the court, K.S.A. 50-627(fo), and there is no evidence of such practices.
The final question also involves the KCPA. K.S.A. 1982 Supp. 50-639(a) states: “[N]o supplier shall: (1) Exclude, modify or otherwise attempt to limit the implied warranties of merchantability and fitness for a particular purpose.” K.S.A. 1982 Supp. 50-634 allows a private person to bring an action to establish a violation of the KCPA and K.S.A. 1982 Supp. 50-636(a) allows the court to impose a civil penalty of up to $2000 on the violator. K.S.A. 1982 Supp. 50-639(e) states:
“A disclaimer or limitation in violation of this section is void. If a consumer prevails in an action based upon breach of warranty, and the supplier has violated this section, the court may, in addition to any actual damages recovered, award reasonable attorney’s fees and a civil penalty under K.S.A. 50-636, and amendments thereto, or both to be paid by the supplier who caused the improper disclaimer to be written.”
The warranties given by both General Irrigation and Goodyear contain statements to the effect that the express warranties made were in lieu of all other warranties expressed or implied. Obviously both appellees were attempting to limit the implied warranties imposed by K.S.A. 84-2-314 and-315 and as such were in violation of the KCPA. The appellees rely on K.S.A. 1982 Supp. 50-639if) which states: “The making of a limited express warranty is not in itself a violation of this section.” This section, however, is not applicable to the present controversy. It merely recognizes that since an express warranty is not required to be made at all, a limited express warranty is proper. It does not allow a supplier to use a limited express warranty to exclude implied warranties. See Rasor, pp. 9-24, 9-25; Clark, “Lemon Aid for Kansas Consumers,” 46 J.B.A.K. 143, 147 (1977). Thus the trial court erred in holding as a matter of law there was no violation of the KCPA. Pursuant to K.S.A. 50-639(e), the trial judge should have submitted the case to the jury to see if Mr. Stair prevailed on his breach of warranty claim. If he did prevail the trial court could then have imposed civil penalties.
The judgment of the trial court is reversed and the case remanded for a new trial.
McFarland, J., dissenting.
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The opinion of the court was delivered by
Prager, J.:
This is a direct appeal from the judgment of the District Court of Coffey County finding the four defendants guilty of violating Kansas motor vehicle registration statutes. The defendants appealed to the Court of Appeals which reversed the convictions in a published opinion, State v. Groves, 7 Kan. App. 2d 545, 644 P.2d 1013 (1982). The Supreme Court granted the State’s petition for review.
The facts in the case are undisputed. The defendants, William R. Groves, William A. Cummings, and Michael D. Booth, were arrested for driving unregistered Schwing concrete pump/boom trucks owned by their employer, Concrete Placement, Inc., of Kansas City, Kansas, on U.S. Highway 75 in Coffey County on three occasions in October of 1979 and July of 1980. Specifically, all defendants were charged with violating K.S.A. 1981 Supp. 8-142 and K.S.A. 1981 Supp. 8-127(a). The primary issue presented is this: Was the concrete pump/boom truck in each case either a “self-propelled crane” or “road machinery” and, therefore, exempt from motor vehicle registration under the provisions of K.S.A. 1981 Supp. 8-128?
At the outset, we should look at the Kansas statutes governing registration of motor vehicles and the exemptions granted thereunder. K.S.A. 1981 Supp. 8-126 provides in part as follows:
“8-126. Definitions. The following words and phrases when used in this act shall have the meanings respectively ascribed to them herein:
"(a) ‘Vehicle.’ Every device in, upon or by which any person or property is or may be transported or drawn upon a public highway, excepting devices moved by human power or used exclusively upon stationary rails or tracks.
"(b) ‘Motor vehicle.’ Every vehicle, other than a motorized bicycle, which is self-propelled.
“(c) ‘Truck.’ A motor vehicle which is used for the transportation or delivery of freight and merchandise or more than ten (10) passengers.
“(j) ‘Farm tractor.’ Every motor vehicle designed and used as a farm implement power unit operated with or without other attached farm implements in any manner consistent with the structural design of such power unit.
“(k) ‘Specially constructed vehicle.’ Any vehicle which shall not have been originally constructed under a distinctive name, make, model or type, or which, if originally otherwise constructed shall have been materially altered by the removal of essential parts, or by the addition or substitution of essential parts, new or used, derived from other vehicles or makes of vehicles.
“(y) ‘Self-propelled farm implement.’ Every farm implement designed for specific use applications with its motive power unit permanently incorporated in its structural design.”
K.S.A. 1981 Supp. 8-127(a) provides in part as follows:
“8-127. Registration of vehicles operated in this state; exceptions; temporary operation of certain vehicles without registration, when, (a) Every owner of a motor vehicle . . . intended to be operated upon any highway in this state . . . shall, before any such vehicle is operated in this state, apply for and obtain registration in this state under the provisions of K.S.A. 8-126 to 8-149, inclusive, . . . except as otherwise provided by law . . . .”
K.S.A. 1981 Supp. 8-128 provides:
“8-128. Registration of vehicles; exemptions, (a) Farm tractors, all self-propelled farm implements including fertilizers and spreaders designed and used exclusively for dispensing liquid or dust fertilizer, .road rollers and road machinery temporarily operated or moved upon the highways, municipally owned fire trucks, privately owned fire trucks subject to a mutual aid agreement with a municipality and school buses owned and operated by a school district or a nonpublic school which have the name of the municipality, school district or nonpublic school plainly painted thereon need not be registered under this act. A truck mounted fertilizer spreader used or manufactured principally to spread animal dung is not a self-propelled farm implement for the purpose of this section or for the purpose of the act of which this section is a part.
“(b) Self-propelled cranes and earth moving equipment which are equipped with pneumatic tires may be moved on the highways of this state from one job location to another, or to or from places of storage delivery or repair, without complying with the provisions of the law relating to registration and display of license plates but shall comply with all the other requirements of the law relating to motor vehicles and shall not be operated on state maintained roads or highways on Sundays or any legal holidays except Lincoln’s birthday, Washington’s birthday or Columbus day.”
K.S.A. 1981 Supp. 8-142 First provides:
“8-142. Unlawful acts. It shall be unlawful for any person to commit any of the following acts:
“First: To operate, or for the owner thereof knowingly to permit the operation, upon a highway of any vehicle, as defined in K.S.A. 8-126, which is not registered . . . .”
The defendants first contend that a Schwing concrete pump/boom truck is a “self-propelled crane” and, therefore, is exempt from vehicle registration requirements pursuant to K.S.A. 1981 Supp. 8-128. It is agreed that the unit in question is a motor vehicle within the meaning of the statutes. It would be helpful to take a close look at the vehicle and the manner in which it is utilized by its owner. A photograph of the Schwing concrete pump/boom truck involved in each of the arrests is included within this opinion.
At the trial before the district magistrate, Edward Lothamer, manager of defendant Concrete Placement, Inc., testified in detail as to the vehicle’s characteristics and the manner in which it operates. He stated that the vehicle is used “as a means of lifting or elevating concrete onto structures which you cannot get to in any other manner.” Sixty percent of the company’s work is road work and the remainder is commercial work. The vehicle is used sometimes in highway improvement for the construction of bridges. It is used in placing concrete and has a capacity of lifting 1500 pounds or greater. It has a moveable projecting arm or boom. It has a vertical axis with a swinging arm on it, capable of hoisting a load in a horizontal or a lateral direction. Although the
vehicle is designed for the movement of concrete, other heavy bodies may be moved or placed horizontally with the machine. Such vehicles are purchased complete with the concrete pumper attached to the chassis. The vehicle to which the concrete pumper is attached is an International diesel truck. The speedometer on the truck is set like any other truck. It will safely run at 40 or 45 miles per hour and can travel at the legal speed limit of 55 miles per hour. In manufacturing the vehicle, a stock International truck is used to start with and the concrete pump/boom equipment is integrated into the truck. The truck supplies the power for the pump by a “transfer case.” Without the truck, the pump would not function.
The mode of transportation of this vehicle on the highways is by the International truck. The vehicle is used any place people need to elevate concrete or to place concrete in a place other than where a truck could just back up to it. The concrete pump is definitely not restricted to just building a road. It takes Schwing American roughly a week or ten days to modify an International truck and mount their equipment on it and then it is sent out as a Schwing concrete pump. This is a specialty machine. The boom carries the concrete. It has a pump unit which pumps wet concrete through a jointed pipeline; the live load weight is transferred over the entire boom. The pump lifts one-half to three-fourth yards of concrete which weighs between 2,000 to 3,000 pounds. It is ordinarily not used to lift heavy concrete blocks or other things. On occasions it has been used to place concrete columns. On occasions they have put a cable on the boom and lifted machinery with it. The purpose of the vehicle is to pump concrete from one location to another. Lothamer described the truck as a crane that can pump concrete.
As to the operation of the vehicle on the highways of Kansas, Lothamer testified that one of the trucks will put in actual road miles of somewhere between 5,000 and 12,000 miles per year. Its total weight is 54,000 pounds. At the time of the arrests, the equipment was being utilized in the construction of the Wolf Creek power plant in Coffey County. The vehicle was customarily driven in the morning from the company’s place of business in Kansas City, Kansas, to the Wolf Creek power plant site and then back to Kansas City in the evening. The driver is allowed three hours to drive from the company’s place of busi ness to the Wolf Creek site and another three hours to drive back home each night. Thus, in connection with the construction involved in this case, the trucks were on the public highways about six hours per day.
The record shows that the Kansas attorney general and district courts have not been entirely consistent in their legal conclusions as to whether a concrete pump/boom truck is exempt either as a road machine or a self-propelled crane. In March, 1975, an assistant attorney general issued an opinion that a similar vehicle was exempt as a road machine. He emphasized, however, that the opinion was not entitled to legal weight. In July of 1978, Judge Robert G. Jones of Johnson County held a similar vehicle to be exempt as a self-propelled crane. In December of 1978, the attorney general issued his opinion that the vehicle was not exempt as either a road machine or self-propelled crane. In April of 1980, the general counsel of the Kansas Department of Revenue issued an opinion to the effect that the vehicle was not exempt and was required to be registered.
In this case, District Magistrate Orville E. Steele held the vehicle was not exempt. This was affirmed on appeal by District Judge James J. Smith. As noted above, the Court of Appeals reversed the case by a two-to-one decision.
Neither the Kansas statutes nor case law has specifically defined a “self-propelled crane.” This court must construe the statutes set forth above to determine whether a concrete pump/boom truck is a self-propelled crane within the exemption provided in K.S.A. 1981 Supp. 8-128(b). The term “crane” is defined in Webster’s Third New International Dictionary 529 (1976) as:
“[A] machine for raising and lowering heavy weights and transporting them through a limited horizontal distance while holding them suspended and [usually] having a jib of timber or steel sometimes affixed to a rotating post held by guys or having the hoisting apparatus supported by a trolley running on an overhead track.”
Simply stated, the question is whether the vehicle is a crane or a truck specially equipped with a concrete delivery system. After considering the registration statutes in their entirety, we have concluded that a Schwing concrete pump/boom truck is a motor vehicle required to be registered and is not a self-propelled crane as exempted in K.S.A. 1981 Supp. 8-128(¿). It is clear from a reading of the statutes that the legislature intended to control, in some respects, all motor vehicles operated upon the highways of this state. In the case of self-propelled cranes and earth moving equipment, although they are exempt from registration by virtue of K.S.A. 1981 Supp. 8-128(h), that statute requires such vehicles to comply with all of the other requirements relating to motor vehicles and there is a specific restriction that such equipment shall not be operated on state highways on Sundays or certain legal holidays.
It should be noted that K.S.A. 1981 Supp. 8-128 places exempt vehicles into two categories: Category (a) includes special purpose motor vehicles such as farm tractors, self-propelled farm implements, including fertilizers and spreaders designed for dispensing liquid or dust fertilizer, road rollers, and road machinery temporarily operated or moved upon the highways, certain municipal fire trucks and school buses. Section (a) states specifically that a truck-mounted fertilizer spreader used or manufactured principally to spread animal dung is not a self-propelled farm implement for the purpose of this section and hence would not be exempt. Section (b) of 8-128 covers an entirely different type of vehicle — self-propelled cranes and earth moving equipment which are equipped with pneumatic tires. That section restricts such unregistered vehicles to movements from one job location to another, or to or from places of storage, delivery, or repair. This section obviously contemplates only a very limited operation of such vehicles upon the state roads and highways.
We believe that the exemptions provided for in K.S.A. 1981 Supp. 8-128 must be construed in accordance with the obvious intention of the legislature. Surely, the legislature did not intend to exempt ordinary dump trucks as earth moving equipment merely because they are used to haul dirt. Likewise, the exemption of self-propelled cranes was not intended to exempt from registration any motor vehicle which happens to be equipped with a device for lifting. A self-propelled farm implement equipped with a built-in fertilizer or spreader designed and used to dispense liquid or dust fertilizers is specifically named and exempted. A concrete pump/boom vehicle which is not specifically named as exempt is essentially a truck with a built-in concrete spreader designed to dispense concrete.
It is fair to assume that the legislature intended to exempt certain kinds of vehicles from registration because of their limited operation on the highways of the state. Large earth moving equipment is operated on the highways only for limited periods in which they are moved from one job location to another or to or from places of storage, delivery, or repair to the job site. Likewise, in exempting self-propelled cranes with pneumatic tires, the legislature clearly intended to exempt certain vehicles which are specially equipped and designed exclusively for the lifting of heavy weights and which, because of their weight and size, are permitted on the highways of the state under very limited circumstances.
In our judgment, a specially equipped truck, otherwise subject to registration, is not a “self-propelled crane” merely because it includes some device for the lifting or raising of materials, goods, or equipment. Adopting such an interpretation would exempt from registration any so-called “cherry pickers,” such as those used by utility companies, tree-trimming services, or signboard companies, and indeed any large tow truck or “wrecker” equipped with pneumatic tires. We, therefore, hold that the Schwing concrete pump/boom truck involved in this case is not a “self-propelled crane” within the exemption provided for in K.S.A. 1981 Supp. 8-128(h).
The defendants in their brief cite Moravek’s Concrete v. Department of Revenue, 285 Or. 495, 591 P.2d 1379 (1979). In our judgment, that Oregon case is distinguishable because of the peculiar language of the Oregon statute which provided that certain self-propelled vehicles were not subject to ad valorem taxation. Vehicles exempted included among other things mobile homes, travel trailers, tow cars (including tow cars with cranes, hoists or dollies), truck-mounted transit mixers, or “self-propelled mobile cranes.” The Oregon court concluded that a concrete pump/boom truck should be exempt under the statute as a self-propelled mobile crane.
The defendants, in the alternative, contend that the concrete pump/boom trucks fall into the category of “road machinery” which is exempted in section (a) of K.S.A. 1981 Supp. 8-128. We agree with the district court and with the Court of Appeals that such vehicles are not exempt from registration as road machinery. Although such vehicles at times are used in the construction of highway bridges, they are customarily used in other types of construction where it is necessary to elevate concrete. Here, approximately 40 percent of the concrete work carried on by defendant, Concrete Placement, Inc., does not involve road or highway construction. On the dates the three traffic citations were issued in this case, the vehicles were not being used as road machinery but to pour concrete at the Wolf Creek power project. We have no hesitancy whatsoever in holding that these concrete pump/boom vehicles are not “road machinery” under the exemption provided under section (a) of 8-128.
The defendants’ third point on the appeal is that K.S.A. 1981 Supp. 8-128 is unconstitutional because of vagueness. The test to determine if a criminal statute is unconstitutionally vague and indefinite is discussed in State v. Kirby, 222 Kan. 1, 563 P.2d 408 (1977), as follows:
“The test to determine whether a criminal statute is unconstitutionally void by reason of being vague and indefinite is whether its language conveys a sufficiently definite warning as to the conduct prescribed when measured by common understanding and practice. If a statute conveys this warning it is not void for vagueness. Conversely, a statute which either requires or forbids the doing of an act in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application is violative of due process.” Syl. ¶ 1.
It has been said that the test for vagueness is a common-sense determination of fundamental fairness. State v. Goza, 4 Kan. App. 2d 309, 605 P.2d 594 (1980). We have concluded that K.S.A. 1981 Supp. 8-128 is not constitutionally void for vagueness. When the motor vehicle registration statutes are all construed together, as we have done above, we find that K.S.A. 1981 Supp. 8-128 is not unconstitutionally vague because of the manifest intention of the legislature to require the registration of all vehicles capable of regular travel on the roads and highways of this state.
The defendants’ final point is that they relied upon an official interpretation of K.S.A. 1981 Supp. 8-128 and, thus, are provided the defense of mistake of law under K.S.A. 21-3203. K.S.A. 21-3203 provides in part as follows:
“(2) A person’s reasonable belief that his conduct does not constitute a crime is a defense if ... .
“(d) He acts in reliance upon an official interpretation of the statute, regulation or order defining the crime made by a public officer or agency legally authorized to interpret such statute.”
In State v. V.F.W. Post No. 3722, 215 Kan. 693, 698, 527 P.2d 1020 (1974), this court construed the above statute as follows:
“[U]nder the provisions of K.S.A. 1973 Supp. 21-3203(2) a person’s belief that his conduct does not constitute a crime because of reliance on a court decision is a defense only when he has relied on a decision of the Supreme Court of Kansas or of a United States appellate court later overruled. Such belief is not a defense when reliance is based on decisions of the various district, county and other lower courts of the state.”
The record clearly shows that in this case at the time the offenses were committed the attorney general, in opinion No. 78-378 issued December 4, 1978, had concluded that truck-mounted concrete pump/boom units are not cranes as defined by K.S.A. 8-128(h) and thus not exempt from Kansas registration requirements. We have concluded that the district court and the Court of Appeals were correct in holding that defendant’s reliance on the defense of mistake of law was without merit.
For the reasons set forth above, the judgment of the district court is affirmed. The judgment of the Court of Appeals is reversed.
Fromme, J., not participating.
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The opinion of the court was delivered by
Burch, J.:
On April 14, 1909, Sutherin and Company filed a petition to foreclose a mechanic’s lien, making Lela Diehl Chesney, the owner of the property, and her husband, F. 0. Chesney, defendants. No sum mons was issued for these defendants, who were nonresidents of the state, and no attempt was made to serve them by publication, but on June 3, 1909, they entered their voluntary appearance. When the petition was filed ¡a number of lien claimants were made parties defendant. These defendants answered and filed cross-petitions setting up their liens before the Chesneys appeared in the cause. The plaintiff’s petition was filed, and several of the cross-petitions were filed, before the sixty-day period had elapsed in which the owner is not liable to action. This period had elapsed, however, before the Chesneys appeared. Issues were framed and after a trial all the liens were foreclosed. The owner claims that the action was prematurely brought by the plaintiff and by those defendants who filed their cross-petitions before the expiration of the sixty-day period.
An action is commenced by filing a petition and causing summons to be issued thereon. (Civ. Code, § 58.) A voluntary general appearance is equivalent to service. ('Civ. Code, § 68.) For the purpose of avoiding the bar of the statute of limitations an action is deemed to be commenced at the date of the summons which is served. (Civ. Code, § 19.) The filing of the petition did not begin an action against the Chesneys. Neither did the filing of the cross-petitions. No summons having been issued, and no attempt having been made to serve them in any other way, no action was commenced against them until they voluntarily appeared. The situation was the same as if the petition and the various cross-petitions had been filed on June 3. The sixty-day period then having elapsed the action was not prematurely commenced.
The case of Insurance Co. v. Bullene, 51 Kan. 764, is cited, in which it was held that where certain defendants seek to enforce their demands against a codefendant the action will be deemed to be commenced against such codefendant when the answer setting up the demands is filed. In that case Bullene, Moore, Emery and Company brought suit to recover on a policy issued by the insurance company. Six months later the petition was amended to bring in a number of new parties who, three months afterward, filed cross-petitions claiming-interests in the policy. The policy provided that suit must be commenced within six months after loss. Of course, the suit of.the new parties against the insurance company dated from their first attempt to enforce their demands. If, however, these parties had been joined at the beginning, and had filed their cross-petitions, and nine months afterward the insurance company had been served with summons or had entered its voluntary appearance, their demands would have been barred.
The case of Wood v. Dill, 3 Kan. App. 484, is instructive. In an action to enforce a mechanic’s lien the owner was served within the year allowed for the bringing of such suits. A mortgagee was not made a party within that period and it was held that the right to enforce the mechanic’s lien was lost as to him. At page 490 of the opinion the following was quoted from the case of Smith v. Hurd, 50 Minn. 503:
“As to each defendant in an action, the action is commenced and is pending only from the time of service of the summons on him or of his appearance with out service; and, where each may object that the action was not commenced within the time limited by statute, its commencement as to his objection is to be determined by the time of service on him, and not by the time of service on some other defendant. This is a rule applicable to every action, and applies as well to actions to enforce mechanic’s liens as to any others.” (p. 507.)
Although the Minnesota statutes relating to the manner of commencing an action differ from our own, and although the case from which the quotation is taken involved the question whether the action was commenced too late, the general principle applies to cases like the one under decision.
When an attempt has been made to procure service on a defendant and he subsequently enters an appearance. for any purpose other than to contest jurisdiction he waives all irregularities which may have attended the effort to get him into court; and when a petition is filed the action is pending iso as to charge third persons with notice, provided a summons be served or the first publication be made within sixty days. But the mere filing of pleadings against a defendant does not commence an action against him, and if no effort be made to procure actual or constructive service upon him, and he afterward appears, the action is commenced as to him when he appears.
Sutherin and Company, Randall, The Howard Electric Company, Messick and Lowe pleaded contracts with F. 0. Chesney and Lela Diehl Chesney. Hill pleaded a contract with Lela Diehl Chesney through her authorized agent, Keller. Gustafson and Pribble, The Shawnee Lumber Company and Swalwell pleaded contracts with Lela Diehl Chesney through her authorized agent, F. 0. Chesney. Personal judgments were rendered against Lela Diehl Chesney. It is asserted that there was no evidence that F. 0. Chesney had any interest in the property, and the assertion will be taken as true because it is not met by the production of such evidence in the counter abstracts. Because F. 0. Chesney did not own the property it is argued that no personal judgment could be rendered .against the owner, Lela Diehl Chesney, citing Garrett v. Loftus, 82 Kan. 556. The case cited deals with statutory authority only, and holds that the statute alone does not warrant anything as against the wife except a lien for the price of material furnished to her husband under his own contract and used by him in improving her property. It is not decided that the wife may not be bound personally by contracts made for her through agents in fact au thorized to represent her or by her own contracts, and manifestly such a decision would be unsound. The contracts pleaded in the present case were of the latter kind.
Two of the contractors took personal judgment against F. 0. Chesney. It is claimed that such judgments are impossible because he did not own the property improved. Very clearly he could use his own credit to obtain material or the performance of labor for the benefit of his wife’s property if he so desired.
The various allegations of agency not having been denied under oath were admitted, and the objection to the sufficiency of the proof being confined, in other respects, to the single matter stated above, it is unavailing. The correction of the record was entirely proper, under repeated decisions of this court. Other matters discussed in the briefs are not of sufficient importance to require a reversal and the judgment of the district court is affirmed.
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The opinion of the court was delivered by
Mason, J.:
John M. Swalley owned sixteen city lots, on which John A. Keeran held a mortgage for $300. Nancy L. Curtis bought a part of three of the lots for $100. In an action in which Keeran sought a foreclosure of the mortgage Mrs. Curtis testified in substance that at the time of her purchase Keeran agreed that upon her payment of the price he would release her property from the mortgage; that she paid $50 direct to Keeran under this arrangement, and with his consent paid $45 to Swalley, to whom he agreed to look for that amount; and that she then made extensive improvements on the property. Keeran denied making any such agreement. He admitted receiving $50 from Mrs. Curtis, but said it was to pay an unsecured note for that amount which he held against Swalley. His testimony was corroborated by that of other witnesses, but the court found the facts to be as claimed by Mrs. Curtis. Keeran appeals. There was some evidence that Keeran agreed to release the mortgage as to the part of the property bought by Mrs. Curtis, upon her payment, of the $100, and therefore the judgment of the trial court must be deemed to establish that fact. In the journal entry it was said that in view of this agreement Keeran was estopped to assert a lien against it for more than $5. The appellant complains of this holding, on the ground that no estoppel was pleaded. The facts which the court found to result in an estoppel were set out in the pleading filed by Mrs. Curtis, and this was sufficient to present the issue.
The appellant also contends that even assuming the existence of the agreement testified to by Mrs. Curtis, the payment of the purchase price was a condition precedent to the' release of the property of Mrs. Curtis from the mortgage, and as she had not paid the full amount she was not entitled to a release. The omission to pay the balance of $5 could not under the circumstances stated have the effect of leaving the whole of the property still subject to the full amount of the mortgage. The agreement was in substance one apportioning $100 of the mortgage debt against the small tract purchased by Mrs. Curtis, and allowing $45 of that to be paid to Swalley. Upon completing the payment she is entitled to have her property freed from the mortgage. The transaction described amounted to a waiver of any lien in excess of $100 upon the tract here involved, a waiver which may result from implication as well as from express agreement. (27 Cyc. 1163.)
The judgment is affirmed.
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Per Curiam:
It is claimed in the petition for a rehearing that this action is barred by sections 80 and 81 of. the executors and administrators act (Gen. Stat. 1868, ch. 37 §§ 80, 81, Gen. Stat. 1909, §§ 3515, 3516), and that section 106 of that act (Gen. Stat. 1868, ch. 37, § 106, Gen. Stat. 1909, § 3541) and section 17 of th^ code of civil procedure are not applicable. •
We can not accept this contention. Sections 80 and 81, swpra, relate to the presentation of claims to the executor or administrator of an estate, and are more properly designated statutes of nonclaim than as' statutes of limitation; they do not apply to actions in courts.
The right of the plaintiff as to the time of bringing the action is to be determined by section 17 of the civil code. His action does not depend upon the tolling of any statute of limitation which bars actions on written contracts after the expiration of five years from the time a cause of action accrues thereon. He brought the action promptly after the appointment of an administratrix and in less than five years after the maturity of the first maturing of the three notes. His action was for a judgment in a court and not for the allowance of a claim by an administrator, and it was not barred by any statute of limitations.
There is no conflict between the various provisions in the statute of limitations. They have been revised and reconsidered by the legislature and the courts of the state for a good many years, and are harmonious.
We are satisfied with our former decision, and the judgment is reaffirmed.
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The opinion of the court was delivered by
Johnston, C. J.:
This was an action to enjon Charles Longfellow from using the wires of the Star Mutual Telephone Company to which it was alleged that he had wrongfully attached a telephone. The telephone company was incorporated under the laws of the state to build and maintain a rural telephone line. One hundred and twenty-nine shares of stock were sold at the par value of $10 each. It was subscribed and taken by a number of business men in the city and by farmers living along the line. The telephone company owned the poles and wires but the phones and switch' service were furnished by the Missouri & Kansas Telephone Company at an agreed rental. The management and control of the company was vested in a board of directors and from them the executive officers were chosen. Many of the stockholders were owners of land, who took a number of shares, and some of them were renters, like Veach, who only owned a single share. Veach, being about to leave the rented farm, offered to sell his share back, to the company but was told that, in fact, he had nothing to .sell. He afterward sold the share to Longfellow for $10. In due time Longfellow asked the secretary of the company to transfer his share on the books, when he was informed that under the rules and by-laws of the company he was not entitled to a transfer of the stock or to the use of the wires until he had paid the company an additional sum of $15. Longfellow declined to pay the charge, but he attached his phone to the wires and proceeded to use them without securing a transfer or the consent of the officers of the company. The company brought this action and obtained a temporary injunction, which was finally dissolved by the court.
The main question for decision is whether appellee had conformed With the rules and by-laws of the com pany and was entitled to the service of the company. He had purchased a share of stock, but, of course, took it subject to the by-laws of the company. In the charter it is provided that no member shall be allowed to sell his stock until he has offered it for sale to the company at a price not exceeding its original cost, and there is a proviso that shares of stock may be transferred with the sale of land. Provision is made for a change of the constitution by a two-thirds vote of all the stockholders at a meeting called for that purpose after a thirty-days notice. In the by-laws a limit is placed on the number of phones that shall be attached to the wires, and it is provided that no phone shall be attached that does not belong to a stockholder and, if he is a tenant, he is required to pay to the • company a rental of $5 per year. Another provision is that parties who desire to get on the line must first secure the consent of the officers of the company. In 1906 the rules were changed so that members having shares who did not have phones should have their shares marked nonassessable and that all charter member stockholders should be guaranteed the use of the company’s wires, which guaranty, however, except to the original purchasers, should not extend to persons holding a single share. In 1907 another change was made when it was voted that no phone should be attached or maintained on the line that did not belong to a member whose name was not on the charter list, or those coming under special provisions of the by-laws, “until the company had benefited to the extent of twenty-five dollars.” Another of the by-laws provided that parties holding more than one share should be allowed to transfer to immediate members of the family provided the consent of the officers of the company was secured.
It appears that appellee did not comply with the rules, regulations and by-laws of the company. He did not secure a transfer of the stock as the law contemplates nor the consent of the officers of the company to attach his phone to the line. The purchase of the stock by appellee operated as a transfer of the title as between the seller and himself but it did not necessarily complete his right to the benefits of a stockholder so far as the company was concerned. The law provides that stock shall be transferable only on the books of the company in the manner prescribed by the by-laws of the corporation. (Laws, 1879, ch. 88, § 1, Gen. Stat. 1909, § 1743; Topeka Mfg. Co. v. Hale, Assignee, 39 Kan. 23; Plumb v. Bank of Enterprise, 48 Kan. 484; Culp v. Mulvane, 66 Kan. 143; Barnhouse v. Dewey, S3 Kan. 12.)
Appellee says he asked for a transfer of his stock and that he was refused. If he complied with the requirements of law and was denied a transfer his remedy was a proceeding to compel the erring officer to perform his duty. Again, appellee attached a phone to the company’s wires without the consent of the officers, and this was in direct violation of the by-laws. There was still another provision that it was incumbent 'on one who was not a charter member to pay a sum equal to .$25 before he could attach a phone to the line and that .•all persons wanting on the line, after the adoption of -the constitution and by-laws, should be required to pay $25. Now, appellee was told by the president of the company that he would have to pay $15 more to be entitled to the use of the line, and he learned from him and other officers of the company that upon the payment of that sum the stock would be transferred and he would be accorded the same rights as other members <of the company. He is deemed to have purchased the stock with a knowledge of these by-laws and to be bound by them. There is no claim that they are unreasonable but it is contended that some of them were mot legally adopted. They appear to be a part of the laws of the company. There is nothing in the abstract showing illegal or deféctive action of the company in their adoption. It devolves on anyone alleging or claiming illegality to show it.
In view of the testimony of the case it must be held that the order dissolving the temporary injunction was erroneous. The judgment is therefore reversed and the cause remanded for further proceedings.
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The opinion of the court was delivered by
Mason, J.:
H. K. Goodrich asked to be appointed superintendent of the city electric light department of Topeka, claiming a right to the appointment under the soldiers’ preference law. His application was denied upon the ground that he was ineligible by reason of not having taken the civil service examination required by the statute providing for a commission form of government. He brings this action against the person who received the appointment and the city commissioners, asking that he be adjudged to be entitled to the office. The defendants demur to his- petition and the demurrer is submitted for decision.
The, soldiers’ preference law in the present form was enacted in 1907. (Laws 1907, ch. 374, § 1, Gen. Stat. 1909, § 7879.) It provides in súbstance that honorably discharged soldiers in the army of the United States in the war of the rebellion shall be preferred for appointments to fill positions in every public department of the state, or of any county, city or town in the state; that when any such ex-soldier shall apply for appointment to such position, he shall be appointed if he is of good reputation and can perform the duties.
The civil service examination law' was enacted in 1909. (Laws 1909, ch. 74, § 4, Gen. Stat. 1909, § 1238.) It provides in substance that in the cities to which it •applies a civil service commission shall meet at least •twice a year and “hold examinations for the purpose of determining the qualifications of applicants for positions, which examination shall be practical and shall fairly test the fitness of the persons examined to discharge the duties of the position to which they seek to be appointed”; that they shall after each, examination • certify to the city commissioners the names of the two applicants for each position having the highest standing; that thereafter appointments shall be made from the certified list.
Of course the statutes are to be construed together and both are to be upheld so far as they are in harmony, but if one of the two must be deemed to limit the operation of the other, the latest expression of the legislature will govern. The earlier law says that a veteran who is competent shall be preferred to any candidate who is not a soldier. The later law says that certain appointments shall be made from a list formed by certifying the two highest in rank at each examination. There is no express exception made in favor of ex-soldiers, and none seems by any reasonable implication to be intended. The new law, in letter and spirit alike, seems to show a purpose that no appointment shall be made except upon the basis of efficiency as determined by the examination. It establishes a standard of competency and provides a means of determining the competency according to that standard. It says that no one shall be eligible who has not in some one of a number of successive examinations been one of the two receiving the highest rating — thus in effect saying that no other shall be deemed competent.- The soldiers’ preference law does not prevent the legislature from prescribing qualifications for appointment to office, and one of the qualifications prescribed by the later act is that the candidate must be able to demonstrate his fitness by success in a competitive examination. This does not conflict with the veterans’ law, which still has abundant field for operation. The appointment must be made from the certified list, but if the name of an ex-soldier appears thereon he must have the preference.
The demurrer to the petition is sustained.
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The opinion of the court was delivered by
West, J.:
In 1888 Hiram Moger, a resident of Mitchell county, deeded his homestead to his wife for the purpose of avoiding payment of a note for one hundred and seventy-five dollars given for a patent fence machine. During the same year the property was deeded back to him by his wife and he deeded it to his daughter, Rhoda Funk, the wife in the meantime having died. Not counting a temporary absence, he continued to live on the land until 1905, when he was adjudged insane and taken to an asylum. In the meantime he had claimed the land as his own, had put valuable improvements thereon, had rented portions of it and collected the rents, and had offered it for sale. About 1895, after having erected a house and barn on the place costing upwards of one thousand dollars, he desired the land deeded back to him by Mrs. Funk, but she, being fearful that he contemplated a second marriage, made out on a warranty deed form a life lease and delivered it to him. His guardian brought this action to settle for him the title to the land. The fourth, or third amended, petition was filed containing two causes of action, the first to quiet title and the second for specific performance of an alleged contract to reconvey. To this pleading a demurrer was interposed on the grounds that the second count did not state a cause of action, that the alleged cause was barred by the statute of limitations, and that several causes of action were improperly joined. This demurrer was overruled and an answer filed containing a general denial and an admission that the defendant -claimed to be the owner of the land, setting up the deed from her father, her life lease to him, a breach by the father of its provision to pay taxes for the year 1907, and that the second cause of action was barred, and praying that her title be quieted. To this answer the plaintiff filed an amended reply verified on information and belief, containing a general denial and a claim that the deed was secured through false representations and undue influence when the grantor was mentally weak and incompetent. A demurrer to this amended reply, except the general denial, was overruled.
Upon the trial the court found that the deed was procured by undue influence and that the defendant held the same in trust for the benefit of her father, but that his right to recover on this ground was barred; but after making extended findings of fact the conclusion was reached that the plaintiff had a right to have his title quieted by reason of undisputed, quiet, peaceable, exclusive and adverse possession since 1889. The defendant appeals and presses forty-three assignments of- error, five relating to pleadings, twenty-eight to the findings of fact and conclusions of law, and ten to the reception of evidence.
Owing to the trial court’s restriction of the case to the issues joined upon the first cause of action, any errors which may have occurred in reference to the various pleadings can not materially prejudice the defendant.
We have examined the findings and the evidence, giving careful heed to the challenge made to many items in the abstract of the appellee, and conclude that the decision is well supported; and in view of the fact that the cause was tried by the court without a jury we do not find any evidence wrongfully admitted which could by any fair reasoning be held to have led the court to a wrong determination. There were, as usual, conflicting claims and conflicting testimony, but there is abundant evidence in the record to warrant the finding that from 1888 until his removal to an asylum in 1905, Hiram Moger manifested symptoms of mental unsoundness which culminated in a mental and physical condition both pathetic and repulsive. Many statements testified to by various witnesses as having been made by the defendant afford sufficient basis for the finding that she took the deed with the understanding that the land was to be reconveyed upon the request of the father and that the purpose wás merely to hold the title until the patent fence matter should be out of the way. The guardian’s attorney testified that shortly before the suit was brought she said to him, among other things, “I haven’t any interest in the land. I don’t claim to own it,” and that she was about to sign a statement to that effect when her husband interposed and objected.
Another witness testified that in a conversation between the Funks and Moger the latter said he had deeded the place to Mrs. Funk until he could get some trouble about the. fence machine settled, when they were to deed it back to him, and that both Mr. and Mrs. Funk said it (the statement) was all right. Defendant herself, upon the stand, in answer to the question as to whether there was any talk or promise on her part that she would deed the property back at any time, answered “No, sir; no specified time.” A brother-in-law testified that she told him she would make the deed back to Moger whenever Moger called for it. Another brother-in-law testified that she said she did not pretend to own the land, but that she would not deed it back to Moger because she wanted to keep him from disposing of it. She wrote a letter to her sister in which she stated that her father was mad about the deed to the land; that she had made him what the lawyer called a life lease; that a woman wanted to marry him to get the farm; “Father can use the land as long as he lives and when he dies it will conie to us children and all of us will get the same share. He can not deed it away.”
Of course if she owned the land it would not descend to her father’s heirs and the only way the others could get a share would be by deed from the owner.
■ The probate judge and others testified to. her statement that she did not pretend to own the land, or that the deed was to save the farm from the hands of parties who would take advantage of her father, and she intended to deed it back to him.
Considering the relation of the parties, the mental condition of the father, the subsequent conduct and statements of both, the continued unresisted acts and assertion of dominion and ownership for more than fifteen years, they fully justify the conclusion that a title by adverse possession had ripened, unless there be some rule of law preventing such conclusion.
It is asserted that the deed was made for the purpose of defrauding creditors, and therefore as against the grantor must be held good. Whatever the law may have been thought to be at that time it is certainly now settled that the property was the grantor’s homestead and therefore no creditor could be defrauded by its conveyance. (Mull v. Jones, 33 Kan. 112, 5 Pac. 388: Cross v. Benson, 68 Kan. 495, 75 Pac. 558; Weaver v. Bank, 76 Kan. 540, 94 Pac. 273; Shattuck v. Weaver, 80 Kan. 82, 101 Pac. 649.)
The defendant also urges that possession by the grantor must be presumed to be in subservience to the title of the grantee. This is no doubt true as a general proposition when there are no circumstances leading to a contrary conclusion, but when the grantor constantly and persistently for nearly seventeen years claims ownership and exercises all the rights incident thereto and the grantee from time to time concedes the possession of only a paper title which is to be revested upon request of the grantor the rule does not and can not ap ply. The authorities cited 'in favor of the general rule-give support thereto but none of them involves conditions like those now under consideration. The leading case relied, upon is Dotson v. Railway Co., 81 Kan. 816; 106 Pac. 1045, which holds that such possession will not be considered adverse until the grantor explicitly renounces the title of the grantee or positively asserts a claim of title in himself which is brought to the attention of the grantee.
The evidence is abundant that the grantor all along asserted ownership in himself, and as already suggested the numerous statements made by the grantee, as testified to by various persons, amounted to repeated concessions that grantor’s claim was rightful and that the shifting of the paper evidence of title back to the real owner was a mere formality.
Finally, it is earnestly insisted that to allow the grantor’s title to be quieted on the ground of adverse-possession for the statutory period is to change the rightful defensive nature of the statute into that of a. wrongful offensive weapon.
Under the footnote “Statute no basis of claim for affirmative relief” in 25 Cyc. 983 the Kansas authorities are the only ones cited. Beginning with Corlett v. Insurance Co., 60 Kan. 134, 55 Pac. 844, containing the phrase “It is a weapon of resistance, not of attack” (p. 135), similar expressions are found in Thompson v. Greer, 62 Kan. 522, 64 Pac. 48, Burditt v. Burditt, 62 Kan. 576, 64 Pac. 77, Johnson v. Wynne, 64 Kan. 138, 67 Pac. 549, Gibson v. Johnson, 73 Kan. 261, 84 Pac. 982, Updegraff v. Lucas, 76 Kan. 456, 94 Pac. 121, Salter v. Corbett, 80 Kan. 327, 102 Pac. 452, and Capell v. Dill, 82 Kan. 652, 109 Pac. 286. But in Morris v. Hulme, 71 Kan. 628, 81 Pac. 169, one who had deeded his land as security for another who had signéd bonds for the appearance of the grantor’s sons, sued for a reconveyance and alleged that the statute had run against the judgment on the bonds. This was held proper as show ing the limitation of defendant’s liability on the judgments. In other words, the statute had created a condition of which the plaintiff could avail himself in an action for affirmative relief.
In Gibson v. Johnson, 78 Kan. 261, 84 Pac. 982, it was held that a mortgagor can not quiet title against the holder of the mortgage on the naked ground that, the mortgage is barred, following Hogeboom v. Flower, 67 Kan. 41, 72 Pac. 547. In the latter case Flower sued to quiet title against his mortgagee who set up the mortgage in defense, the answer showing that it was barred, and it was held that the plaintiff could quiet his title.
It was said that “a right of action thus barred is dead for all purposes while the bar continues; . . . it is as if no such right had ever existed.” (p. 43.)
In Updegraff v. Lucas, 76 Kan. 456, 94 Pac. 121, it was held that injunction would lie against execution upon a dormant judgment, because the plaintiffs sought only “to hold what the law had already given them.” (p. 459.) In Trust Co. v. Jones, 81 Kan. 753, 106 Pac. 1052, it was held that a tax deed good on its face, of record more than five years, the holders being in possession, vests in them an absolute title. It was further held, however, that when the fee-title holder sought to foreclose or extinguish the mortgage lien and made the tax-deed holders (who had an absolute title) defendants, while they could set up their tax deed they could not properly ask to have their title quieted. The tax-deed holders did in fact ask to have the title quieted, and it was said that they were “at least entitled to set up the tax deed by way of defense and to prove that it was a valid conveyance which defeated the lien of the mortgage, and a judgment to that effect is as far-reaching and effective as would be one which quieted their title as against a lienholder.” (p. 755.)
The weapon-and-shield phrase is proper in many cases and under many circumstances, but it can not be of general application. Whenever possession and the statute of limitations have created a fixed status vesting a good title against all adversé claimants such title constitutes a weapon offensive as well as defensive, and the fact that this condition has been brought about by the running of the statute does not change its character or the rights thereunder. Certainly as to title by adverse possession this court is in line with practically all the courts of this country.
In Wood v. M. K. & T. Railway Co., 11 Kan. 323, it was said:
“A mere trespasser, without color of right or title, who has been in the actual possession of real estate for fifteen years, claiming title thereto, becomes the owner of the property by virtue of the statute of limitations, if the property has been owned during all that time by some individual or individuals, and not by the United States.” (p. 348.) '
In Gildehaus v. Whiting, 39 Kan. 706, 711, 18 Pac. 916, the following was quoted with- approval from Roots v. Beck, 109 Ind. 472, 9 N. E. 698:
“When the bar of the statute becomes complete, however destitute of the color of title such occupancy may have been, to the extent that it was actual, visible and continuous, a title by prescription arises in the adverse occupant. This title is in all respects equal to a conveyance in fee.” (p. 475.)
In Anderson v. Burnham, 52 Kan. 454, 34 Pac. 1056, it was held:
“Possession of land by an adverse occupant for more than fifteen years, which is actual, notorious, continuous, and exclusive, will give title thereto, although such possession is entirely destitute of color of title.” (Syl. ¶ 1.)
In Liebheit v. Enright, 77 Kan. 321, 94 Pac. 203, En-right sued to quiet title on the ground of adverse possession and also on the strength of a tax deed acquired from another. It was there held that he could not be required to elect and that he could maintain his action. It was said:
“There was no reason why the plaintiff, holding under adverse possession, should not fortify and protect his possession and title thereunder by procuring an outstanding tax title from another party, nor any reason why he might not set up both as against the defendants.” (p. 322.)
The closing paragraph of the opinion is in these words:
“There being proof of adverse possession sufficient to give title and to sustain the finding and judgment of the court, it is unnecessary to consider the claim of right under the tax title.” (p. 323.)
In Manufacturing Co. v. Crawford, 84 Kan. 203, it was again held that one claiming to be owner by adverse possession can maintain a suit to quiet his title.
1 Cyc. 1135 states that in America the doctrine is almost universal that possession for the statutory period not only bars the remedy of the holder of the paper title, but extinguishes his title and vests title in fee in the adverse occupant,. and cites decisions from twenty-nine states, one territory and the United States supreme court, and proceeds:
“The title acquired by adverse possession is a title in fee simple, and is as perfect a title as one by deed from the original owners or by patent or grant from the government.”
At page 1138 the rule is thus stated:
“Where the bar of the statute has become absolute, it is just as available for attacking as for defensive purposes and its availability in this respect will not depend upon the occupant continuing in the actual possession of the property. He may maintain ejectment against any person acquiring the possession from him by force or fraud, or who has made entry thereon during a temporary absence of the occupant, even though he be the true owner.
“It is likewise an incident of the completion of the statutory bar that the title thus acquired will be quieted in the adverse holder on a bill in equity for that purpose, even against the holder of the legal title barred, and the defendants will be enjoined from asserting title to the premises from former ownership that has been lost.”
To the same effect as the paragraph last quoted is Jenkins v. Dewey, 49 Kan. 49, 30 Pac. 114, which was a suit to quiet title against a husband who, not having joined with his wife in her conveyance more than fifteen years previously, claimed still to own an interest in the land which had been adversely possessed for the statutory period.
Mr. Justice Field, in Sharon v. Tucker, 144 U. S. 533, in holding that title can be quieted by one who has acquired it by adverse possession, said:
“As the complainants have the legal right to the premises in controversy, and as no parties deriving title from the former owners can contest that title with them, there does not seem to be any just reason why the relief prayed should not be granted.” (p. 544.)
(See, also, Brown v. Anderson, 90 Ind. 93, holding that ejectment can be maintained; Ind. Dist. of Oak Dale v. Fagen, 94 Iowa, 676, 63 N. W. 456; and Knight v. Knight, 178 Ill. 553, 53 N. E. 306, holding that a grantee is bound to take notice of his grantor’s possession and acts of ownership.)
Finding no errors in the rulings of the trial court materially prejudicial to the defendant the judgment is affirmed.
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The opinion of the court was delivered by
Burch, J. :
The plaintiff conducts an institution of learning at the city of Ottawa, and is the owner of a tract of land containing 32.93 acres, which is used exclusively for educational purposes. In the year 1908 the city assessor assessed all of this real estate except ten acres, and by proceedings under the tax law, regular in form, taxes were duly extended against it, which the plaintiff did not pay. On July 31, 1909, the county treasurer notified the plaintiff that unless such taxes, which, together with the added penalties, then amounted to $114.33, were paid, the land would be advertised for sale according to law. Thereupon the plaintiff paid the sum demanded, protesting at the time that the taxes were illegal and that they were paid for the purpose of saving the land from tax sale. At the time the plaintiff made the payment it had full knowledge of all the facts regarding the invalidity of the taxes, and had been advised that they were illegal. The tax sale would not have occurréd until the first Tuesday in September following the payment. If sold the land would have been bid in by the county, and if unredeemed the land would have been held by the county for three years before conveyance, without disturbing the plaintiff’s possession. On August 5, 1909, the plaintiff brought suit to recover the money it had paid into the county treasury under the circumstances stated. At the trial the court made special findings of the foregoing facts and rendered judgment in favor of the plaintiff. The county appeals.
The taxes in question were assessed against the whole tract belonging to the plaintiff, less ten acres, because of the limitation upon the amount of property exempted from taxation contained in section 2, chapter 408, Laws of 1907 (Gen. Stat. 1909, §9216), which reads as follows:
“That the property described in this section, to the extent herein limited, shall be exempt from taxation: “First, All buildings used exclusively as places of public worship, as public schoolhouses, or both, with the furniture and books therein contained and used exclusivély for the accommodation of schools and religious • meetings, together with the grounds owned thereby, not exceeding in any one case ten acres, if not leased or otherwise used with a view to profit.”
Section 1 of article 11 of the constitution provides as follows:
“The legislature shall provide for a uniform and equal rate-of assessment and taxation; but all property used exclusively for state, county, municipal, literary, educational, scientific, religious, benevolent and charitable purposes, and personal property to the amount of at least two hundred dollars for each family, shall be exempted from taxation.”
The constitution of this state cannot be amended by the legislature.alone, either by the passage of a bill or otherwise. That result can be accomplished only by means of a popular referendum. If two-thirds of all the members elected to both houses concur, the legislature may submit a proposition to amend the constitution to the people for their adoption or rejection, or may submit to the people a recommendation to call a convention to revise, amend dr change the constitution. But without a majority vote of the people upon a proposition duly submitted to them, or without the affirmative action of a convention duly ordered by the people, the legislature can no more limit the constitutional exemption allowed to educational institutions by its action than the governor could do so by an executive order or than this court could do so by a judicial decree. The constitution did not leave it to the legislature to say how much property used exclusively for educational purposes by a single institution shall be exempt. The people in constituent assembly decided that question for themselves and ordained that, no matter who the owner may be, or what the kind or quantity of property may be, all property used exclusively for educational purposes shall be exempt from taxation.
Use and not quantity controls. (Washburn College v. Comm’rs of Shawnee Co., 8 Kan. 344; Vail v. Beach, 10 Kan. 214; St. Mary’s College v. Crowl, Treasurer,. &c., 10 Kan. 442; Stahl v. Educational Assoc’n, 54 Kan, 542.)
Under these circumstances this court can recognize-none but the fundamental law, and the fact having been established that all the property involved is used exclusively for educational purposes, all of it is exempt from taxation and the taxes in controversy were levied against it without authority of law.
The question remains whether the payment made by the plaintiff was voluntary within the rule forbidding" the recovery of illegal taxes voluntarily paid. The rule-was stated in the opinion in the case of Wabaunsee Co. v. Walker, 8 Kan. 431, in the following language:
“Where a party pays an illegal demand with a full knowledge of all the facts which render such demand illegal, without an immediate and urgent necessity therefor, or unless to release his person or property from detention, or to prevent an immediate seizure of the same, such payment must be deemed to be voluntary, and can not be recovered back; and the fact that-the party at the time of making the payment files a written protest does not make the payment involuntary.” (p. 436.)
This language, with the omission of the word “or”' preceding the words “unless to release his person or property from detention,” is adopted as the syllabus-of the decision. In that case Walker’s land had been, sold for taxes and the taxes for subsequent years had been entered on the book of tax sales as provided by law. The tax certificates were held by the county. While they were so held no deed could issue and no immediate transfer was threatened. Walker redeemed and was charged 50 per cent interest instead of 25 percent, the lawful rate. His action was for the recovery ■of the excess interest, which he knew to be illegal and which he protested against paying because illegal at the time he paid it.
In the case of K. P. Rly. Co. v. Comm’rs of Wyandotte Co., 16 Kan. 587, the fourth paragraph of the syllabus contains the matter quoted from the opinion in Walker’s case. The fifth paragraph of the syllabus reads as follows:
“Where all steps for determining the amount of a tax upon personal property have been taken, the tax roll is complete and in the treasurer’s hands, the taxes due, and it is made the duty of the treasurer at a specified date to issue a warrant to the sheriff to collect all unpaid taxes on personal property, and the duty of the sheriff within sixty days thereafter to levy upon and sell sufficient personal property to pay such taxes, penalty, and costs, and no discretion is given to anyone to change the amount of the tax, or the time or manner •of its collection, a payment to the treasurer of the tax, protesting its illegality, declaring that payment is made Solely to avoid the issue of process, and asserting an intention to sue for the sum illegally paid, should be considered an involuntary payment — one made to prevent an immediate seizure of the taxpayer’s property, although such payment was made seventeen days before the time fixed for the treasurer to issue his warrant.”
In the opinion it is said that there is no reason to doubt the correctness of the rule as stated in the opinion in Walker’s case, but it is further said:
“Was this payment to prevent an immediate seizure of the property of plaintiff in error? If the warrant liad actually been issued by the treasurer, and in the hands of the sheriff, who was demanding payment and threatening seizure, there would be no question, for in the language of the supreme court of Massachusetts, in Boston Glass Co. v. Boston, 4 Metc. 181, the warrant ‘is in the nature of .an execution running against the property of the party, upon which he has no day in court, no opportunity to plead and offer proof, and have a judicial decision of the question of his liability.’ But Rere no warrant had issued. None could legally issue for seventeen days, nor could the company’s property be in any manner disturbed before that time — so that there was no danger of instantaneous seizure. On the other hand there was no further inquiry to be made by any officer or tribunal. The amount of the tax was fixed beyond any opportunity for review. There was no discretion with anyone, as to whether a warrant should or should not issue, a levy should or should not be made. The machinery for adjusting the amount of the tax had completed its work, and was at rest; only the machinery for collecting was in motion, and it moved with the certainty of fate, and the rapidity of time to the finality of seizure and sale. Where the law is imperative, and, giving no discretion, commands the issue of the warrant at a definite time, and the levy-under that warrant within a fixed time thereafter, must an individual wait until the last moment, and pay only just as the officer is seizing his property, or may he assume that the officers of the law will obey its precepts, and when all opportunity for consideration, correction, and change has passed, all discretion ended, and the tax roll is in the treasurer’s hands, waiting only the lapse of a few days to ripen into a warrant and seizure, may he not then pay to the treasurer, protesting against the legality, and asserting his intention to contest? Does he not then pay to prevent an immediate seizure, one that is certainly and presently impending? Wherein does the state suffer wrong, or what advantage does it lose by holding that to be an involuntary payment? ... In Allen v. Burlington, 45 Vt. 202, the court says: Tf the plaintiff was constrained to pay the tax to save his property and to avoid a penalty and costs, it was not a voluntary payment. (Babcock v. Granville, 44 Vt. 826; Henry v. Chester, 15 Vt. 469.) It is not necessary that the warrant should have been issued, and the levy instant. If he expected and had a right to expect that in due course the warrant would issue, and the collection be enforced with costs, and that unless he complied with the one alternative he must submit to the other, and he paid, because otherwise the other alternative would be upon him, with protest that he paid because thus constrained, it is not such voluntary payment that he would be precluded from recovering back the taxes so paid, if they were illegally imposed.’
“It seems to us, then, that according to a fair and reasonable interpretation of the rule, the railway company paid this first half of the tax under such circumstances that it should be considered an involuntary payment. It was to prevent a seizure as certainly impending as the law could make it, and one also presently impending.” (pp. 597-600.) •
Justice Valentine concurred in the first four paragraphs of the syllabus and the corresponding portions of the opinion only, and did not participate in the judgment rendered.
In the case of A. T. & S. F. Rld. Co. v. City of Atchison, 47 Kan. 712, illegal taxes were assessed against personal property. They were paid on December 17. The taxes would not have been delinquent or subject to the addition of penalty for nonpayment until December 21 and no tax warrant could have been issued until the 10th of the following January. It was held, following the Wyandotte county case (16 Kan. 587), that the illegal taxes were not voluntarily paid and that they could be recovered. Justice Valentine filed a dissenting opinion, in which the following language occurs: - .
“The tax was paid on December 17, 1887; therefore, presumably it was levied in August, 1887, and was placed on the tax roll sometime between that time and November 1, 1887and on November 1, 1887, the tax roll was placed in the hands of the county treasurer for collection; and on December 17, 1887, the plaintiff paid the tax; and during all that time, from August up to December 17, 1887, the plaintiff had ample opportunity to commence an action to test the validity of the tax; but it did hot do so. And why did it pay the same at that particular time and without any contest? It is suggested that a penalty might have been added after December 20, if the tax had not been paid prior thereto; but this could not affect the plaintiff’s rights. A valid penalty could never be added to a void tax. The penalty would be as void as the tax itself, and no lapse of time or anything else could ever make either the void tax or the void penalty valid. The plaintiff could at any time have avoided both. It is also suggested that a warrant for the collection of the tax might have been issued by the treasurer. Now it would be illegal and wrongful for the treasurer at any time to do so; and why must it be supposed that he might have committed such wrongful and illegal act? But suppose he might have done so; still, it must not be supposed that he would have done so until after January 10, 1888; for a county treasurer can not, under any circumstances nor in any case, issue a legal tax warrant for delinquent taxes until after January 10. (Tax Law, § 92; Gen. Stat. of 1889, par. 6941.) Hence the plaintiff was under no possible compulsion to pay the tax when it paid the same, nor could it have been until after January 10, 1888 — more than 24 days thereafter. The rule governing in such cases is stated in the case of Wabaunsee Co. v. Walker, 8 Kan. 431, 436, as follows:” (Quoting the language embodied in the fourth paragraph of the syllabus.) . . . “This rule has been quoted approvingly and followed twice by the supreme court of the United States. (Lamborn v. Co. Commissioners, 97 U. S. 181, 186, 187; Railroad Co. v. Commissioners, 98 id. 541, 543, 544.)” (47 Kan. 715, 716.)
Chief Justice Horton filed an opinion, concurring in the decision of the court, which, after quoting from K. P. Rly. Co. v. Comm’rs of Wyandotte Co., 16 Kan. 587, reads as follows:
“This decision was subsequent • to the decision of Wabaunsee Co. v. Walker, 8 Kan. 431, rendered by this court in 1871, and if it differs or modifies that decision in any way, the decision in the Wyandotte county case must be considered as the law of this state, as interpreted by its highest legal tribunal, rather than the earlier decision. The decision in the Wyandotte county case very clearly and properly construes the old case of Wabaunsee Co. v. Walker, 8 Kan. 436, and ever since' that decision the construction so given it by the court in the declaration of -the law as announced in the fifth proposition of the syllabus thereof, has been the rule in this state in such cases, and is very justly the rule now. Further, this decision has remained unchallenged and unchanged ever since 1876. . . . Even, however, if this court were not bound by the decision in the Wyandotte county case, in 16 Kan. 587, upon the maxim of stare decisis, (which I think it is), yet the rule adopted in the fourth proposition of the syllabus of that case is so reasonable, fair and just that it ought to be the law, not only in this state, but in every other state. A taxpayer in Kansas ordinarily has sufficiently heavy burdens to bear when he promptly pays or tenders all taxes lawfully levied against him or upon his property, without being compelled to go into a court of equity in the first instance to prevent the collection of unjust and illegal exactions, made without any authority of -law, and in violation of the constitution of the state. The law declared by the court below and favored in the dissenting opinion,' although > sustained by very many able and respectable courts,, is unjust, harsh, and, in my opinion, without any, good reason for its support. Of all the powers conferred by the state upon cities, that of taxation is most often abused, and courts ought not to favor such abuse by throwing around the attempted collection of unjust, illegal and unconstitutional taxes such protection as will doubly burden the taxpayer, by requiring of him the expenditure of large sums of money as attorney fees in a court of equity to protect his rights from such illegal and unconstitutional exactions when he tenders all legal taxes in due time, and, after pointing out the special taxes or exactions which are unjust, illegal, and unconstitutional, objects and protests against their collection.” (47 Kan. 719-722.)
No other decision of the court makes its position any clearer and the foregoing quotations are given at length because they contain all the expressions of the justices of the court which throw light upon the subject. Without commenting at length upon the arguments advanced in these opinions, or the facts involved in the cases in which they were delivered, the Wyandotte county case (16 Kan. 587) and the City of Atchison case (47 Kan. 712) furnish the basis for the following conclusions:
In a general sense there should be an immediate and urgent necessity for the payment of the illegal demand; or such payment should be made to release person or property from detention or to prevent an immediate seizure of person or- property. Immediate, however, means certainly impending rather than upon the point of instantly taking place. The inevitableness of the result, unless forestalled by payment, is the matter of primary consequence rather than the nearness of the time when the tax proceeding will culminate. When the taxing process has passed the stage in which the amount and character of the tax may be reviewed, and has reached the stage of collection, no discretion is left in the collecting officers and it is to be presumed that they will follow the law and use all the means provided for securing payment of the tax. It is not material that there may be time and opportunity for proceedings at law or in equity to prevent a seizure or a sale of property or that a seizure or a sale of property may be avoided by subsequent proceedings. The fact that serious injury will follow unless payment be made or legal proceedings be instituted gives the property owner the alternative of paying under protest. Threatened cumulative burdens upon the property involved and inconveniences in the exercise of lawful rights may be considered as matters of coercion in connection with ultimate deprivation, in determining whether a payment is voluntary or involuntary. So long as legal proceedings of some kind will certainly be required to-protect against the enforcement of the illegal tax, the state is not in a position to dictate the course the taxpayer should pursue, and no government should look with complacency upon money in its treasury which has been collected from a taxpayer contrary to established law. There is no difference of rule in respect to-involuntary payments of taxes upon real and personal property. The question in each instance is whether the will of the taxpayer was constrained.
From the foregoing it will be seen that, while the fundamental principles governing the decision ' of Walker’s case (8 Kan. 431) were not affected, those principles were given a much less harsh and. rigid .application in favor of the taxpayer in the later cases.
In this case it devolved upon the taxing officers to ■determine in the first instance whether or not all the real estate involved was used for educational purposes .and whether or not such use was exclusive of all others. The question could not be solved by mere view or upon common public information. An investigation of the facts was necessary, and the conclusion evidenced by placing all the property but ten acres on the tax roll was prima facie correct. Consequently a sale of the land for taxes would have been apparently valid and would have clouded the plaintiff’s title. An advertisement of the land for sale, with the attending cost, was imminent, and the sale itself would have taken place in a little more than a month. These threatened invasions of the plaintiff’s rights created an immediate and -urgent necessity for payment of the illegal demand, within the meaning of the law.
The judgment of the district court.is affirmed.
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The opinion of the court was delivered by
Porter, J.:
Action for the specific performance of a written contract for the exchange of real estate. The court gave judgment for the defendant and the-plaintiff appeals.
The court found the facts which, briefly summarized, are as follows: The parties live in the city of Marion and agreed in writing to an even exchange of their residence properties. It developed at the trial that defendant, who is a woman 62 years of age, owns but an undivided one-half interest in the property she agreed to convey. The title to the other half is in the children of her deceased husband and they refused to join in a conveyance. The court found that at the time the contract for exchanging properties was entered into the plaintiff knew that the defendant owned only a one-half interest in her home and that it would require conveyances from the other heirs before the contract could be carried out. This finding is challenged and error is assigned upon the refusal of the court to modify it. There was abundant evidence, however, to support all the court’s findings. One finding is that plaintiff, before bringing her action, tendered to defendant a sufficient warranty deed conveying the whole title to her property, which tender was refused, and that at the trial she was not willing to convey the entire title to her property, but offered to convey an undivided one-half interest therein to the defendant and asked for specific performance of a contract for the conveyance of the same interest in the defendant’s property. The court found that there was no fraud or overreaching on the' part of either plaintiff or defendant.
As a conclusion of law the court held that it could not make a new contract for the parties and that the plaintiff was not entitled to the relief demanded.
The judgment meets with our approval and is supported by abundant authority. Partial performance of a contract for the conveyance of real estate will sometimes be decreed where the equities of the case are such as appeal to the judicial discretion of the court. Thus, where the purchaser has entered into the contract in ignorance of the vendor’s incapacity to convey the whole title, equity may compel the vendor to perform to the extent of his ability and allow an abatement of the purchase price for any deficiency. (Crockett v. Gray, 31 Kan. 346; Keepers v. Yocum, 84 Kan. 554; 36 Cyc. 740-742.) Here the plaintiff knew the situation and the condition of defendant’s title and must be held to have contracted with reference thereto. Moreover, specific performance is not a matter of right but of equity, and whether it will be decreed rests always in' the sound judicial discretion of the trial court. (Shoop v. Burnside, 78 Kan. 871, and cases cited in the opinion.) To have granted the specific relief asked for in this case would have required the court first to make and then to enforce.a new contract between the parties.
As there was no occasion for the counter abstract the cost therefor will be taxed to the appellee.
The judgment is affirmed.
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The opinion of the court was delivered by
Benson, J.:
The first appeal is from an order overruling a demurrer to a petition for specific performance of an agreement for the conveyance of real estate. The second appeal is from the final judgment for the plaintiff upon a demurrer to the evidence in the same action. Both appeals present the same questions.
The agreement relied upon by the appellee was signed on the part of the appellant by his agents in his name, but it is contended that their appointment did not confer authority to do so. The authority of the agents was in writing, and declares that “I . . . F. M. Claudel . . . do hereby authorize Mahin & Mahin . . . to bargain and sell in my namei’ the property in question, stating the terms of sale. It is argued that this instrument only authorized the agents to find a purchaser, and did not empower them to conclude a contract. Whether a mere authority, expressed only in the words “to sell” or other similar expressions, authorizes the execution of a contract by a real-estate broker, binding his principal to convey, is a. question upon which decisions in other jurisdictions are in seeming disagreement (Brown v. Gilpin, 75 Kan. 773, 90 Pac. 267), but it was held in the case cited that the inquiry to be determined in each doubtful case is whether the owner has shown an intention that the agent should act merely as an ordinary broker, or that he should go further and effect a binding contract of sale. In this case the instrument appoint ing the agents confers more than a mere authority to sell; the language used is “to bargain and sell in my name.” “To bargain” implies negotiation over the terms of an agreement, and “to sell in the principal’s name” implies the conclusion, in his name, of the agreement so to be negotiated. No other intention is discoverable in the language quoted. This is the natural import of the language and is believed to have been the intention of the parties. The same conclusion was reached in Peterson v. O’Connor, 106 Minn. 470, 119 N. W. 243, in construing the words “bargain and sell” in the written authorization given to a real-estate broker, the words “in my name” not being in that instrument.
It is next insisted that the contract executed in pursuance of the authority so given to the agents is not enforceable against the vendor because it contains no obligation on the part of the vendee, and that there is lack of mutuality of obligation and remedy. The contract, after reciting the names of the parties, description of the land, the sale price, and terms of payment, reads:
“Party of the first part is to convey said land by warranty deed and furnish an abstract of title showing said, land to be free and clear of all incumbrance and title perfect. Party of the second part is to take said lands subject to the lease now on the same for the year 1906.”'
The covenant to convey and the covenant to take-create mutual obligations. The covenant that the vendee will take the land implies that he will take it upon the terms upon which the vendor agrees to sell it, but subject to the lease as stated in the concluding words. This qualifying phrase does not abrogate or limit the obligation to take and pay for the land according to the terms stated, upon which the vendor agreed to convey it, but imposes an additional condition. The appellee argues that if it should be held that the instrument contains no covenant on the part of the vendee, still, having; accepted its terms, tendered performance on his part,, and sued to enforce performance by the- other party, the lack of mutuality is not available as a defense. It was said in Peckham v. Lane, 81 Kan. 489, 106 Pac. 464, in deciding an action for specific performance:
“A further argument is made that the contract is wanting in mutuality,' but as the plaintiff alleges full performance on his part this defense is not open to the defendants.” (p. 493.)
The question is also considered in Water-supply Co. v. Root, 56 Kan. 187, 42 Pac. 715; Burnell v. Bradbury, 67 Kan. 762, 74 Pac. 279; Zelleken v. Lynch, 80 Kan. 746, 104 Pac. 563; Painter v. Fletcher, 81 Kan. 195, 105 Pac. 500, and Wiley v. Hellen, 83 Kan. 544, 112 Pac. 158. The appellant insists that these and other decisions of this court to the same effect should be distinguished for various reasons, among others that this contract was signed by both parties and that there was no such performance by the vendee that an appeal to conscience can be made as in the Zelleken case. It is unnecessary to review these decisions and determine their application here, for, as already stated, this contract expresses sufficient mutuality of obligation to bind both parties.
It appears from the special findings that at the time the contract of sale was signed the vendee delivered his check for the advance payment of $3000 to the vendor’s agents, who thereupon presented the contract and check to the vendor and told him of the sale. Being then informed that Golden was the purchaser appellant declared that Golden should not have the land, but that if the sale had been made to other parties they might have it. He made no objection to the check, and no ■other objection to the contract, but refused to go further with the transaction only because he objected to the purchaser, and upon the offer of his agents to produce the money, replied in effect that this would make no difference, that Golden should not have the land. The check was good, the appellee having more than the amount on deposit subject to its payment. On the 15th day of February, 1906, the appellee notified the appellant that he would be ready on March 1, the date for final payment specified in the contract, to close up the deal, and would either take the money to Smith Center, where the contract was made, or to the appellant’s place. The appellant replied that he would not make the deed, and refused to go further with the transaction. On March 1, 1906, the appellee produced a sufficient sum of money, in gold and United States treasury notes, to the appellant’s agents, and said that he desired to make a formal tender of the amount due on the contract. The agents disclaimed any authority to receive it, but stated that they would inform their principal of the offer, which they did by telephone, he being at his home about twenty miles away. The appellant answered that he would not receive the money or make the deed. The agents then proposed to take the money to him but he said he would not accept it. The money was then counted out in the presence of the agents, and offered to them but they refused to take it. In view of these facts the objection that the tender of performance was insufficient can not be sustained. It is unnecessary to discuss the authority of the agents to receive the money. The principal himself having declared that he would not accept it, a tender was unnecessary. (Chinn v. Bretches, 42 Kan. 316, 22 Pac. 426; Caley v. Mills, 79 Kan. 418, 100 Pac. 69; Niquette v. Green, 81 Kan. 569, 106 Pac. 270.)
This action was commenced three years and 'fifteen days after the appellant refused to perform the contract, and the appellant insists that as the value of the land had greatly increased meanwhile, the contract should not be enforced because of this delay. We find no evidence of any increase in value in the abstract although it is stated in the brief of appellant that such evidence was given. It is argued, however, that the court should take judicial notice of the general advance in land values, and that to permit a recovery is to allow a speculation upon the real-estate market — conduct condemned by the authorities.' On the other hand, it is insisted that mere delay, short of the statutory period of limitation, when the adverse party is not shown to have been prejudiced thereby, will not preclude the action. The subject was referred to in Niquette v. Green, supra. The doctrine contended for is an equitable one, and all the circumstances of each particular case must be examined to determine whether in good conscience a party in default should be released from 'his agreement by the delay of the other party in enforcing his right. It was alleged and shown that soon after the repudiation of this agreement by the appellant a suit was commenced against him by his agents to recover a commission upon this sale. That action was defended upon the ground that the agents had no authority to conclude and sign the contract — one of the grounds relied upon to defeat this action — and that the appellant had said that if it should be determined in that action that the agents had such authority he would make the conveyance. This declaration coming to the knowledge of the appellee is assigned as one reason for the delay. It was further shown that appellee’s attorneys — the same persons who had signed the contract of sale as agents for appellant (their agency having ceased) — advised that the commencement of this suit be delayed until the action referred to should be determined. That action was determined in favor of the agents. While there was considerable delay after the .1 udgment — -in fact about seventeen months — still, the pendency of that action, and the advice of attorneys, in connection with all the circumstances, appear to afford grounds for holding that the right to specific performance was not absolutely barred merely because of this delay. At least the situation presented upon the evidence affords no ground for holding that there was an abuse of judicial discretion in finding that the ap pellee should not be defeated because of his failure to sue earlier. A review of the multitude of cases, often apparently conflicting — in other jurisdictions where this subject of laches has been considered would not clarify the situation. As stated in Hammond v. Hopkins, 143 U. S. 224, 250, quoted with approval in Rogers v. Van Nortwick and others, 87 Wis. 414, 58 N. W. 757:
“Each case must necessarily be governed by its own circumstances, since, though the lapse of a few years may be sufficient to defeat the action in one case, a longer period may be held requisite in another, dependent upon the situation of the parties, the extent of their knowledge or means of information, great changes in values, the want of probable grounds for the imputation of intentional fraud, the destruction of specific testimony, the absence of any reasonable impediment or-hindrance to the assertion of the alleged rights, and the like.” (p. 428.)
A comprehensive statement is found in 36 Cyc. 730b, as follows:
“The broad principle, as applied to .other equitable remedies, is generally recognized, that a delay which neither evidences an abandonment of right, nor operates to the prejudice of the other party, is not a defense. A number of specific performance cases have expressly announced and applied the same rule; and they are supported by the statements and reasoning of a much larger number, in which denial of relief is based upon the injury resulting from the delay.”
No effort to declare with exactness the conditions upon which this defense will be sustained can be entirely successful, for the endless variety of circumstances must always influence the discretion of the court in determining the equity of a given case. The element of increase or decrease in values is a factor, especially where the property involved is subject to rapid and frequent changes in value, as in the case of stocks, mining property and the like. (Rogers v. Van Nortwick and others, 87 Wis. 414, 58 N. W. 757; Johnston v. Standard Mining Co., 148 U. S. 360, 370.)
A general increase in farm values, incident to settlement, improvement and development of the region, or a succession of good crops, where there has been no outlay for improvements, while proper for consideration, and to be given due weight, may not always be so important an element. A party, however, will not be allowed by willful or unreasonable delay to speculate upon an advancing market, intending to insist upon the contract if there is an advance and to abandon it if there is a decline. In other words, equity requires good faith.
It was said in Harris v. Defenbaugh, 82 Kan. 765, 109 Pac. 681:
“Where, by reason of acquiescence and long lapse of time, there is a possible loss of testimony or increased difficulty of defense, the doctrine may be applied in the discretion of the court; but laches does not consist in the mere lapse of time.” (p. 770.)
Taking into consideration the various elements already referred to and all the circumstances affecting the equities of the case, specific performance is decreed or denied in the exercise of sound judicial discretion.
“Whether specific performance of the terms of a mutual contract shall be decreed, under all the facta and circumstances which go to make up the equities between the parties, rests largely' in the sound discretion of the court.” (Reid v. Mix, 63 Kan. 745, syl. ¶ 1, 66 Pac. 1021.)
The abstract shows a discrepancy in the description of one of the tracts between the instrument of agency and the contract of sale, and it is argued that the decree is erroneous because it covered land not described in such instrument of agency. An examination of the petition on which the case was tried reveals the fact that the mistake is in the abstract of this instrument attached as an exhibit to this petition.
The judgments appealed from are affirmed.
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The opinion of the court was delivered by.
West, J.:
Baker, in approaching a crossing of the defendant’s track, was injured' by his horse becoming frightened ,a,t a railroad tricycle passing in front at a speed of eight or ten miles an hour, and sued for damages. The defendant appeals from the judgment rendered against it and alleges various errors. It is necessary to consider but one — the exclusion of certain evidence. The jury .answered forty-seven special questions, finding the plaintiff negligent, and the defendant guilty of gross negligence in that its employee, when seventy feet from the crossing, realized that the plaintiff’s horse was taking fright at the approaching tricycle on which such employee was riding, that he could have stopped within fifteen feet, that stopping would have prevented the injury, that he realized the plaintiff’s danger when fifty feet from the crossing, but that he thereafter heedlessly and recklessly ran the tricycle in front of the horse maliciously and with intent to increase such danger. The following questions werg asked the rider of the tricycle, Knight, and an objection was sustained to each:
“Ques. From your observation of the situation did you think that you could better matters by stopping the tricycle ?
• “Q. Do you know of anything else that you could have done at any time to have prevented the injury?
“Q. Now, Mr. Knight, state if you know of anything more that you could have done to have prevented this injury.
“Q. State to the jury if you knew at that time, or at any time, or had reason to believe that your approach on the tricycle had caused that horse to act as it did.
“Q. Now, Mr. Knight, was there anything willful or malicious in your action on that occasion?”
The defendant then made an offer as follows:
“Defendant offers to prove by this witness that he did not know or .believe.that his tricycle.had caused the horse to act as it did, and that he was going along slowly and took the best position that he thought he could with reference to the horse to prevent any injury, and stopped his tricycle at a point where he thought it would be the least objectionable to the public and person in question.
“Plaintiff objects; incompetent, irrelevant, immaterial and stating a conclusion of the witness.
“Court: The objection is sustained to everything except the manner in which he was traveling. He can state that again if you desire to ask him.”
Later the following occurred:
“Ques. Now, Mr. Knight, state to the jury why you did not stop at any time along there when you saw this horse acting as it did act.
“Plaintiff objects; calling for his conclusion.
“Objection sustained. Defendant excepts.
“Defendant offers to show by this witness that the reason he did not stop when he saw the horse first commence to turn around was because the horse did not appear to be frightened, and that the action was very rapid at that particular time, and when the horse got to rearing- and plunging at the bottom of the ditch there did not seem to be any use in stopping and that it would not do any good; and at that time he was fifty-feet away on the right of way and the horse was paying no attention to him.
“Plaintiff objects; incompetent, irrelevant, immaterial and calling for conclusions of the witness.
“Objection sustained. Defendant excepts.”
The vital issue was the alleged wanton negligence of the railway company which for the purposes of this, case means only the wantonness of the employee land witness, Knight. He was the only one who could state-from actual personal knowledge the motive and intent with which he acted. While actions may and often do-speak louder than words, and are competent and often convincing evidence of motive, still the rule is. almost without exception that when a person’s motive is the issue he may give his version of the matter. The weight of such evidence is for the jury but its competency is beyond question.
In Gardom v. Woodward, 44 Kan. 758, it was held that a seller of personal property charged with having intended by the sale to hinder and delay his creditors was competent to testify directly as to whether in fact he so intended. It was there said:
“The condition of a man’s mind with reference to what he thinks, feels, believes, intends, and his motives, is always a fact, and it is a fact which is often required to be ascertained both in civil and in criminal cases; and only one person in the world has ¡any actual knowledge concerning that fact, and that person is the one whose condition of mind is in question; and where he is a competent witness to prove such condition, he may testify to the same directly. Other witnesses can testify only to extraneous facts tending to prove this condition. He may also testify to such extraneous facts, but he may testify, directly as to what the condition of .his own mind is or was at any particular time, or on any particular occasion.” (p. 761.)
A similar ruling was made with reference to the purchaser in Frost v. Rosecrans, 66 Iowa, 405, where it was said:
“It is a general rule that, where the intention or motive of a witness is a material question in, the case, the witness may state what his intention or motive was.” (p. 407.)
In Olson v. United States, 133 Fed. 849, an entry-man was held competent to testify as to his intent, and whether it was to get the claim for the purpose of selling to another, and after stating that the question for the jury to determine was the purpose, intent and motive of the parties, it was said: of such person whether he happens to be a party to the action or not.” (p. 856.)
“That being so, it follows that the intent and motive of the party was the subject of inquiry, and the law we think to be that, whenever the motive, belief, or intention of the person is a material fact to be proved under the issue, it is competent to prove what such motive, belief, or intention was by the direct testimony
This is cited with approval in the text in section 2717 of volume 4 of Elliott on Evidence. Wigmore, in section 581 of volume 1 of his work on Evidence, lays down a similar rule, and states that in one jurisdiction only (Alabama) has any clear sanction been given to the contrary rule. The following decisions are also in point: Gentry v. Kelley, 49 Kan. 82; Bice v. Rogers, 52 Kan. 207; The State v. Kirby, 62 Kan. 436; Johnson v. Dysert, 70 Kan. 730; Bowers v. Railway Co., 82 Kan. 95.
Such of the excluded evidence as fairly tended to show the motive and intent of Knight should have been received and its exclusion was prejudicial error.
The judgment- is therefore reversed and the cause remanded with directions to grant a new trial.
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The opinion of the court was delivered by
Mason, J.:
The J. R. Crowe Coal & Mining Company claimed to have the right to mine the coal underlying land the title to which, subject to that right, was conceded to be in Lillie Atkinson. It brought an action against her and her husband, Ed Atkinson, to enjoin them from interfering with its occupancy of so much of the land as was necessary to its mining operations. Judgment was rendered for the plaintiff, but this was reversed upon the ground that the defendants were en-. titled to a trial by jury. (Atkinson v. Crowe, 80 Kan. 161.) Upon a second trial a jury returned a verdict for the plaintiff, upon which a judgment was rendered, and the defendants again appeal.
The defendants maintain that they were in possession of the property in controversy under claim of title, and that therefore if the plaintiff was entitled to recover at all its remedy was by ejectment and not by injunction. Whether or not ejectment would have been an available remedy, the peculiar situation suggested plausible grounds for proceeding by injunction. Upon the first appeal the judgment was reversed specifically because a jury trial had been denied. The fact that the order of reversal was based wholly on this ground fairly implied that the action was regarded as maintainable in the form in which it was brought. Moreover, the parties have been afforded a fair opportunity to try out their controversy, the claims of each were fully understood by the other, and the judgment fixes their respective rights. In this situation the decree ought not to be disturbed on account of the form of the action. - The defendants suggest that although a jury passed upon the evidence, its findings were only advisory, because that is the ordi nary rule in injunction and other equitable proceedings. Here, however, this court reversed the first judgment because the issue involved was one upon which a jury trial was a matter of right. It follows that the decision of the jury was final unless set aside upon such grounds as would be available in ejectment or any strictly legal action.
The facts out of which the controversy grows are stated in the former opinion. They are substantially as follows: The land involved was formerly owned by the Kansas City, Fort Scott & Gulf Railroad Company. About July 20, 1881, that company executed a deed to Jeremiah Hogan. The plaintiff claims, and the defendants deny, that this deed contained a reservation of the coal and lead mineral underlying the land, with the right to enter upon the surface for the purpose of mining it. The deed was filed for record' August 13, 1881. In the fall of 1885 some of the books of record in the office of the register of deeds, including that in which this deed was recorded, were destroyed by an explosion. Hogan gave an ordinary mortgage on the land, containing no reference to any reservation or exception. This was foreclosed without the railroad company being made a party, and the defendants claim through a sheriff’s deed purporting to convey a complete title. The plaintiff has succeeded to the rights of the railroad company in connection with the coal. At the time the action was brought the defendants and those through whom they claim had been in the actual possession of the land for over fifteen years, asserting title through the sheriff’s deed. They had never, however, undertaken any mining operations thereon, having used it for agricultural purposes only.
The principal question of fact is whether the deed from the railroad company contained a reservation of the mineral rights. The principal question of law is whether the continuous occupancy of the surface for fifteen years, under a deed purporting to convey the entire property, barred the claim to the coal on the part of the railroad company and its grantee.
The jury specifically found that the deed did contain the reservation referred to, and we think the finding abundantly supported by the evidence. Annotations in official indexes which escaped destruction indicated an exception in the deed with regard to the minerals; there was testimony that deeds from the railroad company at that time contained the form of reservation claimed by the plaintiff; a portion of a partially destroyed volume was produced which apparently had contained the record of this deed, and so much of its language as was preserved supported the contention of the plaintiff. Objections are made to the competency of the evidence, but we do not think them well founded.
“The severance of the surface and mineral rights is accomplished either by a conveyance of the land- with an express reservation of the minerals, or by a conveyance of the minerals or mining rights.” (27 Cyc. 682; Moore v. Griffin, 72 Kan. 164.) “After the mineral is conveyed apart from the land, or vice versa, two separate estates exist, each of which is distinct; the surface and the mineral right are then held by separate and distinct titles in severalty, and each is a freehold estate of inheritance separate from and independent of the other.” (27 Cyc. 687.) “Adverse possession of the surface of the land does not necessarily include possession of the minerals below it, where the title to the latter has been severe'd by deed from that to the surface.” (1 A. & E. Encycl. of L. 875.)
While the mere occupancy of the surface, where a severance has previously been accomplished, does not of itself constitute adverse possession of the underlying mineral, there is room for a plausible argument that if the occupant of the surface claims under a deed which purports to convey a complete title to the entire property his possession should be characterized by the terms of the instrument under which he holds and he should be deemed to be asserting dominion over the whole. But the authorities are practically uniform in holding to the contrary. Any use to which the surface of the ground may be put differs so widely in character from the extraction of the minerals thereunder — the operations are so disconnected and unrelated — that a possession exercised for agricultural purposes only, although taken and held under an ordinary deed purporting to transfer complete ownership, ought not to be deemed adverse as to mining rights previously severed by a reservation in a conveyance in the same chain of title. The following cases support this view: Murray v. Allred, 100 Tenn. 100; Caldwell v. Copeland, 37 Pa. St. 427; Lulay et al., Appellants, v. Barnes, 172 Pa. St. 331; Gordon v. Park, 202 Mo. 236, 219 Mo. 600; Gill v. Fletcher, 74 Ohio St. 295; Catlin Coal Co. v. Lloyd, 176 Ill. 275, 180 Ill. 398; Steinman v. Jessee, 108 Va. 567; Marvin v. Brewster Iron Mining Co., 55 N. Y. 538.
The defendants undertake to distinguish these cases upon the ground that here the occupant of the surface had no knowledge or notice of the existence of a right to the minerals apart from the general title to the land. Whether they had actual information on the subject can not be controlling. The deed in which the severance was accomplished, by a reservation of the mineral rights, was duly recorded. While the record itself was destroyed, there remained sufficient annotations in the indexes to advise a careful examiner that it was not a deed in the ordinary form. An investigation of the clue thus afforded would have developed the actual fact. The defendants derived their title under this deed and can not under these circumstances found a right upon ignorance of its provisions. (Taylor v. Mitchell, 58 Kan. 194; Knowles v. Williams, 58 Kan. 221.)
The principle stated is really determinative of the •controversy, and the specific rulings assigned as •errors really present different aspects of the same question of law. Complaint is made of the refusal to submit a special question requiring the jury (among •other matters) to say whether the possession of the ■defendants was adverse as to the plaintiff. This presented a question of law. The findings that were made ■sufficiently determine the essential facts in the case, and the general verdict was in accordance with them. In submitting a question concerning the possession of the “premises in question,” the court, over the objection of the defendants, stated that the only property in ■dispute was the coal in place. This was certainly not prejudicial, as it tended to prevent a confusion of the issue. Most of the instructions refused, so far as they are consistent with the rule of law already announced, were in substance covered by the general charge. The court was asked to say that if the mineral rights had been reserved by the railroad company, it should thereafter have paid the taxes if it claimed to own the mineral. Instead the jury were told that prior to 1897 there was no provision of the law for the separate taxation of coal in place. As there is no showing that the coal was assessed as such, or that th<$ taxes charged against the land were increased by reason of its existence, the nonpayment of taxes is not in derogation •of a claim of ownership by the railroad company. An instruction was given to the effect that to enable the ■defendants ■ to recover upon the theory of an adverse occupation for fifteen years they must have conducted mining operations continuously for that period. Whether the word “continuously” should have been used need not be determined, since it is conceded that no mining on the land was ever done by anyone prior to the beginning of this action. An instruction that fhe sheriff’s deed could not affect the rights of the railroad company because it was not a party to the fore closure is criticised on the ground that under some circumstances the deed might be the basis of a claim or defense against the company. We think the language fairly meant merely that the company, not being a party, was not bound by the judgment, and its existing rights were not changed by it. Some evidence which was at first admitted was afterward ruled out. The defendants assert that prejudice to them resulted, but we see nothing in the record to indicate this.
The judgment is affirmed.
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Per Curiam:
The plaintiff brings this action to recover the sum of ten thousand dollars and interest which she alleges in her petition she authorized the defendant bank to collect for her and to place to her credit in its bank. She alleges that the defendant did collect said sum of money for her, and although she has at divers times demanded the repayment to her, since it was received by the bank, the defendant has at all times refused to do so.
The answer of the bank admits the collection and receipt of the money, as alleged by the plaintiff, but alleges that it paid out the entire amount to one S. C. Harrison upon a check executed by the plaintiff to him before any repayment to the plaintiff was demanded by her.
In reply the plaintiff denied that she ever delivered or executed the check referred to in defendant’s answer but that the same was forged and fraudulent. The plaintiff also set forth an unconsummated agreement between herself and the officers of the bank by the terms of which she was to deposit two thousand dollars of the sum in the savings department of the bank and to receive for the remainder four time deposit certificates of $2000 each. She further alleged that Harrison was in bad repute, irresponsible, and that the defendant either knew the facts or could, have known them in the exercise of reasonable diligence and did not exercise such diligence to protect her interests before paying out the money to Harrison. These latter allegations the court struck from the reply, and on leave of court the plaintiff filed an amended reply which the court, on motion, struck out for the reason that it contained practically the same matter as had been stricken out of the first reply. Whereupon the plaintiff asked leave to present reasons why she should be allowed to file an amended reply setting up the question of diligence on the part of the defendant. Thereupon the court set a time for such hearing and, at the time set, the plaintiff asked for a further extension of the time to present such reasons. The court refused to extend the time for such hearing and the trial was had upon the petition, answer, and the portions of the reply not stricken out.
Much space is occupied' by the plaintiff in showing that this ruling was prejudicial to plaintiff, but if the case had been tried with the original .reply, or the reply as amended, the determination of the case would still have depended upon the questions whether plaintiff in fact executed and delivered to S. C. Harrison the check in question and whether the defendant paid the check in good faith. The plaintiff also contends that the court misdirected the jury by instructing that a mere suspicion on the part of the bank that Harrison had not rightfully obtained the check was insufficient to put the bank upon inquiry, but that actual notice of such fact was necessary to require the defendant bank to make an investigation before paying the check. If the evidence were close and conflicting as to whether the plain tiff voluntarily executed and delivered the check to Harrison there might be a difference of opinion whether the instructions referred to were strictly accurate. But this can not be said.
A photograph of the check with her signature, and the photographs of other instruments in writing with a signature attached which was either admitted or proven to be the signature of the plaintiff, were offered in evidence. Moreover the plaintiff stands alone in denying the execution of the check in question while ten other witnesses stated, in substance, that after the plaintiff was informed that the check had been honored and the amount paid to Harrison she admitted to them, or in their hearing, that she did give the check to Harrison, and in practically every instance that she said she had a real-estate transaction with Harrison or that he proposed to invest the money in real estate for her and that he had given her his note for the amount, ten thousand dollars. Of these ten witnesses it appears that six were not connected with the bank. One of the six was the sheriff of the county, another the city attorney, another a policeman, one was the cashier of another bank, and two were newspaper reporters. And it does not appear that she stated to any of them that Harrison drugged her, as she claims in her testimony, or used any improper means to obtain her check other than that he imppsed upon her confidence in obtaining the check and abused it in obtaining the money and fleeing from the country.
We do not rest the affirmation of the judgment upon the preponderance of the evidence but hold that neither the facts pleaded in the portion of the reply and amended reply which were stricken out nor any evidence offered or produced was sufficient to put the defendant upon inquiry as to whether the check in question was procured from defendant by fraud or duress.
The case was fairly tried and the judgment is affirmed.
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The opinion of the court was delivered by
Mason, J.:
William Fox recovered a judgment for treble damages against the Kansas .Bitulithic Com pany, upon a charge of having dug up and carried away stone from his land. The defendant appeals. The action was founded upon the statute, which so far as is here important reads:
“If any person shall . . . dig up, quarry or carry away any stones, ore or mineral, gravel, clay or mould, roots, fruits or plants; or cut down or carry away grass, grain, corn, flax or hemp in which he has no interest or right, standing, lying or being on land not his own . . . the party so offending shall pay to the party injured treble the value of the thing so . . . carried away.” (Gen. Stat. 1868, eh. 113, § 1, Gen. Stat. 1909, § 9692.)
At the trial the petition was amended so that its allegations conformed strictly to the language of the statute, but by that time the period fixed by the statute of limitations had elapsed. The defendant claims that the original petition wholly failed to state a cause of action under the statute; that if it was sufficient for any pur-. pose, it was only as a statement of a common-law trespass, entitling the plaintiff to compensation only. If this contention is correct, the plaintiff could not, after, the lapse of time had barred the statutory remedy, transform his common-law action into one for the penalty, and thereby evade the effect of the statute of limitations. (A. T. & S. F. Rld. Co. v. Schroeder, 56 Kan. 731; Railway Co. v. Bagley, 65 Kan. 188, and note thereto in 3 L. R. A., n. s., 259.) But this result does not follow unles the first petition utterly failed, when given the most favorable construction, to state a cause of action under the statute. The question therefore is whether it sets out, although informally and defectively, facts which, when aided by reasonable inferences, bring the case within the terms of the statute. It reads as follows:
“Plaintiff for. cause of action against the said defendants alleges that he is and was the owner in fee of the following-described real property [describing it].
“That the Bitulithic company, one of the defendants herein, is a corporation duly organized and existing according to law.
“That on or about the 1st day of May, 1908, and at various times thereafter and up to about the 29th day of December, unlawfully entered upon the real estate above mentioned, and dug up, quarried and carried away two thousand seven hundred and twenty-seven perch of stone, of the value of $545.40.
“Wherefore this plaintiff prays judgment in the sum of $1636.20, treble damages, sustained as aforesaid, and costs of suit.”
Our attention is called to the failure to designate the defendant in connection with the allegation of the trespass, but this omission is obviously a clerical one, readily supplied by interpretation. The statutory requirements which are not explicitly stated, are that the defendant had no right or interest in the stone, and that it did not' own the land. These are of course essential parts of a cause of action for treble damages. But in saying that he himself owned the land in fee the plaintiff said in effect that the defendant did not own it, and that requirement of the statute was thereby satisfied. The omission to allege in terms that the defendant had no interest or right in the stone is less easily remedied by construction; but the allegation that the stone was unlawfully dug up and carried away may reasonably be held to be a substitute for the statement that the (defendant had no interest or right therein. True, the defendant’s act in taking the stone might have been unlawful although it had some right or interest therein, but the pleading to escape absolute nullity need not negative every condition that might constitute a defense. A fair inference is that'if the taking of the stone was unlawful, it was so because the defendant had no right or interest in it.
This case is readily to be distinguished from others in which it has been held that the substantial cause of action can not be changed after the lapse of the period fixed by the statute of limitations. Here the fact that in his original pleading the plaintiff asked treble dam ages advised the defendant at once that he was relying upon the statute and was attempting to bring himself within its terms. There is no possibility of the defendant’s having been misled. There is no room to suppose that the plaintiff was trying to shift his ground— to avail himself of an afterthought. He was plainly attempting from the beginning to found his action upon the statute, and however defective his pleading may have been in that aspect it was not a nullity. The defendant refrained from questioning or criticising the petition until the statute had barred a new action, and to allow its belated objection to prevail would not be in furtherance of justice.
Cases arising under similar acts hold that the petition should conform to the statute with some strictness. (28 A. & E. Encycl. of L. 609; 21 Encyc. Pl. & Pr. 880, 831.) This rule can be invoked to require the plaintiff to set out his facts with fullness, but not to defeat his claim by the statute of limitations, under the circumstances here presented.
The defendant complains of the refusal of the court to instruct the jury in substance that if the plaintiff had actual or constructive knowledge of the trespass and failed to stop it, he could not recover on account of stone thereafter taken. The principle relied upon is the obligation of one injured by the wrongful act of another to use reasonable diligence to save himself from loss. We do not think that principle applies. Of course the plaintiff might by his conduct have been estopped to claim damages after a certain time, but the request did not present that theory. If the plaintiff knew that the defendant was removing the stone from his land, and had reason to suppose that this was being done under some misapprehension, it was doubtless his duty to give notice of his claims. But in the absence of special circumstances if the defendant was unlawfully engaged in removing the stone from the plaintiff’s land it could not complain that he failed to use diligence in discovering the fact and protesting against it.
The defendant also objects to the judgment on the ground that the evidence showed that although it pracured and used the stone from the plaintiff’s land, it did so through an independent contractor, from whom it was an innocent purchaser. There was, however, a conflict of testimony in this regard, which was decided by the jury 'under proper instructions, and their- decision is not subject to review here.
The judgment is affirmed.
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The opinion of the court was delivered by
Benson, J.:
On the trial of an appeal from an award of damages in taking land for a right of way the jury assessed damages for the value of the land actually taken at a certain sum, and damages to the remainder of the tract at- $800. The railway company complains only of the last-named item, basing its complaint upon a statement in the abstract “that there was no evidence . . . which tended to show the damages to the land not taken.” In a counter abstract the appellees give the testimony of witnesses upon which they rely to support the finding. The witnesses were two of the commissioners who made the original award, who explained such award, giving the items thereof, showing that they had allowed damages to land not taken. This, however, appeared from the record of the proceedings. Such appeals are tried the same as appeals taken from judgments of justices of the peace. (Ibaws 1870, ch. 74, § 1, Gen. Stat. 1909, § 1805.) It will not be claimed that on the trial of an appeal from the judgment of a justice of the peace the judgment appealed from is competent evidence of the plaintiff’s claim. The witnesses were not asked to give their opinions of the extent of the damages, but only testified to the fact that they had allowed damages. This proved nothing, and the appellant’s motion to reduce the judgment by striking out the item complained of ought to have been allowed.
The order overruling the motion is reversed and the cause is remanded with directions to allow the motion and to reduce the judgment accordingly.
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought by Ida Hendricks against the city of Abilene, to recover damages for personal injuries alleged to have been received by reason of a fall occasioned by a defective or improperly-constructed sidewalk. The case was tried by the court and a jury, and the jury found a general verdict in favor of the plaintiff and against the defendant, and assessed the damages at $1,900, and in accordance with this verdict the court rendered judgment. To reverse this judgment the defendant, as plaintiff in error, brings the case to this court.
As the finding of the jury was general and in favor of the plaintiff, we must assume that all the facts which the evidence in her favor tended to prove were sufficiently proved, and were and are true; and, viewing the case in this light, the principal facts are substantially as follows: The plaintiff was an unmarried lady, about thirty-three years of age, residing with her mother, a widow, in the city of Abilene. She had resided there for about six years prior to the injury complained of; but for about six weeks prior thereto, and up to within four or five days prior thereto, she had been absent from Abilene, and did not know what the condition of the streets was where the alleged injury occurred. The injury occurred after dark, at about 8 o’clock-in the evening of September 10,1883, at the northwest corner of North Third and Spruce streets, in the city of Abilene. It appears that a new sidewalk, thirty-six feet in length, had, a short time before, been constructed on a portion of North Third street, commencing at Spruce street and going west thirty-six feet. At Spruce street the new sidewalk was about three and one-half or four feet higher than the old sidewalk, and that much higher than the two streets, and at the west end of this elevated portion of the sidewalk it was higher than the old sidewalk, but just how much higher is not shown. It is shown, however, that two boxes were placed at the west end of the new sidewalk and on the old sidewalk to enable persons to step from the old sidewalk to the new, and that it was just two steps from the old to the new. It also appears that there was a bakery abutting on North Third street and at the west end of the new sidewalk; that on the evening of the accident the plaintiff went into the bakery to get a loaf of bread; that afterward, when she came out, she stepped from the old sidewalk up onto the new, and passed along the new sidewalk to the east end thereof, where she fell from the new sidewalk to the cross-walk, about three and one-half or four feet down, and received the injuries of which she complains. The plaintiff, in her testimony at the trial, stated, among other things: “I think I went up a step. Yes, sir; it didn’t make any impression on me. The walks in Abilene are so irregular I thought nothing of it.” And again: “No, I never thought about it. I knew I fell, and that is all I thought about it at the time.” There was a path in the street and on the ground around the new sidewalk in which many persons traveled, but the plaintiff had no knowledge of this path until some days after the accident. Many other persons, however, passed over the new sidewalk, and it was shown that some of these other persons had also fallen at the east end of the new sidewalk as the plaintiff fell. There were no guards to prevent persons from walking upon the new sidewalk, or to prevent their falling therefrom if they did walk upon it, and there were no lights to enable persons to see the condition of the sidewalk or the streets, or to avoid injury. The city authorities had full knowledge of the condition of the streets and the sidewalk where the injury occurred. The plaintiff was very badly and permanently injured by the fall.
Taking the foregoing facts as true, we think the plaintiff has a right to recover for her injuries, and that the judgment rendered in this case must be affirmed, unless some error occurred during the progress of the case which will require a reversal of the judgment. We shall now proceed to consider the errors alleged by the plaintiff in error.
• I. It is alleged that the court below erred in impaneling the jury. The specific thing complained of is, that the court below instructed the clerk that, in calling the names found on the jury-list for the purpose of impaneling the jury, the clerk might omit the names of such persons as were known to be residents of the city of Abilene, and the clerk did omit the names of two such persons, to wit, Armitage and Malone. It seems to be admitted that these two persons were residents of Abilene, but whether they were tax-payers or not, is not shown. The jury was made up from the regular list of jurors, and the jury seems to have been unexceptionable. The only supposed irregularity in impaneling the jury was in passing over the names of these two persons and in calling the names of persons below them on the jury-list. The defendant exhausted all its peremptory challenges, and neither Armitage nor Malone served on the jury. We do not think that any material error was committed. If Armitage and Malone were tax-payers of the city of Abilene, and probably they were, they were unquestionably incompetent to serve as jurors in this case. (Gibson v. City of Wyandotte, 20 Kas. 156; Corlett v. City of Leavenworth, 27 id. 673.) But even if they were not tax-payers, still, as they were residents of the city of Abilene, they would not make the best of jurors for this case. The ease of Hollenbeck v. Marshalltown, 62 Iowa, 21, cited by the plaintiff in error, does not decide that such persons are competent as jurors in a case in which the city of their residence is a party; but all that it does decide is, that where a city is defendant in an action for damages, and the court overrules a challenge made by the city to the competency of a juror, on the ground that he, though a resident of the city, is not a tax-payer, such ruling of the court is not error. Now, whether Armitage and Malone were competent to serve as jurors in this case or not, we do not think that the court below committed any material error in excluding them from the jury, as the case was tried by a competent and unexceptionable jury, and a jury made up from the regular list of jurors. (The State v. Miller, 29 Kas. 43; Stout v. Hyatt, 13 id. 232; A. T. & S. F. Rld. Co. v. Franklin, 23 id. 74.)
II. It is further claimed that “the court erred in refusing to instruct the jury as asked by the plaintiff in error, and was guilty of an abuse of discretion in giving the instructions which were given.” We do not think that this claim of errfir is tenable. The court below gave substantially in the general charge all the instructions asked for by the defendant, plaintiff in error, except the second instruction, which reads as follows:
“ It is frequently necessary to obstruct portions of the street where new buildings are being erected, and the city is not liable for damages resulting from such obstruction if the dangerous place is properly guarded and a sufficient portion of the street for ordinary purposes is left unobstructed.”
This instruction we think is good law, but it does not have any application to this case; and it would have been misleading and erroneous if it had been given in this case. The sidewalk in the present case was not designed or intended as an obstruction to travel or otherwise, but it was intended for a sidewalk, and looking at it from the west end, where the plaintiff got upon it, it would seem that people were invited to walk upon it. Besides, the dangerous place with reference to this sidewalk, and the place where the injury in this case occurred, was not properly guarded, nor guarded at all. There were no guards or lights to prevent injury. We find nothing materially erroneous in the general charge, and we think it properly covered all matters which required any instructions to be given.
III. It is further claimed that “the court erred in admitting testimony over the objections of the plaintiff in error, showing the condition of the street and sidewalk after the accident is alleged to have occurred.” Of course the condition of the street and sidewalk at any time after the injury occurred is not material in this case; but some of the evidence showing their condition immediately afterward was proper evidence to show what their condition was at the exact time of the injury. It may be possible that the court in some instances permitted too great latitude in the introduction of evidence showing what their condition was afterward; but even if the court committed error in this respect, still the error was immaterial; for there was no claim or even pretense that the plaintiff could recover damages for any negligence on the part of the city or any of its officers, or for any acts or omissions on the part of the city or any of its officers, occurring after the injury. We might also further say that it was necessary in this case for the court to permit some latitude in the introduction of testimony upon this subject, for the reason that the trial occurred a long time after the injury, and the witnesses could not well remember the exact dates.
IV. We do not think that it is necessary to comment in detail upon any of the other alleged errors. They are not tenable. We might mention the fact, however, that the defendant, in rebuttal, ou the examination of one of its own witnesses, asked the following question: “ What provision was made for getting around that obstruction — that sidewalk at the Third street crossing?” This question was objected to by the plaintiff, and the court sustained the objection, and in doing so used the following language:
“The objection is sustained, unless you bring notice home to this plaintiff as to the condition of this sidewalk, and that she could see around it.”
It had already been shown that she at that time was unacquainted with the condition of the sidewalk and the streets, and that it was dark, and that she did not know of and could not see the path leading around the sidewalk. We might further say, that the allegations of the petition are amply sufficient to authorize the plaintiff to introduce evidence tending to show that the plaintiff before commencing this action had presented her claim to the city council, in writing, with a full account of the items thereof, “verified by the oath of the claimant,” within the meaning of § 69 of the act relating to cities of the second class. (Comp. Laws of 1879, ch. 19, § 69.)
We do not think that the court below committed any material error in the casé, and therefore its judgment will be affirmed.
All the Justices concurring.
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Opinion by
Clogston, C.:
The record shows that this action was commenced by the plaintiff in error before a justice of the peace in Barber county, against M. C. Thompson, C. H. Forbes, R. G. Eckert, and John Pearson, for $45, for labor in erecting a bridge; that on the day for trial plaintiff and defendant Thompson appeared before the justice; that the other defendants made no appearance; that the plaintiff moved to strike the names of all the defendants from the docket except defendant Thompson, and Thompson agreed to said motion, and the motion was sustained by the justice; that the case was called for trial as between plaintiff and defendant Thompson, and the justice found in favor of the defendant, and rendered judgment against the plaintiff for costs. The record contains none of the evidence given at the trial, and shows no motion for a new trial, nor any exceptions to any of the rulings, orders or judgment by either party. Said cause was taken by the plaintiff tó the district court on petition in error. A summons in error was issued out of the district court on May 27, 1885 — was returned June 1, and on July 15 (at the adjourned term for April, 1885) the case came on to be heard before F. E. Gillett, judge pro tern., who affirmed the judgment of the justice of the peace. Plaintiff Sawyer brings the case here.
The only errors assigned by counsel for plaintiff in error in this court are, first, that the court erred in affirming the judgment of A. D. McCandless, justice of the peace; second, that the court erred in rendering judgment against the plaintiff at said April adjourned term of said court. As to the first assignment of error, we find nothing in the record to warrant this complaint; and as to the second assignment of error, plaintiff is right. The action did not properly stand for trial at the adjourned April term of said court, but would stand regularly for its hearing at the next regular term of the court after the summons was issued; but the record fails to show that the plaintiff made any objection to the hearing at said adjourned term of the court, but appeared and presented his case without objection. This he might do if the defendant was willing, and by so doing they submitted their cause to the jurisdiction of the court. This having been done, the court committed no error in hearing the cause at said adjourned term. Yet, if this had been error, the- plaintiff could not have complained. There was nothing for a court to do in the premises except to affirm the judgment of the justice of the peace.
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 commenced this action April 10, 1884. He alleges in his petition that on November 7, 1883, he entered into a contract with the Jacksonville Sulky Plow Works, by its agent, P. H. Blanchard, by which he was to become an agent for the said plow works in certain counties in Kansas, for the purpose of selling light-draft plow attachments; that by the terms of said contract it was to furnish him with eighty of said attachments, and that in part payment thereof he executed and delivered to said agent his two promissory notes of said date, each for $200, payable April 1st, 1884, and November 1st, 1884, and to the Jacksonville Sulky Plow Works, or bearer, and at the same time executed and delivered with the said notes a chattel mortgage on some cattle and corn to secure the payment of the notes; that said plow works failed to furnish the plow attachments as it had agreed to do by the terms of the contract, and that he received no consideration for said notes. Plaintiff also claims that said Jacksonville Sulky Plow Works and said P. H. Blanchard and one J. C. E. Davis entered into a conspiracy to cheat and defraud said plaintiff, and did so defraud him out of said promissory notes, and he avers that the other defendants claimed to be the owners of said notes and mortgage, and of one other note claimed by the said defendants to have been executed by the plaintiff of the same date, and also secured by said mortgage for $300; that said chattel mortgage had been interlined and other property of said plaintiff’s included; and that said note for $300 and said interlineations in said mortgage were forged and fraudulent. The petition also states that said defendants did not in good faith and for a valid consideration purchase said notes before maturity, and that said defendants paid no valuable consideration therefor. The Jacksonville Sulky Plow Works, P. H. Blanchard and J. C. E. Davis failed to answer, and made no appearance in said cause, they being non-residents of Kansas, and service on them being by publication only. The Concordia National Bank filed its answer, disclaiming any interest in and possession of said notes and mortgage. The Bank of Clyde filed its answer, claiming to be the owner of said notes and mortgage, and that it purchased on November 8, 1883, from P. H. Blanchard, agent of the Jacksonville Sulky Plow Works, four promissory notes, dated November 7, 1883; three for $200 each and one for $100, all executed by the plaintiff, payable to the Jaekson ville Sulky Plow Works, or bearer; that said notes were purchased by the defendant in the regular course of business, for a valuable consideration, long before they were due; that all of said notes were secured by chattel mortgage executed by said plaintiff to secure the payment of said four several notes; which answer of said defendant was denied by the plaintiff.
Trial by the court on the issues joined between plaintiff and defendant the Bank of Clyde, and special findings of fact that during said trial said plaintiff and defendant stipulated and agreed that in an action pending in said court between said parties, wherein the Bank of Clyde was plaintiff and this plaintiff was defendant, said action being to recoyer the possession of the chattel property mentioned in the plaintiff’s petition herein, and to recover a judgment for said four promissory notes secured by said chattel mortgage, being the same notes set out in defendant’s answer herein, be submitted to the court upon the testimony and proceedings had in the trial of this cause. The court found the facts to be that plaintiff had executed all of said notes and delivered the same to Blanchard, agent for the Jacksonville Sulky Plow Works, for a valuable consideration, and that he.had also executed and delivered the chattel mortgage to secure all of said notes, as alleged in defendant’s answer, and that the defendant, the Bank of Clyde, had purchased said notes from said agent in the regular course of business, for a valuable consideration, before maturity, and that said defendant was entitled to the possession of the property described in said chattel mortgage. Upon said findings of fact the court rendered judgment for the defendant for the sum of $810.85 and costs. Plaintiff complains of this judgment.
In his brief, plaintiff presents but one question, that the judgment is not supported by the evidence. On this objection it will not be necessary to examine the record, except upon two propositions: First, were the notes and mortgages executed and delivered by the plaintiff? Second, if so, did defendant purchase them in good faith before maturity, without notice ? On the first proposition the record shows that the plaintiff did not know how many notes he did execute, or in what sums, or payable at what times; for in his petition he alleges that he gave but two notes, for $200 each, and on the trial he admits that he gave three — two of $200 and one of $100. This left but the one note to be accounted for. He also admits that the note for $100 was given last, or after the others had been given, but on the same day. Again, when these notes were presented to him on the trial, those that were admitted to be genuine as well as the others, he did not recognize his signature on any of the notes, and would not even give an opinion as to whether the signature was his signature on either the notes or the mortgage. All he would do or say was that he did not give the last $200 note, but would not say that the signature to said note was not genuine. This evidence we think very unsatisfactory, and doubtless the trial court so considered it. He denies that the horse and hogs were included in the mortgage, but averred the mortgage had been changed after he signed it. But the property which he alleges was not included when signed by him is the first property described in the mortgage. The original notes and mortgage are not brought to this court, and Ave are unable to compare the signatures one with another. This the trial court could do, and found that all of said notes Avere executed by the plaintiff.
On the second proposition there is no evidence contradicting the evidence of the defendant that it purchased the notes in question in the regular course of business, long before they Avere due, and paid therefor their face value less íavo per cent. Again, referring to the time when said notes Avere executed, the plaintiff admits that the íavo notes for $200 each were first executed, and the mortgage executed to secure the payment; that afterAvard there were other arrangements or trades made, by Avhich he executed the $100 note; and if he executed the $200 note, as the court has found, it was doubtless included in this last transaction. Now what would be more reasonable, under the circumstances, than to change the mortgage and include the other notes. Plaintiff was Avilling to secure the two notes: why not the others? And how natural for the agent to have them all included in the mortgage. If it was necessary to secure any of them, and the plaintiff’ was given such security, it would be business-like to secure the remainder; and from all the circumstances connected with this transaction, as shown from the evidence, we think the preponderance of the evidence is in favor of the defendant on both propositions, and that the court properly rendered judgment for the 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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Opinion by
Simpson, C.:
The first question in this case, and it may be a decisive one, is, how are these contracts to be regarded ? Is that of the 20th of March, made by the plaintiffs in error, as the agents of Burns, merged in that of the 21st, made by Burns, the owner ? Or does the contract of the 21st supersede that of the 20th ? Or are they to be considered as separate and independent agreements, each creating mutual rights and obligations without reference to the other ? Or are they to be taken and construed together as one, each to be read in the reflected light of the other? We are inclined to adopt the theory that the contract of the 20th, a mere memorandum of the terms and conditions of a sale, by the agents of the owner, to be accepted by the owner, is superseded by that of the 21st, made by the owner himself with the defendants in error.
A fair construction of the first contract, made by the agents on the 20th, is, that the defendants in error offer to buy the property on the terms specified, and if the offer is accepted by Burns, the owner, a contract for the sale and conveyance of the property is made; but if the offer is not accepted, then the $140 as part payment is to be returned to the defendants in error. With this construction of this agreement, it is perfectly evident that no obligation to return the money would rest on the agents unless Burns, the owner, would refuse to accept the offer; and the converse of this proposition is, that if Burns did accept their offer to buy, then the money paid was to be retained. On the next day the parties came together at the office of plaintiffs in error, and executed the contract for sale and conveyance of the 21st. It may be that in most if not all of its terms and conditions it departs from the one executed on the previous day; but if it does, it is the mutual act of the parties thereto, and they always have the right to change the conditions of their contract. It is nevertheless for all purposes an acceptance by Burns of the offer of the defendants in error to buy the houses and lots, and is a compliance with the terms of the contract so far as the payment and retention of the one hundred and forty dollars is concerned. To be a little more explicit,'and to confine the last remark within the limits intended for its operation: It is a justification of the payment of that sum by Fowler & Co. to Burns. Of course we are not to be understood as expressing any opinion as to what weight any or all of these things may or might have in an action by the defendants in error against Burns. Nor do we stop to inquire, because it is immaterial in this view at whose request or for what purpose the contract of the 21st was varied from the first one in several particulars. We must take these contracts as the parties made them, and construe them by their words and the acts and situation of the various parties in relation to their subject-matter. This much may be very confidently said, that the contract of the 21st was the immediate and direct result of that of the 20th, made by the same parties about the same subject-matter, the only variance being about the time and amount of payments, and forever disposed of the first and substituted the second as being the last and best expression of the intention of the parties. It is by this new agreement that the rights, duties and obligations of the parties to this action must be measured and determined.
Whatever remedy the defendants in error may have against Burns, it must be conceded that on the state of facts shown by the record, they cannot maintain this action against the plaintiffs in error for the recovery of the $140 received by them as a part payment on the sale of the lots. One very good reason for this is, because the condition upon which it was paid to them as agents was, that their principal should accept «the offer. This, as wre have already stated, was done by the subsequent agreement. A contract of purchase and sale was entered into and signed by all the parties. There is another very good reason disclosed by the record why this action should not be maintained against Fowler & Co. On the trial of this cause in the district court, Fowler swore, and it was undisputed, that this sum of one hundred and forty dollars secured by the plaintiffs in error, from the defendants in error, was paid over to Burns by him in the presence of and by the consent of the defendants in error; thus most conclusively showing that at that time they regarded the subsequent contract as an acceptance of their offer.
It is recommended that the judgment be reversed, and the cause remanded to the district court, with instructions to grant a new trial.
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.:
An application was made to the district court of Allen county to quash an execution issued from that court. The execution was based on a judgment in a replevin action, wherein A. C. Bogle was plaintiff and Samuel Bloom was defendant. It was rendered on January 9, 1885, in favor of the defendant for a return of the property in controversy; or, in case a return could not be had, a recovery of its value, which was found to be one hundred dollars, together with the costs, taxed at $54.15. On January 26,1885, H. W. Talcott, an attorney for Bloom, filed an attorney’s lien for $50, for services in the replevin action, and written notice of the same was served on and accepted by Bogle. During the same month Bloom assigned and set over to J. H. Eisher, another of his attorneys, $34 of the judgment, which assignment was at the same time entered in the judgment record. On February 9, 1885, the execution in question was issued, reciting the recovery of the judgment, and also that the judgment had been assigned to J. H. Fisher by Bloom, subject to the attorney’s lien of H. W. Talcott, and commanding the sheriff to deliver the property to Fisher or Talcott, or that in default thereof he cause the debt, interest and costs to be made out of the property of Bogle, and that he return the same with the writ into court within sixty days.
The first objection urged to this writ is, that the judgment and costs had been paid and satisfied. This claim is not borne out by the testimony. Bogle did obtain from Bloom a written release or satisfaction in full of the judgment upon the payment of $60, but this release was not given until after both the attorney’s lien and the assignment of the judgment had been filed of record. He testified that he had no knowledge of the assignment of the judgment, or of the attorney’s lien, or that Bloom was not the full and absolute owner of the judgment. There is abundant evidence to the contrary. He acknowledged service in writing of the notice of the at torney’s lien; and the testimony of several witnesses is that the lien and the assignment were called to his attention several times prior to the execution of the release by Bloom. When he called on Bloom for a settlement of the judgment, he was specially informed by Bloom of the assignment and of the lien, and that they must be settled; and Bloom then stated to Bogle that he would do nothing unless the rights of Fisher and Talcott were taken into consideration. Bogle led him to believe he would pay these parties, and it was upon that understanding only that Bloom settled with and gave him the release. The pretended release and satisfaction of the judgment thus obtained was presented to the clerk of the district court to be entered of record, but .the clerk refused make the entry, when Bogle wrote an entry of satisfaction upon the record, to which he signed the name of Bloom. The motion made by the plaintiff to quash the execution required an investigation of the claim that the judgment had been satisfied, and a determination of the effect of the pretended satisfaction. The testimony amply sustained the finding made by the court, that the pretended satisfaction was obtained by misrepresentation and fraud, and is a nullity. But even if the release had been valid, the motion could not have been upheld upon the mere ground of satisfaction, because it was shown that a part of the costs was yet unpaid, and an execution could rightfully issue to collect such costs.
Another objection is, that the execution did not follow the judgment in reciting that there had been an assignment to Fisher subject to the lien of Talcott, and in commanding the delivery of the property to Fisher or Talcott. While this recital and command were somewhat inaccurate, they do not destroy the validity of the writ nor prejudice Bogle. The execution intelligibly described the judgment, giving its date, the court in which it was rendered, the parties, as well as the property or money to be recovered. The assignee of the judgment, after its rendition, is entitled to the same rights as the judgment creditor; but whether the assignment was strictly regular or the attorney’s lien valid, did not in this case con cern the judgment debtor. That was a matter between the claimants and Bloom. Bloom did not deny the regularity of the assignment to Fisher, nor question the validity of Talcott’s lien. On the other hand, he insisted that the assignment and the lien were valid, and joined with Fisher and Talcott in the effort to protect their interest in the judgment. Bogle was concerned only in having the money realized upon the execution applied in satisfaction of the judgment existing against him. All who were interested in the judgment were before the court, and there was no conflict among them in regard to their respective interests in the judgment, and as the money collected on the execution was all to be applied in satisfying what is conceded to be a valid judgment, Bogle certainly has no reason to complain. Nor does the inaccuracy of the writ in commanding the officer to deliver the property to Fisher or Talcott afford him a just cause for complaint, as a return of the property could not be had, and the officer must therefore obey the alternative command of the writ to make the amount of the judgment as upon an ordinary execution. This latter command is conceded to be formal and correct, and the officer was proceeding to execute it when the present motion was made.
A further objection is, that the execution was issued for too large an amount. It is true that the writ directed the officer to make the full amount of the judgment, and it is also true that the amount which Bogle had paid was not then credited on thé judgment or execution. This probably occurred by reason of the dispute which had arisen in regard to what part of the judgment, if any, had been satisfied. The proper practice where an execution issues for too large an amount is to apply to the court to set aside as to the excess, and not for a vacation of the writ. (Herman on Executions, p. 80.) The process of the court is fully within its control, and it may exercise such control in a summary manner after judgment to correct any abuse of its process, or to prevent, injustice. So in this case the court fully protected the plaintiff by ordering that the f 60 -which he had paid to Bloom be credited on the judgment, and by directing the officer to proceed and make the remainder due on the judgment, and bring the same into court, to abide its further order and judgment. It appears that the execution was levied on property worth $240, which, when the credit was made on the execution, was probably more property than was necessary to satisfy the residue due. However, this will not avoid the writ, as the levy was not grossly excessive, and no fraud is apparent. A remedy in such a case may be obtained by applying to the court to release a portion of .the property. No motion of this character was made, and it does not appear that the attention of the court was called to this feature of the case.
We find no error in the record, and will therefore affirm the orders of the district court.
All the Justices concurring.
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The opinion of the court was delivered by
Johnston, J.:
Two reasons are assigned for a reversal of the judgment of the district court: first, that its conclusion of law is not sustained by the facts; and second, that competent and proper testimony offered by the plaintiffs at the trial was excluded. None of the testimony is preserved, and the facts stated by the court must be accepted here. There is no real controversy regarding the agreements between plaintiffs and defendant. The first agreement was made about the 5th day of May, 1884, by which the defendant employed the plaintiffs as brokers to procure purchasers for two tracts of land within six months, at a stated price and for a stipulated commission. One of the conditions of that agreement was, that if the defendant sold his land during that time without the intervention or assistance of the plaintiffs, no commission would be paid them. The defendant began negotiations with a resident of Missouri, named Shafer, about June 20, 1884, for the sale of his land; and of these negotiations the plaintiffs had notice. On July 14, 1884, and before a conclusion had been reached between Shafer and the defendant, the plaintiffs brought two persons Avho Avere ready to purchase not only the lauds included in the agreement first made, but also another tract purchased by defendant about July 1, 1884. The defendant then informed plaintiffs and the proposed purchasers that he had sent a definite proposition by mail to Mr. Shafer to sell a portion of his land, and was looking for an answer, and hence could not sell that portion. Instead of taking the other tracts, or of insisting upon a sale of all the land, it was agreed by the plaintiffs that they would wait 'until July 19, 1884, to enable the defendant to hear from Shafer, and if Shafer did not then accept the defendant’s proposition a sale of all the defendant’s land, including the tract last purchased by him, should be made to the proposed purchasers. This modified agreement superseded the former one, and under it the defendant’s reserved right to sell for himself was extended to July 19. The letter containing this proposition to Shafer was dated July 7, 1884, and mailed the next day, and Shafer’s letter in reply was dated and mailed on July 11, 1884, and was received by the defendant before July 17, 1884, and just what was intended by Shafer’s letter, and whether it constituted an acceptance of the defendant’s proposition, is the actual controversy in the case. It will be noticed that this letter was written and mailed before the time when the plaintiffs procured and produced purchasers for the defendant’s land; and the findings also disclose that for the defendant to make compliance with the modified agreement of July 14, it was enough that an agreement had been reached between himself and Shafer to sell and purchase the land. It was not necessary that the transaction should be fully consummated, nor was it in the contemplation of the parties, as the court finds, that a conveyance should be made, or that a formal agreement should be executed. The defendant’s letter of July 7 made a distinct aud definite proposition to sell to Shafer, the terms of which evidently differed somewhat from an earlier proposition that had been made. In his letter Shafer expresses surprise in regard to the change of the terms, but he distinctly says, “ I want the farm, and will be there with my family in two or three weeks.” The court, after hearing the evidence, (which is not before us,) held that the letter constituted an acceptance of the defendant’s pro posal, and found that it was such an acceptance as the parties contemplated in their agreement of July 14, 1884, and we are bound to presume that this finding was made upon sufficient evidence.
Shafer is a farmer, who is evidently not skilled in the use of language, and his letter does not very clearly state his purpose j but in the absence of the evidence, we are unable to say that the findings and conclusion of the court are erroneous. The subsequent conduct of Shafer to some extent confirms the theory of acceptance. He came on from Missouri at once, arriving at Downs, in Osborne county, the nearest railway station, on July 23, 1884, and instead of stopping to make further negotiations with the defendant, proceeded at once to move his goods on and take possession of the land for which he had been negotiating. Three days afterward the defendant and wife executed a deed to Shafer for the price required in defendant’s letter of July 7, and the bargain was fully consummated in substantial compliance with the terms then proposed by the defendant. It is claimed that the latter part of Shafer’s letter, in which he says, “Now about having work done on the farm, I would rather you would not have more work done than you can help, as I intend to be there in time to put out the crop myself after we made the bargain,” indicates that the bai’gain was not closed. This was Shafer’s reply to the statement of defendant, made in his letter of July 7, that all plowing or work done on the place before the contract, was made should be paid for by Shafer, and the direction given to defendant not to continue plowing, or not to have more work done, is not inconsistent with an intention on Shafer’s part to take the land. It is true, he uses the words “ After we made the bargain,” and in the postscript of the letter he says that “ If this is not satisfactory, or if you think you cannot wait two or three weeks until I come out, and so we can make out in person, you will please let me know as soon as convenient.” It is not improbable that the words “made” and “make out” were used with reference to the formal execution of the conveyance and the final consummation of the transaction, and this the court finds was not within the contemplation of the parties in making the second agreement. Looking at the correspondence alone, we would be in considerable doubt in regard to whether Shafer’s letter constituted an acceptance; but the facts have not been presented to us as they were to the trial court, and hence we do not feel warranted in disturbing its findings.
An objection is made to the refusal of the court to permit Shafer to state what his intentions were in writing the letter of July 11, 1884. The court was called on to determine, not what Shafer secretly intended, but rather what purpose the letter, read in the light of surrounding circumstances, indicated. The witness was not asked to decipher any-of the characters employed, nor to give the meaning of any provincial or peculiar words used in his letter. He was asked long after the letter was written to state what his secret intentions were when he wrote and sent it, and this was not permissible. (1 Greenl. Ev., §277.)
The judgment of the district court will be affirmed.
Horton, C. J., concurring.
Valentine, J: With very grave doubts, I concur.
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The opinion of the court was delivered by
Johnston, J.:
W. P. Higginbotham sued Silvester Fair on two promissory notes alleged to have been executed by him on the 29th day of August, 1883, in favor of the Jacksonville Sulky Plow Works, or bearer, each for ¡§150, one of which was payable on the first day of May, 1884, and the other one the first day of June, 1884. Fair denied under oath that he executed the notes sued on, and this was the principal question upon which evidence was received. The trial resulted in favor of the defendant, and the plaintiff brings the case here, alleging as the principal error that the verdict is not justified by the evidence. The testimony on the part of the plaintiff is to the effect that the notes were given by Fair to the Jacksonville Sulky Plow Works in part payment on sixty sulky plow attachments, which Fair had contracted to purchase. Two agents, who sold attachments to Fair, testified that they witnessed Fair sign the notes sued upon. Higginbotham testified that soon after he purchased the notes he notified Fair of the purchase, in response to which Fair called upon him, and upon an examination of the notes said they were all right, but that he had an impression that they came due at a later time. Sam Kimble, an attorney for Higginbotham, testified that he presented the notes to Fair and requested payment, and that Fair became angry, and insisted that the Jacksonville Sulky Plow Works had not complied with the contract made with him when the notes were given, but he admitted that the signatures to the notes were his genuine signatures. In addition to the testimony of these witnesses, several others were called as experts, who stated that they believed the signatures attached to the notes to be the genuine signatures of Silvester Fair. As against this, Fair testified that he never signed or delivered the notes in suit, although he does say that the’ signatures look like his own, and that on August 29, 1883, he executed notes which were similar to these, except that they were not payable until January 1,1885. He denied that he admitted to either Higginbotham or Kimble that he had signed the notes in controversy, or had recognized their genuineness. The testimony of the plaintiff was contradicted in several other particulars of minor importance. While the evidence seems to us to greatly preponderate in favor of the plaintiff, it will be seen from the foregoing review that there was testimony upon which to found a verdict in favor of the defendant. Under a venerable rule of this court, we cannot weigh the testimony to determine where the preponderance is, and the verdict, supported as it is, and coining here with the approval of the trial court as it does, cannot be set aside for insufficiency of the evidence, (K. P. Rly. Co. v. Kunkel, 17 Kas. 145; U. P. Rly. Co. v. Diehl, 33 id. 422.)
Another matter complained of is, that the court permitted the witnesses of the plaintiff, who had testified as experts conT cerning the genuineness of the signatures attached to the notes, to be examined upon other signatures written by defendant’s counsel, which were exhibited to the witnesses through a slot cut in a paper, and thus concealed all except the signature exhibited. The fictitious signatures were thus used on cross-examination, probably with a view of testing the accuracy of the experts; but if it is conceded that the testimony was inadmissible, still the plaintiff is not in a position to complain. This method of cross-examination proceeded without any objection being made or exception being taken by the plaintiff. Afterward, when the defendant proposed to show that some of the signatures which the experts said were written by the same person who signed the notes, had been written by his counsel and an objection was made, the court excluded the testimony and stated that' none of the signatures upon which the witnesses were examined would be allowed to go to the jury except such as were genuine.
The judgment of the district court must be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Valentine, J.:
On March 7,1885, L. A. Golden purchased from J. B. Griswold a stock of goods, wares and merchandise, situated in Cedarville, Smith county, Kansas, for which he paid $3,000, in cash. On March 10,1885, F. M. Carson, the sheriff of Smith county, levied certain attachments upon these goods, as the property of Griswold, and took them into his possession. On March 20,1885, Golden replevied the goods from Carson, but Carson still retains them in his possession. On May 1 to 5,1885, a trial was had in this replevin action before the court and a jury, and the jury found generally in favor of the plaintiff and against the defendant, and found that the goods were worth $2,356.02, and found the damages for the unlawful detention thereof to be $250. On May 6,1885, the defendant moved for a new trial, which motion was overruled, and on the same day judgment was rendered in favor of the plaintiff and against the defendant, in the alternative for the possession of the property, or for the value thereof, to wit, $2,356.02, in case a return could not be had, and for the damages assessed by the jury, to wit, $250, and for costs of suit, taxed at $115.60. The defendant, as plaintiff in, error, brings the case to this court for review.
The plaintiff in error claims that several errors were com mitted by the court below, which we shall consider in their order.
I. The plaintiff in error, defendant below, claims that the court below erred in admitting the evidence of T. W. Rea to prove the amount of damages sustained by the plaintiff below, on the ground that the damages sought to be proved by the testimony of this witness are too remote and uncertain to form the basis of any recovery. The testimony objected to is testimony tending to show that a depreciation in the market value of goods like those in controversy would ensue if carried over from one season to another, and that the depreciation would be from 25 to 40 per cent. The witness testified that he had had two years’ experience, and had knowledge concerning these matters; and he also testified in detail with regard to the depreciation of the separate kinds of goods, as for instance, laces, ribbons, gloves, shirts, drawers, flannels, cheviots, hats, caps, winter goods, etc. The witness did not pretend to testify that any of the goods would be kept over for another season, or whether they would or not. They were levied upon by the sheriff on March 10, 1885, while this trial was had on May 1 to 5, 1885, and it might be that none of the goods would be kept over; but still they might, or at least some of them might, for the unlawful detention o'f all of them from March 10, 1885, to May 5, 1885, or longer, might cause some of them to be kept over for another season. Besides, this evidence was not introduced for the purpose of fixing conclusively any particular amount of damages, but was introduced merely for the purpose that the jury might take it into consideration in determining what might be the proper amount of the damages. While the question is a close one as to whether this testimony should have been admitted or not, still we are inclined to think that the court below did not commit any material error in admitting it.
II. The plaintiff in error, defendant below, further claims that the whole of the evidence taken together is not sufficient to sustain the verdict of the jury, either as to damages or as to the value of the goods. We think there was ample evidence as to both. The plaintiff’s being deprived of the use of the goods for two months or more, Avould be some evidence of damage, and the removal from one place to another Avould also be evidence of damage, and their being boxed up and kept in boxes, as it Avas shoAvn they Avere in this case, would also be evidence of damage; and also, the evidence of Rea would be some evidence of damage. As to the value of the goods, the plaintiff beloAv paid $3,000 for them, and believed they Avere Avorth fully that amount. Griswold claimed that they were worth more than that amount. The appraisers, appointed by the sheriff to appraise them when the sheriff levied the attachments upon them, appraised them at the amount which the jury finally found them to be worth, to wit, $2,356.02. This amount the appraisers believed was the original cost price; but probably the value of the goods at Cedarville was more than the cost price. We think that the appraised value was at least prima facie evidence of the value of the goods as against the sheriff; and if he claimed that the goods were not worth that amount, it devolved upon him to sIioav it. There was no evidence tending to show that the goods Avere Avorth less than the , jury found them to be worth.
III. It is also claimed that the court below erred in instructing the jury that before they could find for the defendant they must find that Griswold Avas insolvent, and that he made the sale with the intent to hinder, delay or defraud his creditors. Of course this instruction is erroneous, for it is not necessary that Griswold should have been insolvent if he made the sale with the intent to hinder, delay or defraud his creditors; but as the whole case was tried upon the theory that Griswold was insolvent, and as it seems to be an admitted fact in the case that he Avas insolvent, the instruction Avas not materially erroneous. The jury must necessarily have found that Griswold was insolvent, and then the only question left for them to find was whether the sale was made with the intent to hinder, delay or defraud his creditors, or not.
TV. It is also claimed that the court beloAv erred in instructing the jury that if Griswold and Golden acted in good faith, the plaintiff should recover. Now the court did not so instruct, or at most did not so instruct in terms; but as all the other essential facts for a recovery had unquestionably been proved, we think that such an instruction would not have been erroneous.
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
Valentine, J.:
We think the court below erred in sustaining the defendant’s demurrer to the plaintiffs’ petition. It does not appear upon the face of the petition, or elsewhere, that there was another action pending between the same parties for the same cause; nor does it appear that there was any defect of parties plaintiff; nor that the petition did not state facts sufficient to constitute a cause of action. The action is virtually a suit in equity to set aside an award of fence-viewers for a want of power in them, for irregularity in their proceedings, and for fraud on the part of the defendant. It appears from the petition, among other things, that the line of partition fence to be maintained by the parties was 160 rods in length, north and south; that the plaintiffs owned the land on the east side of this line, and the defendant owned the land on the west side thereof; that, by previous arrangements between the parties, the plaintiffs were to maintain the north 80 rods of the fence, and the defendant the south 80 rods thereof; that the plaintiffs had already expended a considerable amount of time, labor and money in keeping up and maintaining their portion of ,the fence; that while this arrangement between the parties was still existing and in force, the defendant procured the fence-viewers to make an award requiring the plaintiff John H. Eobertson to also keep.up and maintain the south 40 rods of the south 80 rods of fence, which 80 rods the defendant was by the previous arrangement to keep up and maintain, leaving the defendant to keep up and maintain only the north 40 rods of the south 80 rods of said fence. Now after the foregoing arrangement between the parties had been made, we think this attempt on the part of the defendant to require the plaintiff John H. Eobertson to keep up and maintain an additional portion of the fence, making in the aggregate 120 rods out of the 160 rods of fence, by procuring the aforesaid award of the fence-viewers, was fraudulent and wrong, and the award of the fence-viewers for this reason should be set aside. Of course we know nothing of the real facts of the case, except as they are stated in the plaintiffs’ petition; and as they are there stated, we think the plaintiffs are entitled to the relief which they now pray for; or at least the plaintiff, John H. Robertson, is entitled to such relief ; and Mrs. Robertson is a proper party to the action. The statute of frauds has no application to this case. This statute was not enacted to encourage fraud, or to enable parties to commit fraud, but was enacted to prevent fraud. Unless the plaintiffs can have the remedy which they now seek, they have no remedy; and to say that they have no remedy, is to cast reproach upon the administration of justice. They have no appeal and no petition in error, and no remedy more direct than the one which they have resorted to in this case. Indeed, they have no complete remedy unless they are permitted to maintain an action such as the present action is. Hence, we think they should be permitted to maintain this action.
The order and 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 the St. Louis, Fort Scott & Wichita railroad company against Waller Chenault and the First National bank of Fort Scott, Kansas, to recover $11,928.39. It is admitted that Chenault was the treasurer of the railroad company from March 14, 1882, up to May 27, 1884, with the exception of about one month in November, 1882, and was also a director for the company for a portion of that period of time, and was also president and business manager of the bank, and that the bank as a corporation was the depositary of the funds of the railroad company. It is also admitted that Chenault at one time had in his hands, as treasurer of the railroad company, the said sum of $11,928.39; and that out of this sum he paid to the railroad company, after this suit was commenced, the sum of $6,125, leaving the sum of $5,803.39 still in dispute. To account for this last-mentioned sum, Chenault claims that prior to the commencement of this action he paid to himself out of the company’s funds the sum of $2,250, as compensation due him for his services as treasurer of the plaintiff; $310, due him for traveling expenses, paid by him for the plaintiff; $313.50, due him for exchange purchased for the plaintiff of the bank, and paid for himself; and $2,926.89, due him on three promissory notes executed by the plaintiff to one Robert D. Clifford and owned and held by himself. Upon these disputed claims, and these only, a trial was had before the court without a jury, and the court made a general finding in favor of the defendants and against the plaintiff, and rendered judgment accordingly. The plaintiff brings the case to this court for review.
In one of the plaintiff’s briefs it is claimed that the following questions arise:
“1st. Can a treasurer of a corporation (he also being a director) arbitrarily allow himself a salary, fix the amount, adjudge it to be reasonable, and appropriate the company’s money in payment thereof without its consent ?
“2d. Has an officer of a corporation, such as defendant in error, Chenault, a right to buy up outstanding claims against his corporation, and then arbitrarily pay such claims out of the corporation funds without the consent of the corporation ?
“3d. In an action against an officer of a corporation to recover money alleged to have been unlawfully appropriated and converted by him, as in this case, can he offset such claims, and his own wrongful acts, against the' corporation’s demand for its funds ?
“4th. Sustaining the relation Chenault did toward his co-defendant in error, bank, being its president and chief executive officer "and business manager, is not the bank charged with knowledge of the misappropriation of these funds, and is it not a party to the transaction and liable as joint tort feasorf”
In another of the plaintiff’s briefs it is claimed that the following questions arise:
“1. Whether Chenault had the legal right whilst treasurer of this company to ‘adjudicate,’ and audit, and pay his own claims in the manner shown by the record ?
“2. If not, and he was therefore liable as claimed, is the bank, of which he was president, liable?
“ 3. Is Chenault liable to account to his company for the discount of the notes he purchased?”
The plaintiff claims that the foregoing disputed items are not proper subjects of either set-off or counterclaim in this action.
We think that the defendant, Chenault, had no right to adjudicate upon his own claims, or to adjust or audit them, or to pay the same without the consent of the railroad company; .but these are not the controlling questions in this case. The real and controlling question is this: Having done all these things with reference to his own claims, (and he had frequently done similar acts before with reference to his own claims and the claims of others, and his acts with reference to these other claims had been ratified and approved by the railroad company,) and having afterward ceased to be the treasurer of the railroad company, and this action having afterward been brought against him by the railroad company for the amounts which he had thus paid to himself or appropriated, can he not now in this action have these claims of his set off as against the claim of the plaintiff, so far as his claims are legal and valid and just and equitable? The plaintiff says not, for the reason, among others, that this action is not founded upon contract within the meaning of § 98 of the civil code, but is founded exclusively upon tort. Now is it true that this action is founded exclusively upon tort, and not upon contract ? Chenault held the money sued for as the treasurer of the railroad company; his office or agency was created by contract; his duties thereunder were also created by contract and were regulated by contract; it was his duty under these contract relations to dispose of these moneys as ordered by his principal; and if he did not do so he violated his contract, and at once created a cause of action on the contract against himself and in favor of his principal. Even if the facts stated would also constitute a cause of action in tort, still they also constitute a cause of action on contract, and this is enough to authorize the interposition of a set-off.
We think the case of Austin v. Rawdon, 44 N. Y. 63, lends support to the proposition that this is an action founded on contract. Indeed, the plaintiff cannot state his cause of action without stating a contract; for in order to properly state his cause of action he must state the facts thereof, and when he states the facts thereof he states a contract. In this state all the old forms of action are abolished, and in their stead we have only one form of action called a civil action, and the plaintiff in stating his cause of action must state the real facts thereof as they have actually occurred, and not forms or fictions as was frequently permissible and sometimes required by the common law. Hence, where a plaintiff has a cause of action on contract, he must state the contract, and cannot properly state his cause of action without stating the contract. Also, in this state a cause of action founded upon an implied contract, as well as a cause of action founded upon an express contract, may be the subject of set-off. (Fanson v. Linsley, 20 Kas. 235.) And the set-off may be for unliquidated damages and in an action for unliquidated damages. (Stevens v. Able, 15 Kas. 584; Gardner v. Risher, 35 id. 93; same case, 10 Pac. Rep. 584.) And when cross-demands exist which may be set off against each other, neither party can deprive the other of his right of set-off by an assignment of his demand. (Leavenson v. Lafontane, 3 Kas. 523; Turner v. Crawford, 14 id. 499; Gardner v. Risher, 35 id. 93; same case, 10 Pac. Rep. 584.) And where the holder of a claim which could properly be set off against the claim of another person, but under the circumstances such holder can make his set-off available only by interposing it in an action of replevin, an action founded upon an alleged tort, he may interpose it in such action. (Gardner v. Risher, 35 Kas. 93; same case, 10 Pac. Rep. 584.) And even in an action on a constable’s bond the constable may set off his' fees due from the plaintiff. (Sponenbarger v. Lemert, 23 Kas. 55.) And to allow set-offs to be interposed in cases like the present comes within the spirit of the civil code, which attempts, as far as it is reasonably practicable, to have all controversies between the same parties determined in one action. (Stevens v. Able, 15 Kas. 587.)
The following cases also tend to support the view that set- off may be allowed in cases of this kind : United States v. McDaniel, 32 U. S. 1; United States v. Ripley, 32 id. 18; Gratiot v. United States, 40 id. 336, 370, et seq.; Donelson v. Coleraine, 45 Mass. 430; The State v. Franklin Bank, 10 Ohio, 92; East Anglain Rys. Co., 2 Eng. Law and Eq. 331.
We do not think that the authorities cited by counsel for the railroad company are applicable under our statutes. The case of Russell v. First Presbyterian Church, 65 Pa. St. 9, is the principal case relied on by the railroad company. It must also be remembered that in this case the funds placed in the hands of Chenault were not set apart by the railroad company for the payment of any particular debts or claims. These funds were intended for the payment of debts and claims in general, held against the railroad company, and just such debts and claims as Chenault held or holds. This fact, as well as our statutes, distinguishes this case from the cases principally relied on by counsel for the railroad company. ** x «/ We think the decision of the court below upon the question of set-off is correct, and that Chenault may in this action have his claims against the railroad company set off against their claim.
As this case comes to us, it must be admitted that all the claims of Chenault against the railroad company are legal and valid and just and equitable, with the exception of his claim upon the above-mentioned promissory notes; and it must also be admitted that his claim upon these notes is legal and valid and just and equitable up to the amount which he paid for them, which was much less than their face value; but is not his claim good for the full amount of the face value of the notes? We shall now proceed to consider this question. There were three of these notes. The first was due January 5, 1881; the next was due January 5, 1882; and the last was due January 5, 1883. Chenault purchased them a little before the time when the last one became due, and with his own money, but at a large discount. There is no showing that he Avas under any obligation to the railroad company to purchase them, or that he had any funds of the railroad com pany in liis hands with which he could have purchased them or paid them ; and probably he had not. However, on May 20, 1884, about one year and four months after the purchase, he had funds in his hands belonging to the railroad company, and with such funds he then paid them. They were payable originally to a fictitious payee, but still they were bona fide obligations of the railroad company for value and to the extent of their face value, and were valid in the hands of any bona fide purchaser or holder thereof. (Kohn v. Watkins, 26 Kas. 691, 698, et seq.) And although Chenault knew .that they were executed to a fictitious payee, still he was a bona fide purchaser for value, and purchased them from the real owner and holder thereof, and obtained whatever right thereto and to collect the same that the original owner and holder had. But we need not pursue this subject further, for no question is raised upon the fact that the notes were executed to a fictitious payee. The real question is, whether Chenault is entitled to their full face value or only to the amount which he actually paid for them. Mr. Morawetz, in his work on Private Corporations, § 521, uses the following language:
“A director or other agent of a corporation may . . . purchase property, and afterward sell it to the corporation at an advance, provided it was not his duty when he made the purchase to purchase on behalf of the company. So an agent of a corporation may purchase claims against the company at a discount and enforce them in full, if he was not under obligation to make the purchase on behalf of the corporation.”
And he cites the following authorities in support thereof: Parker v. Nickerson, 137 Mass. 488, 497; Bradley v. Williams & Co., 3 Hughes, (U. S. C. C.,) 26; Inglehart v. Thousand Islands Hotel Co., 32 Hun, 377. These authorities sustain the text of the author; and we think they fairly 7 • j j state the law. This case does not come within the rule governing principals and agents, where the agent is under obligation to purchase for the principal, or to pay the debts or claims against his principal, or where the agent uses the funds of his principal in making the purchase or the payment; but it comes within the rule above stated by Mr. Morawetz. As above stated, and under the facts of this case, Chenault was under no obligation to the railroad company to purchase or to pay the said promissory notes. And he did not use the company’s funds in purchasing the same, and in all probability he could not have done so, for under the testimony and the findings of the trial court he probably and presumably at the time did not have any of the company’s funds, but the company in fact owed him.
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.:
This action was brought by Burlingame township, of Osage county, to recover $7,290 damages alleged to have resulted from the building of the Atchison, Topeka & Santa Fé railroad across a public highway in Burlingame township in Osage county. The petition alleges that the highway was legally laid out and established long prior to the construction of the railroad, and-that by the construction of the railroad, which was prior to January 1, 1884, the highway was materially injured by excavations and embankments, which rendered it dangerous for use by the traveling public; that on the 3d day of June, 1884, the defendant had failed and continued to fail for more than ninety days preceding that time, to make good the crossing, and at the time of the commencement of the action had failed to do so; that on the 3d day of . June, 1884, the township trustee of Burlingame township notified the board of county commissioners of Osage county of the facts, and made a statement to them showing the location of the crossing and the manner in which it had been injured by the construction of the road, which was verified by three resident tax-payers of the township; that there upon the county commissioners appointed three disinterested householders to view the crossing and assess the damages resulting from the construction of the railroad, designating June 17, 1884, as the time of meeting, and notified the railroad company of the time and place of meeting; that at the time and place designated the viewers met and from actual view assessed the damages resulting to the highway, by reason of the construction of the railroad, at $7,290, and on the 18th day of June, 1884, they returned to the township trustee a certificate under oath of their action; that thereupon the township trustee immediately notified the railroad company of the amount of damages assessed by the viewers, and demanded payment of the same. The petition further alleges that on or before the 14th day of July, 1884, the railroad company had constructed its railroad across the highway, and had materially injured it by excavations and embankments; that the railroad company had for more than ninety days preceding the 14th day of October, 1884, failed to make good the said crossing, and then avers the giving of a new notice by the township trustee; and that new proceedings to assess •the damages against the railroad company the same as those above described were had, and the viewers then appointed reported on the 20th day of November, 1884, that the damages resulting to the highway by the construction of the railroad were the same as the first assessment, $7,290; that notice of the assessment made was given to the railroad company, and payment demanded, but that more than thirty days elapsed, and the company had failed to pay that sum or any portion thereof. The action was thereupon brought by the trustee in the name of the township, and judgment demanded for the sum of $7,290. The railroad company answered in three paragraphs: first, a general denial; second, that the railroad was built across the highway in 1869, and that the company then restored the highway to its former state, or to such a state as not to have necessarily impaired its usefulness, and did all the grading-made necessary by the embankments and excavations at that crossing; third, that the railroad was constructed in 1869, and long prior to the 9th day of March, 1876, and —
“That said plaintiff’s cause of action, if any, against said defendant, is a cause of action created by statute, and created by chapter 105 of the Laws of 1876, and accrued to said plaintiff at the expiration of ninety days from and after March 9, 1876, and said cause of action was at the time of the commencement of this suit, and the times mentioned in said plaintiff’s petition, and each and all of them, barred by the statute of limitations.”
The township filed a reply denying the allegations of the second count of the railroad company’s answer, and demurred to the third count on the ground that it did not state facts sufficient to constitute a defense. This demurrer the court sustained, and to that ruling the railroad company excepted. The case came on for trial on August 25, 1885, and the jury found a verdict in favor of the township, assessing its damages at $1,081.28, and also made special findings of fact on questions presented by each party. The railroad company moved for judgment in its favor on the special findings, which motion was overruled. It moved for a new trial, which was refused. Judgment was rendered for plaintiff. The defendant company has brought the case here.
We will dispose of the case upon the pleadings, the only question which we need to consider being whether there was error in sustaining the demurrer to the third ground of defense stated in the answer. This is a statutory action, brought upon a liability arising under the provisions of chapter 105 of the Laws of 1876, which went into operation March 9, 1876. In § 3 of that act it is provided that—
“Whenever, by the construction of any railway within this state, the crossing of any public highway has been or shall be materially injured, either by excavations or embankments made by said railway company in the construction of said road, and the said railway company have failed to make good the said crossing, and continue to fail to do so, for the space of ninety days after the taking effect of this act, it shall be the duty of the township trustee of the proper township to notify the board of county commissioners of the fact, stating the location of the crossing, the manner in which the crossing has been injured, obstructed, or destroyed, verified by the affidavit of at least three resident tax-payers of the said township.”
It then provides that it shall be the duty of the county commissioners to appoint viewers, and designate a time and place when they shall meet and view the crossing and assess the damages resulting to the highway from the construction of the railroad, and to give the railway company written notice of the time and place of such meeting. In § 4 it is provided that the viewers so appointed shall meet on the day designated, and from actual view assess the damages, and shall return to the township trustee a certificate under oath of the amount of damages by them assessed. Section 5 provides that it shall be the duty of the township trustee immediately upon the filing of said certificate to notify the railroad company of the assessment made against it, and demand payment of the same; and if the company fail to pay the amount for a period of thirty days, .he is authorized to commence an action for the recovery of the amount of damages, and the certificate of the viewers is prima facie evidence of the amount of damages sustained.
This action was not begun for a period, of nearly fifteen years after the building of the road, nor until about eight years after the passage of the act under which it is brought. On the one hand, it is contended that the cause of action accrued within ninety days after the taking effect of the act; and on the other, that it did not accrue until the proceedings were instituted by the township trustee, and demand for the damages assessed had been made by him. We think the latter theory cannot be sustained. If it could, the township trustee might delay indefinitely the institution of the proceedings and the making of the demand which are essential to the maintenance of the action. The statute makes it the duty of that officer to take the preliminary steps, and it both enjoins and implies prompt action on his part. On cases that had arisen before the passage of the act it was made his duty to institute pro ceedings at the end of ninety days from the taking effect of the act, and on cases that arise afterward it is fair to say that he is required to act within a reasonable time after the crossing is injyi’ed, obstructed, or destroyed. The nature of the case is such that he ought to act with promptitude. The interest of the people whom he represents forbids delay. If the crossing is destroyed and the highway rendered impassable, it is highly important to the public that the trustee should early take the steps which are necessary to restore and reopen the highway, and which he alone can take. If it has been so injured or obstructed by the railroad company as to make it dangerous to the life or property of those who attempt to use it, a postponement of action on his part would be inexcusable. If it is a disputed question in regard to whether the railroad company had injured the crossing, or had failed to make it good after constructing its railroad over the highway, it is important to both parties that action should be taken before the evidence upon the question is effaced or lost. Certainly there is nothing in the duty cast on the trustee, or in the act imposing it, which contemplates a great delay in perfecting the cause of action. To permit a long and indefinite postponement would tend to defeat the purpose of the statutes of limitation, which are statutes of repose founded on sound policy, and which should be so construed as to advance the policy they were designed to promote. (Taylor v. Miles, 5 Kas. 499; Sibert v. Wilder, 16 id. 176.)
The period prescribed by the legislature within which actions that are based on a statutory liability, as is the present one, are to be brought, is three years after the cause of action accrues, and not afterward. (Civil Code, §18.) The preliminary steps essential to the bringing of the action are to be taken bv the township, and these steps should be taken J 1 within a reasonable time after the injury occurs, or after action is required of the trustee. What is a reasonable time is not always easily defined, but as diligence is required of the trustee, he certainly should have taken the steps essential to the bringing of the suit within the statutory period fixed for the bringing of such actions. There is as much reason for an early commencement of the initiatory proceedings as there is for the institution of the action itself. Jones v. Eisler, 3 Kas. 134, was an action to recover upon a promise to pay a certain sum of money when the promisor received a payment from the government, or as soon as otherwise convenient; and it was held that it could not have been contemplated that if the promisor never got his money from the government, or was never in a condition that he could conveniently pay, the money was never payable; but that in any event it was payable in a reasonable time after the statutory limitation would run.
The supreme court of Pennsylvania, in considering the effect of the statute of limitations, held that where a demand or a notice was necessary to found an action upon, the right of action would be extinguished if there was unnecessary delay in making the demand. Justice Thompson, in giving the judgment, said:
“To give effect to the spirit of the statute, the law sometimes, in the absence of stipulation by the parties, fixes the time when the cause of action shall be taken to have accrued by the duty of diligence required of the party. Where the time for doing the act necessarily precedent to bringing the suit is indefinite, it allows a reasonable time. When that reasonable time has elapsed, the duty of diligence begins, and if this consists.in the assertion of a legal right, then is the time from whence the statute should begin to run.” (Morrison v. Mullin, 34 Pa. St. 12.)
In P. & C. Rld. Co v. Byers, 32 Pa. St. 22, it was held that where a call was necessary to precede a suit for a railroad subscription, it must by analogy to the operation of the statute of limitations, be made within the time fixed as a bar against such suit. In Codman v. Rogers, 27 Mass. 112, it was ruled that if a demand was essential to the maintenance of an action, it must be made within a reasonable time, and that what is to be considered a reasonable time must depend upon the circumstances of the case; but if no cause for delay is shown, the demand should be made within the time limited for bring ing the action, and is not in time afterward. In Steele v. Steele, 25 Pa. St. 154, the effect of the claimant's delay upon the starting of the statute of limitations was considered, and it was there said that “a party cannot stop the running of the statute of limitations by his own negligence, or by any arrangements for his own convenience.” The same doctrine was strongly sustained in Palmer v. Palmer, 36 Mich. 487, in an action upon a promissory note payable thirty days after demand, where a demand had not been made until after the statutory period of limitation had elapsed. In that ease, the court said:
“'If a creditor has the means at all times of making his cause of action perfect, it would be unjust and oppressive to hold that he could postpone indefinitely the time for enforcing his claim by failing to present it. He is really and in fact able at any time to bring an action, when he can by his own act fix the time of payment. It is no stretch of language to hold that a cause of action accrues, for the purpose of setting the statute in motion, as soon as the creditor, by his own act and in spite of the debtor, can make the demand payable.”
The township, by its own act, could have perfected its cause of action regardless of the wish or action of the other party; and within the foregoing principles and the allegations of the answer, the action was barred. No excuse is given for the long delay, and it does not appear that it resulted from the action of the railroad company. The precedent action might have been taken in 1876, but as we have seen, the plaintiff below has remained quiet for about fifteen years since the alleged injury occurred, and about eight years after the claim for the injury should have been perfected and sued upon by the township trustee. Eight years is a longer time than is allowed by law for the commencement of any action for the recovery of money, and much longer than the time within which an action for a statutory liability may be brought.
Eor the error pointed out, the judgment of the district court must be reversed, aud the cause remanded, for such action as may properly be taken.
All the Justices concurring.
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Opinion by
Clogston, C.:
The defendant in error has filed no brief, and therefore we cannot say upon what theory he claims that the judgment ought to be sustained. The plaintiff in error claims, first, that there is no evidence shown in the record to prove that the defendant is a corporation; and second, that there is a failure to prove that the injury complained of was caused by the negligence of the defendant, or of its agents or servants. As to the first of these propositions, we think the learned counsel are in error; and we first suggest this question: Was it necessary for the plaintiff to prove that the defendant was a corporation, under his bill of particulars, to' entitle him to recover? The statute under which this action was brought, is as follows:
“Every railway company or corporation in this state, and every assignee or lessee of such company or corporation, shall be liable to pay to the owner the full value of each and every animal killed, and all damages to each and every animal wounded by the engine or cars of such railway, or in any other manner whatever in operating such railway, irrespective of the fact as to whether such killing or wounding was caused by the negligence of such railway company or corporation, or the assignee or lessee thereof, or not.” (Comp. Laws of 1885, ¶ 5205.)
This statute makes the distinction between railway companies and railway corporations, and makes both liable for damages for stock killed or injured in the operation of the road. "When the legislature framed this section it doubtless thought, as counsel suggest, that a partnership or an individual may operate a railroad without being incorporated, and if they do, they ought to be liable as well as if they are incorporated. In this case, while the plaintiff alleged in his bill of particulars that the Kansas City, Lawrence & Southern Kansas Railway Company is a corporation, would this description of the defendant prevent him from recovering, provided he brought his action against the right railway company defendant ? He brought his action against the company which was in fact operating the road, but described it as being a corporation ; and his failure to make that proof that , 7 . , , . , , the company was incorporated, we think, under A J A ' ' his bill of particulars, not necessary. He established the fact that the train of cars that caused the injury was operated by the agents and servants of the Kansas City, Lawrence & Southern Kansas Railway Company. Again, the defendant made no appearance in the justice’s court, but after judgment against it, appealed to the district court. Who appealed ? What company or corporation? Whoever it was, it was the defendant, and although it had been described as a corporation, yet it was the company which was sued that was appealing, and in the name of the Kansas City, Lawrence & Southern Kansas Railway Company, removed said cause to the district court, and to this court, thereby admitting its existence either as a corporation or a railway company operating that line of road. And it having done this, it is unnecessary for the plaintiff to prove more. But should we be mistaken in this proposition, we think the record shows evi dence sufficient to submit this question to the jury; and the jury on this evidence, as shown by the record, was warranted in finding the defendant to be a corporation. Witness Phelps testified that the defendant was in the possession of the right-of-way, and had been ever since the road was built, some twelve years or more; and on the cross-examination of witness Hastings, the following questions were asked and answered :
“ Q. Ho you know that the Southern Kansas Eailway Company is a corporation different from the Kansas City, Lawrence & Southern corporation ? A. I do not. I understand they are the same identical road.
“ Q,. Do you know what a corporation is ? Can they be the same ? A. I understand they are the same.”
This evidence not only admits that the Kansas City, Lawrence & Southern Kansas Eailway Company is a corporation, but it as well proves this fact by the witness. It is true, perhaps, that this was not the proper way to prove the existence of a corporation, but the defendant made the proof, and it cannot be heard now to say that the proof was incompetent.
As to the second proposition, we think the learned counsel are correct. The record shows no negligence on the part of the defendant, its agents or servants in managing the train at the time of the injury complained of. We can well see why the trial court might hesitate in submitting this question to the jury, or even submit it at all. The evidence relied on, or at least the only evidence offered for the purpose of showing. negligence, was that the place where the cow was killed was at a point on the road where the en- , _ _ . 1 n 7. gmeer could have seen the cow tor a distance sufficient for him to have stopped the train and prevented the injury. This claim is clearly shown by the evidence, but there was a total failure on the part of the plaintiff to show when the cow went upon the track. The section-men testified that when the cars came by them, where they were at work, about one hundred and fifty yards from the place where the cow was run over, a whistle sounded the danger signal, and they looked up and saw the cow on the track. This was the first they had seen of her. The engineer testified that the train was within one hundred and fifty yards from the place where they struck the cow when she came on the track, and that he whistled for brakes, reversed his engine, and gave the alarm whistle for stock. The conductor in charge of the train testified that the signal for brakes was promptly responded to. Now this evidence was undisputed. What more could the train-men have done to prevent this injury?
It is also true that the train was running somewhat faster than the regular schedule time, but this fact alone is not sufficient to warrant the jury in finding defendant guilty of negligence, for the regulation in relation to the operation and running of freight trains is made by the railway company for its own convenience, and it has a right to run its trains at such rate of speed as to it seems advisable and its business demands.
There is one other question shown by the record we feel called upon to mention, although not complained of. That is the instructions of the court in withholding from the jury the question of demand provided for in paragraph 5206, Comp. Laws of 1885, and in substantially instructing the jury that before they could find for the plaintiff they must find that the injury complained of was caused by the negligence of the defendant. We think the evidence of a demand, as shown by the record, was sufficient to raise a question of fact, and ought to have been submitted to the jury; and as this question was not so submitted, and as the defendant has a right to have this question submitted and determined-by the jury, we cannot direct a judgment on the findings of fact as would otherwise be done by affirming the judgment.
It is recommended that the judgment of the court below be reversed.
By the Court: It is so ordered.
All the Justices concurring.
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Opinion by
Simpson, C.:
The precise question in the case is, whether the written instrument executed and acknowledged by Nannie E. Stoner, on the 27th day of December, 1881, considered in connection with the mortgage executed by her husband, Samuel A. Stoner, on the 12th day of November, 1881, fulfills the requirements of article 15, § 9 of the constitution, and amounts to and is the joint consent of husband and wife to the alienation. In this case the husband, without the knowledge or consent of the wife, executed a mortgage on the homestead, signed, or procured some one to sign, the name of the wife to the instrument creating the lien, and then fraudulently procured its acknowledgment by a notary public. Subsequently the notary, learning the facts and becoming uneasy for his OAvn safety, sought the wife at a time when the husband Avas not present, and, “explaining to her the nature of his business,” she by a Avritten instrument attempted to ratify Avhat her husband had done. Is this consent f Is it the joint consent of husband and Avife as contemplated by the constitution ?
' The homestead feature of the laws has always been regarded Avith peculiar favor by the courts of those states by which it has been enacted. It has been the theme of both forensic and judicial eloquence. It has been repeatedly declared in legislative halls and from the bench, that the policy of these laws is “liberal” and “benevolent,” “their object a noble one”; that “they are an enlightened public policy,” and “their provisions the most beneficent.” In the convention that framed the constitution of this state there was no one subject that was more carefully considered and more thoroughly discussed than the homestead provision. At least twenty-five pages of the published debates of that body are devoted to the discussion of this subject. In the various stages and phases of that discussion, among the many opinions and comments made on the section, as it was being perfected, and as finally adopted, the following expressions are selected as guides to the intention of its authors, to wit:
“The wife’s right to the actual control of the homestead.”
“The guarantee of a home to every member of the family.”
“A reckless or drunken husband should not have power to alienate the home of his family.”
“The protection of the family, and not the head of the family merely.”
“ To give permanency and value to the homestead by making its alienation difficult.”
“To put it out of the power of the husband or the misfortunes of trade to take away the homestead.”
“A home for the family, that Shylocks cannot reach.” “The woman, the wife and mother, shall have control of the home.”
“ There is no intention to exclude the woman, for that would destroy the object of a homestead.”
“ Neither the hand of the law nor all the uncertainties of life can eject the family from the possession of it.”
“ Gives every mother and child in the state a home to which they may retire and find shelter from the storms of life.”
This is the spirit in which the homestead provision was conceived, and these are the reasons for its adoption, and it must be read in the light, and construed in the spirit, of these declaratory statements of its framers. In the earliest adjudications of this court on questions arising under this homestead feature of our constitution, the same or similar expressions are used. In Morris v. Ward, 5 Kas. 239, Mr. Justice Valentine says:
“ The' homestead was not intended for the play and sport of capricious husbands merely, nor can it be made liable for his weaknesses or misfortunes. It was not established for the benefit of the husband alone, but for the benefit of the family and of society; to protect the family from destitution, and society from the danger of her citizens becoming paupers.”
In Helm v. Helm, 11 Kas. 19, Chief Justice Kingman says:
“The wife’s interest is an existing one. The occupation and enjoyment of the estate is secured to her against any act of her husband or of creditors without her consent. If her husband abandons her, that use remains to her and the family. With or without her husband, the law has set this property apart as her home.”
These citations are sufficient to show that both the convention that framed the constitution and the court whose prerogative it is to construe it, have unitedly declared its purposes and objects to be for “the protection and maintenance of the wife and children against the neglect and improvidence of the husband and father.”
This court, in the consideration of questions arising under this provision of the constitution and the statutory enactments in aid thereof and supplemental thereto, must give them a liberal construction, so that the purposes intended by the laws shall the better be advanced and secured. (Thomp. H. & Ex. p. 8, and authorities there cited.) These same considerations induce the courts to adopt a strict rule respecting their alienation, to the end that what is regarded so highly as to ■ be embodied in the organic law as the most beneficent legislation and the most enlightened public policy, is not to be lightly regarded and easily avoided by the parties for whose protection the legislation was adopted. Hence it is held that the homestead right can be barred only by complying strictly with the laws prescribing the mode of alienation. (Moore v. Titman, 33 Ill. 360; Kitchell v. Burgwin, 21 id. 45; Connor v. McMurray, 84 Mass. 202; Greenough v. Turner, 77 id. 332; Hoge v. Hollister, 2 Tenn. Ch. 606; Dickinson v. McLane, 57 N. H. 31.) To divest the homestead estate, the mode of conveyance prescribed by the law governing the alienation of such estates must be strictly pursued, is the rule generally adopted in all the states, in which such laws have been enacted, held more strictly in some than in others, and yet in all there must be a literal compliance with the provisions of the statutes in this behalf.
From all the adjudications upon this subject, the three following rules are deduced, and may fairly be considered as settled:
1. The object of the homestead law is to protect the family of the owner in the possession and enjoyment of the property.
2. That construction must be given such laws, which will best advance and secure their object.
3. To divest the homestead estate, there must be a literal compliance with the mode of alienation prescribed by the statute.
Applying these rules to the mortgage first executed by Stoner, and subsequently to its attempted ratification by Mrs. Stoner, the conclusion is irresistible that it was not done m compliance with the provisions or x x . the homestead law, and that it was violative both of the letter and the spirit of the constitution. The requirements of the organic law in this respectare plain and unmistakable: “The homestead shall not be alienated without the joint consent of husband and wife, when that relation exists.” The consent of the wife to the execution of this mortgage was not had before, or at the time of the attempted alienation on the 12th day of November. If she ever consented, it was long after its delivery, and at the time of the acknowledgment of the alleged ratification on the 27th of December.
Is this the act of “joint consent” as required? The usual and legal signification of the word consent, implies assent to some proposition submitted. lu cases of contract it means the “concurrence of wills.” Consent supposes a physical power to act, a moral power of acting, and a serious, determined and free use of these powers. In the very nature of things, consent to the alienation must precede the act of conveyance. The husband must have made a proposition to the wife, or the wife to the husband, or a purchaser to both, to alienate the homestead, and the mind of the husband and of the wife must have concurred, and they must have jointly consented to the execution of the conveyance, or the creation of the lien, both assenting and both signing the instrument before delivery.
“ It might be that a husband and wife, by two separate instruments, could alienate the homestead when it was intended by both that such instruments should operate together as a single instrument; for in such a case it might perhaps be said that the separate consent of each had such a connection with each other, that they might together be considered as thejoint consent of both.” (Valentine, J., in Ott v. Sprague, 27 Kas. 620.)
In such a case, where it clearly appears that there had been a previous consultation between husband and wife, and both, with full knowledge' of all the facts and circumstances, had consented to the alienation, and where there is an entire absence of fraud, intimidation or concealment of material facts from the wife or the husband, and where, from the temporary absence of either, or, being widely separated, and there being a necessity for prompt action to take advantage of a bargain conducive to the interests of both, under such and similar circumstances, an alienation of the homestead by separate instruments, but each containing a reference to the other, might be upheld; but the safer and better rule to observe, is to have the joint consent of the husband and wife evidenced by their signatures to the same instrument, at the same time and place, before the same officer, and in presence of each other. The word “joint” seems to have been used advisedly and with such a purpose, and to hold otherwise would be to ignore it in the construction of the constitutional provision, instead of giving to it the force and meaning it is naturally entitled to.
In Luther v. Drake, 21 Iowa, 92, on this question the court say:
“The point made by counsel is, that as the husband and wife did not concur in and sign the same conveyance, the homestead title did not pass, and the deed was of no validity under the statute. The question is not free from difficulty. The interests involved therein to property of untold value in the state, are too great to justify its determination until it necessarily arises; as at present advised, this court might not be united in its 'solution, and as the same can be disposed of upon other grounds, we prefer to leave it open for future consideration.”
In Dickinson v. McLane, 57 N. H. 31, the case being this:
“March 13,1862, John Dickinson, the plaintiff’s husband, mortgaged the premises to Z. K. Dickinson, releasing all his right to a homestead therein, but the plaintiff did not sign the deed. This mortgage was foreclosed December 16, 1864, and the defendant holds the title. March 28, 1863, the plaintiff by her separate deed, (her husband not joining therein,) quitclaimed to said Z. K. Dickinson, ‘all the right of homestead that she might or could be entitled to, in any event, or in any change of life or circumstances,’ in said premises.”
At this time, John Dickinson and the plaintiff had three minor children.
Smith, J., said:
“ There is nothing in the act of 1851 in relation to homesteads, or in any subsequent statutes, that shows any intention of the legislature that a married woman might release her right of homestead by a separate deed. Indeed, the language used implies that a release of homestead, to be valid, must be by the joint deed of the husband and wife. . . . Again, the natural construction of the language of the 6th section, ‘unless the wife join in the deed of conveyance,’ is that she join in the same deed he executes, and not by her separate deed. But aside from this, there is nothing in the act which shows that the legislature, in providing that the wife might join in the deed of conveyance, by her husband, of the homestead, intended that any different construction should be given to such provision than what the law, as it had been in force in this state up to that time, would permit her to do. From these views, it follows that the plaintiff never released her homestead in the premises set out in her bill, by any valid deed.”
Cushing, C. J.:
“The portion of the statute, which, according to my understanding, is to govern this matter, is as follows: ‘And no release or waiver of such exemption shall be valid unless made by deed executed by the husband and wife, with all the formalities required by law for the conveyance of real estate/ (Comp. Stats. 474, §1.) In the very teeth of this statute we are asked to hold that the homestead here has been released by the separate deeds of the husband and wife, executed during the life of the husband. The policy of the law has wisely provided that this most important right, this tabula e naufragio, this last plank from the shipwreck, shall not be lost unless the husband and wife lose their hold of it at the same time and by the same act. In some way, it is not material to us to inquire how, the wife has been induced to execute this deed alone; probably because the husband then refused to join in it. And it is proposed that- the first time a matter of this kind is brought to the notice of the court, the law should be judicially repealed. Why ? I am not able to see any reason for doing so, and I therefore think that the homestead of the plaintiff is not released.”
Ladd, J.:
“The separate deed of the husband and the sepai’ate deed of the wife, are alike ineffectual to pass the homestead right. By the plain terms of the statute, neither can have any effect upon it. It seems to follow that the separate deeds of both must be equally ineffectual. The statute created a new and somewhat peculiar estate — an inchoate right in which the wife and minor children, as well as the husband, have an interest. It provides the exact mode in which that right may be released or conveyed. ... It was doubtless thought necessary to guard thus carefully the mode of conveying away the right, in order to secure fully the beneficial purposes of the act. I do not think it is within the power of the court to hold that any mode of conveyance, different from that required by the act, is effectual, either by way of estoppel or otherwise. Our cases, where it has been held that a release by the wife of her right of dower, by a separate deed executed subse quently to the deed of her husband, cannot govern this case, because of the clear and unequivocal terms of the statute prescribing the only way in which the homestead right can be conveyed.”
In the case of Poole v. Gerrard, 6 Cal. 71, the case being this: Hiram Poole, the husband of the plaintiff, on the 15th of September, 1853, conveyed the homestead to the defendant for $3,500, by a deed in which his wife did not join, though it was made with her knowledge. Poole the next day left the country. The plaintiff wife, who was residing on the property under the impression that she had no legal rights to the homestead, conveyed her claim thereto to the defendant for $200, by a deed executed and acknowledged as if she were a feme sole, on the 28th day of September, 1853. She subsequently brought this action to recover possession of the homestead, and for rents, etc.
Heydenfelt, J.:
“The court below erred in deciding that the deed of the plaintiff (the wife) conveyed all her interest in the property. To make a valid sale of the homestead requires the joint deed of husband and wife. The husband must make the contract and the wife must assent to it, by an examination separate and apart from her husband. This is the mode pointed out by the statute, and it must be strictly pursued.”
The case of Sprague v. Ott, decided by this court and heretofore cited, was one in which the husband and wife had made separate conveyances of their homestead, but there was an interval of eight years between the execution of the deed of the husband and that of the wife, during all of which time the wife had been separated from the husband, and for the most of that time both had been absent from the homestead. It was held by the court, Mr. Justice Valentine delivering the opinion, that—
“ Where two separate and distinct instruments are executed, at two separate and distinct times, as in this case; where a long interval elapses after one is executed, before the other is executed, the interval in this case being over eight years; and where the two instruments are executed without any reference to each other, or without any intention that the two together may be considered as one single and united instrument, we think that one cannot make the other valid.”
In Morris v. Ward, 5 Kas. 239, it is held that a mortgage of the homestead executed by the husband alone is void.
In Dollman v. Harris, 5 Kas. 597, it is held that a mortgage of a homestead, executed by the wife alone, is void, notwithstanding the legal title to the same may be in her and not in her husband. How then can it be said that two void instruments, one executed by the husband and the other by the wife, mortgaging the_ homestead, can have the effect to create a lien ? They are void for all purposes, whether considered separately or taken together.
Counsel for defendant in error refers to the case of Spafford v. Warren, 47 Iowa, 47, and claims that case as decisive of this. We do not think so. In that case the wife, having previously been consulted, consented to the execution of the mortgage, and she and her husband, in presence of each other, signed and at the same time acknowledged the instrument. The name of the grantee and the description of the property were left blank, and the writing was left in the possession of the husband, to be used in accordance with the understanding between the husband and wife, to secure a creditor of the husband. The wife left home upon a visit, and during her absence the husband discovered that the blank instrument executed by her aud himself was a deed absolute. He filled the proper blank with the description of the property which he and his wife intended to incumber by the mortgage. A short time thereafter, having bargained a sale of the homestead to defendant Warren, he filled the other blank in the instrument-executed as aforesaid by the plaintiff, with the name of the purchaser Warren. On the return of the wife, her husband informed her of the uses to which the instrument executed by them had been put, and of the sale and conveyance of the homestead by means of that instrument. With this knowledge she consulted lawyers, who advised her that her rights in the property had not been divested by the conveyance. With this knowledge and advice, she and her husband occupied the house until the March following the conveyance; and while so occupying, it was offered for sale by the purchaser, and Warren took one person with whom he was negotiating with that view, to see it. They were met by the wife, who knew the object of the visit, and she made no claim to the property. Shortly after this, the husband and wife removed from the property and a tenant of Warren went into the possession thereof. More than three years after Warren purchased the property, and nearly three years after plaintiff removed from it, she commenced an action in chancery to set aside the conveyance. In the meantime, Warren had paid off the mortgage resting upon the property at the time of its purchase from he'r and her husband, had discharged a debt of the husband’s which he had assumed to pay as a part consideration for the purchase, had made certain improvements upon the house, and had executed a mortgage on the property to one Stevens. The court held on this state of facts, that “the law raises a presumption that she has assented to the validity of her deed, and thus cured its infirmities by ratification.” This case may have been properly decided on the ground that the wife, with the full knowledge of her rights as advised by counsel, and of the action of • her husband as communicated by him, voluntarily surrendered her property, made no objection to the defendant’s title when he offered to sell it in her presence, permitted him quietly to hold possession of it for more than three years before she commenced' her action, and knew that he was making improvements and discharging indebtedness resting on it. All these facts may have been sufficient to estop her from claiming an interest in it. She kept silent when she ought to have spoken. I do not understand that these acts of hers, or rather absence of protest, complaint, or action, ratify her conveyance; I can understand how by these things she can be estopped from setting up or claiming any interest in the property. The learned judge who delivered the opinion used estoppel and ratification interchangeably, and as if they are synonymous and of the same legal signification. I do not so regard them. Applying the most approved definition of estoppel, (that of Bigelow,) to the facts in the Iowa case, and the result would be that her acts were such in respect to the property, that it would be a fraud on the purchaser to permit her to impair or controvert them. The character of estoppel is given to what would otherwise be a mere matter of evidence. Estoppel may be created by silence or non-action, while ratification requires some positive, assertive act; and it does not make any difference whether the ratification is express or implied, for if implied, it is from the acts of the individual respecting the subject-matter of the controversy.
The case at bar is one in which the contention of the counsel for the defendant in error is, that the wife ratified the execution of the mortgage in her name by the husband. The case of Spafford v. Warren is one in which the wife placed herself in such a position by her non-action as to be estopped. In this case there is not a single element of the doctrine of estoppel to be found. It may be that in view of the decision of the supreme court of Iowa in the case of Stinson v. Richardson, 44 Iowa, 373, it was necessary for the court in Spafford v. Warren to deal liberally with the doctrine of ratification. In the first case it says:
“ It is contended that the plaintiff [the wife] assented to and even advised the sale, and that she is now estopped from setting up her homestead rights in the property, if she ever had any. But if we should hold that she relinquished her homestead rights by verbally consenting to the assignment, or estopped herself by such consent, we should nullify an express provision of the statute. Whether she Jmeio it was a nullity or not, there was nothing she could do or say about it, short of concurring in and signing the same joint instrument with her husband, that could give it any validity.”
It would seem that this comes very close to saying that a married woman could not be estopped by anything she could say or do, (except joining in the conveyance,) from claiming her interest in the homestead.
In this state, the question of estoppel is an open one in this class of cases. In the case of Helm v. Helm, supra, Chief Justice Kingman, in commenting on the facts of that case, says:
“ It may well be questioned whether an innocent purchaser would not hold the land against her who had stood silent while he purchased for a full consideration the land which the record showed belonged to William Helm.”
No opinion is expressed now with reference to it, there being no facts in this case that invoke it; we will meet it when it comes.
There is another reason why this attempted ratification is not effectual to make it so:
“It must be shown that there was previous knowledge on the part of the principal of all the material facts and circumstances attending the act to be ratified, and if the principal assent to the act while ignorant of the facts attending it, he may disaffirm it when informed of such facts. Indeed, in the very nature of things this must be true. The effect of ratification is to create a contract; but a contract implies assent, and how can there be assent without knowledge?” (National Bank v. Drake, 29 Kas. 311.)
There is no finding or conclusion of fact that the wife was made acquainted with all the material facts attending the execution of the mortgage by her husband. The court below in the fourth conclusion of facts says that the notary who took the acknowledgment of the mortgage, being uneasy about his position in the premises, procured another notary to accompany him to Lancaster to see her about it, on the 27th of December. Samuel A. Stoner was not at home, and they found the wife at home alone. The other notary explained to her “the nature of their business,” and told her that she had a right to do as she pleased, but that if her husband had forged her name he was liable to get into trouble. She expressed her willingness to ratify what had been done, and she signed and executed the instrument. This does not make the showing of knowledge required by law. A notary who had deliberately violated a criminal statute of the state went to the wife, whose name had been forged to a mortgage by her husband and her acknowledgment certified to by this notary, and ex plained to her the nature of his business, told her it is true that she could do as she pleased, but coupled it with a statement that if her husband had forged her name he was liable to get into trouble. The nature of the notary’s business was to save himself from trouble. He was not a party to the contract; he did not know all the circumstances attending it; he did not visit the wife in good faith to impart knowledge of all the material facts and circumstances of the transaction; he was there to shield himself from the consequences of a criminal act, and not as a party to the contract. To hold such a ratification effectual would put it in the power of every reckless and improvident husband in the state to render nugatory a plain constitutional provision. Such a husband could sign his wife’s name to a mortgage of the homestead and have it certified as acknowledged, and probably in every instance the wife would ratify rather than see her husband suffer. “To constitute a ratification, it must be voluntary, deliberate and intelligent; and the party must know that without, he would not be bound.”
The conclusions of fact respecting the execution of this ratifying instrument by Mrs. Stoner do not authorize the conclusion of law that the mortgage as ratified is valid. We will not stop to discuss the question as to whether the act of Stoner in signing the name of his wife to the' mortgage, or procuring some other person to do so, is a void or a voidable act, and if void not subject to ratification. While the writer of this opinion has a very decided conviction on the question, its solution is not absolutely necessary to the disposition of the case in this court. There is, however, another most important and serious reason why this attempted ratification is not effectual. A criminal act is not capable of ratification. It is a conclusion of fact'in this case, that Nannie E. Stoner never signed the note.and mortgage, and that her name was probably signed to them by her husband. Whoever did' sign her name was probably guilty of a violation of the first subdivision of §114 of the act regulating crimes and punishments, (Comp. Laws of 1885, ch. 31,
§114,) and rendered himself liable to be charged with the crime of forgery in the first degre. The notary, C. F. Goodrich, certified the acknowledgment of the execution of the mortgage by Mrs. Stoner, when in truth no such acknowledgment was made, and this was in violation of the first subdivision of § 119 of said act, (Comp. Laws of 1885, ch. 31, § 119,) and he rendered himself liable to be charged with the crime of forgery in the second degree. We will not temporize or refine with this question. It may be said that the wife should be permitted to ratify the mortgage so far as the innocent mortgagee is concerned, he having no knowledge of the fraud; but the answer to this is, that both the signatures to and the certificate of the execution and acknowledgment of the mortgage are criminal acts, and cannot be ratified for any purposes. It is always the case that some innocent persons suffer by reason of the commission of a criminal act, for no good results can flow from it, nor any rights be acquired by it or in consequence of it. We cannot conceive of any state of facts or any chain of circumstances, except it possibly be by estoppel, whereby any person can acquire any interest, estate or lien upon real estate by an instrument to which signatures are forged, and a false certificate of acknowledgment is attached.
This question has been considered by the courts of other states; and probably the most thoroughly considered case is that of Workman v. Wright, 33 Ohio St. 405, the best report of which is found in 31 American Reports, 546, and foot-note in which all the authorities pro and con are cited. We rest our views upon these two propositions: one is that, there having been no pretended authority for the execution of the mortgage in the name of the wife by the husband, the doctrine of ratification does not apply; the other is that the written instrument executed by Mrs. Stoner on the 27th day of December, was really a promise given for the purpose, and in consideration of avoiding a prosecution, and was therefore void as against public policy.
The mortgage of the defendant in error, being void, any party to the suit can take advantage of it, and hence the plaintiffs in error, whose lien by the r , , i t t judgment of the court below ivas subordinated to that of the mortgage, can properly raise the question of its validity.
“In an action to foreclose a senior mortgage «executed by the husband, on answer by a junior mortgagee, alleging that the mortgaged property was the homestead of the mortgagor when the senior mortgage was executed, and that the wife did not join in its execution, constitutes a good defense to the action, even when the mortgagor makes no defense.” (Alley v. Bay, 9 Iowa, 509; Dye v. Mann, 10 Mich. 291.)
It is recommended that this cause be remanded to the district court, with instructions to so modify its judgment as to declare the mortgage of the defendant in error void, and that it is not a lien on the premises.
By the Court: It is so ordered.
All the Justices concurring.
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Opinion by
Simpson, C.:
We shall consider only one of the numerous questions raised on this record. The one urged with great vigor and persistency by counsel for plaintiff in error, as to the effect of the appointment of a receiver for the Leavenworth, Lawrence & Galveston Railroad Company, is not presented in such a manner that it can be carefully considered. The only reference to it in the record is in the fourth paragraph of the amended petition in the case of W. L. Richards v. The L. L. & G. Rid. Co., and B. S. Henning, receiver, and this does not allege by what court, in what action, or for what purpose he was appointed. Whether he qualified, and took charge of all or any of the property of the company, whether the land in controversy was ever in his custody, or what disposition was made of it, is not developed. Under this state of the record we shall not undertake to pass upon the question of the validity of the title of Richards, derived by a judicial sale on his judgment against the railroad company.
The general rule is, that a tenant cannot dispute the title of his landlord as long as such tenant holds possession derived originally from the landlord. (Brenner v. Bigelow, 8 Kas. 496.) The record shows that the defendant, C. K. Mills, rented the land in controversy from the plaintiff in error, for ' the rent years of 1882, 1883 and 1884, at an annual rent of $50; that the rent for the years 1882 and 1883 was paid. On the 10th day of November, 1884, the plaintiff in error commenced this action before a justice of the peace to recover the sum of $50 for rent for the year 1884, and the sum of $100 as the value of a building removed from the land by the defendant. By the terms of the lease the annual rent was to be paid in time for the payment of taxes on the land. The defendant, C. K. Mills, made a motion in the justice’s court that James Mills be brought in as a co-defendant in the action, for the reason that he claimed to own the land and be entitled to the rent for .the year 1884. This motion was sustained over the objection of the plaintiff in error, and the justice certified the case to the district court because it appeared that the title to the land was involved in the controversy. In the district court an amended petition was filed, and the defendants jointly filed an answer, in which it is alleged that the land was purchased by James Mills on the 11th day of February, 1884, from Richards and wife, the then owners, and was rented by James Mills to C. K. Mills, for the rent year commencing on the 1st day of March, 1884, and ending on the 1st day of March, 1885, for $50 per year; that James Mills sold the building described in the plaintiff’s amended petition to C. K. Mills, and delivered the same to him.
The case was tried at the March term, 1885, a jury being waived. There was a general finding and a judgment for the defendants. James Mills is the son of C. K. Mills, the other defendant, and at the time of the alleged purchase by him of the land, was living and rented a farm in the state of Missouri. The preliminary negotiations of the purchase by Mills from Richards were conducted by C. K. Mills, the father. The mother of James Mills lent him what money was paid at the date of the purchase, and his father and mother executed their promissory note for the remainder due. Even the date of this purchase is doubtful under the evidence. The deed from Richards and wife to James Mills is dated February, 1885, but it is claimed that this deed was executed in lieu of one made and delivered some time previous, in which there was a mis-description of the land. C. K. Mills testified that he had paid his son $50 for the rent of the land for the rent year of 1884, but he could not tell when and where he paid. He did not know that the plaintiff in error was his landlord, although that relation existed for at least three years. He did not proclaim to the agent of the plaintiff in error, who served on him a notice to quit in the fall of 1884, that he was renting from his son James. A man who desired to rent the land from plaintiff in error, in January, 1884, if he could get possession of it, had a conversation with C. K. Mills about possession, in which Mills declared that he had received no notice to leave, and that he would retain it for another year. He seems never to have disputed the title of his landlord until after this action was commenced. There is not a particle of testimony in the record tending to make any showing that brings C. K. Mills within the exception to the rule that a tenant cannot dispute the title of his landlord.
We recommend that the judgment of the district court be reversed, and that the same be remanded with instructions to grant a new trial.
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.:
On June 1,1878, a judgment was recovered in the district court of Shawnee county by the Citizens’ Bank against H. K. Tefft, E. Tefft and D. B. Burdick, for $1,595.95, together with the costs of the action. This judgment was never satisfied, nor was any execution ever issued upon the same. Ou May 28, 1884, a motion was filed by the Citizens’ Bank, asking that the judgment be revived. A notice was served the same day on H. K. Tefft, notifying him that the hearing of the motion to revive the judgment would be brought on for hearing before the court on the 28th day of June, or as soon thereafter as opportunity was given. On the 6th day of August, 1884, the court, over the objection of H. K. Tefft, made an order reviving the judgment. He brings the present proceeding to reverse that order, contending that it was 'beyond the power of the court to revive the judgment at that time without his consent. In § 433 of the code it is enacted that—
“An order to revive an action against the representatives or successor of a defendant shall not be made without the consent of such representatives or successor unless in one year from the time it could have been first made.”
And by §440 it is provided that- — -
“If a judgment become dormant, it may be revived in the same manner as is prescribed for reviving actions before judgment.”
Already the court has held that time is a part.of the manner of revivor, and therefore that the limitations prescribed by § 433 apply to proceedings for the revival of a dormant judgment. (Scroggs v. Tutt, 23 Kas. 189; Angell v. Martin, 24 id. 334.) That section is explicit in its terms, and plainly limits the time within which an order of revivor may be made without consent, to one year after it could have been first made. It will be observed that more than six years and two months elapsed after the rendition of the judgment and before the order of revivor was made. The judgment became dormant on June 1, 1883, aud the attempted revivor was not made for more than fourteen months after that date. The motion to revive was filed and notice given on May 28,1884, three days prior to the expiration of the year, but the notice specifically stated that the order would be applied for on June 28, 1884. The filing of the motion and the giving of the notice are not sufficient to bring the case within the limitation. The point of limitation prescribed by the statute is the making of the order, and not the commencement of the proceedings to obtain the order. One year is given within which the judgment may be revived. The procedure is simple and the facilities are ample to obtain the order, as it may be obtained upon motion, a notice of which is to be served upon the adverse party in the same manner as a summons is served, and returned within the same time, and the power to revive the judgment is conferred upon the judge at chambers as well as upon, the court in term-time. The party should at least commence proceedings in sufficient time to give the required notice to the adverse party of the hearing within the year, and the time fixed in the notice when the application is to be made should be within that period. It is unnecessary to consider what would be the result if the case had been noticed for hearing within the time, and by action of the court or through no fault of the applicant it was continued and extended beyond the year. Eor here only three days remained of the year when the notice was given, and the time fixed upon by the bank in its notice of when the application would be made was twenty-seven days after thé expiration of the year, and the application and order were not actually made until more than two months beyond the statutory period had elapsed. At that time the court had no power to revive the judgment. ■ (Myers v. Kothman, 29 Kas. 19; Gruble v. Wood, 27 id. 535; Angell v. Martin, 24 id. 334; Scroggs v. Tutt, 23 id. 189.)
The order of the district court will be reversed.
All the Justices concurring.
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The opinion of the court was delivered by
Johnston, J.:
The information in substance charged that James M. Evans, in Neosho county, on purpose and with malice aforethought, did shoot at Scott V. Irwin with a loaded pistol, with the felonious intent to maim, kill and murder said Irwin. A trial was had on November 16, 1886, and the jury returned a verdict that the defendant was—
“Guilty of endangering the life of Scott V. Irwin by the act of him, the said defendant, under circumstances which would have constituted manslaughter in the fourth degree if the death of said Irwin had ensued from the act of said defendant.”
Upon this verdict, the court sentenced the defendant to confinement in the penitentiary at hard labor for a term of two years; from which conviction and sentence he appeals.
He complains of the charge of the court. The court, in its instructions, told the jury that the information not only charged an assault with intent to kill and murder, but that other offenses, of a lower grade, were included therein, which were defined; and among other directions the court advised the jury, that they might—
“Consider the evidence for the purpose of determining whether or not the life of said Irwin was endangered by the act, procurement and culpable negligence of the defendant, or whether, if death had ensued from the alleged act of said defendant toward said Irwin, it would have constituted manslaughter in the fourth degree.”
The appellant contends that there was no testimony of culpable negligence upon which to found such an instruction, nor to prove any offense of a lower degree than the one specifically charged in the information. The shooting at the time and place charged is admitted. The testimony for the state tends strongly to show that the appellant was actuated by malice, and shot at Irwin with the intent to kill him. The appellant was riding along the highway, and passed a field in which Irwin, the complaining witness, was plowing. Irwin testifies that appellant stopped his horse when opposite to Irwin and only ninety yards distant, and with a threatening expression drew and discharged a revolver. The witness further says: “ I heard the whistling of the ball, and felt the full concussion of it in my face and in my hat-brim.” Robert Irwin, a brother of the-complaining witness, was present when the shooting occurred, and about twenty feet from his brother, and he says that he saw appellant ride up and stop upon the road opposite where they were at work in the field; heard him address an offensive remark to Scott Y. Irwin, and then saw him draw a revolver and aim and shoot at Scott V. Irwin; and this witness states that the bullet from the revolver came so close to them that he heard it whistle; and the appellant-then started his horse off on the gallop. Evans was a witness in his own behalf, and his testimony differed materially from that offered by the state. He admitted firing off the revolver, but says he did not aim or shoot at Irwin. Instead of shooting at Irwin, he says that he fired into the ground when he was about one hundred yards away from Irwin, for the purpose of stirring up the horse he was riding. We think this testimony is sufficient to authorize the court in advising the jury with reference to some of the lower grades of the offense charged, and in giviug the instruction complained of. As was said in The State v. Mize, ante, p. 188; same case, 13 Pac. Rep. 1: “Where there is even slight evidence that the offense committed may have been of a lower degree than the one charged, it is the duty of the court to give the law of such inferior offenses.” (IBish. Cr. Proc., §980.) The witnesses for the prosecution say that Evans aimed at Irwin, while Evans says that he aimed at the ground; but it appears that the bullet passed very close to Irwin, and the jury seem to have believed the statement of appellant that he did not aim at Irwin, nor shoot with the intent to kill him. But they seem to have credited the testimony of the state with respect to the location of the parties, the manner in which the revolver was held by Evans when it was discharged, and the proximity and force with which the bullet passed Irwin. Pursuing this theory, the testimony all taken together affords a basis for the result reached by the jury, that Irwin’s life was endangered by the culpable act of Evans. Although the testimony was close upon some of the points in the case, we. regard it as sufficient to support the verdict.
The judgment of the district court-will be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Wells, J.:
On September 24, 1898, the Easterly Harvesting Machine Company caused an execution to issue out of the district court of Shawnee county upon a judgment in its favor against J. E. Pratt, and the defendant in error, as .sheriff of said county, by his under-sheriff, W. H. Williams, levied the same upon certain live stock and corn growing in the field. A forthcoming or redelivery bond was given, sighed by said J. E. Pratt and his wife, Amanda J. Pratt, and the property left where it was when levied on. A notice was duly published for the sale on October 12, 1898, of the property levied on, and notice given the signers of the bond. At the time advertised for the sale a demand for said property is claimed to have been made and said demand refused. Suit was afterward brought by the sheriff on the bond before a justice of the peace, judgment thereon obtained, an appeal taken to the district court, a trial had to a jury, and a judgment again rendered in favor of the plaintiff. To reverse this the case is brought to this court.
The first question is : ' Did the bill of particulars upon which the case was tried state facts sufficient to constitute a cause of action ? The bill of particulars shows that the judgment was rendered by the justice of the peace on September 1, 1890, a transcript thereof filed in the district court September 24, 1898, and on the same day the execution was issued. It is therefore claimed that the judgment had been dormant for a long time before the transcript was taken to the dis- - trict court, as appears from the bill of particulars, and therefore no evidence should have been admitted. This was an action for a recovery under the conditions of a' bond, and if there was no valid judgment upon which the execution could have been legally issued it would affect the bond only as an absence of consideration. Under our statute a contract in writing imports a consideration, and the lack of consideration in such cases is an affirmative defense. See section 6, chapter 114, General Statutes of 1897 (Gen. Stat. 1899, § 1146); Waynick v. Richmond, 11 Kan. 488; Roller v. Ott, 14 id. 609. There was no error in overruling the objection to the introduction of evidence.
"Was the sheriff’s return properly admitted in evidence? We think it was. It was a record required by law to be made, and it does not seem to be any more specific than the facts as claimed by the plaintiff below would seem to require.
The remaining assignments of error can all be considered together, as they each involve the validity of the main theory of the defense. Is it a defense to an action upon a redelivery bond to show that the sheriff agreed to a fiction that he should be considered to be in possession of property of which he was not in possession, so as to relieve the obligors from liability upon their bond ? This seems to us to be the only question in the case.
If these plaintiffs in error were liable upon the bond, it was their duty to deliver the property to the sheriff upon demand, and it was not the duty of the sheriff to hunt up the property and take possession of it without their consent. That they understood that a demand was being made upon them therefor, there can be no question. We cannot see that the pretended replevin suit, in which the property was attempted to be constructively delivered by a deputy who did not have the same to a person who had no authority to take it, cuts any figure in this case, so we come back to the question : Were the fictitious changes of possession of the property alleged and attempted to be proven by these plaintiffs in error a valid defense to an action upon the bond? We think not. The law makes it the duty of the sheriff to take the possession of the property levied on unless a forthcoming bond is given him. His powers and duties are fixed by law and he has no right or authority in the matter except such as is given him by the law, and his acquiesence in the vague theories of the plaintiffs in error could not defeat the rights of the judgment creditor. As bearing somewhat on the question at issue, see Peterson v. Woollen, 48 Kan. 770, 30 Pac. 128. The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Schoonover, J:
On May 22, 1886, the Osage Carbon Company, a corporation doing business under the laws of Kansas, entered into a written contract by which it agreed to sell and convey to Samuel Marshall, the defendant in error herein, certain real estate in Osage county. Marshall made a cash payment upon the land of $545, and agreed to pay the balance of the purchase-price, $2160, with accruing interest, in five instalments, the last instalment being due May 22, 1891. The contract contained, among others, the following provisions:
“And it is hereby agreed and covenanted by the parties hereto, that time and punctuality are material and essential ingredients in the contract. And in case the third party shall fail to make the payments aforesaid, and each of them, punctually, and upon the strict terms and times herein limited, and likewise to perform and complete all and each of his agreements and stipulations aforesaid strictly and literally, without any failure or default, including the prompt payment of all taxes and assessments upon said land before the same shall become delinquent according to law, then this contract, so far as it may bind said party of the first part, shall become utterly null and void, and all rights and interests hereby created or then existing in favor of the third party or derived from him shall utterly cease and determine, and the right of possession and all equitable and legal interests in the premises hereby contracted shall revert to and revest in said party of the first part, without any declaration of forfeiture or act of reentry, or any other act of said party of the first part to be performed, and without any right of said third party to reclamation or compensation for moneys paid or services performed or improvements made, as absolutely, fully and perfectly as if this contract had never been made.
' “And said party of the first part, its successors or assigns, shall have the right, immediately upon the failure of the party of the third part to comply with the stipulations of this contract, including the payment of all taxes before the same shall become delinquent, to enter upon the land aforesaid and to take immediate possession thereof, together with the improvements and appurtenances thereto belonging. And the said party of the third part covenants and agrees that he will surrender unto the said Osage Carbon Company the said lands and appurtenances, without delay or hindrance, and no court shall relieve the party of the third part from a failure to comply strictly and literally with this contract.
“In case the third party, his legal representatives or assigns, shall pay the several sums of money aforesaid punctually and at the times above limited, and shall strictly and literally perform all and singular his agreements and stipulations aforesaid after their true tenor and intent, including the prompt payment of all taxes and assessments upon the said land before the same shall become delinquent according to law, then the said trustee shall release and discharge the said land from any and all encumbrances created by the said deed of trust, and the said first party shall, upon surrender of this contract, execute and de.liver to the said party of the third part, his heirs or assigns, a proper deed for the said premises, conveying the same absolutely in fee simple, with the ordinary covenants of warranty.”
Marshall entered into possession of and occupied the land and made some substantial improvements upon it. In March, 1894, he leased the premises for a term of one year-to Samuel Brentnall, plaintiff in error, who took possession of and occupied the same.
Marshall failed to pay all the instalments as provided by the terms of the contract, and in December, 1894, the Osage Carbon Company canceled the contract. Marshall did not consent to such cancelation otherwise than by the terms of the contract itself.
On January 18, 1895, the Osage Carbon Company executed a written lease of the premises to plaintiff in error Brentnall, who continued in possession of the land until March 1, 1896, claiming, however, to hold possession of the premises from January 18, 1895, to March 1, 1896, under and by virtue of the lease executed to him by the Osage Carbon Company.
Marshall brought suit against Brentnall before a justice of the peace of Osage county to recover $200 as rent for the premises for one year, from March 1, 1895, to March 1, 1896, and succeeded in obtaining a judgment in his favor. The case was then taken on appeal to the district court of Osage county, where a judgment was again rendered in Marshall’s favor. Brentnall brings the case here for review.
Plaintiff in error contends that as this action was founded upon a written lease of the land, and the proof showed that the tenant was never put in possession of the land and never occupied it, there was, therefore, no right of recovery. Both the lease upon which the action is founded and plaintiff’s petition described the land as being situated in township 17, Osage county, Kansas, while the proof showed that the land was situated in township 16, Osage county, Kansas.
We think that the record clearly shows that the case was tried upon the theory that the suit was to recover rent for the use and occupancy of land situated in township 16, Osage county, Kansas. The case was tried, in part, upon an agreed statement of facts. It appears from this statement that Brentnall actually leased the southwest quarter of section 34, in township 16, Osage county, and that under his lease he went into possession of the land and occupied it for more than two years, but that for the last year he paid no rent to Marshall, claiming to hold the land during that year under a lease from the Osage Carboa Company. If, therefore, the Osage Carbon Company was not, and Marshall was, entitled to the possession of the land during the last year of Brentnall's tenancy, it is clear that Marshall has a cause of action against Brentnall, and, this being true, the variance between the pleading and proof was not prejudicial to Brentnall’s rights.
In the case of Jung v. Liebert, 44 Kan. 304, 24 Pac. 474, the court held :
‘ ‘ Where there is a variance between the allegations of a bill of particulars and the facts proved and specifically found by the jury on the trial, yet if it be a case where an amendment to a bill of particulars ought to be allowed, to conform it to the facts proved and found, the judgment in favor of the plaintiff will not be reversed on account of the variance, if no substantial rights of the defendant have been prejudiced.”
Continuing, the court says :
“Though no formal amendment was made or requested in the trial court, we think, as Mrs. Liebert was clearly entitled to her railroad fare or expense, and as the defendant was notified upon the trial of her intention to claim the same, we may properly treat the case as if an amendment to the bill of particulars, to accord with the special findings of the jury, was in fact made. Therefore, we hold that no substantial rights of the defendant have been prejudiced. An account or bill of particulars filed with a justice of the peace is not usually framed with much care or nicety, and the strict rules applicable to the construction of pleadings are not to control such, accounts or claims. Morally and legally the plaintiff below is entitled to the amount she recovered, and this court ought not, on account of amere technicality, which does not affect the substantial rights of the parties, to set the judgment aside.”
As we have already remarked, it is clear from the record that the case was tried upon the theory that this was an action to recover rent for the use and occupancy of land in township 16, Osage county. We think, also, that the record shows that the defense relied upon was that Marshall, by reason of his failure to pay the instalments as provided by the terms of the contract of sale entered into between himself and the Osage Carbon Company, had forfeited his right to the possession of the land, and that he (Brentnall) had, therefore, a legal right to recognize the Osage Carbon Company as his landlord.
So far as the record shows, Marshall never paid any of the instalments named in the contract. More than three and one-half years elapsed from the time the last instalment was due before the Osage Carbon Company canceled the contract — how it was canceled the record does not disclose. It is not shown that any notice of such cancelation was ever given to Marshall; that the company tendered to Marshall a deed to the land, with a demand for performance on his part, or did any act which indicated an intention to terminate the relation existing between it and Marshall prior to the time of the execution of the lease to Brentnall.
On the part of plaintiff in error, it is contended that Marshall, by reason of his failure to pay the instalments as provided by the terms of the contract of sale, had forfeited, absolutely, all his interest in the land, including the right of possession. On the part of defendant in error, it is contended that the Osage Car bon Company, by its delay in attempting to regain possession of the land after Marshall had made default in the payment of the instalments, waived the provisions of the contract as to time and punctuality, and that no act on its part would, therefore, be binding on Marshall, without his consent, unless the company had fully complied with the terms of the agreement and tendered to him a deed. In the case of Soper v. Gabe, 55 Kan. 646, 41 Pac. 969, the supreme court held that
“Where, by the terms of a contract for the sale and conveyance of land, the purchase-price is made payable in instalments, and the conveyance is to be made upon the payment of the last instalment, and where default is made by the purchasers in the payment, and no action is brought by the vendors to enforce the contract until after the maturity of the last instalment, the obligations of the parties to the contract are mutual and dependent, and the vendors cannot maintain an action to enforce the contract specifically or to recover any part of the purchase-money until they make or tender a conveyance of the land.”
In this case, the terms of the contract providing for a forfeiture in case of failure to make prompt payment of instalments ■ when due, as well as the agreement to make conveyance of the land upon payment of all instalments, etc., was, in effect, identical with the provisions of the contract in the case at bar. In its opinion, the court said :
“The obligations of the contract are mutual and dependent, and before one party can enforce performance it must appear that he is not himself in default. The Gabes might have enforced the collection of all the instalments preceding the last one without having tendered a conveyance of the property sold, but as no steps were taken to collect the several instalments until after the last one was due, a single cause of ac tion exists for the collection of the purchase-money, and payment cannot be compelled until they have complied or tendered compliance with the obligations resting upon them.”
The court cited the opinion in Iles v. Elledge, 18 Kan. 296, a somewhat similar case, wherein it was held that
‘ ‘AH parties to the papers must perform at the same time, neither being under any obligations to trust the other. As it appears that Elledge has neither delivered nor tendered a deed, he cannot maintain an action for the purchase-money embraced in the note sued on.”
Applying the rule stated in these cases to the facts in the case at bar, we hold that before the Osage Carbon Company could place Marshall in default it must have tendered to him a deed to the land.
It is true that, upon the failure of Marshall to pay any of the instalments preceding the last, it might have canceled the contract and recovered possession of the land without any offer on its part to perform, and, as Marshall’s right of possession would have been terminated absolutely, it is possible that Brentnall might legally have recognized the Osage Carbon Company as his landlord. But as the company delayed action until long after the last instalment became due, it was then as much its duty to tender a deed as it was Marshall’s duty to tender payment; for, as was said in the case of Soper v. Gabe, supra, after the last payment became due, the terms of the contract were mutual and dependent. If, then, the Osage Carbon Company could not put Marshall in default save by an offer to perform, it follows that the right of possession was in Marshall during the year that Brentnall claimed to hold the land under a lease from the Osage Carbon Company and Marshall was entitled to rent for that time. Under the circumstances, the well-settled principle that the tenant cannot dispute his landlord’s title would apply.
No error appearing in the record, the judgment of the district court will be affirmed.
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